Adjudications.

BY the Act of Parliament, upon Comprisings or Adjudications for a Sum of Money, The Superior may be forced to enter, or to pay the Debt, Quaeritur, If he may be urged to enter, upon Adjudications proceeding upon Dispositions, in prejudice of the Superior, by obtruding a Vassal; seing in that case he has not Retractum Feudalem?

A Vassal having made a Disposition, or granted a Bond for Disponing his Lands, will the Superiour be obliged to Infeft upon Adjudication? Ratio dubitandi. That the Superior, by the Act of Parliament, is obliged only to Infeft Comprysers, or Adjudgers being Lawful Creditors, and he has Retractum Feudalem paying the Creditor: And the Debitor has Retra­ctum Legalem, which is not in the case of Dispositions.

[Page 2]If Lands should be Adjudged from the Appearand Heir of Ward-lands, Whether will the Appearand Heirs Marriage be due, and affect the saids Lands in prejudice of the Adjudgers? Answer. Albeit that it appears, that Marriage should be of the nature of Ward, which is not Real as to singular Successors; the Superior having only Right to the Duties, which he may uplift; And ex stilo of a novo damus, Marriage is not reckoned amongst real Incumbrances; Yet in the case of Thornidikes, the Lords has found Marriage Real.

Whether, as Reversions that are comprysed need no Intimation, In Respect of the Series of Solemnities that is in Comprysings, By which they become so publick, that they are presumed to be known to the Per­son Lyable, If there be not Eadem Ratio in Adjudications, being now of the nature of ordinary Decreets?

If at least there be a difference betwixt Bonds and Reversions; So that, as to Bonds, when there is a Competition of Two Comprysers, The Posterior intimating should be preferred?

If Superiors, who are Subjects only, will be obliged to receive Adjudg­ers to be their Vassals, having Adjudged not for Debt, but upon Dis­positions? And if the King be in another Condition?

If, upon a Disposition, The Receiver should obtain Sentence for Dam­nage and Interest against the Disponer his Heir for Implement, If in that case, the Adjudger ought to be received? Ratio Dubitandi, That Pri­mordium inspiciendum est; and upon the matter there was not a Debt ab initio?

If a Reduction Ex capite Minoritatis, not being intented at the in­stance of the Minor, Jus Actionis may be Adjudged?

An Heretable Bond being Adjudged, Though there be no necessity of Intimation, because Adjudications and Comprysings are publick Rights upon Record. Quaeritur, If the Debitor, paying bona fide to the person, to whom he granted the Bond, will be in Tuto, the said Adjudi­cation not being intimate? Answer. It is thought, that he should be in Tuto, seing Intimations are required for Two Effects. Viz. Either to compleat the Right be Assignation, or to certiorate the Debitor that he make payment to no other person: And though an Adjudication be sufficient, as to the said first Effect, an Intimation is necessary as to the other, unless the Debitor be called in the Adjudication.

Advocation by the Justices.

IF the Justices may Advocate to themselves Criminal Processes, depending before Lords of Regality, or other Judges? It is thought, The Lords of Justiciary cannot Advocat: The taking or Advocating Processes, from a Competent Judicatory, upon Reasons of Advocation, being a Power and Prerogative belonging to his Majestie's Supreme Ju­dicatories of Session and Council. And Reasons of Advocation, either upon Suspicion, or some other Reason meerly Civil or of State, belong not to the Cognisance of the Justices, but to the Lords of Session and Council. If they were to Advocate, the Reasons of Advocation be­hooved to be first discust; and what could be the method, since all Pro­cesses [Page 3] before the Justices are so peremptory, That Caution must be found both by the Pursuer and Defender.

Alimenta.

COnstituto semel Alimento, quo nihil in jure magis favorabile, aut magis personale, de eo nec Alienatio nec Transactio rité celebratur; datur enim ut persona exhibeatur & utcunque vitam toleret; Mirum igitur Advocatos primi ordinis tanto conatu & boatu summa ope annisos, ut Judicibus persuade­rent aut imponerent, asserentes Alimentum, uxori constitutum juri Mariti obnoxium esse, vel saltem creditoribus Mariti esse integrum illud afficere; Quod enim ossibus haeret nec a persona cui competit avelli aut alienari potest, illud nec juris Ministerio, aut fictione transfertur; Quum igitur Alimentum adeo personale sit (ut superius diximus) ut alienari nequit, ita ut ab uxore nu­bendo in Maritum non possit transferri tacitâ & quasi alienatione: Sublato autem jure Mariti, jus Creditorum quod subit in consequentiam & ut accessorium cor­ruit, nec subsistit magis quam accidens sine subjecto. Broomhall contra Darsie, Julii 7. 1678.

Altarage.

SOme Lands being Founded, by a Burges of Dumfermling, to an Altar in the Church of Dumfermling, for Maintainance of a Chaplain at Saint Marys Altar there; And it being provided by the Foundation, that the Founder and his Heirs Male should Present the Chaplain; The said Lands being after Fewed, and since Disponed Quaritur, How shall the purchaser be Infeft? This case is not under the Act of Parliament anent Laick Patronages; The case there being of Patronages, whereof there is Infeftment holden of the King, whereas the Patronage in Question, is not by Infeftment, but provision as said is: It is thought, that the Chaplain is Superiour: And if there be none, a Chaplain should be presented. Caribber.

Quaeritur, The Patronage being to the Heirs Male of the Founder, and if they do not present within [...] Days, The Dean of Gild of that Town should present, Whether the Heir-Male may Dispone the Patro­nage? Ratio dubitandi. The Provision in the Foundation, is not in favours of Assigneys, and the Founder had confidence only in his Heirs; And such an Interest being Religious, and provided to a Family, with the said substitution, is not in commercio. Randifurd.

Annexation to a Barony in another Shire.

WHat is the effect and import of Annexation of Lands, lying within one Shire, to a Barony lying within another? Whether it be Annexation only, that one Seasin may be sufficient, for all the Lands, though in several Shires: Or that Inhibitions, and other Diligence should be used at the Mercat-cross, where the Barony lyeth?

Annualrent.

AN whole Barony of Land, being affected with an Annualrent, and being thereafter Disponed in several parcels to diverse persons; If one of the saids Purchasers should be distressed, for the whole Annualrent, [Page 4] May he have recourse against the others, for their proportional parts, they being in rem correi debendi?

A Person being Infeft in an Annualrent irredeemably, so that neither the Heretor may Redeem, nor the Annualtenter may require his Money, and the Annualrenter not being Creditor, but upon the matter Emptor annui reditus, Quaeritur, Whether such Annualrents will be lyable to subsequent Laws, restricting and lessening Annualrents? Ratio dubitan­di, These Laws do militate only in the case of Mutuum, which is not here; There being neither Sors, nor Ʋsura, nor Debitum, as to the principal Sum; And though such Annualrents be constitute with a respect to the Sum that was payed, and the Annualrents thereof current for the time, That does not alter the case; seing the property of Lands is only bought with the like consideration, And the Annualrents of Money might have been heightned, and the Annualrenter wants the benefite competent to him in the case of mutuum, viz. In the case of Money lent out for Annualrent, he might uplift the Sum, and employ it more profitably than for a small Annualrent.

An Annualrent being Disponed to be uplifted out of Lands and Teinds, and Infeftment following thereupon. Quaeritur, What will be the Effect of the said Right as to the Teind, seing the Ground cannot be Poinded for the same; these not being Fundus? Answer, The Right of the Teinds may be apprysed, and a personal Action will be competent a­gainst the Heritor of the Teinds, during his occupation.

An Annualrent being disponed, to be by Infeftment out of several Lands lying discontigué; Quaeritur, If the Disponer may unite the same, so that one Infeftment, taken at one of the Lands, may be sufficient for the others?

Annualrent for Damnage.

Quaer. IF the Defender should be lyable for Annualrent of the price, in so far as it is more, nor the Worth of the Lands? It is thought Not, because the Rate is not certain, and the Defender may get a Buyer at the same price; And that the Defender was in bona fide to contract with a Pupil so authorized, and if he have prejudice, he should have recourse against his Tutors Representatives; And Annualrent is not due for Damnage and Interest until it be declared. Tweeddale contra Dru­melziar, vide Reduction upon Minority litera M.

Right of Annualrent.

A Person having disponed Lands, with a Procuratory of Resignation and Infeftment to the Buyer of the Lands, and for security to him­self of a part of the Price for an Infeftment of Annualrent redeemable upon payment of the Sum, and with a Clause likeways that the Infeft­ment shall expire. Quaeritur, 1. If there be prejudice to the Buyer, that his Right should be so affected, being his Ground-right? Answer, It is thought there is none; Seing upon payment, if the Party desire, There may be a Renunciation, upon the back of both Charter and Seasin, rela­ting to another of the same Date, to the effect it may be registrate. 2. Quaeritur, If the said Right, being to be holden of the Superior, may [Page 5] be extinguished without Resignation? Answer. It, being only a redeem­able Right, after Redemption, in strictness of Form, cannot be resigned, because it is loused. And formerly, in Wadsets of Property, the Supe­rior, upon the Redemption, did grant Precepts; and a Right of Annu­alrent cannot be resigned for a new Infeftment given to the Heretors Superior, that being inconsistent with the Property in one Person; And therefore, a Decreet of Redemption, with the Clause foresaid Resolutive in case of Redemption, relating to both, doth sufficiently extinguish it. And if there should be a Resignation in the Superiors hands, it should not be in favorem, for the Reason foresaid, or ad Remanentiam; But to the effect the Annualrent might be renounced, and consolidate with the Property, with the Superiors consent.

Relicts Annuity.

WHen a Husband is obliged, and his Heirs, to pay an Annuity to his Wife in Liferent; If other Creditors be about to do Diligence and Comprise after his Death, Quaeritur If the Relict may not pursue the Heir to secure her, and for that effect to grant Infeftment of Annual­rent, and upon a Decreet Adjudge an Annualrent upon that Ground? Quando aliquid conceditur aut disponitur, conceduntur omnia sine quibus non potest explicari: And the Obligement for the Annuity will be otherways Void.

Annus Ʋtilis.

ANnus utilis Duplex est, 1. Ratione initii, ut initium sit utile, & post­modum Dies continui. 2. Ratione omnium dierum, ut actor habeat potestatem agendi, reus respondendi, & Dies sint judiciales. Thes. Besold. in Lit. I. 51. vid. Injuria.

Appellatio.

APpellatio non permittitur in foro Saxoniae, sed in ejus locum successit Leu­teratio, ad eum finem introducta, coram eodem Judice, ut gravamina errore forte litigantium, vel negligentia Judicis illata, brevi manu reparentur, sed hu­jus rei abusus perspicuus est. Vide Leuteratio, Besold. Thes. Litera. l. 53.

Appellatio a Camera Imperiali.

APud Germanos, cum sit ultimum Judicium Camera, ab ea non appellatur ne tamen sua potestate abutatur, constitutum est judicium Revisorium, ad quod ij qui per iniquitatem aut negligentiam Assessorum laesos se existimarent, provocare & Revisionem petere possent; per Commissarios Imperatoris, & Statuum Imperii, ad id deputatos, adversus sententiam sine dolo, non tamen sine errore, aut culpa latam. Fritschii Exercitat. juris publici, pars. 2. exercit. 1. n. 88. & sequen.

Revisio habet effectum Executionis suspensivum, 91. Ibid.

Judicium Camerale cum non a solo Imperatore, sed a Statibus suam accepe­rit authoritatem, tum Imperatoem, tum Status repraesentat, Ibid. n. 83.

Camerae Praesidem & Assessores initio constituebat Imperator, sed Ordinibus, [Page 6] consentientibus, id deinceps mutatum, ut Assessores ab Ordinibus praesentarentur Ibidem.

Imperator causas in Camera caeptas, avocare non potest; quia per modum Contractus in ordinationem Camerae consensit, & ideo ad ejus observantiam de jure tenetur, Ibid. n. 84.

De Appellatione a Praefecto Praetorio, & aliorum Judicum Sententiis.

LIcet ab iis ob eorum Excellentiam non liceat provocare, iis tamen qui Laesos se affirmant supplicandi Licentia permittitur, & remedium datur per Suppli­cationem ex gratia, non per viam Restitutionis ex Justitia, praesertim cum sen­tentia lata est contra Jus Litigatoris. Thes. Besoldi. p. 557. litera L.

Appellatio a Vicario.

AVicario ad eum cujus est Vicarius, non appellatur, cum utriusque idem sit Tribunal. L. Romana 3. de appellationibus sexto Decret. L. 1. & 2. Cod. De Officio ejus, cujus vice alter judicat. Sigismund: Scaccia de Appellationibus. q. 8. n. 61.

Approbatio.

1mo. Nulla Exceptio aut allegatio in foro magis trita aut frequentior est illâ de Approbatione; aut (ut loquimur) de Homologatione, quae illâ regulâ niti videtur, quod approbo non reprobo: Sed cum omnis de­finitio in jure sit periculosa, & ista ut omnis materia Brocardica variis substrin­gatur limitationibus; aut enim Approbatio juris alicujus, celebratur expressâ ra­tificatione & id agitur ut approbetur, & eo casu reprobare quod approbavit nulli li­cet, nec honestum est: aut aliud agitur, sed ex actu colligitur & infertur approbatio, & eo casu dispiciendum quid actum, & actus agentium ultra eorum mentem & intentionem haud operantur. v. g. Emi praedium, ratus illud ad vendito­rem pertinere ut optimum maximum, nec Servituti aut Reversioni (ut loqui­mur) seu Retractui obnoxium; emersit adversarius Sempronius asserens servi­tutem aut jus praedii Reluendi sibi competere; ejus vel potentiam veritus, vel alia ratione impulsus, cum eo transegi, isto jure vel mihi cesso vel acceptilato, sed Titius idem jus servitutis aut Retractus ab eodem authore adeptus, sed po­tius quia anterius: Si ex eo contra me ageret, mihi contra jus Retractus aut servi­tutis excipienti haud obtrudi posset me jus homologasse & approbasse; eo quod cessionem, aut acceptilationem ejus stipulatus fui, ea enim transactione id tan­tum agebatur, ut litis ansâ praecisâ, conditio mea melior non deterior foret; & ut mihi consulam acquirendo jus, si quod erat penes Sempronium, non vero ut jus aliquod a me alienem.

2do. Eadem ratione, si juris mei ignarus praedium meum conduxi, aut post locationem Dominium ejus nactus, & domini forte haeres sum; in possessorio, lo­catore de mercede agente, de jure meo exceptio haud admittenda est, nemo enim sibi causam possessionis mutare potest: nec minus possessione reddita jus meum in­tegrum & illibatum superest, nec in petitorio, aut declaratorio obest conductio, aut exceptio, Quod approbo non reprobo; conducendo siquidem praedium quod ignarus meum esse, alienum rebar & locantis, id mihi erat propositi, ut jus in eo consequar, non ut jus in alium transferam: & consensui, sine quo nec est, nec esse potest alienatio, nil magis contrarium quam error.

Arrestment.

IF Arrestment be Pignus Praetorium, and doth so affect, that in whatso­ever hands the thing arrested cometh, it will be lyable thereto? Or if it be only a Diligence, and upon the matter of the nature of Inhibition in mobilibus, so that the Debitor dying, or the subject that is arrested being Poinded or Comprysed, the Arrestment will be ineffectual?

If the Goods in the Hands of the Debitor, upon Arrestment, may ha­bili modo be craved to be forthcoming? Or if habilis modus of all Goods (but Money) be to Poind or Apprise: the Propriety of Corpora being on­ly transmitted per Traditionem?

If Arrestment upon a registrate Bond may be loused being before the Term of Payment?

Whether, where there is nothing due by a Person in whose hands Ar­restment is made the time of the Arrestment, the same will affect a su­pervenient Debt?

If Arrestment die with the Debitor, or doth affect after his Decease?

If a Bond for lousing Arrestment be void through the Debitors De­cease?

If at least an Arrestment upon a Decreet, be of an other nature than that upon a Dependence, being in effect Pignus Praetorium, and Execution pro tanto; or if it should be at the most, like a Denounciation, whereup­on Comprising has not followed in the Defuncts time, which therefore is void?

Albeit an Arrestment doth not import a Right of Hypotheck, and that notwithstanding, an other Creditor may poind. Quaeritur, If at least, it should have that Effect, That the Person in whose hands the Arrest­ment is made, cannot pay the Debitor in prejudice of the Arrester: and that as he cannot pay the Debitor, so after his decease he cannot pay his Heir nor Executor, being eadem Persona?

Executors being in Competition upon Arrestment to make forth­coming, Whether they should come in all pari passu, notwithstanding some be before, and some after; as in the Case of Comprisings being both at one time, though the Denounciation be at several times?

Quaeritur, If an Arrestment doth affect Debts due by the Person in whose hands the Arrestment is made contracted after the Arrestment? Ratio Dubitandi, Inhibition doth affect Lands acquired thereafter; and Arrestment, as to such things as are the Subject of Arrestment, is of the nature of Inhibitions, and there is eadem ratio as to the Interest of the Creditor.

Arrestment being made of a Sum, due by a moveable Bond, bearing Annualrent, and of all profits due to the Debitor by the said Bond. Quae­ritur, Whether the said Arrestment should be effectual, not only for the Annualrents already run, but these that should accrue thereafter? The same Question may be as to duties of Lands. Ratio Dubitandi, Quod non est, aut nullum est, nullum sortitur effectum. And Arrestment of what is not yet extant, is accidens sine subjecto. It is thought, That there is a dif­ference betwixt a Debt, that is not neither in sp [...], nor obligatione; and condi­tional Debts, which though the Condition be not existing, may be arrest­ed; and the Condition existing, the Arrestment will be effectual: and a [Page 8] fortiori, Annualrents, and Mails, and Duties, may be affected by Arrest­ment, seing, from the date of the Obligation, dies cedit, though non venit.

If a Debitor be in Possession of a Coal, or of a Miln in his own hand, what course can be taken by a Creditor, at whose Instance there is a Dependence, to secure the Profits, in case he prevail?

What is the Reason of Difference betwixt Arrestment and Inhibition, as to that Point, seing Arrestment affects only what belongs to the Debitor for the time? Answer, The Arrestment relates to Goods and Debts, the time of the Arrestment; and Inhibition is simply, that the Debitor should not dispone his Lands and Estate; and Arrestments are a Diligence a­gainst the Party who is Debitor, or has any Goods in his Hands belong­ing to the Arresters Debitor himself.

Arrestment of Conditional Debts.

IF a Creditor should arrest a Sum due to his Debitor upon a Wadset, in case of Redemption; What will the Import be of such an Arrest­ment? Answer. If redemption follow, and after the Order another Cre­ditor arrest; It is thought, That the Arrestment before will be preferable; as in the case of the Arrestment of a conditional Debt, which will be drawn back, Existente conditione, vide Wadset Quaest: 1 ma. Litera W.

Arrestment Loused.

QƲaeritur, If upon a Dependence, or Bond unregistrate, there be Ar­restment laid on, and the same be loused; and thereafter, the Goods arrested be poinded, The Cautioner for lousing the Arrestment will be lyable? Ratio Dubitandi is, That the Goods were not fraudfully put a­way by the Debitor. Quaeritur, If after the Arrestment, the Debitor con­tract Debts, and the Goods be poinded for the said Debt, contracted after the lousing the Arrestment, Quid Juris, Will the Cautioner be lyable?

Per Aversionem.

AVersione emere, aut locare dicimur, cum universaliter & uno pretio ven­dimus aut locamus: Duobus enim modis locatio fit, vel per Aversionem vel ut in pedes, vel mensuras, merces praestetur. Thes. Bes. verbo Busch­stauff. 127.

Back-bonds to the Exchequer.

THE Exchequer having granted Gifts: v. g. of Recognition, or others, but upon Back-bonds in favours of Creditors, and of the Wife and Children; So that they have reserved no Interest to the King, but to themselves only to regulate and arbitrate the dispenceing the Benefite of the Back-bond, in favours of Creditors and the Wife and Children; May they proceed, and apply that Benefite, in favours of such [Page 9] as apply to them, without calling the other Parties? It is thought, That the Lords of Exchequer are to be considered as Arbitri, and that their Ar­bitrium is regulatum, and should not be used, without citeing of all these, who have any Interest; that upon full hearing of all Parties, they may proceed.

Bairns Part.

IF a Son get a Portion in order to live upon it seorsum, and out of his Fathers Family. Quaeritur. If he can be thought a Bairn, and claim a Bairns-part, seing he has not granted a Discharge, nor accepted the same in Satisfaction. James Cheisly.

There being Three Heirs of diverse Marriages, and certain Provisions in favours of the Heirs of the Marriage, being made in the respective Contracts of Marriage. Quaeritur. If (there being no other Bairns in fa­milia) they will have their Bairns-part, notwithstanding they are Heirs? And if they have, Quaeritur. If they must confer their Provisions, if they be unequal? Answer. They will come in as Bairns. And as to the second Quaerie, It is thought, they should not confer; seing they have their Provisions, not simply as Heirs, but as Children, by the said Pro­sions.

Bond Heretable.

IF a Bond bearing an Entail of a Sum. Viz. To the Creditor and the Heirs of his Body, which Failȝieing to a Brother, or Heir of a Brother, who would not succeed either him or his Children; be Hero­table, in Respect of the Entail, though Executors be not excluded, nei­ther doth it bear a Clause of Infeftment?

A Band being granted to a Husband, and his Wife the longest Liver of them Two, and the Heirs of the Marriage, which Failȝieing, to the Husbands Heirs and Assigneys whatsomever. Quaeritur. Whether the said Bond belongs to the Heirs or Executors of the Husband. Ratio Dubitandi, It is granted since the Act of Parliament 1641. And the Act of Parliament 1661. and the Act of Parliament 1641, are positive, that all Bands for Sums of Money bearing Annualrent are Moveable, Ex­cept in the two cases therein exprest, viz. Of an obligement to Infeft, Or of a Clause Excluding Executors. And on the other part, the said Acts seem only to intend Bonds containing payment of Annualrent for profit, which upon that account before the said Act were Heretable after the Term: Whereas the Bond in Question is not only Heretable upon the ac­count foresaid of payment of Annualrent; But because the same is ex­presly Tailȝied, and provided in favours of Heirs, and in the first place of Heirs of Provision of the Marriage: And the Sum is of purpose Here­tably fixed for a Liferent to the Wife and a right of succession to the Bairns of the Marriage, so that the Husband cannot Test of it; And it cannot fall under Executory ab intestato, in prejudice of the said Tailȝie: And is of the same Nature, as if a Bond were taken to a Man and his Heirs Male, which would not be Moveable, seing it implyes the Clause excluding Executors.

When a Bond is taken to the Creditor, and Failȝieing of him by De­cease [Page 10] to another person, bearing only Annualrent and no Hererable Clause, Quaeritur; If the Creditor to whom it is granted may Dispose of it by Testament? Ratio Dubitandi, it seems not to be Heretable by the Act of Parliament: On the other part the said Substitution imports the E­xecutors to be excluded, and a Testator cannot dispose by Testament of what ab intestato could not fall to Executors: And though the Creditor be Fiar and may dispose of the said Sum, yet he cannot do it on Death-bed; the same being an Heretable Sum.

If at least after the Death of the Creditor the said Sum be Heretable in the Person of the Substitute? Ratio Dubitandi, The same is Moveable by Act of Parliament; And the Substitute having now right to it, he is in the same case as if the Bond were granted to him: Ex adverso, the same being semel Heretable is semper Heretable, untill it be made Move­able by a Charge.

If a Bond containing such a Substitution should be made Moveable by a Charge, would it notwithstanding belong to the Substitute?

If an Heretable Bond may be comprysed; And if the Legal expire will the Creditor have right to the sumes contained therein, though far ex­ceeding his Debt?

Bond Moveable.

A Party having given a Bond to the end that thereupon a Comprysing may be deduced against the Granter, For settleing the Estate of his Father in his Person; And having granted a Back-bond to pay the per­son granter of the Bond a Sum of Money, with Provision That if he de­nude of the Comprysing he shall be free of payment of the Money. Quae­ritur, If the Sume be Moveable; So that the Relict of the Creditor may crave a part thereof Jure Relictae, in respect the Sum is in Obligatione: And to denude of the Right of the Comprysing is in Facultate Solvendi. Mr. Archibald Nisbet contra Dalgarno.

Bonds of Provision to Children.

A Father having granted Bonds of Provision to Children with a Clause That they should be valid though not delivered, Quaeritur, The same being granted in Leige poustie, If they should prejudge the Relict or Fisk? Ratio Dubitandi, The Granter is Master of them, and may Can­cel and destroy them. Answer. Si absit Dolus and the Defunct did in­tend nothing but to provide his Children, they should be considered as a Debt.

Bond of Relief.

IF a Person obliged Conjunctly with another upon a Bond to be reliev­ed may not after Registration of the Principal Bond charge for Re­lief: And for that effect to pay the Sum and poind for the same? Forbes contra Ʋdnic,

Baron Courts.

QƲaeritur If the Superior may pursue before his Baron Court for Non-entry, or Ward, or Marriage? Ratio Dubitandi, That the said Casualities are fructus of the Superiority; And seing the Baron may pur­sue his Tennents for the Fruits of Property, There is the same Reason, that he should pursue for the Fruits of his Superiority: And the Vassals have no prejudice, but rather Advantage, that they are not taken from their own Houses to answer before another Court, and to be at the Charges both of Attendance and Process, which are greater there: And if the Baillie do wrong, it may be repaired by a Reduction.

Bastard.

IF a Bastard has disponed his Estate in Leige Poustie, and Infeftment has not followed dureing his Life, Will the King or his Donator be lyable to fulfil the Disposition?

If a Bastard's Relict and Bairns, will have their Legitime, though he cannot make a Testament? Answer. Affirmativé.

If having Children, he may make a Testament, and name a stranger an Executor; seing the King has not prejudice: And his Children cannot complain, having their Legitime? Cogitandum.

If at least he may leave Legacies: And his Children Executors nomi­nate, at the least nearest of Kin, and Executors ab intestato will be lyable to the same?

If a Bastard has Testamenti factionem passivam, and may be named Ex­ecutor, or Heir of Provision? Answer. Affirmative.

If a Bastard may have an Heir of Tailȝie and Provision? Cogitandum.

If a Bastard, by a Deed inter vivos has disponed his Estate in Lands by a delivered Write: and dyeth before the Right be perfected, Quaeri­tur, What way the same shall be perfected? or what Action is compe­tent to the Person in whose Favours it is made, and against whom? An­swer, It is thought, that the King being to succeed to the Bastard, his Of­ficers may be pursued, and the Director of the Chancery, if the Lands hold of the King (and if they hold of another Superior, the said Supe­rior) To hear and see the samen adjudged, and Precepts directed.

Quid Juris, If the Deed be not a simple Disposition, but a Right to the Disponer in Liferent, and another Person in Fee; with the ordinary Clauses and Power to alter? Answer, There may be more Question in this case, being upon the matter Donatio mortis causâ.

Quae Ratio, That a Bastard cannot make a Testament, whether or not ob maculam natalium: Or that by reason thereof they were as Dedititij in Law, swa that during Life they were liberi, but dyed servi and nulli, without power to dispose of any thing? Answer, That the said Incapa­city was ratione natalium: Seing these who have no other Heirs (so that the King is to succeed as ultimus Haeres) have not Testamenti factionem.

If a Father who is a Bastard will succeed to his Children? Answer, It is thought, he will.

Bishops.

IF Precepts granted by Bishops may be execute after their Death? If a Bishop being upon the point to be Translated, may accept a Renunciation of a Tack not expired, and grant a new Tack for moe years, in prejudice of his Successor? Or if he may set a Tack?

Bishops Debts.

SEing Bishops are an Incorporation and do not represent their Prede­cessor's Person, but only the Incorporation: and therefore are not lyable to his Debts; Quaeritur, If at least he be lyable to the Debts of the Bishoprick, As v. g. If there be an Annualrent payable out of the same to a pious Use, and the preceeding Bishop has not paid the same: Will his Successors be lyable personally, at least will their Rents be affected by a real Action of Poinding the Ground, or like to the same?

Quid Juris As to the Taxation; if a Bishop would be lyable for these bygones that were due by his Predecessor: reserving Relief against his Heirs and Executors?

Bodomaria.

BOdomaria est Foenus Nauticum, quo sub spe majoris lucri pecunia datur Navis Patrono, hoc pacto ut salvâ nave tantum cum faenore reddatur, relicto interea Hypothecae loco navigii fundo, quo perdito & capitale interit. Besold. Thesaurus, Bodom.

Burgh's Liferent Escheat.

WHat Execution can be against Burghs for their Debt? If they may be charged with Horning, and if thereupon any Liferent Escheat may follow?

Camera Imperialis.

CAmerae sententiae, an ab iis appelletur; an Imperator eas avocare possit? de earum revisione, vide A. & ibi Appellat.

Captions.

IF Captions may be Execute after Sun-set, seing Poinding cannot be then executed? It appears there is difference betwixt Poinding and Caption, by reason other Persons that may have interest in the Goods may be concerned in the Poinding, which is not in Captions: And the [Page 13] Kings Rebels may be taken at anytime, and there is no time so fit to take and surprise them as the night. Rothemay against Forbes. Before, the Coun­cil found that Captions should not be execute in the night.

Casualities of Superiority.

IN General It is thought that all Casualities, which are Fructus Dominit directi, are to be considered as fructus pendentes of Lands, which per­tain to the singular Successor; unless they be Collecti: and they are never thought to be Collecti, unless they be at least claimed and pursued for.

Causa cum qua Res transit.

REs transit cum sua causa, hoc est cum omni cominedo, & onere. Jus. Fluv. p. 775. n. 55.

In conditionali dominio interest, an sub conditione ad nos pertineat, an verò. à nobis abscedat; priori casu quamvis Dominium in Aere stare non putest, tamen quoad nos est in pendenti & in spe tantum: altero, est actu nostrum sed existen­te conditione resolvitur: Nam meum est quod certâ lege meum est, Jus Fluviat. p. 790. n. 145. & deinceps.

Cautioner and Relief.

IF a Cautioner be Denounced for his Cautionry, will the Principal be lyable to relieve him of the loss of his Escheat? Ratio Dubitandi, The Principal is obliged to relieve him of what he should pay for him, but not of the prejudice he should sustain for his Contumacy and Rebellion, through his not payment.

Chaplainrie.

LAnds being holden of a Chaplain, a Bishop being Patron, if there be not a Chaplain and the Bishop delay or refuse to present, what course shall be taken by the Vassals Heir, or singular Successor to get In­feftment? If the Bishop may not be pursued, and the Director of the Chancery, to hear and see him decerned to present a Chaplain, and to exhibite to one of the Clerks of Session the Presentation to be registrat, to the effect it may be known and patent to the Leidges, and that within [...] days after he be charged: And in case of disobedience, ve­rified by a Horning against him upon the Decreet; The Director of the Chancery to direct Precepts for infefting of the Vassal.

Seing by Act of Parliament anent the Superiority of Chaplainries, and such like, The Patron to the Chaplain is appointed to be Superior to the Chaplains Vassals. Quaeritur, If Chaplains hold of the Bishops, the Bi­shop will be Superior? Answer, It is thought, not; seing the said Act of Parliament is only in favours of Laick Patrons, and was made when the Bishops were suppressed.

Charge to enter Heir.

AN appearand Heir being charged to enter Heir in General, and renouncing, Quaeritur, If there may be a Comprising or Adjudi­cation against him, unless he be charged to enter Heir in Special? Ra­tio Dubitandi, That frustra should he be charged to enter Heir having al­ready renounced: Yet it is thought he ought to be charged, seing a spe­cial Charge to enter Heir, is Instar and in place of a Special Service, and Infeftment thereupon: and the Heir may repent that he renounced, and may be better advised, when he is charged to enter Heir in Special.

Chattels Real.

LIferents, Non-entries, Ward, and such like Casualities, that are successive when they are gifted, they become real Chattels, and will fall to the Executors of the Donator, as is thought; Quaeritur, If when they are not gifted they should be considered also as Chattels, so as to be­long to the Executors of the Superior, and not to his Heirs and Successors of the Land? Cogitandum.

Children and Creditors.

IF a Father grant Bonds to his Children, and thereafter contract Debt, so that he is not in a condition to satisfie both his Creditors and Children, Whether the granting of Bonds for Onerous Causes will import a Revo­cation of the Childrens Provision: At least will the posterior Creditors be priviledged and preferable to the Children?

Childrens Provisions.

A Father having disponed to his Son of the first Marriage, the Fee of his Estate; with power to burden it with 40000 merks for pro­vision of his remanent Children allanerly. Quaeritur, If he being then married upon a Woman of that age, that he could not have Children by her, should thereafter marry; May he provide any part of that Sum to the Children he had thereafter of the last Marriage? Or if the remanent Children, in whose favours the Faculty is reserved, can only be understood of the remanent Children of the first Marriage, he having then five be­sides the Heir, Mr. Alexander Gibson contra his Brother.

Civitas.

CIvitates & Municipia intelliguntur nomine Reipublicae: & eis competit beneficium Legis. leg. 3. cod. de Jure Reipub. Sc. Rempublicam ut pu­pillam extra ordinem juvari. Frischius Tom. 2. exercit. juris publici, ex­ercit. 2. n. 17. & sequen.

Praescriptio non currit minori sed Civitati, Ibid. 35.

Propter tenuitatem civitas novum vectigal imponit, Ibid. 37.

Gaudet Praescriptione centum annorum.

Ex solo pacto sine traditione, quibusdam casibus habet in rem actionem Ibid.

Ʋsus-fructus ei relictus durat centum annis Ibid.

Clauses in Contracts of Marriage.

THe Contract of Marriage betwixt Alexander Sandilands, and Agnes Sandilands his Wife Daughter to Robert Sandilands Dean of Gild, beareth that provision, Viz. That the said Robert and his foresaids are o­bliged to the said Agnes and her Spouse that at Robert his Decease the said Agnes his Daughter shall be esteemed a Bairn of the House and Family; And shall succeed to her Part and Portion Natural equally with the rema­nent of Robert's Bairns to all Sums, Plenishing Goods and Gear; and others that should pertain to the said Robert the time of his Decease.

The said Alexander is obliged and his foresaids, that whatever Benefite shall fall to the said Agnes, or her to succeed to by her Fathers Decease, or by vertue of the said Obligement, to provide the same after he should get it, to himself and her in Conjunct-fee and Liferent, and to the Bairns be­twixt them, which Failȝieing his Heirs and Assigneys, 9 January 1657. Registrate 1 March 1671.

The said Alexander is obliged to provide the Conquest to himself in Liferent; and their Bairns in Fee.

The Contract of Marriage betwixt John Hamilton Writer and Rachel Sandilands the other Daughter of the said Robert, Bears, That they accept the Tocher in satisfaction of all other Sums, Executory, Debts, Goods, and Gear, and others whatsomever which was provided to the said Rachel, or which may fall or pertain to her, or may be claimed by her by Decease of the said Robert, or her Mother Mause Weir: All which she and her Husband Assignes to the said Robert, his Heirs, Executors, or Assigneys to be Disponed at their pleasure.

By the Clause of Conquest the said John is obliged to provide the same to himself in Liferent, and the Bairns in Fee: And to that effect to insert the Bairns Names in the Writes.

The said Rachel, if her Husband Decease before her, is to have (if there be no Children) the half; and (if there be) the third of the plenishing of the House the time of his Decease, which is to be made free of Debts by his Heirs and Executors.

Quaeritur, If the Obligement to succeed to all that should pertain to the Father should be understood, only as to a Bairns Part, and should not be extended to the Deads-part?

If what should fall to Agnes after her Fathers Decease, should belong to the Bairns of the Marriage, though the Marriage be disolved through the Husbands Decease before the Father Robert his Decease?

If Rachel the other Daughter notwithstanding her Renounciation, will come in as one of the nearest of Kin, at least as to Deads Part, Viz. Deads third and the half of a Bairns Part.

By Contract of Marriage, the Husband is obliged in the first place to provide 30000 Merks, to his Wife in Liferent, and the Heirs of the Mar­riage presently: And to the other Bairns 18000 Merks after his Decease. Quaeritur, The Heir being served, will there be a Confusion as to his Debt and Provision? 2do. If he may have Action against the Executors for it, as Heir and Creditor? 3tio. If he succeed to his Father in Land-Estate, though the Money was not employed, will not the Obligement [Page 16] be satisfied, pro tanto? 4to. Will the Bairns come in pari passu or must the Heir be satisfied in the first place out of the Moveable Estate?

Coals.

A Woman being Infeft in Lands in Liferent; cum Carbonibus & Car­bonariis. Quaeritur, If she may win Coal where there was none before in order to Selling? Ratio Dubitandi. That usus fructus est jus utendi salva rei substantia, and the Coal usu consumitur; And being digged non renascitur: It is thought therefore, that where there was no Coal be­fore, The Liferenter cannot break Ground in order to Selling.

Quaeritur, If the Liferenters at least may Win Coal, where there was no going Coal before in order to their own use and for their Fire, Re­founding any Damnage that may be by breaking of the Ground. Cogi­tandum.

Where there is a Coal going, Quaeritur, If the Liferenter may continue to Work and Sell? Answer. It is thought for the Reason foresaid the Liferenter cannot Sell, but may claim by the said Clause to have as much Coal as may serve for the Liferenters use only, unless it be expresly pro­vided that the Liferenter may Win and Sell as the Fiar might have done.

If the Liferent be not constitute so clearly in the Terms foresaid, and it be only provided that the Liferenter shall Liferent the going Coal, Quaeritur, If the Liferenter may have the same benefite of the Coal as the Fiar might have had, both for the Liferenters use and for Selling, pro­viding that the Liferenter use the same as bonus Vir, and in the same man­ner as was in use formerly, and do not any thing of purpose to the preju­dice of the Fiar: putting in too many Colliers or otherwise?

As there is quasi Ʋsus-fructus of Money, if it ought to be so of Coal, and what is Win should be valued, and the price should be valued to the Liferenter in Liferent and in Fee to the Heretor? To consider if this case has occurred elsewhere in the case of Sylvae caeduae.

Collation

BY Contract of Marrriage, the Husband is obliged to provide the Heirs of the Marriage therein specified; But there is a Clause sub­joined, That if there be only Daughters, and they be moe than one; The Eldest only should succeed, and the other Daughters should resign their parts in her favours, reserving to the Father to provide them which he did not: There being beside some Heretable Estate, Quaeritur, If the Eldest will not only have the Land, but her share of the other Estate as Heir Portioner? Ratio Dubitandi. That Law and Nature favours and intends Equality, betwixt Children; Especially where the interest and preservation of Families is not to be considered, and upon that account there is no Prerogative of Primogeniture and [...] which is only com­petent Liberis Masculis, Daughters being finis & caput familiae: And by the Contract the Eldest Daughter is not obliged to Marry one of the Name or who should take the Name. 2do. The Heir cannot be Executor un­less he confer, or upon the foresaid consideration, and there appears to be Eadem Ratio in this case, Whitelaw.

[Page 17]If an Heir, to the Effect he may share in the Executry offering to con­fer the Moveable Heirship, ought not also to confer Lands, and other Heretable Estate? For the Executory may be very considerable, and it were hard that upon Collation of the Moveable Heirship possibly of small value, he should both retain the Heretable Estate how great soever, and share in the Executory though very great.

If there be Three Daughters, and the Eldest at her Marriage get a part of the Lands. Quaeritur, If she will share as Heir Portioner with the other Sisters, unless she confer; as in England.

Commission not to Expire morte Mandatoris.

IF a Commission may be granted by a Person to Freinds for Selling Lands and to endure irrevocable, not only during his own Lifetime; but after his Decease to bind his Heirs untill it be Execute? Ratio Dubi­tandi, Mandatum expirat morte: And on the other part, there may be a necessity to Sell, and his Heirs may be Minors: Or upon some other con­siderations it may be fit that there should be such a Power given; And as he may bind himself by granting such a Commission, he may bind his Heirs being eaedem Personae.

Commissioners to the Parliament.

QƲaeritur, If there be any case wherein Commissioners to the Parlia­ment ought to consult the Shires whom they Represent? Answer. It is thought, that albeit by their Election they have Commission cum Li­bera potestate, It is to be understood that they may superstruere; But cannot evert or alter Fundamentals and the constitution of the Government either of Church or State: And if any thing of that nature be intended, it ought not to be done by Representatives, unless they have special Autho­rity to that purpose.

Commonties.

THe Servitude of Pasture being either in common Muires, as Glads­muire or such like; Or in Commonties belonging to Heretors and Superiors, and their Vassals by Rights from them; Or in Lands belonging to others and not to their Superiors. Quaeritur. If an Infeftment cum com­muni Pastura will be a Ground of Prescription, in all the foresaid cases, un­less it be special as to the Subject, and the Lands to be Pastured upon? Answer. As to common Muires, if the Lands adjoining be Dis­poned, cum communi Pastura, by the King, it is to be presumed that before they be Disponed, the Kings Tennents of the Lands Disponed were in use to Pasture in the said Muire: And therefore the Clause cum communi Pa­stura is to be understood with the Pasture formerly belonging to the King; And in that case, possession though not for the space of Fourty Years by vertue of that Right is sufficient. 2do. There is the same reason as to Lands Disponed by Superiours having a Commonty within their own Property. v. g. in Dirletoun, unless there be some speciality. v. g. as in David Forrest his Precept of Clare constat, there is Nine Acres given with­out mention of Pasture in the Commonty of Dirletoun, and there is a Te­nement [Page 18] and three Acres and an half cum communi Pastura in Communia de Dirletoun; So that the Right being granted unico contextu, the Right of the said Acre cum communi Pastura Excludes the same as to the other Nine Acres. 3tio. As to a Commonty within the Property of other Superiours, the Clause cum communi Pastura in the Tenendas will not be a ground of Prescription, unless there be a Right or Constitution by the Heretor, within whose Property the said Commonty is.

Common Appendant.

QƲaritur, There being a Servitude of Pasturage or Commonty due to me out of Neighbouring Lands (which the English call Common Appendant) will the Servitude extinguish if I purchase the saids Lands, seing res sua nemini servit? Answer. It is thought that it is Suspended but not extinct: So that if the Purchaser sell the Lands affected with the Ser­vitude it will revive, unless it be provided otherwise: And Servitudes of that nature are Real, and pertinents Praediorum non Personarum.

Communio.

COmmunis Possessio, quâ vel ad pasculandum, vel ad alios fructus partici­pandos vicini utuntur, non caret Litigiis; Divitibus proportionem Geometricam, pauperibus Arithmeticam affectantibus: Sed possessio Geometri­ca servari debet & Praedialis, ita ut qui majores habet possessiones magis uta­tur pascuis, qui minores minus. Jus Fluviat. p. 561. n. 25.

Compensation.

IF there may be Compensation on a Bond prescribed, For that reason, Viz. That quae sunt temporalia ad agendum they are perpetua ad exci­piendum; And the ground of Prescription as to Personal Actions be­ing Negligentia petentis, cannot be pretended in this case, the Defender being satisfied in his own hands.

When in Processes for Sums of Money, Compensation is proponed, and the Pursuer Replyes upon Recompensation, and the Defender again Du­plyes upon Recompensation. Quaeritur, what course shall be taken by the Judge upon their several Recompensations? Answer, If it appear that the Pursuer or Charger is addebted in as much to the Defender, as the De­fender to him, all the Compensations being considered, the Defender ought to be assoiled; and the Parties hinc inde should be decerned to give up and discharge the Grounds of the Compensation: And if all the Com­pensations being sustained, the Defender be found debitor to the Pursu­er, a Decreet should be given for what is due: And if the Pursuer be found debitor to the Defender, the Defender ought to be assoiled, and the Pursuer decerned to pay what he is owing.

An Assigney to a Debt for an Onerous Cause, having pursued for the same, Quaeritur, If it be alledged that, the time of the Assignation, the Cedent was the Defenders debitor, and that he hath present Action for li­quidating his Debt; Whether ought Compensation to be sustained upon [Page 19] the said Ground, and a time granted to liquidate? It is thought, That the Cedent not being Inhibite, nor any Diligence done against him, the Sum assigned was in Commercio, and might be disposed of by him; there being then no ground of Compensation, which is de liquido in liquidum; and otherwise non tollit obligationem. vide Retention, in Litera R.

Composition for Entry.

IF the Superiority be disponed or comprised after Resignation, Quaeri­tur, Whether what is payable for receiving of the Vassal should belong to the former Superior: Or to his Successor by whom he is to be receiv­ed, being pretium of his Entry.

Compriser.

IF after expiring of a Comprising, the Compriser may pursue for the Evidents, being incidents to the Right.

Comprising.

IF a Bond for an Onerous Cause, being granted by a Person not Inhi­bited, and publick Infeftment thereupon, be preferable to a Compri­ser who had comprised before, but was Infeft after the Bond?

If a Compriser of Ward-Lands die before the expiring of the Legal, Will the Marriage of his Heir fall?

If it fall, Will the Debitor, if he redeem, be lyable to refound the Avail?

Comprisings of Heretable Bonds, though they be upon the matter Le­gal Assignations, so that the first Compriser will be preferred to the second intimating, in respect of the previous publick Solemnity in deduceing Comprisings: Yet Intimation is necessar to put the Debitors in the Bonds comprised in mala fide.

If there be a necessity of a Declarator of expiring a Legal, as there is of a Conventional? Seing in many Cases there may be much Equity for purging the expiring; as if the Sum be all paid but a very little part, and the Lands exceed much the Debt.

If the Compriser come to be Debitor in a Sum equivalent, Will the Compriseing expire?

The first Compriseing being reduced at the instance of a posterior Com­priser ex capite Inhibitionis, Will the first Compriser have Right to the Legal of the second?

Though the Debitor be Inhibited, May he not assign the Legal?

If Compriseing whereupon Infeftment is not to follow, and which formerly needed not to be allowed ought to be Recorded, conform to the Act of Parliament 1661. Act.?

There being a Compriseing against a Principal and two Cautioners of their respective Lands; and the Right of the said Compriseing being ac­quired by a Person who had bought one of the Cautioners Lands, If that Person should dispone the Right of the other Lands with the Comprise­ing, Sums, and Grounds thereof, as to the said other Lands, only before [Page 20] the expireing of the Legal. Quaeritur, 1. If he hath not reserved expresly the Compriseing and Sums thereof as to his own Lands, but has only disponed in the Terms foresaid: Will the Compriseing extinguish as to his own Lands, seing it could not subsist without the Grounds, and these are dis­poned? Answer, It is thought, It will not extinguish, in respect the Compriseing is not simply disponed, but only as to the other Lands, and the same not being disponed as to his own Lands, eo ipso it is retained to­gether with the Grounds; and it was Actum that the Disponer, by ac­quiring the Compriseing, should be thereby secured as to his own Lands: And having disponed the same as to the said other Lands, Law presum­eth that he has retained it as to his own Lands in the first place, and that it should be effectual as to the other Lands in the second place: And A­cta agentium are to be understood to operate according to their Intention.

Quaeritur 2do. If the Compriser of that Legal should Redeem, who should have right to the Sums; whether the Disponer, or these to whom he has disponed, as to the other Lands, at least to a part of the same? Answer, If the Disponers Interest as to the Security of his Lands amounts to, or exceeds the Sums, he will have Right thereto entirely, seing he is to be secured in the first place.

If a Com [...]riser Infeft in Lands doth consent only to a Right made by the Debitor of a part of the Lands comprised, will that Consent secure the Buyer against the singular Successors of the Compriser, having Right from him by Compriseing or Disposition and Infeftment thereupon: Se­ing they may pretend that a Consent doth not denude habili modo.

A Creditor comprised the Principal Debitors Lands, and some time thereafter the Cautioners Estate; and after the Compriseing against the Principal was expired (But yet the Compriseing against the Cautioners was running) he disposed of some of the Principals Lands. Quaeritur, If the Cautioner may plead that the Compriseing against him is extinct, In swa far as the Creditor has an irredeemable Right to the Principal's E­state, Exceeding his Debt: and is satisfied at least may be satisfied with his Intromission and disposing of the same?

A Compryser, after expiring of his Comprysing of his Debitors Estate exceeding the value of his Debt, Intrometting with or disposing of a part of the same. Quaeritur, If he may Compryse any other Estate belonging to the Debitor: Upon pretence that he is not satisfied: Or if the Expir­ing of the Comprysing and the making use thereof thereafter, putteth him in the same condition as if the Lands had been Disponed to him irredeem­ably, and datae and accepted in solutionem: So that both Principal and Cautioner, against whom a Comprysing is yet running, may pretend that the Debt is satisfied; At the least that the Creditor should denude himself of that Comprysing cum omni causa? Lamertoun contra Mr. John Fairholme.

A Compryser of Lands holden Ward being Infeft. Quaeritur. If these Lands will ward by the Decease of the Compryser; And if the Marriage of the Appearand Heir will fall? Ratio Dubitandi, A Compryser is but an interim Vassal for security of his Debt: And upon that Consideration such a Right in England is considered as a Chattel.

If the Comprysing be redeemed will the Debitor be Lyable to refound the Damnage sustained by the Ward and Marriage?

[Page 21] Quaeritur, If the Ward of the Comprysers Heir, will determine and ex­pire upon the Redemption?

Quid Juris in that case of proper Wadsets, if the Debitor after Redem­ption will be Lyable to Refound the foresaid Damnage? The difference being that a Comprysing is an involuntar Right, and the Wadset Volun­tar, so that the Creditor seemeth to take his hazard.

If Lands be Comprysed from a Person who has no Right thereto for the time but acquires thereafter a Right, whether the said jus superveniens will accresce?

If there be a difference betwixt a Compryser and a Buyer from an in­terposed Person, who has acquired a fraudulent Right, Viz. That a Buyer acquires a Right for an Onerous Cause, and it is just and the Inter­est of Commerce that he should not be prejudged, whereas a Compry­ser does only Diligence upon his own hazard, and the Right Transit cum sua causa & labe?

A Right being acquired bonâ fide, from a Person not Inhibited, after Comprysing, and being Infeft before the Compryser. Quaeritur, Whe­ther he or the Compryser will be preferable? Answer. The Lords found in the case of Sir Patrick Nisbet and Hamilton, That the Compryser should be preferred: Which appears to be hard, seing, a Comprysing is only jus ad rem and a Legal Disposition; And the first compleat Right by In­feftment seems to be preferable, and a Comprysing does not import vi­tium Litigiosi seing the Debitors Right is without Question: And the Question is whether the Compryser or the Receiver of the Disposition should have Right to that which is unquestionable in it self?

The Debitor or these who have Right to the Legal, Redeeming from the Appearand Heir of the Compryser, whether doth the Redemption sist the course of the Ward and Marriage if the Heir be not Fourteen Years of Age? Answer. Affirmative. quia resoluto jure principali resolvun­tur consequentia.

Will not the Debitor be lyable not only to pay the Debt but to refound the prejudice the Creditors Heir sustains upon occasion of the falling of the Casuality of Ward and Marriage by the Decease of the Debitor? Answer. Affirmative, and the Creditor and his Heirs should be Indemnes: It being the Debitors fault that they are forced to Compryse, and that the Comprysing is not Redeemed.

Whether a Discharge does extinguish a Comprysing, the Creditor grant­ing to be satisfied; In the same manner that Intromission within the Years of the Legal doth extinguish the same? Answer. If there be no Infeftment a Discharge is sufficient: But if there be Infeftment, there must be at least a Renounciation Registrate in the Register of Reversions.

A Comprysing being Redeemed, whether doth the Debitors Right and Infeftment revive, or must there be a new Seasin, and what way shall the Debitor be Reseased? Answer. There must be a new Seasin; and the same way is to be taken as in the case of a Regress: Seing the Compryser as he has a Legal Reversion, so there is a Legal Regress.

Quaeritur. If a Comprysing as to all effects be equivalent to a Resigna­tion? Ratio Dubitandi, That a Comprysing is not only a Legal Disposition but the Compryser may be immediatly Infeft upon the same, as upon a Resignation, though the Debitor decease.

If a Compryser get a Right to the Legal of his own Comprysing be­fore [Page 22] it expire by another Apprysing; And so Deinceps if there be more Comprysings whereof the first Appryser obtains Right within the Re­spective Legals. Quaeritur. when the same doe expire? Cogitandum.

If a Royal Burgh, or others having Power to receive Vassals upon Re­signation, has Power likewise to receive upon Comprysings: And if in that case any Composition be due to them?

If the Lands be Comprysed how shall the Duties be divided? Answer. If any part of the Lands be sowen before the Comprysing, the Encrease will belong to the Compryser: And if the Lands be set, the time of the Comprysing is to be considered; For if the Comprysing be before White­sunday the Compryser will have Right to the whole Duties; And if it be before Martinmass, he will have Right to the half: And if after Martin­mass to no part thereof.

The Superior being charged with Horning to receive a Compryser, and being Denounced, will he be Lyable for Damnage and Interest: if either he Infeft a second Compryser, or a Precept be direct out of the Chancery for Infefting him?

If upon the Redemption of a Comprysing, the Superiors will be obliged to Infeft the Redeemer Gratis?

Quid Juris, If the Redeemer be another Creditor?

Quaeritur, If Comprysings be equivalent to Dispositions and Resigna­tion following upon the same, so that the first Compryser is preferable to others even before Infeftment? Answer. That Comprysings are only Legal Dispositions, and do not denude the Debitor without Infeftment, whereas Resignation being made in the Superiours hands and accepted doth denude.

What is the reason then that after Comprysing, it is found that the De­bitor not inhibited cannot Dispone in prejudice of the Compryser? An­swer. That the Law, and the Judge who is Lex animata, having in sub­sidium Disponed to the Creditor the Debitors Lands; the same is so affe­cted by the Legal Diligence, that the Debitor is denuded as to that effect that he can do no voluntar deed to prejudge the Creditor; Without preju­dice nevertheless of more exact and compleat Diligence of other Creditors, who obtaining Infeftment will be preferred to the first Compryser: as in the case of Moveables after Arrestment, the Debitor cannot dispone the same, and yet may be Evicted by another Creditor by way of Poinding.

If a Superiour be content to take a Right to a Comprysing of Lands holden of him, not being willing to enter the Compryser. Quaeritur, If he may claim a Years Duty when the Lands are Redeemed? Answer. Negative: And he is in the same case as if he had Comprysed himself, so that as he cannot in that case neither in the other can he claim any Compositi­on; in respect the samen is granted only that the Superior should not be prejudged by obtruding a Vassal, upon him against his will.

If by the First Act of Parliament anent Comprysings, a Composition was due to the King? Answer. It is thought, not: There being a diffe­rence betwixt the King and other Superiours; in respect the King is Pater Patriae and all the Leidges being his Subjects, it cannot be said that he has any prejudice by the change of his Vassal, and long after the said Act of Parliament Signatures were not past upon Comprysings, but Compry­sings lay at the Signet and were the warrand of Charters under the Great Seal.

[Page 23]To try when that Custom was changed, and what warrand was for changeing the same.

A Person having Comprysed Lands and having granted Bond that he being satified of the Sums due to himself, and of the Sums due to another person, and that other person being relieved of his Cautionry for the De­bitor, The Compryser should denude himself in favours of the Debitor: And the said Compryser having thereafter Disponed the Right of the Comprysing, but with the Right of the said Backbond expresly provided in the Disposition and the Procuratory of Resignation therein. Quaeritur, If there be no mention in the Seasin that the Right is with the said Bur­den, whether the Compryser will be still Lyable by the said Backbond to the Persons in whose favours it is conceived? And 2do. If the said Back­bond will militate against a singular Successour acquiring a Right from the Assigney to the Comprysing. Answer. It is thought both the Com­pryser and the person having Right from him with the Burden of the Backbond will be Lyable. 2do. A singular Successor will not be Lyable unless the said Provision, that the Right should be with the burden of the Backbond, be in Traditione and in the Seasin.

Quaeritur, What way shall the Appearand Heir have the Right of the Lands Comprysed where the Comprysing is extinguished by Intromissi­on, If it be not by a Service as Heir to his Father? Answer. He may give in a Bill to the Lords or intent Action against the Superiour on that ground, That the Lands are in effect redeemed and satisfied by Intro­mission; And that the Superiour and the Creditor being conveened, it ought to be declared that the Lands are Redeemed, and the Creditor ought to renounce, and the Superior be decerned to Infeft.

When a Person is denuded by Infeftment, and yet the Infeftment and Disposition whereupon it proceeds is Reduceible upon the Act of Parlia­ment as being in Fraudem Creditoris. Quaeritur, What course the Creditor shall take, and whether he should first reduce before he Compryse? Ratio Dubitandi. That if he compryse the Debitor being divested as said is, there is nothing in his person to be comprised. Answer. It is thought it is fit­ter to Reduce and then to Compryse; Because after the Creditor has been at the Charges of Comprysing, it may be there may be difficulty in the Reduction: And yet upon other Considerations, it may be fitter first to Comprise; in Respect the Lands may be Comprysed both for the Debt of the Disponer and the Debt of the Person to whom the Right is given.

Infeftments upon Comprysing.

WHen there is a Clause in a Charter upon Comprysing, That if the Comprysing expire another Infeftment should be taken within Year and Day, otherways the Infeftment to be void. Quaeritur, What is the effect of that Provision, if it may be purged? 2do. If another Com­pryser may object the said Nullity?

Conditio.

COnditio est adjectio, quâ id quod dari, aut fieri volumus, confertur in aliquem casum & suspendit obligationem.

[Page 24]Conditione impossibili adjecta, Contractus est nullius momenti, & contrahen­tes Ludere videntur, secus in sponsalibus & ultimis voluntatibus in quibus fa­vore Matrimonii & ultimae voluntatis, tales conditiones habentur pro non scrip­tis. Christen. de Sponsalibus quaest. 14.

Confession by Criminals,

IF a Confession be emitted and signed before the Judge in the Criminal-Court may the Pannal Retract and not adhere to it before the Assyse, so that the Inquest cannot proceed on it as an evidence and clear Proba­tion?

Minors having confessed hainous Crimes, may they desire to be repon­ed upon pretence of their Age, though they do not pretend and clear that their Confession was upon Error or Mistake?

Confirmation.

A Feu of Church-Lands being neither confirmed by the Pope nor King, If the Confirmation by the King of Rights granted there­after by the Feuer to be holden of the King; will supply the want of Confirmation of the Original Charter?

When a Person is Infeft to be holden of the Superior and deceaseth, and both the Disponer and Superior that was for the time are deceased, yet the Superiority is conveyed to a singular Successor, Quaeritur, If after long time the singular Successor in the Right of the Superiority may confirm the said Infeftment: So that the Heir of the Person Infeft, though not confirmed in his own time, may be Infeft as Heir to him by a publick Infeftment? Ratio Dubitandi, It cannot be said that his Father was In­feft by a publick Infeftment: To consider therefore whether the Party infeft being infeft to be holden of the Superior, may be said to be truely infeft holden of the Superior; But that the Infeftment was not a compleat Right, until the Superiors Consent and Confirmation was had, whereby it did convalesce, as if it had been from the beginning: Or if there be no mid impediment? And there is a Difference betwixt Vitiosum ab initio, & Incompletum; illud nunquam confirmatur, istud accedente comple­mento convalescit.

Whether or not Confirmation may be granted after the Death of the Disponer? Vide Craig.

If a Disposition be granted to be holden of the Superior containing a Precept of Seasin, and if it be confirmed by the Superior, but before Sea­sin follow thereupon the Superior is denuded of his Right in favours of his singular Successor, Quaeritur, If thereafter Seasin may be taken on the said Precept? Ratio Dubitandi, That Res devenit in alium casum, and the former Vassal not being denuded, he remains still Vassal to the succeed­ing Superior; So that by no deed without his consent, a new Vassal can be obtruded to him.

Quaeritur, If Infeftments being to be holden of a Superior, may be con­firmed after the death of the Person infeft? Ratio Dubitandi, Craig seemeth not to be clear, upon that Ground that the Superior and Vassal should both consent; So that the consent of the Vassal in taking the Infeftment and the Superiors in confirming the same be conjoined, which cannot be, [Page 25] the death of either interveening: It is thought nevertheless, that such Rights may be confirmed after the Death of the Receiver, though their Consents cannot be conjoined, which was only done, and when the con­sent of Persons is required ad integrandam Personam; as in the case of Pu­pils and Minors, it ought to be given before their decease, & in ipso acta; But where the consent and confirmation of Persons is ad integrandum & constituendum Jus, which is constitute and perfected per gradus & partes, The consent and confirmation may be at any time re integrâ, and where there is no medium impedimentum: as Exempli Causà, If there be a Com­priseing against the Disponer, the Disposition cannot be confirmed.

Item sometimes there must be Confirmation neither ad integrandam Personam, nor Constitutionem Juris, but for confirming the Right consti­tute; as the Popes Confirmation in the Right of Church-Lands, or the Patron's Confirmation; which are necessary in regard of their Interests, Et ne quid Detrimenti Ecclesia capiat: which may be at any time.

If a Right be confirmed after the Death of the Receiver of the Right, and after the Disponers Heir is Infeft upon the Retour, Quaeritur, If the Heir of the Person who receives the Right, may be served Heir to his Predecessor as having dyed last vest and seased, notwithstanding that the Right was null the time of his decease; and that there is medium impedi­mentum in the Retour, by the Infeftment of the Disponers Heir? An­swer, It is thought he may be served Heir, and the said Infeftment is not an impediment; the Heirs of the Disponer being eadem persona and in effect his Author: And the said Infeftment is in effect to the use and be­hoof of the Receiver of the Right and his Heirs: And the Heir of the Disponer is in no other case than the Disponer himself, whose Infeftment is to the use of the Buyer until his Right be confirmed, and then ceases.

If the King should confirm the Charter à me granted by Castlemaines to Cesnock. Quaeritur, If in that case the Vassals will be in any hazard? Answer, It is thought, not; seing it cannot be said that they were at any time Vassals to Cesnock: And though fictione Juris the Confirmation be drawn back as if Cesnock had been infeft immediatly after his Right: yet it cannot be drawn back where there is medium impedimentum; the Vassals having acquired a Right before, and having never been Cesnock's Vassals but only to Castlemains before the Forefeiture.

If an Heretor of Land dispone his Land to be holden of the Superior, and the Superior confirm the Disposition with all that shall follow upon it; But before Seasin be taken upon the Precept, the Disponer dies. Quae­ritur, What way the Purchaser shall be Infeft? Answer, The Disponers Heir is to be Infeft, and to grant a Precept relating to the former Disposi­tion and Confirmation: Or if he will not, or think not fit to be Heir; the Lands may be adjudged from him as charged to enter Heir.

Quaeritur, In the case foresaid, if the Superior, after he has confirmed the Disposition, die before Seasin thereupon; Whether a singular Successor in the Right of Superiority may question the said Infeftment? Ratio Du­bitandi, That there is medium impedimentum, viz. The Superior is chan­ged; and the former Vassal being his Vassal the time of his Right, there­after another Person cannot be his Vassal without his consent: Et è con­tra, the former Superior having done all that he could do to perfect the said Right; and nothing resting to compleat it but the deed of the Dis­poner [Page 26] or his Heir by giving Infeftment, the former Superior was denud­ed as to his Interest: So that his Successor cannot question the said Right, being perfected by the Infeftment.

If at least the Successor of the Superiority may be urged to renew the Confirmation? Ratio Dubitandi, The singular Successor in the Superio­rity, may be urged to grant Infeftment upon Resignation in the hands of his Predecessor, Cogitandum. But it appears there is a difference, seing by Resignation the Property is in the Superiors hands, whereas by the Con­firmation, it is not: and the Vassal is not denuded before Infeftment up­on the Charter confirmed, whereas he is denuded by Resignation, and by Comprising which in Law is equivalent to a Resignation accepted, seing the Superior cannot refuse to give Infeftment upon Compriseings.

If the Disponer be denuded of the Superiority, what course is to be ta­ken against his singular Successor for renewing the Procuratory? Answer, Seing in the case in question, the Buyer was infeft according to the Tenor of the said Disposition, It is to be considered if the King may notwith­standing confirm the said base Right.

Confiscation.

IF a Person being at the Horn dwell within a Regality, and have Goods or Debts within another Regality, Will these also belong to the Lord of Regality where he dwelleth, upon that pretence that se­quuntur personam?

Confusione tollitur obligatio.

BY Contract of Marriage, the Husband is obliged to employ 30000 merks to himself and his Wife in Conjunctfie, and the Heirs of the Marriage; and has obliged also his Heirs and Executors to employ at his decease 15000 merks to his Bairns besides the Heir, Quaeritur, If the Heretable Estate be short of 30000 merks, May the Heir pursue the Executor ad Supplementum? Ratio Dubitandi, he is served Heir and ea­dem Persona with the Defunct, & confusione tollitur obligatio: It is thought he may, and that Maxim militateth, when the Heir succeedeth in uni­versum Jus & Patrimonium: But in this case the Heir having right only to the immoveable Estate, there is no confusion of that Obligement which is prestable out of the Executory, to which the Heir has no right: as in the case of moveable Debts due by the Defunct to his Heir either of Line or Tailȝie, there is is no confusion for the reason foresaid.

Item Quaeritur, If there be not so much in the Executory as may satisfy the Provision foresaid in favours of the Bairns, if they may have recourse against the Heir for their Provisions? Ratio Dubitandi, The Heir by the Contract was to be provided presently, and the Bairns at or after the Father's decease, and by and attour the Sum provided to the Heir: so that the Heir should have his Provision as Praecipuum and before the Bairns: Answer, It is thought, That the Heir being provided under the name of Heir, which is Nomen Repraesentationis, as he is lyable to other Creditors, so he is lyable to the Bairns, being provided under the noti­on of Bairns, who do not represent.

[Page 27]If the said Provisions had been in a second Contract of Marriage, the Son of the first Marriage being Heir of Line, would be lyable to the Son of the second Marriage though served Heir, and there would be no confusion for the Reason foresaid.

Conjunct-Fiar.

QƲaeritur, If a Lady Conjunct-Fiar or Liferenter of a Barony may re­ceive Vassals singular Successors upon Resignation or Confirmation or give Novo damus.

Conquest.

A Father being obliged to provide to the Heirs of the first Marriage the Conquest, and having acquired a Room during the first Marriage, and disponed the same to the Son of the third Marriage, Quae­ritur, If the Heir of the first Marriage may reduce that Right, as given without an onerous Cause in his prejudice, being a Creditor by that Clause of his Mothers Contract of Marriage? Ratio Dubitandû, It is pretend­ed not to be free Conquest, the Father having contracted Debt thereaf­ter above the Sum of that Room: Whereunto it was Answered, That the said Room was Conquest, the price being then paid; and the Debt contracted thereafter.

A Merchant being obliged to provide the Conquest during the Mar­riage to himself and Wife, and the Bairns of the Marriage, Quaeritur 1. Whether Conquest being Ʋniversitas, will fall under the Executory of the Bairns, though the subject, and what will fall under the Con­quest be moveable?

2do. The Conquest being provided so, that the Right should be taken to the Husband and Wife and Bairns of the Marriage, whilk Failȝieing the half to the Husbands Heirs and the half to the Wifes Heirs: Whether the Husband be Fiar and the Bairns only Heirs of provision, though the subject be Moveable?

Though the Husband be Fiar, if he can Dispone the Conquest with­out an Onerous Cause: or provide the same to other Heirs, in prejudice of Bairns being Creditors by such Provisions?

The Husband being obliged in these terms to provide the Conquest, viz. Lands Heretages and Annualrents and other things; And to take the Rights in manner foresaid. Quaeritur, If the General other things be comprehensive of Moveables, there being no mention of Sums of Money or Moveables? And it seems that Conquest is to be understood pro­perly of Heretable Interests, of which only, and not of Moveables, Rights are taken: And other things may be understood of things Homo­geneous, and of the same nature that the things expressed in particular are of; ( Viz. Heretable) as Reversions, Tacks, &c.

If at least Bonds bearing Annualrent though Moveable, will fall under the conquest; Seing Rights are in use to be taken thereof: And by the Law they belonged to Heirs before the statute? This and the Four pre­ceeding Questions are in the case of Andrew Bruce, and his Conquest dur­ing the first Marriage.

[Page 28]The ordinary Clause of conquest in favours of Wives being of Lands, Heretages, Annualrents. Quaeritur, If Bonds being Heretable because Executors are Excluded will fall under the same? Answer. It is thought, not; Because the Subject is only Lands, Heretages and Annualrents, whereupon there is or may be Infeftment: And Heretages comprehends only Lands, Teinds, and such Rights as are real by Infeftment or other­wise, or whereupon Infeftment may follow.

Consensus.

USƲ receptum est, ut in terrarum aut nominum & jurium alienationi­bus & Cessionibus, praeter contrahentes alii interveniant pro interesse & consensum accomodent & subscribant contractibus & instrumentis: Sed quis­nam Consensûs effectus esse debeat ambigitur; quibusdam videtur, consentien­tes, contractus quibus consenserant haud reprobare nedum ut rescindantur agere posse, juxta tritam juris regulam quod approbo non reprobo. Alii opinan­tur cum nihil juris disponant ant tribuant, consensum haud extendi ultra id quod actum aut cogitatum, viz. Ʋt si quod jus eo tempore quo consensum adhibu­erant suberat, aut juris umbra, ejus ratione aut praetextu Litem aut quaestionem intentare nequeant; Salvâ tamen libertate commercii, & jura si quae sunt penes alios quam contrahentes, potiora acquirendi; aut in ea succedendi: Iis ex inter­vallo & post facto adeptis consensum haud obesse.

Cogitandum an ea sit commoda distinctio, consentientes si in alia jura postea succedant iis uti posse; quae enim consentientibus tunc temporis haud competebant sed postea nec opinantibus forte jus detulit, ea antequam penes eos forent consensu ase abdicasse nec verisimile nec credere par est: Qui autem juri in alium transferen­do consensit, si ejusdem rei jus & melius penes alium esse compererit & sponte & operâ suâ acquirat, ex eo adversus eos qui ipso consentiente jus alterum quaesi­erant agere haud audiendus: Nec enim juri nec bonis moribus consentaneum est, quod approbavit, aliquid moliri aut quaerere quo illud posset reprobare aut rescin­dere Broomhall contra Lady Darsie.

Consensus Domini.

COnsensus assumit naturam actus super quo interponitur: Sicut stipulatio, quae est stricti juris interposita contractui bonae fidaei. Bes. Thes. liter. L. p. 552.

Dominus consentiendo, non praesumitur juri suo velle praejudicare; sed solum obstaculum, quod scilicet jus vasalli sine Domini Consensu alienari non poterat, removisse: Et remissio juris sui non praesumitur, nisi verbis apertis de eâ con­stet. Ibidem P. sequen.

Regula, quod Domini consensus juri ipsius nihil officiat, procedit tantum in illis juribus; quae Domino consentienti competentia, separatam habent rationem a negotio cui consensus accedit, non autem in his quae ad robur & firmitatem actus pertinent. Idem. p. 554.

Consent.

QƲaeritur, If an Appearand Heir consent to a Disposition, made in Lecto, after the Decease of the Granter, may another Heir quarrel [Page 29] the Deed upon pretence that the Consenter was not served Heir at any time? Ratio Dubitandi: The Consent of the Appearand Heir the time of the granting the Right, doth so validate the Right, that all Heirs are precluded from questioning it: And there appears to be the same reason when the Consent is supervenient.

If the Consent will import Behaving?

A Person being Infeft in an Annualrent to be holden of the Disponer; and in possession by payment of the Annualrent, Consents to a Disposition of the Lands. Quaeritur, If that Consent will prejudge a singular Succes­sor; The Disposition being neither Registrate in the Register of Reversi­ons, nor the Seasin upon the Disposition relating to the Consent?

If the Consent of a Person having Right by Disposition whereupon Re­signation has followed, will prejudge a singular Successor?

In what cases Consent to a Right will prejudge singular Successors? Answer. It is thought that where there is no Infeftment and the Consenters Right may be transmitted by Assignation or Discharged, such a Consent may prejudge singular Successors: And will amount to an Assignation or Discharge.

If a Consent of a Party having only Right to a Reversion, will prejudge a singular Successor unless it were Registrate?

Anent Consistories; Whereby the Ʋsefulness and Ne­cessity of these Courts is evinced, and Doubts and Prejudices against them, are Cleared.

THE Question, whether a Judicatory be useful and necessary, and therefore to be Instituted, If it be not; and continued if it be al­ready erected; or unuseful and therefore to be suppressed; Cannot be de­fined well à priori, but from the nature of the Subject, and Causes which are agitate in the Judicatory: And if the Subject be necessary and favour­able, Notwithstanding any extrinsical Abuses (which may creep in to the best Judicatories) it may plead for a Reformation, but not a total Sup­pression.

All Causes are of necessity to be decided, and Justice is always favour­able, But in some Causes (as the Law speaks) praedominatur favor & pub­licum interesse, and such, and only such are the Subject of the Jurisdiction of the Commissarys, as Causae Matrimoniales & Testamentariae, which are in themselves favourable; and the Causes of Orphans and Widows, of mi­serable Persons, of Persons slandered and defamed, of Ministers and their Readers for their Stipends, in which the Condition of Parties pleadeth for favour, not in the point of Decision (which should be impartial, and ab­stract from all respects) but in the way of Procedure, that it be both ex­act and summar; that those Parties be neither dwanged by a long and ex­pensive attendance, nor wronged by a precipitant handling of their Bu­siness: which Qualities seeming incompatible in a Judicial Procedure, con­cur only when a particular Judicatory, is allotted for such Causes: and neither the throng of their Business can justle them out, neither the Judge can have a pretext for shifting them.

The Gravity and Difficulty of Matrimonial and Testamentary Causes is [Page 30] so notour, and the favourable Elogies of Law anent these Persons, recom­mending thereby a Circumspect, and as it were a Religious Handling of them, are so obvious and frequent, that they need not be repeated; and it is certain that there is no Subject debated either in the Law it self, or in the large Volumns of the Doctors, with greater Prolixity and Subtility, than the Causes of Marriages and Testaments. ^(A)

It is to be observed from Law and History, that from these Reasons, Ma­trimonial Causes, and publicatio & insinuatio Testamentorum (which is with us the Confirmation of Testaments) were neither entrusted to the lowest sort of Judges, neither to Judges of great Employment about the deci­sion of other Civil Actions, to be decided in a tumultuary Way, and pro­miscuously with other Causes, but by a considerate Choice of Judges, sin­gled out, for these Causes: It was provided that neither the meanness of the Judge, nor the greatness, nor multitude of his other Employments, should prejudge Causes of so great Gravity and Importance. ^(B)

Though the favourable Nature of Consistorial Causes, and the necessi­ty of a several and peculiar Judicatory for them, be evident for the Rea­sons and difficulty foresaid, and from the Patern of Antiquity; It will ap­pear more clearly from representing the Inconvenients that will follow, if Consistories be supprest, and by answering the Objections against these Courts.

The Inconvenients are these 1. Omnis mutatio etiam in melius est pe­riculosa; Especially of a Fundamental Law and Policie, which hath ever been alse ancient as any monument of Law and Policy in this Country ^(C) 2. Unless there be a Judicatory appointed for these Causes, it cannot be conceaved how Defuncts Wills shall be observed, how Minors, Orphans, Widows, Legators and Creditors shall be secured. 3. Whereas it may be conceived (and as we hear is urged by some men, who know not the [Page 31] nature of Testaments, nor use of Consistories) that a General Register may be keeped of Testaments, as of Sasines, and Hornings, without ne­cessity of Confirmation: The keeping of such a Register cannot supply the want of Consistories, if they should be supprest; Because albeit a Re­gister could be keeped of Testament Testamentars given up by the De­funct and presented to be registrate by Executors; The Registration of them cannot be urged, if the Executors be unwilling, or the nearest of Kin, who is possibly Interessed by the nomination of Executors, and leav­ing of Legacies, to keep up the Testament, except there be a Judicatory for Confirmation of Testaments; and Edicts served, and Intromittors charged to give up Inventar; Neither can any time be limited for registra­tion of Testaments: And the Certification of Nullity, in case of not Re­gistrations within the time appointed, should be Injustice; because Te­staments are not the Deeds of Parties concerned, viz. Executors and Le­gators, but the Wills of Defuncts, which may be unknown to those who have most Interest: and therefore the not Registration of them cannot be imputed to them, as of Sasines and Hornings which are the Deeds of the Parties themselves, and cannot be unknown to them. 4. When Defuncts have not made Testaments, it cannot be conceaved (if there be not a Judicatory for Confirmation of Testaments) how the nearest of Kin should be decerned and confirmed Executors Dative, how Licences should be given, quando dubia est haereditas, and apparently damnosa, and when haereditas est caduca; and neither an Executor is nominate, nor the nearest of Kin craveth to be confirmed; how the Defuncts Goods should be pre­served to Minors and Creditors, if the Procurator-Fiscal be not decerned, and either become comptable, or a surrogation of Parties interessed: And when Testaments have been already confirmed, how shall Testaments, ad omissa & male appretiata & non executa be expede? How shall Executors Creditors be decerned? How shall the intricate Questions be decerned, and Disputs incident in the Confirmation of Testaments be decided, anent the Nullity and Falshood of Testaments, the competition of the nearest of Kin, with the Executor Nominate, of the Executor ad omissa, with the Executor confirmed? Of the Executor ad non executa, with the Execu­tor of the Defunct? Executors anent the Praelation of Creditors, and o­thers of that nature?

The Confirmation of Testaments, and the decision of Causes Matrimo­nial and Testamentary, cannot be devolved upon the Lords of Session, without great prejudice, 1. Because the Lords are already overburden­ed with great Business, and weighty Causes of Heretages, and great Im­portance; and therefore have been forced to discharge themselves of Acti­ons possessory of Molestation, Jam. 6. Parl. 11. Cap. 42. 1587. Ratifying a former Act of of the saids Lords, whereby these Actions are remitted to other Judges; because the multitude of Affairs before the Lords empeaches greatly the ordinary Course of Justice: And it is not possible to the Lords to try the Verity so well, (which are the Words of the Act, and Motive of making of it.) 2. The Lords have not time to hear Parties, and urge earnestly calling and dispatch of the Businesses of greatest Conse­quence; far less can they have time to urge Parties to confirm Testaments, and to enquire, and take course anent Defuncts Goods, ne dissipentur to the prejudice of Creditors and Minors; which should be done, and is incum­bent [Page 32] to the Commissaries ex officio, albeit Parties urge not. 3. The Lords Procedure by reason of multitude of Business before them, is not peremptor; and Parties after long and expensive attendance, having pre­pared their Business for hearing, cannot be assured to have them called and expede, whereas Process before the Commissars are peremptor; and Sum­mons bear not continuations which is necessarly required in favourable Causes, concerning Minors and poor People who cannot attend; But espe­cially in Edicts and Testaments, which cannot bide delay, least Minors Goods should perish: And are so priviledged that in Vacant and feriat times, they may be, and are ordinarly expede, without necessity of a li­cence. All Questions and Causes, and probation of Adultery on Impotency, the Disputs whether frigiditas sit naturâ vel Arte, utrum ante matrimonium aut superveniens; Ʋtrum maleficium sit solubile an insolubile, and others of that Nature, cannot be agitate verecundé, in so publick and eminent a Judicatory, primâ instantiâ.

These Causes much less can be remitted to Sheriffs, and other inferiour Judges. 1. By reason of the Gravity and Intricacy of them ^(D.) 2. The Sheriffs have either their Offices Heretable and Patrimonial, or cho­sen yearly by his Majesty; The first cannot have their Right of Jurisdi­ctions enlarged to Causes of such gravity, without a new Grant and Right from his Majesty; and here how little favourable Heretable Offices are, It is constant from Law and Reason, by the Act 44. Ja. 2. Parl. 11. It is Ordained that no Office should be given in Fee, and Heretage; (Skeen de verb. Sign. in Verbo Sheriffs) Because in Jurisdiction persona eligitur, and both Heretable and other Sheriffs are known to be Gentlemen who under­stand not the Law, nor the way of Process, and are forced to delegate pedaneos Judices; and to depute their Friends and Servants, who have no knowledge of the Law, and being changed yearly, have no time to learn the least formality of Process; ^(E) 3. Sheriffs, who in Con­science, and according to our Acts of Parliament, are lyable to answer for their Deputs, may think it hard that Causes of such weight and Difficul­ty, which cannot be decided but by such as understand the Civil and Ca­non Law, should be remitted upon their perrils to be Judged by Deputs. 4. The Sheriffs Jurisdiction both Civil and Criminal, is so large, (as is represented by the learned Skeen, de Verb. Sign. in Verbo Sheriffs.) that it cannot be extended, without great Prejudices, to Causes and Actions of a different nature; Because Removings, Molestations, Ejections, Servi­ces, and other Actions competent to be judged by the Sheriffs, are for the most part real and possessory, and may be easily decided by the customa­ry Law of the Country, and Acts of Parliament; Whereas Testamentary and other Consistorial Causes, are in apicibus Juris; and cannot be de­cided, but by the Civil and Canon Law, not authoritative, but according to the equity of the said Law, which must be known to those who are Judges in these Causes.

[Page 33]The prejudices and common Objections against Commissariots are these. 1mo. That they are Episcopal Courts. 2do. That Official Courts are supprest in England. 3tio. Exorbitancy of Quots, and other abuses are great in these Courts.

That the first may be cleared, It is to be considered that Jura Episcopalia are of two sorts. 1mo. Such as are usurped by Bishops as intrinsically in­herent in the pretended Office of Bishops. 2do. Such as extrinsically be­long to them by the Grant of Princes or otherways; These of the former sort (as their usurped Jurisdiction over their Bretheren) are extinct with the Office. The last sort is not to be supprest, if they be useful and necessary: Thus the temporal Jurisdiction of Bishops was Reserved to Baillies of Regalities, conform to the Infeftment to be holden of His Majesty: Thus Episcopal Patronages are not extinct, but are to be disposed upon as the Estates shall think expedient, & sic de caeteris. That the Jurisdiction of Commissaries as it is now established is of this kind. ^(F) It appears 1mo. Because it is clear from the Civil and Canon Law; That consistorial Causes non pertinebant ad Episcopalem Audientiam in the times of the great­est Grandeur, and in the most Superstitious Times; And that Church-men were prohibite to medle with them, as Absurd, and most incompetent to be Judged by them, as is evinced by Citations supra at the Letter (B.) But these Causes were assumed by these Judicatories in the Latter Times, upon pretext that they were pious and favourable, and by the Connivance of Princes ^(G) 2do. The Jurisdiction of Commissaries as it is now established, was erected by Q. Mary in time of greatest purity and Re­formation, and a Commission granted by her to the Commissaries of Edinburgh. An. 1563. And is warranted by diverse Acts of Par. Viz. Ja. 6. P. 1. C. 28. 1567. (The which Year, the Lords of Session made certain Instructions for the Commissaries of Edinburgh, and other inferiour Com­missaries) By another Act of his 7 Par. 1581. which is the 26 in the Cata­logue of the Unprinted Acts, and containeth a Commission for confirmation of Testaments and placeing of Commissaries. By an Act of his 12. Parl. 1592 the 25. of his Unprinted Acts, Entituled a Ratification of the Commisa­riot of Edinburgh. By the Act. 179. of his 13. Par. 1593. Ordaining Letters of Horning to be direct upon Decreets of Provosts and Baillies of Burrows as is granted upon Commissaries Precepts. 3tio. It is most evident from the 6 Act of his 20 Par. 1609. That the Jurisdiction of Commissaries is a Temporal Jurisdiction, acknowledged by the Act to flow from His Majesty, as well as any other ordinar Jurisdiction, which His Majesty might have granted to any Subject as well as Bishops; And which is grant­ed [Page 34] by the said Act to the Lords of Session, as His Majesties great Con­sistory for Reduction of Commissaries Decreets; And which before he granted to the Earl of Argyle, whose Heretable Right of the Commissari­ot of Argyle, is reserved by the said Act.

There is a great difference betwixt the Official Courts of England, and the Commissariots as they are Established in this Country, Because Commis­sariots being considered either Objectivé, In regard of the Object and Causes Consistorial; Or formaliter ratione modi quo versantur circa Ob­jectum, in regard of the way of procedure in these Courts, Commissariots are Civil and Temporal Judicatories in both respects, in respect of Con­firmation of Testaments and Testamentary Causes, and Matrimonial, de impotentia Maleficio & de Natalibus. Bastards and others of that nature are incompetent to be Judged in Sessions, Presbytries and Assemblies (which are the true Ecclesiastical Courts) and therefore is acknowledged to be meerly Civil, because Summonds are direct by the Commissaries under the Signet of Office, bearing His Majesties Name and Armes, the Certi­fication is Civil, Witnesses are Summoned under Civil and pecunial pains, and Letters are directed for compelling them to compear under the pain of Horning: The Execution of Sentences is Civil, by poinding or com­prising for Liquidate Sums; Or by a Charge to fulfil what is in facto, upon the Commissars Precept; Or by a Charge of Horning upon the Let­ters; And by intenting Action of deforcement before the Commissaries or the Lords of Session. But the Officials Jurisdiction was Episcopale, Ec­clesiastical in both the former Respects, and was continued as it had been in the Popish Church; The Bishops usurping the Jurisdiction that belonged to Sessions Presbytries and Assemblies; and delegating to their Officials their Jurisdiction, both Objective, in Causes competent to be judged in Church Ju­dicatories; And Formaliter in the way of procedure competent only to the Church. By the Canon of the English Church they were Judges in causa non modo instantiarum sed Correctionis & disciplinae, they had a Superinten­dance over Ministers, to advert that they should do their Duty in their Charges; Ministers and Church-men were accusable before them, and being contumacious and not appearing might be Suspended and Ex­communicate; They were Judges whether Crimen be notorium & publi­cum or not; And upon pretext that it was not publick and Scandalous, po­terant mutare poenitentiam in mulctam pecuniariam; They usurped Sacrile­giously the power of the Church and Ecclesiastick Censures, and by the fulminating at random Excommunications for small matters, as small Debts, Viccarrage Teinds, the Official and his Officers Fees, and for Non-compearance in their Courts: And by their easy Absolution upon small satisfaction and for Money, made Excommunication con­temptible ^(H) For these and other Abuses intrinsical to the Judica­tory it self, These Courts have been long ago cryed down on these grounds by diverse Learned and well affected Men, and lately supprest: But the instance of their ruine cannot with reason be adduced to subvert Consistories, they being altogether different and absolutely Civil in their Institution, object and way of Process, and no more Ecclesiastical than the Church Regalities, which had an Extrinsical dependance on Bishops in the way of holding.

[Page 35]It is already cleared, That if any Abuses be in these Courts they are not essential resulting upon the nature and Constitution of the Judicatory, but accidental, which may be Reformed, without the subversion of so old and so useful a Judicatory. 2do. If Commissaries either be not qualified or corrupt, It is wished they may be tryed, and removed, and a solid course taken for obviating the like Abuses thereafter, that places be not venal, but proposed and disposed as rewards of Vertue to able and deserving Men 3tio. The Exorbitancy of Fees and Quotts may be Regulated, by taking course anent the presentation to settled places, that honest and ingenious Men be presented, that a Competency of settled and constant Fees be alot­ted to encourage honest and able Men to pretend to these places, and to enable themselves for them, and that they may live creditably and ho­nestly in them, and Quotts may be abridged, and it may be provided that small Testaments may be free of Quot; And the Quots of great Testa­ments may be limited, not to exceed a certain Sum, which the Estates shall think reasonable to be the highest Quot: The Quot Silver which shall be thought fit to be taken may be employed (the Commissaries being satisfied of their Fees) to pious uses.

Consolidation.

A Person having Right by Assignation to a comprysing of Lands hol­den of himself, whether eo ipso that he has the foresaid Right, will the Property consolidate with the Superiority? Seing a Comprysing is e­quivalent to a Disposition and Resignation thereupon: And the Superior having Right by an Assignation to a Disposition whereupon there is Resig­nation, and to the said Resignation; It seems that in that case there is Con­solidation: In respect the Superior upon such an Assignation in favours of a Stranger will be obliged to Infeft him: And because he cannot Infeft him­self, the Law doth introduce Consolidation. Ratio Dubitandi is, That Con­solidation is upon the matter a Seasin of the Property; And a Seasin being facti, cannot be without some deed of the Person, in whose favours the Consolidation is to be made, Declaring that he accepts a Right to the effect foresaid. If it be not fit in such cases, that the Superior should before a Notar and Witnesses Declare, that seing he has both a Right to the Proper­ty and Superiority in his Person, It is his will and intention that the Pro­perty should be consolidate with the Superiority; And that an Instrument upon his Declaration foresaid should be equivalent as if the Compryser had been Infeft and had resigned ad Remanentiam: And if such an Instrument should not be Registrate as an Instrument of Resignation ad Remanentiam?

When a Person Infeft in the Property of Lands, acquires and is Infeft in the Superiority. Quaeritur, If eo ipso there be a Consolidation of both Rights? Item if the Superior succeed as Heir to the Right of the Property Quaeritur, If in that case there be a Consolidation, so that Dominium di­rectum trahit ad se utile? Seing the Superior could not Infeft himself, and by his purchasing of the Property he enters to the Right thereof, and so the Property is consolidate fictione juris, in the same manner as if he had been Infeft.

If vice versâ, The Proprietar acquire the Superiority, If eo casu there be a Consolidation of both Rights? Answer. It is thought, not: And that Dominium utile cannot draw to it directum, without Infeftment by the Su­perior of the Dominium directum.

[Page 36]If a Person being Infeft by his Father upon a Right granted to him and his Heirs whatsomever to be holden of the Disponer; be thereafter In­feft as Heir to his Father in the Superiority of the said Lands, which be­longed to his Father and his Heirs Male. Quaeritur. Whether there will be a Confusion and Consolidation of the Property and Superiority? It is Answered. During his Lifetime there will be a kind of Consolidation, see­ing he cannot be Superiour to himself: But it will cease by his Death, so that the Superiority will belong to his Heirs Male, and the Property to his Heirs whatsomever.

If he intends that there should be a Consolidation, what course is to be taken to that purpose? Answer. If, as in the case foresaid, he was Infeft first in the Property and then in the Superiority, he must dispone the Pro­perty to a Confident; And the Confident being Infeft must resign ad Re­manentiam, to the effect the Property may be consolidate with the Superio­rity to him and his Heirs Male and their Successors.

If a Superior should succeed in the right of the Property. Quaeritur. If there be a confusion of both Rights in his Person? Answer. It is thought, though they may appear to be a Consolidation dureing his Lifetime, they are nevertheless distinct; Seing the right of the Superiority may be to Heirs Male, and the Property to Heirs whatsomever: And the said Heirs may succeed Respectivè.

If the said Superiour, being Infeft in the Right of the Superiority, succeed thereafter in the Right of the Property, what way shall he be Infeft there­in, seing he cannot Infeft himself? Answer. It is thought that it is not inconsistent, that the Superior may give Precept to give Seasin to an Actor­ney in his name and for his use.

If the said Superior intend that the Property should be consolidate with the Superiority, what way shall it be done? Answer. He may direct the said Precept in these Terms for Infefting him: And seing he has both Rights in his Person and intends that the Property should be consolidate with the Superiority; The Precept may be in these Terms, to give Seasin to the effect the Property may be consolidate with the Superiority; To be hol­den both of his Superior in all time coming, in the same manner as if they had never been severed.

If a Precept may not be obtained in subsidium out of the Chancery, for Infefting the said Person in the property to be holden of himself, seing he cannot Infeft himself? Answer. It is thought that a course may be taken upon a Bill to the Lords, ordaining the Director to the Chancery to di­rect a Precept upon the reason foresaid.

Decreets contra Consortes.

A Decreet of Reduction Ex capite interdictionis being obtained in foro; and the Wife being Liferentrix craving to be reponed, because Com­petent and omitted could not be alledged against her being sub potestate Mariti. Quaeritur. If she prevail, may the Husband crave the benefite of her Decreet? Ratio Dubitandi. Upon pretence that it is found that the Decreet against him was unjust upon the matter: And it cannot be just as to her and unjust as to him.

This Question may occur in many cases; As that of two Heirs portio­ners, [Page 37] one being Major and another Minor: And after the Decreet against both, The Minor being Reponed and prevailing. And of a Decreet a­gainst a principal, having proponed a Defence of payment and having succumbed in probation: And thereafter the Cautioner being pursued, and upon probation of the same Defence, being Assoilied.

Corporations.

QƲid juris as to Crafts and other Incorporations, and as to Bishops and other single Incorporations, if in any case they may oblige them­selves and their successors?

Creditors of the Defunct.

IF the Creditors of the Defunct being Minors will be preferred to the Creditors of the Heir, though they do not Diligence within three Years?

Persons convict of Capital Crimes.

A Person being convict of a Capital Crime, and the Escheat of his Move­ables therethrough falling to the King, and he being keeped in prison many Years without a Remission, and dying in that condition. Quaeritur, Whether the Rents of his Lands in the interim not uplifted, will belong to the King and his Donator, or to the Heir? Ratio Dubitandi, His Escheat is only of what he had the time of the Sentence; after which he became civiliter mortuus; and being nullus in Law, he had nothing to loss; And the King by his Indulgence could not prejudge his Heir, unless he had granted him a Remission restoring him against the Sentence.

Quaeritur, quid Juris, If after he is convict, he should commit Treason, whether he might be Forefaulted in prejudice of his Heir?

Curator.

A Female Minor being Married, Quaeritur, If the Office of her Cura­tory doth expire?

Curatores ad Lites.

JƲre Saxonico, Faeminae sunt in perpetua Tutela, sed isti Curatores non habent Administrationem, & ideo Rationes non tenentur reddere; adhibentur enim tantum pro consilio & assistentia, & ad integrandam personam, maxime in Ju­dicialibus.

Ex consilio suo, quod fideliter impertiuntur, etiamsi non responderit eventus, conveniri nequeunt, quia nemo ex consilio obligatur: An idem dicendum in Cu­ratoribus ad Lites? Thes. Bes. in litera K. 47. verbo Kriegerischer. per. totam pag. 474. & sequent.

Damnum, cum quis utitur Jure suo.

DAmnum est conjunctum cum injuria: Et non dicitur Damnum quod Evenit cum quis jure suo utitur.

Si vero quis ita utatur Jure suo, ut vicino potius noceat quam sibi prosit, il­licitum est, & prohiberi potest: Quia magis Jure suo abuti quam uti videtur.

Si in meo aliquid faciam ad aemulationem & injuriam alterius, hoc est, non in meam utilitatem sed animo nocendi; alteri de Dolo Teneor.

Secus si injuriâ faciam, non animo nocendi vicino sed ut mihi prosit.

Si enim in meo praedio puteum aperiam, quo aperto, venae putei vel fontis vicini mei praecidantur, non teneor ex hujusmodi facto etiamsi promisissem de Da­mno infecto, quia jure meo & licite feci. Textus sunt expressi, Leg. 1. §. 12. & Leg. 21. ff. de aqua pluvia arcenda, Jus Fluviat. p. 67. n. 13.

Death-Bed.

IF a Creditor may on Death-Bed make an Heretable Sum Moveable by a Charge of Horning?

A Person holding Lands Ward, when he was on Death-Bed did resign his Estate in favours of his eldest Son, with the Burden of Provisions in favours of his other Children; which course was taken of purpose, to pre­vent the falling of the Ward and Marriage, his Son being then Minor. Quaeritur. If his Son may question these Provisions as being in Lecto, upon pretence that though on Death-Bed he might Dispone in favours of his Heir, yet he could not prejudge him? Answer. It is thought that the said Right being made suo modo, and he having accepted the same and bruik­ed by vertue thereof, after Majority he cannot question the said Modus and Qualification.

A Person having provided his Estate both Heretable and Moveable to his Relict in Liferent, and to his Daughter in Fee, and Failȝieing of her by Decease to be divided betwixt his Relict and his Brother, being his next Heir after his Daughter and her Heirs. And the Brother having accepted of a share of the Moveable Estate after the Decease of the Daughter. Quaeritur. If he might question the said Right as to the Heretable Estate as being made on Death-Bed? Ratio Dubitandi. Ʋtile per inutile non vi­tiatur, and the Defunct might on Death-Bed dispose on his Moveables; And the accepting of the Right as to these does not hinder the Heir to question the same as to the Heretage; Whereof he had no power then to dispose.

A Husband having Disponed Lands by way of Gift to his Wife, and having thereafter revocked the said Gift tacite by a Disposition made on Death-Bed in favours of another person. Quaeritur. If the Heir may question the said Disposition upon Death-Bed? Ratio Dubitandi, The Heir is not prejudged, in respect the Lands would not have belonged to him [Page 39] but to the Wife: And the Revocation is qualified and only in favours of the Person to whom it is made on Death-Bed, and to no other effect.

Debitor and Creditor.

IF for a Sum of Money, Land be Wodsett, so that the granter of the Wadset is not Debitor, There being no Clause of Requisition or Oblige­ment for repayment, Quaeritur, If there be only a Reversion, Whether will the granter of the Wadset have the benefite of the Act Debitor and Creditor; so that the haver of the Wadset may be restricted to the Annual­rent of the Sum contained in the Reversion? Grubet contra Moir.

After a Comprising was deduced, an Infeftment of Annualrent was granted by the Debitor: And thereafter another Compriser having com­prised, who pretended that his Compriseing should be drawn back to the first, being within Year and Day, and therefore should be preferred to the Right of Annualrent: And that the Debitor being denuded by the first Compriseing, had only a Reversion; and that an Infeftment of An­nualrent is not habilis modus, to give a right of Reversion; and that it was not, nor could be cled with Possession; The second Compriseing being before the term of payment: The Lords brought in the Annualrenter with all the Comprisers, as if he had comprised the same day he was in­feft. Colstoun contra Nicolas a Creditor of Dunglass. Gibson Clerk. Col­stoun's Bond was 16 February 1669; Seasin 24 May 1669, Nicolas Com­priseing 1669.

If the first Compriseing and Infeftment should be considered as being to the behoof, not only of the Adjudger Infeft, but of the others, by the Act of Parliament, in the same manner as if the Infeftment had been so granted expresly by the Superior? Quaeritur, Quid Juris? Ratio Du­bitandi, That even in that case the Adjudger Infeft is only Vassal, so that by him only the Superior has his Casualities. Bancrief.

Nomina Debitorum.

IF Nomina, which are not Res, But Entia Rationis, have Situm, when the Debitor is in Scotland animo remanendi, and the Debt is contracted with him, as resideing there? Ratio Dubitandi, They are thought and called a Personal Interest, and therefore should sequi Personam. Contrà, They are, Res in Obligatione & potentia. 2. If the Creditor be forefaul­ted in France, being a French-man, they do not forefault to that King, Quia subditus amittit only quae sunt civitatis. 3. They are lyable in Scot­land to extraordinary Taxations. 4. The Debitor is quasi servus, & ser­vi habent situm. To consider Quid Juris elsewhere, as to Banks & montes Pietatis.

Strangers Debts.

IF a Stranger contract with a Scots-man abroad, that he should pay him presently upon the Place, and the Debitor nevertheless come away without satisfaction. Quid Juris as to that Debt, whether it be constru­ed Nomen Anglicum?

[Page 40] Quid Juris as to English-debts, contracted betwixt English-men in En­gland, if the Debitor withdraweth to Scotland? Answer, It is thought, that though actor sequitur forum rei, and the Law of Scotland has place in such Cases, quoad Ordinatoria, yet the English over-rule such Cases quoad Decisoria: And a Testament proven in England is sufficient.

Debitum Annuum.

A Brother having given a Liferent-tack to his Brother of a yearly Du­ty of Victual out of his Lands, to be payed yearly during all the days of his lifetime at Martimass; and the Tacks-man having deceased before that Term, will he have any part of that years Duty in which he deceaseth? And if there be a difference betwixt Debitum annuum & Le­gatum annuum, cujus dies cedit anni initio? Mr. William Turnbul Minister of Mokerston, contra Turnbul of Minto.

Debitum in Diem.

WHat course should be taken when the Debt is in Diem, and the Term of Payment not come; and the Debitors Estate comprised, and the Comprising for other Debts like to expire before the Creditor in Diem, can have a Decreet and Execution thereupon? Sir Robert Sin­clair's Daughter.

Decimae.

AƲ Commencement Les dismes n'estoyent le domaine des gens d'eglise: et les dons des dismes que les Princes et Seigneurs ont fait aux Moines (qui lors n'estoient du nombre des Clercs) ont esté faites de leur biens propres?

Plusieurs payoient les dismes par devotion sans contrainte, de ces payments fut faite coustume qui causa obligation qui Engendra action pour contraindre a payer les dismes. Grimand. de dismes lib. 1. cap. 4.

La contrainte de payer dismes primierement, N'eut fondement certain sur l'authorité du Magistrat Civil, car il ne se trouve aucune constitution pour payement des dismes dans les Loix Imperiales, Ibidem.

Charlemagne fut le premier qui les commanda payer Ibid.

Decreets of the Lords of Session.

WHether the Sentences of the Lords of Session should be conside­red as Laws, and if notwithstanding thereof, these who are of another Opinion may in cases occurring thereafter, vote according to their own Opinion?

Deeds both inter Vivos & Mortis Causa.

IF it appear by a Paper in legitima potestate, That the Defunct intended to settle his Estate, both Heretable and Moveable, Whether will the same be valide as to both, so that both a Testament and Deed inter vivos may be consistent in one Paper? Ratio Dubitandi, If at the same time [Page 41] there had been a Paper apart, in the same Terms, it had been a valid Right as to the Heretable Estate, being Delivered: And it appears that it were against Reason that it should be invalid because it is in a Paper containing a Testament, seing utile per inutile non vitiatur. Captain Ross.

Dependence.

INhibitions and Arrestments may be upon Dependence of an Action: Quaeritur, If when two Citations are necessar, the Summons with the first Citation thereupon, will import a Dependence before the second Citation?

Destination of Succession.

A Bond being granted to a Sister by her Brother for Provision, and to the Heirs of her Body, whilk failȝieing to return to him and his Heirs: Whether may she assign it without an Onerous Cause? Jean Drummond contra Riccarton her Brother.

Whether the said Bond be moveable, and will fall under Executory?

Humbie, By Contract of Marriage betwixt him and Wariestoun's Daugh­ter, being bound to resign for an Infeftment to himself, and the Heirs Male of the Marriage; Which failȝieing his Heirs Male whatsomever, Quaeritur, If there be no Heirs Male of the Marriage, will his other Heirs Male have action of Implement; The said Obligement being on­ly in Favours of the Marriage?

If as to other Heirs (That being only a Destination) he may alter it at any time, etiam in Lecto, in favours of the Heir whatsomever of the Marriage? Quod in Favorem introductum est, in odium non retorquetur.

If a Bond were granted by a Person in the same Terms, and were lying by him, might he alter or destroy it in lecto?

Desuetudo.

LEx non dicitur sublata per non usum, sed per contrarium usum. Baldus ad Tit. ff. de Legibus & Cod. quae sit longa consuetudo, Heiring: de Mo­lendinis, Quaest. 37. N. 38.

Dies coeptus.

IN Favorabilibus Dies coeptus habetur pro completo: v. g. Pubes dicitur annum decimumquartum complevisse, cum diem ejus ultimum attigit.

Dilapidation.

THE Act of Parliament 1585 against Dilapidations, provides, That Bishops to be provided thereafter, should find Caution to leave their Benefice as it was at their Entry: and if the Person so provided should do otherways, the Tacks and other Deeds should be void. Qua­ritur, If they should find Tacks set at their entry, Whether they may set [Page 42] new Tacks after the expireing thereof; the Benefite being in the same case by the new Tacks as at their Entry? Cogitandum.

Dishabilitation.

QƲaeritur, If by our Law the Posterity of Traitors may be disabled, and what may be the import of the Dishabilitation? and whether etiam Ante-nati may be disabled?

Power to Dispone, notwithstanding the giving away the Right of Fee.

WHen Lands are disponed, reserving a Power to the Disponer to dispone the same in hail or in part, as if he were Fiar, Quae­ritur, If he be thereafter forefaulted, will the King have the same faculty by the Forfeiture? Answer, The said Faculty being Perso­nal to the Disponer, upon personal Considerations, such Reservations be­ing in Rights granted by Parents to their Children, to be Tyes upon them that they be dutyful; and because Parents may come to be in that condition that they may need, and it is just that they have recourse to their own Estate: Seing the said Considerations do not militate as to the Fisk, the said Faculty cannot be pretended to be transmitted.

Quid Juris, In the Case of a Compriser, whether the said Faculty can be comprised? Answer, That the Debitor having the Faculty foresaid ought to dispone for satisfaction of a just Debt; And if he be so unjust as not to satisfy the Debt, the Law may, and doth dispone: and in Law the Compriseing being a Legal Disposition, is equivalent as if the Disposition had been made by himself.

Dispositio collata in arbitrium alterius.

A Person not being satisfied that his nearest Kinsmen should succed him, having a great Estate, and they but mean, and who, he conceived could not represent him creditfully; and not being fully resolved who should represent him, lest he should be prevented with death, did there­fore dispone his Estate in Lands, to such two Persons most worthy of his Name; or upon Mortifications, or such Pious Uses, as Ten of his Friends named in the Disposition, being a Deed inter vivos, should think fit. Quae­ritur, If the Friends should accordingly name two Persons, would the Right be valid? Ratio Dubitandi, 1. Mandatum expirat morte mandan­tis: And if he could not dispone himself on Death-bed, much less could he impower another Person to dispone after his Decease. 2. Paria sunt indebito tempore fieri & in tempus indebitum conferri. 3. A Deed cannot be said to be a perfect Deed inter vivos, unless it were consummate in sub­stantialibus, and the Person Cui, is de substantia. 4. No Power can be given by a Person, who has no Right himself but as Procurator or Com­missioner, and such Powers do expire with the Granter. 5. There can no Right validly be given incertae personae, or ex alieno arbitrio in futuro. 6. The Defunct could not give Power to the said Friends, to dispose of [Page 43] his Personal Estate after his Decease, and à pari or majori, he could not give such a Power as to his Heretable Estate. Mr. John Bayne of Pit­cairly.

Disposition.

IF a Person get a Right and Disposition omnium Bonorum; Whether will he be lyable to the Debt of the Disponer?

Actio ad Distractum.

EX Contractu non agitur ad Distractum, sed ad implementum: & Contra­ctus & Transactio non aliter annullantur ex defectu Implementi, quam si praecesserit monitio ad implendum, & deinceps culpa implere Debentis. Hering. de Molend. Quaest. 11. N. 132. & 133.

Division of the Duties of Lands, betwixt Buyer and Seller.

BY the ordinary Custom when Lands are sold, If it be a Whitsundays Bargain, the whole years Duty is assigned: If it be a Martimass-Bargain, only the half year. Quaeritur, If they be not assigned, Quid Ju­ris as to the said Duties? Answer, It is thought, the Buyer will be in the Case, as we have said of a Compryser: But the Question will be if the Bargain be made after Martimass, and before Candlemass the ordinar Term of Payment of Victual? And then it is thought, that the Buyer should be in the same case, as if the Bargain had been made precisely at Marti­mass, if the price be then payed, or in condition to be payed, with the Annualrent from Martimass: Seing the Disponer is in no worse case than if the Bargain had been made precisely at Martimass.

Donatio inter Virum & Ʋxorem.

A Woman being induced to consent to a Right granted by her Husband of her Conjunct Fee Lands, and making Faith not to question it. Quaeritur. If she may so far revock a Donation as to her Husband, that she may crave the equivalent?

Donatio inter Virum & Ʋxorem being ipso jure Null, But so that morte confirmatur. Quaeritur. If a posterior Creditor of the Husbands should Comprise Lands given to the Wife, during the Marriage before the Hus­bands Death, will his Death confirm the deed in prejudice of the Creditor; The Comprysing being medium impedimentum?

If at least the Legal will belong to the Wife, The Husband not Re­vocking?

If the Husband decease without Revocking. Quaeritur. If the Wife will have Action against the Heir upon that ground, that the Debt is pay'd out of her Estate by the Comprysing on the Husbands posterior Bond?

Lands being Disponed by a Husband to his Wife, and thereafter he [Page 44] having Disponed the same to another person in Lecto aegritudinis. Quaeri­tur. If his Heir may question the Right in Lecto? Ratio Dubitandi, It is not made in his prejudice but of his Wife: And the Revocation is only in favours of the Receiver of the Disposition.

A Debitor having contracted Debt after he had made a Right of Land or any other Donation in favours of his Wife. Quaeritur. If eo ipso he has Revocked Tacité the said Donation? Ratio Dubitandi. The Donatio inter virum & uxorem is Null, and morte tantum confirmatur; And before it became valid the said impediment interveened: And since the Debitor might have Revocked the said Gift and might have satisfied the Creditor that way; his Silence and not Revocking is upon the matter frau­dulent, and in prejudice of the Creditor. It is thought, That it is to be considered, if the Debitor or his Heir have no other Estate, out of which the Creditor may be satisfied; In that case the Creditor may have recourse against the Lands Disponed to the Wife.

If in the case foresaid the Wife may have recourse against the Heir for the Lands given to her so evicted? Ratio Dubitandi. That if the con­tracting the Debt after such Donations import Revocation, it ought to be only in favours of the Creditor and not of the Heir, who ought to be in no better case, and the Wife's Action against the Heir may be upon that ground, That out of the Estate belonging to her (unquestionably as to the Heir) the Debt whereto the Heir is Lyable is satisfied.

A Woman having made a Disposition to a third person to the behoof of her Husband, and having ratified and made Faith before a Judge. Quae­ritur. If she may question the said Deed as being Donatio inter Virum & Ʋxorem notwithstanding her Oath? Answer. It is thought she may: And that Deeds that in Law are invalid cannot be sustained upon pretence of an Oath which ought not to be Vinculum iniquitatis; otherwise eâdem faci­litate that a Wife is induced to give, she may be induced to Swear, and the Law should be Elusory: And such Oaths ought to be understood only, that they are not compelled, and that they shall not question such Deeds upon that head; But not in relation to any other Ground whereby they may be questioned; As v. g. Minority, and that the Wife has Curators not consenting: And that the Husband (if she has no other) is Cura­tor and cannot Authorise her to any Deed in rem suam: And the Act of Parliament anent the Oaths of Wives is in favours of Strangers and not of Husbands.

Donatio mortis Causa.

THere being a Donation inter virum & uxorem. Quaeritur, The Do­nator Deceasing and the Donant Surviving and not Revocking, whether will the Gift be Valid? Ratio Dubitandi. Such Donations aequi­parantur Legatis being always Revocable: And Legatars Deceasing before the Testator their Legacies are void.

Donatio non acceptata.

IF a Donation be made but not accepted. Quaeritur, If a Creditor may Compryse the same and accept? Vide Legacy quest. 4.

Donators upon Recognition and Forefaulture.

AFter Lands holden of the King had fallen under Recognition, they fell also under Forefaulture, and after the Decease of the Forefaulted person a Gift of the said Lands was given upon the Recognition, and there­after another Gift was given upon the Forefaulture; It not being known by the King or his Officers, the time of the first Gift, that the person Fore­faulted had committed Treason; Quaeritur, Which of the Donators should be preferred? Ratio Dubitandi, That Recognition is but a Casuality; And after the Vassal was Forefaulted the property was thereby devolved to the King ipso jure; And all Casualities seem to be Extinct, and consolidate with the Right of property: And the Right upon Recognition does not belong to the Superior ipso jure before Declarator. M ^cghie of Larg.

Duels and Hame-sucken.

IF Hame-sucken or Fighting Duels be Capital though no person be killed?

Qui in Duello occubuerunt, in Locis religiosis sepeliri non possunt, Perez. Lib. 2. Tit. 1.

Emancipatio.

IF by our Law, Children after twenty five years may Emancipate them­selves, and live by themselves, and leave their Father and his Family? Cogitandum. And the custom of other Nations is to be considered.

Whether if they go out of the Family without the Fathers consent they may claim a Bairns part?

Contractus Emptionis a Pretio incipiens aut Mensura.

CƲm emitur fundus tot jugerum, an si plura reperiantur jugera Emptori cedant, an venditori? Respondetur. Cúm pretium formatur a Mensura, & ab ea Contractus incipit, & in singula jugera certum pretium promittitur, quod superest ad venditorem redit, quod deest ab eo suppletur.

Sin Contractus incipit a specie, licet demonstrative aliqua mentio de modo agri fiat; ut si vendo fundum centum jugera continentem, si plura repe­riantur, cedunt Emptori, nec ad augendum pretium tenetur: falsa enim fuit Demonstratio, quae non nocet. Thes. Bes. in litera K. 9. verbo Kauf­fen. p. 453.

What way the Buyer may be urged to Enter.

IF the Buyer lye out what will be the remedy for the Superior? Answer. He may pursue to hear and see him decerned to Enter, and to [Page 46] pay Composition: And without prejudice of that Decerniture, if he con­tinue to ly out, To hear and see it found that the Lands are in Non-entry; And that the Superior as to Casualities, shall be in the same case as if he were Entered.

Entry of Assigneys upon Resignation.

IF the Alienation and Resignation be Assigned, Quaeritur, If the Su­perior may be compelled to enter the Assigney, seing both are in fa­vours of Heirs and Assigneys? Answer. Negativé, Unless a Composi­tion be payed both for the Buyer and for the Assigney: Seing the Superior is not obliged to Enter any but the Buyer and his Heirs: And though the Right be to Assigneys it is to be understood such as the Superior should be satisfied with: And the Superior is not to be in a worse case than if the Buyer had been Infeft and had Disponed: And there is in this case Fictio brevis manus.

Entry upon Resignation by a singular successor.

WHat way a singular Successor in the Right of Superiority, may be urged to Infeft upon Resignation in his Authors time; Seing he does not represent him as Heir; And is not bound to the Buyer by Con­tract or quasi? Answer. There is obligatio in rem, as in the case of Servi­tudes and Annualrents; And he may be pursued summarly to hear and see him decerned to Enter the Buyer: And to that purpose to give him a Charter of the Tenor Exhibited: And upon a Bill the Director to the Chancery may be ordered to give out a Precept in subsidium.

Liferent Escheat.

A Vassal having granted a subaltern Right being Year and Day at the Horn, Forfaulteth only his own Right of Liferent without prejudice to the Sub-vassal: Whereupon it may be Quaeried, If a Vassal has Dis­poned his Right but so that the Party Acquirer is not Infeft, will notwith­standing the Disponers Liferent fall? Answer. Affirmativé. And the Ratio Dubitandi is of no weight. Viz. 1. A Tacksman though the duty be not proportionable will not be prejudged. 2. If the Receiver of the Disposition be Rebel per annum, and the Lands hold of the King, The King will get eodem tempore Two Liferents of the same Lands. Viz. One by the Rebellion of the Disponer, and the other by the Rebellion of the Re­ceiver. For as to the first, a Tacksman has a Real Right and Interest which militates against a singular Successor. And as to the second, there is no Inconvenient that the Superior should have the Liferent of his Vassal; And if the King be Superior that he should also as King have the Liferent of his Subject; And any benefite may accrue to him by the Disposition and Warrandice thereof during his Lifetime.

If a Person Infeft in Liferent be denuded by an Assignation of the Life­rent, which is only habilis modus (in respect Liferents constitute by Infeft­ment are personal, and cannot be transmitted by Resignation) Quaeritur If the Liferenter be Year and Day Rebel after the Assignation, will the Su­perior have Right to the Duties?

[Page 47]A Lady Tercer, or Tennent by Courtesy, their Lands holding of an­other Superior than the King, and they not being Vassals to him; Whe­ther will their Liferent fall to the King, being year and day at the Horn?

A Person being denounced in April, and continuing year and day at the Horn, Quaeritur, quando dies cedit, of the Liferent falling to the Supe­rior of the Lands set to Tennents? And whether or not the Superior will be in the case of a Liferenter surviving the Fiar; So that he will have right in the case foresaid, to the full Duty of that year that the Liferent falls, per lapsum anni & diei?

Quid Juris, Where the Rebel laboureth himself, will he not be lyable to the Superior for the Duty of that Year, as if he were a Tennent?

If these Obligements that are ordinary in Dispositions to be holden of the Granter and Superior, That while the Buyer holds of the Granter, his Heirs and Successors shall be entered gratis, and shall not be lyable to Non-en­try nor Liferent Escheat, which are gifted to them now as then, Will bind singular Successors? And what way they may be made real, if there be any Question? Answer, It is thought, that they may be inserted both in the Charter and Sasine.

It may be contended, that these being upon the matter Servitudes up­on the Superiority, may be constitute as other Servitudes without Write; specially seing it is intended they should hold either of the ways; and that the Right in the Person of the Disponer to be holden of the Superior, is in effect to the Buyers behoof, until they be confirmed: And Reversions were Real, even before the Act of Parliament anent the Registration of the same, Cogitandum. If at least Comprisers will be lyable to such Ob­ligements? Seing they comprise only such a Right as their Debitor had: and they are in use to comprise all Contracts and Dispositions, and there­fore ought to be lyable in rem to all Obligements upon the Debitor and his Successors, relating to the Lands comprised.

To consider, If there be not a Difference betwixt Obligements as to Life­rent Escheat and others; these as to Liferent Escheat being contrary to Law, and such as give occasionem peccandi; and if such an Obligement be not sustained, to whom will the Liferent belong? Whether to the medi­ate Superior, seing the immediate has renounced? or to the King as ab­latus ab indigno?

If a Liferent Escheat be gifted to the Rebel himself, being yet at the Horn, Whether will it fall under his single Escheat, or Liferent to the King?

If the Liferent be gifted by the Superior to the Vassal himself being re­laxed; and if thereafter he be Year and Day at the Horn. whether or not his Liferent will of new fall to the Superior? Ratio Dubitandi, he can­not have two Liferents of one Person.

If there be a Difference betwixt the Casualities of Ward and Non-en­try, and a Liferent Escheat, which has also tractum temporis; in respect the Liferent Escheat falleth ex delicto, and but once, and is Jus collecti­vum of all Years falling under Liferent: Whereas Ward and Non-entry are of the Nature of Annua Legata, and are in effect annuae cessiones, which are only Effectual during the Cedents Right? Vid. Title, If Gifts of Ward and Non-entry prejudge singular Successors, in Lit. G.

[Page 48]If a Person being at the Horn should suspend and relax, and thereaf­ter the Letters being found orderly proceeded, should be Denounced, Quaeritur, If the time of the former Rebellion would be continued with the last as to the Question of the Liferent, as if the Rebel had not been relaxed?

When Reversions, or Minuts bearing Obligements to dispone in favours of the Rebel, do fall under Liferent Escheat, Quaeritur, What benefit or Right will the Donator have? Answer, It is to be considered, what be­nefite the Rebell would have: and the Liferent thereof will belong to the Donator.

If an Heretor be year and day at the Horn, and there being a Subal­tern right holden of him for a small Feu-duty, the Superior would get his Liferent only as to that Feu-duty, there being no more his.

Quaeritur, If there be a Liferenter holding of the Superior, and she hav­ing assigned her Liferent during her lifetime, Whether or not the Supe­rior will have right to her full Liferent, without respect to the Assignati­on? Et quae Ratio differentiae? Answer, The subaltern Right was a real and valid Right, constitute habili modo, which could not be prejudged by any Deed of the Heretor: Whereas the Assignation made by the Life­renter is only personal, as a Disposition made by the Heretor, which de­pends upon the real Right; and eo resoluto, falleth.

Escheat single.

IF an appearand Heir have right to a moveable Heirship, and the same or nearest of Kin have right to be Executor, but neither the one is served, nor the other confirmed, and both be at the Horn: Whether will their Interest foresaid fall under Escheat, as in the case of Forefeiture; Seing Escheats are Forefeiture as to Moveables?

If a Tack being for many nineteen Years, should be assigned; Will the same fall under the single Escheat of the Assigney, seing there is no Liferent as to him, and the Liferenters may all die in his lifetime?

Will not the Assigney have right for the lifetimes of the Heirs, though they be not served Heirs?

The Tack being for three lifetimes, and certain nineteen years after, Quid Juris, Where the Tacksman has no Heirs, so that there is place to a Gift of Bastardy or ultimus Haeres?

A Tack of Teinds being granted to the Tacksman and his Heirs and Assigneys, for three Liferents, and three nineteen Years; and being there­after assigned, Quaeritur, If the Assigney be at the Horn, Whether it will fall under his single Escheat? Answer, It is thought it will: seing it is not a Liferent Right as to the Assigney, and the whole Liferents may be determined during the Assigneys lifetime: and a Tack for three nineteen Years doth fall under single Escheat.

Quaritur, If a Tack exceeding the Life of Men, v. g. for eight nine­teen Years, falls under single Escheat?

Escheat without Backbond.

IF the King may regrant Escheats, without a Back-bond, and declare that it is his pleasure so to do? Answer, It is thought that the King [Page 49] in no worse case than other Superiors, who do always give Escheats of their Vassals Liferent, (and if they be Lords of Regality their single Es­cheat) without Back-bond.

Delivered Evidents.

A Person having a Bond of fifty thousand Merks, did assign the same to the Debitor; But so that the Debitor by the Assignation and accep­ting thereof, was obliged to pay the said whole Sum (reserving the Ce­dents Liferent) to the persons therein mentioned amongst them, Quaeri­tur, The Assignation being never delivered to the Assigney, and recove­red after the Cedents decease, viis & modis, Whether it will be a bind­ing Writ? Answer, The Case will not be without question. Ratio Du­bitandi, That Deeds and Writs that are single and monopleura do not bind, unless they become the Parties Evident by Delivery: and on the other part, Contracts subscribed by two Parties retained in the hands of one, are valid though not delivered to the other: and the said Assignation is not a simple Deed, but bears reciprocal Obligements which are as bind­ing as if they were subscribed by both. 2. The said Assignation, though it appears to be actus inter vivos, yet upon the matter is donatio mortis cau­sa, and the Defuncts will as to her whole Estate, and to whom it should belong after her decease: and such Writes, being of the nature of Wills and Legacies, may be retained and are valid though not delivered. Lady Margaret Kennedy.

Exception against the Cedent, if always competent against the Assigney?

QƲaeritur in general, If all personal Obligements, and Exceptions com­petent against the Cedent, be competent against the Assigney? And what reason there is, that Discharging Compensation, and the Suspen­ding of Payment for a time, and such like; should be competent against the Assigney: and not such as are founded upon correspective Writs, which import Retention, or Suspending of Implement against the Ce­dent?

Executor.

IF the Executor ad omissa be countable to the nearest of Kin, who are not accessory to the Fraud of Omission?

If the Creditors and nearest of Kin have such an interest in the Goods confirmed, that they are preferable to the Executors own Creditors? or if after Confirmation there be a Confusion, as in the case of an Heir?

When there is only one Child, who is both Heir and Executor; Whether there will be only a Bipartite Division, betwixt the Defunct and Relict? Lady Craigleith.

If an Executor Creditor be lyable to Execute the Testament fully, or on­ly so far as may satisfy himself?

If the Defuncts Estate be so settled in the Person of the Executor by Con­firmation, that there is a confusion of it with his own; so that his Credi­tors [Page 50] may affect, and evict it being in Money or in Goods; and doing pri­or diligence, will be preferred to the Defuncts Creditors? Ratio Dubi­tandi, The Executor is haeres in mobilibus: On the other part, he has on­ly an Office, and the Administration is committed to him by the Com­missars, and he findeth Caution to make forthcoming; and if he die be­fore the Testament be Execute, another will be confirmed ad non executa, and upon the matter he is Curator Bonis.

A Child being confirmed Executor to the Grandfather upon the Mothers side, and dying without Issue and either Brothers or Sisters: Will the Fa­ther have right to the Executory as Executor to the Child? 2. What if the Child decease before the Testament be execute? 3. Can the Father be Executor ad non executa to the Grandfather? Mr. Andrew Marjori-banks Daughter.

Executors nominate (though Strangers, and not Universal Legators) before King James his Act of Parliament, had right to the whole Executo­ry; and since to the Third; Quaeritur, If they decease before Confirma­tion, Will they notwithstanding have right as Legators?

If they be Confirmed, and die immediatly before the Testament be ex­ecute, Whether the Executor-Stranger will have right to the Third?

The Office of Tutrix ceaseth by her Marriage, but not that of Execu­trix, Quaeritur, Quae Ratio Discriminis? Answer, She being in Tutela her­self, cannot be Tutrix to another. 2. An Executor has not nudum Offi­cium, but is Heir in mobilibus: and for that Reason, a Woman may be Executrix, though incapable munerum virilium.

Testaments appear to be Executed by Sentences: Seing after Sen­tence the Executor may Assign.

Albeit quod est Cessibile may be Comprysed, or affected with the Ce­dents Debt: Yet if after Sentence, the Debts and Goods be extant, The Creditors Legators and nearest of Kin will be preferable to the Creditors of the Executor: Because though they may seem to be secured by Cau­tion, yet the same is that the Inventar shall be made forthcoming, and tutius est incumbere &c. And the Executor is Haeres fideicommissarius or Cu­rator bonis, and if he Sell or Assign praesumitur That he doth so that he might satisfy Creditors, Legators and nearest of Kin; but where the same is evicted for his own Debt, it is upon the matter Unjustice and Malver­sation.

Seing the Interest and Right of an Executor is jus anomalum & Par­ticipium, being partly considered in Law and constructed to be haereditas in mobilibus; and partly Officium to execute the Defuncts Will if he Dye Tested, and the Will of the Law if he Dye Intested; And therefore if a Woman be Executrix, albeit she be only Dative, if she marry she is not in the case of a Tutrix and Curatrix: Albeit it may be thought that an Exe­cutor Dative is Curator datus bonis, and she ceases to be Tutrix and Curatrix if she Marry, because these are only nuda officia; But she continues still to be Executrix: And yet if an Executor Dye before Execution his nearest of Kin will not succeed to him in that Interest as Executor to him; So that he may be confirmed Executor to him in the Goods confirmed, but there must be a Testament and Executor ad non Executa, not to him but to the for­mer Defunct: Whereupon diverse Questions arise, And first, if an Exe­cutor nominate die after the Confirmation but before Execution, will he [Page 51] have by the Act of Parliament the third of all the Goods of the Deads part, or only in so far as the Testament is Execute? Ratio Dubitandi, Before the Act of Parliament the Executor had the third entirely, viz. The De­functs part without respect to the Execution, But only the confirmation being in place of addition: And by the Act of Parliament he is restricted to a third of that. And on the other part, since that Act of Parliament, It is presumed, according to that Law, The Defunct intended only the third of his part to be given to the Executor, in respect of the Trouble and pains he is at to Execute, and recover bona Defuncti, and therefore he should only have a proportion of what is Execute.

If the Executor nominate Decease before he confirm, will he have any part of the Deads part? Which will be cleared by an Answer to the former.

When the Procurator Fiscal is confirmed after an Edict served, Whe­ther will the nearest of Kin being Majors the time of the Confirmation, and not owning their Interest, be excluded; So that they can have no Action against the Procurator Fiscal or Bishop for the Goods contained in the Inventar?

Quid Juris as to the nearest of Kin for the time; And if he be Repon­ed whether will he have action of Compt and Reckoning, or must he re­duce the Confirmation so far as that he may be confirmed; The Procura­tor Fiscal being satisfied of all Charges? Ratio Dubitandi, That the nearest of Kin is not nomen juris to succeed, or to have any thing belong­ing to the Defunct unless he represent him, which he cannot unless he be confirmed Executor.

Quid juris, In the case of an Executor Creditor after he is satisfied, will the nearest of Kin be excluded? And if not, what is the habilis mo­dus to get a right setled in his Person? Ratio Dubitandi, In suffering the Creditor to be confirmed, it seems that he has disclaimed his Interest, and not without injury to the Memory of the Defunct: And the Creditor be­ing once confirmed, the nearest of Kin cannot be confirmed: And having Forefaulted his Interest, it may seem, quod indigno aufertur, est Fisci; & quod nullius est, est in bonis Regis.

Quaeritur. When Testaments are Execute, so that there is no place to a non Executa? And if as to Goods whereof the Executor is presently in possession it be not fully Execute? And as to nomina and Debts it be not Execute by Sentence, though they be not uplifted; Seing after Sentence the Executor may Assign? And in that case, may not the Executors Exe­cutor confirm the same as belonging to the Defunct?

Though after Sentence the Debt be in bonis of the Executor, and con­founded with his own Estate: If there should be a Competition betwixt the Executors own Creditors, and the Creditors of the Defunct or his Re­lict and Bairns; Would not the Creditors and the Relict and Bairns of the Defunct be preferred to the Creditors of the Executor, upon that Ground that they are not simply the Executors Goods but in Trust; and is a fidei-commissum for the use of the Defuncts Creditors and his Relict and Bairns: So that both the Executors Creditors and Fisk ought to be excluded upon any such Competition?

If the nearest of Kin will not be Executor: Quaeritur, What remedy will be competent to the Creditors, not of the Defunct but of the Execu­tor; [Page 52] Seing there is an Act of Parliament, in case of an Heirs not entering: But not in the case of an Executor in behalf of Creditors?

If the Commissars should confirm the Creditor of an Executor nominate and the Executor decease, will the next nearest of Kin have Action against the Executor Dative to be Comptable? And whether that Executor will have the priviledge of an Executor Creditor? And if he may be pur­sued at the instance of other Creditors who are not Creditors to the De­funct?

An Executor being nearest of Kin and confirmed, but immediatly dy­ing, Quid juris, will his nearest of Kin be confirmed Executors ad non Executa, if there be another nearer to the first Defunct?

To consider the Civil Law as to Haeres cum beneficio Inventarij: If an Executor be not Haeres in mobilibus cum beneficio Inventarij?

Executor Creditor.

A Creditor being confirmed Executor and dying before the Testament be Executed; Will not his nearest of Kin be confirmed ad non Executa and exclude all other Creditors, in respect of the Diligence of his Predecessor, and that Confirmation did affect the Goods for their sa­tisfaction?

Three Creditors being confirmed for their Respective Debts, and one of them deceasing before Sentence. Quaeritur. Will the Office and bene­fite belong to the Survivers entirely? Ratio Dubitandi. A Testament Creditor is a Diligence, and there is no other way of Diligence to affect the Moveable Estate of a person deceased, and it is equivalent to diligence against Debitors on Life, affecting their Moveables. And on the other part, Executory being an Office the Law preferreth the Creditor, If the nearest of Kin do not own it; But cum sua causa, and so that the nature of the thing is not altered: And therefore the Executor dying, the Office and Diligence doth evanish.

Quid juris in the case of an Executor Creditor: If after he is satisfied the nearest of Kin will have an Action for the superplus?

If a Testament be Execute by a Sentence against the Debitors, though payment be not made? Vide Hope.

Executor Nominate.

IF an Executor Nominate be Lyable as a Tutor; not only for what is confirmed but what he might have confirmed and intrometted with? Tweeddale contra D. of Monmouth.

Executory.

WHether Ʋniversitas bonorum, That is an illiquid Right; Though the Subject may consist of Moveables as a single Escheat, Con­quest, Society as to a Trade or Shipping; Will fall under Executry?

If Casualities of Ward, Liferent Escheat, Non-entry, Marriage, will fall under the same? Or to the Superiors Heir?

There being a Bargain of Lands, in nudis finibus contractûs vel Disposi­tionis, [Page 53] will the Price belong to the Heir who must perfect the Bargain? Answer. It is thought not; Seing the Price is a Moveable Sum: And it appears that the Defunct having sold the Lands had use for it, and did intend to uplift it.

Whether a Gift of single Escheat will fall under Executry or belong to the Heir? Ratio Dubitandi, That the Escheat is jus Ʋniversitatis, And nothing is in use to be confirmed but either particular Moveables or Debts, and plenishing estimate in cumulo,

Item, Whether a Gift of Liferent Escheat (which as to the Donator is a Moveable Interest) will fall under Executry? Ratio Dubitandi As in the former: And likewise that during the Liferenters Lifetime it can­not be construed, what it will amount to: And it has Tractum futuri temporis.

The same Question may be as to a Tack Assigned.

Whether the Heir who has Right to a going Coal, will have Right to Buckets, Chains, and other Instruments as being accessoria and destination addicted to the Coal, as the Colliers: Or if they will fall under Executry?

A Person being about the building of an House; And the samen being begun and certain Materials (as Stone, Lime, Slats and others) being prepared o that use: Whether will they belong to the Heir (for the rea­son foresaid) or fall under Executry?

A Daughter having accepted her Tocher and Provision by Contract of Marriage; in satisfaction of what might fall to her either by her Father or Mo­thers Decease, The Contract of Marriage being after her Mothers Decease. Quaeritur, If another Sister will have the Mothers part entire without re­spect to her Sisters Interest; being renounced as said is? Ratio Dubitandi, That the Father who is Lyable for his Wifes Third, is in Effect Discharg­ed as to his other Daughters part of the samen: And on the other part, the Mothers part belonging to her Children, non jure Legitima as Bairns, but as Executors and representing her: If any of them Decease before Confirmation, or be unwilling to confirm, their Renounciation will be ineffectual as by a person not having Right.

Quaeritur. If the the Sister who is not Excluded should confirm: If the Sister who is Excluded (as said is) may at least have Action against her for her part of the Mothers part: To the effect that the Discharge in favours of her Father may be effectual? It is Answered, That unless she be confirmed her self, she can have no part of that which belonged to her Mother: And albeit by the Act of Parliament anent Executors Nominate, the nearest of Kin has Action for the superplus of the Deads part exceeding the third; That is only in the case therein mentioned, the said Act giving Condictio­nem ex lege in that case only: Whereas that Act doth not militate in other cases where there is no legitime, but only an Interest to represent; which cannot be effectual sine Aditione: Confirmation being in effect Aditio in mobilibus.

Quaeritur, If a moveable Escheat will belong to the Executor, seing Moveables belong to the Executor; and moveable Sums, and other move­ables fall under the same? Answer, It is thought that Escheat being Jus Ʋniversitatis, should belong to the Heir: Seing not only mobilia do fall under the same, but also such Rights and Interests as cannot belong to an Executor, as Tacks if they be not Liferent Tacks: And it is the stile of [Page 54] Gifts, that the Escheat should be holden of his Majesty; which does not quadrate, and is not proper to be said of such things as belong to the Executor.

Extent.

IF the Inquest be warranded to Extend, unless there were former Re­tours upon a Commission to Extend?

Extinguishment of Rights.

IF the Heretor of Praedium Dominans acquire the Right of Praedium ser­viens, Whether doth the Right of Servitude extinguish; quia res sua nemini servit; So that if he sell the Dominans, the Servitude doth not revive?

If the Heretor of Land acquire a Right of Annualrent out of the same; Whether or not is the said Right of Annualrent extinguished or suspen­ded only; So that it may revive if the Right of Property be taken a­way by Reduction?

Faculty to alter,

LAnds being disponed with power to alter, without these Words, Etiam in Lecto; If that Faculty may be used in Lecto?

A Person having reserved a Power to alter in Lecto; May he then use that Power, in favours of any other Person than his Heir; seing he is not in legitima Potestate as to the disponing an Hereta­ble Interest: and on the other Part, the Heir has no prejudice?

Faculty to Dispone.

BY a Write granted by the Earl of Callender, to his Lady, he gives her power to dispose of the half of his Estate, Quaeritur, The said Power being Personal, without mention of her Heirs, and she not having used the said Faculty; If the said Power be Transmissible? Found by the Lords That the Earl of Dumfermling as Heir to his Mother, had right thereto: and he having assigned the same to his Son, he recovered thereupon the half of the Estate, To see the Decreet.

Jus Facultatis.

ATtendendum, an quis aliquid faciat jure facultatis an jure servitutis; Fa­cultas enim non minus aliis quam nobis patet: quia usus qui alii magis ex occasione quam jure conting it, Servitus non est, nec in eo temporis Diutur­nitas [Page 55] quidquam prodest, nisi accesserit prohibitio praescribentis, & patientia ejus contra quem praescribitur Jus Fluviat. p. 756. N. 71. & sequent.

Personal Faculty.

A Person giving a qualified Right, reserving Liferent and a Power to dispone: Quaeritur, If that Faculty may be comprised as a Personal Reversion?

Quae Facultatis sint?

ALiqua Dicuntur esse facultatis, quorum Libertas a Jure publico permissa est, quae non pariunt jus deducibile in Judicium: hoc casu nec nos contra alios praescribimus, nec alii contra nos; Exemplum est in Leg. viam. 2da. de via publica. Aliud Exemplum est in facultate privata, quae nullam antecedentem habet causam obligandi; ut si Rusticus sua sponte, nulla praecedente causa, per multos annos, Domino, certis temporibus, capones attulit; ex hoc actu merae fa­cultatis nulla oritur Domino actio.

Quomodo intelligendum, Facultati non praescribi.

ALiqua dicuntur esse Facultatis ad acquirendum novum Jus, vel novam a­ctionem; vel etiam ad eam Conservandam: atque ita pariunt Jus dedu­cibile in judicium. Et hoc jus licet sit in libera potestate acquirere volentis, non tamen est in potestate illius contra quem acquiritur, vel conservatur, ut recusa­re posset. Sic adire haereditatem est merae facultatis, & tamen tollitur & prae­scribitur spatio 30 annorum; ergo & juri offerendi, & reluendi praescribitur. Hering. de Molend. quaest. 21. N. 17. & sequen.

Jus publicum tribuit cuivis de Populo, ut uni ex multis, nec privative ad alium, etsi ad singulos inde aliquid commodi perveniat: Inde illud quod dice­re solent, Facultati non Praescribi, Dicitur de his quae à natura, aut publico Jure tribuuntur; itaque quocunque tempore, nemo praescribit ut qua ierit in publico nullus alius commeet, etsi nunquam ea commearit.

Ea quae de tali facultate dicta sunt, non recte Traducuntur ad ea quae pro­prii & privati cujusque Juris sunt; id enim Jus est quod ad privatum quem­que pertinet privativé, ita ut non ad alium: Omni siquidem Juri aut facul­tati quae competit privato cuiquam privativé, potest praescribi. Idem Ib­id. N. 20.

Faculty reserved to dispone.

IT being ordinary that a power is reserved by these who Dispone Lands, especially to their Friends, to Redeem or Dispone or Burden at any time dureing their Lifetimes. Quaeritur, Whether Lifetimes should be understood civily, during their Liege Poustie?

Item, Quaeritur. If the Receiver of the Disposition be Dead and the Lands in Non-entry, whether the Disponer may notwithstanding Dis­pone and resign by vertue of the said Power? Ratio Dubitandi, The said Faculty is upon the matter a Heretable Commission and Procuratory, [Page 56] which cannot be Execute post mortem mandantis: and there is no person that has the Right Established in his person so that it may be resigned.

Item. If the Lands be in Non-entry and Ward, will the Resignation by vertue of the said Faculty determine and put an end to the foresaid Casualities in prejudice of the Superior? Ratio Dubitandi. The De­funct by whose Decease they accrue was the Superiors Vassal: And though the Disponer has the same power, yet he should have used it debi­to tempore, while the Vassal was on Life, and before the pursuer had jus quaesitum: On the other part, the said power is of the nature of a Regress, so that quocunque tempore (as in the case of regress) Re-entry may be desired by vertue of the said Faculty.

A Charter being to be granted to a person conform to the said power; That Clause, Quaequidem pertinuerunt, what way it is to be conceaved; and if mention should not be made of the person who is Infeft for the pre­sent, though he be not the person to whom the Right was Disponed with the said Power; But either an Heir or singular Successor?

If the Faculty to Dispone be not upon the matter a Reversion, materially and as to the effect of the same; so that the person having the same, may Dispone albeit he has not jus in re; And albeit the Heretor be either Dead or Forfaulted; As an order may be used against an Appearand Heir, or against the King or his Donator, in the case of Forfaulture or ultimus Haeres?

A Person who had the Faculty foresaid, having by vertue thereof Dis­poned, but deceasing before Resignation, Quaeritur, What way the Disposition shall be made effectual, seing the Faculty was personal to himself?

Fee.

WHen by a Contract of Marriage a Sum is to be provided to a Hus­band and Wife in Liferent, and to the Bairns in Fee; Which Failȝieing to the Father and his Heirs. Quaeritur. Before there be Chil­dren where is the Fee? And if it be not fit to take it to the Father to the use and behoof of the Children, which Failȝieing to himself and his Heirs?

When it is intended that by Contract of Marriage the Parents should be only Liferenters, and that certain Sums should be provided to the Chil­dren, so that they do not represent them, Quaeritur, What way the Fee can be provided to the Children that are not in being? Answer, The Fa­ther may be infeft in Liferent for himself, and in Fee for the use and be­hoof of his Eldest Son and his Heirs: Which Fee is to be to the Father and his Heirs, to the use foresaid: And they are to be obliged upon the Existence of a Son, to denude in Favours of him and his Heirs.

By Contract of Marriage betwixt Knockdaw, Sir John Kennedy, and Gilbert Kennedy of Girvanmayns, The said Sir John having married the said Gilbert's Daughter; The said Gilbert's Lands and Estate are dispon­ed to the said Sir John and his said Spouse, and the Heirs betwixt them; which failȝieing, to such of the said Gilbert's other Daughters, as he should at any time appoint; which failȝieing, to the said Sir John's Heirs and Assigneys whatsomever: and now the said Sir John being deceased, and having a Son of the Marriage, Quaeritur, Whether the Fee did belong [Page 57] to him, so that his Son may be served Heir to him in the Estate? It is Answered, That in the case of the Duke and Dutchess of Monmouth, The Conception of the Tailȝie not being unlike, it was thought the Dutchess was Fiar; albeit the Limitation of the Heirs did ultimatly resolve in the Dukes Heirs; upon that ground that there is a difference betwixt the case where the Lands are provided and Disponed to the Husband and the Wife, and the Heirs of Marriage; which Failȝieing either to the Hus­bands Heirs, or Wifes Heirs: And in the case foresaid where after the Heirs of the Marriage there are diverse substitutions, in favours of the Wife's other Heirs; and after all in favours of the Husbands Heirs. In the first, if the Wife's Heirs be only substitute Failȝieing Heirs of the Marriage, the Husband is understood to be Fiar; Because as it is the essence of a Fee to have power to Dispone, and if the Fiar do not Dispone to transmit to the Fiars Heirs, and to be represented by them: And in dubio cujus haeredibus maxime prospicitur, That person is thought to be Fiar. But in the second case, there being diverse degrees of Substitutions and all in favours of the Wife and her Heirs, before her Husbands Heirs, The Wife is thought to be Fiar: And upon the Failȝeure of all her Re­lations, the Husbands Heirs in the last place are Heirs of provision to her; And yet in the said case of Girvanmains, It is thought that the Husband is Fiar, there being these specialities in that case. 1mo. The said Estate is Disponed to the Husband, and his Spouse the longest Liver as said is and their Heirs of the Marriage; and there is no Liferent settled on the Husband, whereas there is a Liferent of a part of the Lands given to his Wife in satisfaction of what might fall to her either of her Fathers Estate, or of her Husbands. 2do. There is a provision that if there should be no Children of the Marriage to succeed to that Estate, the Husband should be obliged in that case, he and his Heirs to denude themselves upon payment of a certain Sum of Money; and he could not denude himself unless he were Fiar: So that it was intended that the Husband should be Fiar, but with the foresaid Provision to denude in the case foresaid, and to be restricted to a Tocher: For which and other Reasons arising upon the Contract, The Antecedentia and Consequentia being considered, It is thought that the Son should be Heir to his Father as Fiar.

A Bond being granted to a Man and his Wife, and their Heirs. Quae­ritur, What Right the Wife will have to the Sum? Ratio Dubitandi, that there being no mention that the Sum should be due to the longest Liver, and the Heirs of the longest Liver, but to them both and their Heirs, It appears that the Heirs should be understood the Husbands Heirs as Personae digniores. Answer. It is thought that seing there is an joint Right to the Husband and the Wife, and it is the custome of Persons of their Quali­ty being mean Country Persons, that the longest liver should enjoy all: The Wife indubie should enjoy the haill in Liferent and should have the Fee of the half.

De Feodo Pecuniae & Nominum.

‘PEcuniae & Nominum nec proprie Ususfructus nec Feodum est; usus­fructus enim definitur jus utendi fruendi salvâ, rerum substantia: pecunia autem sive in specie, sive in nominibus est res fluxa: Et si in [Page 58] specie sit facile diffluit & usu consumitur: Nomina autem etsi initio idonea; debitoribus decoquentibus, inania sunt. Quemadmodum vero ob utilita­tem receptum est, ut pecuniae sit quasi usus fructus ita est quasi feodum: istud enim proprie loquendo est tantum in rebus soli & stabilibus & feu­dis tantum; non vero allodialibus (ita dictis quod nullo laudato & recognito alio dominio, ad proprietarium pertinent pleno & integro jure nec libato & diviso in Dominium directum & utile: Licet autem apud alias Gentes praedia quaedam allodialia sint, nobis omnia sunt feudalia.) Et Feodum qui­dem in feudis de proprietate & dominio dicitur, prout distinguitur ab usu fructu & aliis quae circa feuda versantur juribus: Per Metaphoram tamen Feodum transfertur ad pecunias & nomina ita ut is in Feodo esse dicatur cui jus summum & proprietatis competit: plaerumque vero evenit sive seculi vitio (in nova commenta prurientis) sive Notariorum Incuria aut imperitia ut Chirographorum stylus a primaeva simplicitate deflectat, sic haud raro nec immerito dubitatur penes quos sit pecuniae & Nominum Feodum.’

Feus.

IF a Feuer may Refute as in the case of other holdings? The difference being, that Feuda are Beneficia, & invito Beneficium nec datur nec reti­netur: Whereas Feus are Emphyteuses and upon the matter perpetual Locations; and as in Locationibus either ad tempus how long so ever, the Conductor cannot renounce, so their appears to be eadem Ratio in Feus.

Whether there be Non-entry in Feus, and the Liferent Escheat of the Feuer doth belong to the Superior, seing they are not proprie Feuda? And yet it is thought sapiunt naturam Feudi.

If there be Non-entry: Whether before Declarator, the Superior will have right to the retoured Duty, which is the Feu-duty, besides the Feu-duty due to himself: And after Declarator to the full profits?

Feuda Nobilia.

FEuda nobilia sine Nobilitate dari possunt: Adeo ut aliquis ab Imperatore investiri posset in Ducatu aut Comitatu, nec tamen Dux aut Comes sit. Thes. Besold. in litera I. 18. verbo. Innhabern. des. p. 428.

Fiar.

1. WHen Lands are Disponed to a person, without mention either of Heirs or that he is Fiar or Liferenter; or that they are Di­sponed Heretably. Quaeritur, If he be Fiar?

[Page 68]2. In Conjunct Fee where there are no degrees of Substitution, whe­ther is the Husband or Wife Fiar?

3. When Lands are given in Conjunct-Fee to the Husband and Wife, and their Heirs; who is Fiar?

4. If the Husband be Fiar, whether at least the Heirs betwixt him and her, are to be understood his Heirs: or his Heirs whatsoever?

5. If Lands be Disponed to two Brothers by their Father, and their Heirs; if they be both Fiars ex semisse?

6. If when Lands are Disponed by a Father to two Brothers and the Heirs of their Body; if one die without Heirs of his Body, whether it be substitutio reciproca?

7. When Lands are Disponed to Husband and Wife and their Heirs of the Marriage; and these failȝieing the half to the Husbands Heirs, and the other half to the Wifes: Quaeritur, Whether the Husband be so Fiar, that the Wifes Heirs, failȝieing Heirs of the Marriage, will be Heirs of Provision as to the half?

8. When it is intended that the Wife should be a Joynt-fiar: If the Right should not be to the Husband and her; and after their Decease the half to his Heirs and the other half to her Heirs?

9. When a right is given to Two Persons and to the longest Liver of them Two, and the Heirs of the longest Liver, who is Fiar? And if the Fee be in pendenti?

10. When the Fee is provided by Contract of Marriage to Bairns; and accordingly a Right is granted in the foresaid terms, there being no Bairns for the time: Quaeritur, When a Child is born whether the Fee be immediatly in its person?

11. If it be in solidum in its person and thereafter others be born Quae­ritur, Quid juris, and if concursu faciunt partes?

12. In Conjunct-fees where there is no substitution, the Heirs deter­mine the Fee.

13. Where there are degrees of substitution, The person whose Heirs succeed first is Fiar; And all the Substitutes thereafter are Heirs of Provi­sion to the Fiar by progress.

14. When a Band is taken to a person and his Heirs; if his Grand­child by a Daughter decease having no issue, whether the Child being Heir, his Father will succeed to him; albeit his Father cannot be Heir to the Grand-father, and haeres haeredis should be haeres instituentis?

Fiars of Bonds

A Bond being in these terms, To a man and his Wife and the Heirs of the Marriage; which failȝieing to the longest Liver of them two and the Heirs of the surviver, Quaeritur, who is the Fiar?

A Bond being granted to a Husband and his Wife and the longest liver of them two in Conjunctfee; and to one of their Sones expresly named and the Heirs of his Body: whilks failȝieing to the Heirs to be procreat betwixt the Husband and the Wife; whilk failȝieing to the Wifes Heirs and Assigneys, Quaeritur, Whether the Fee of the said Sum pertaineth to the Husband, or to the foresaid Son, or to the Wife? Ratio Dubitandi, That the Right of [Page 69] Succession terminates upon the Wife and her Heirs, which seems to import that she is Fiar. 2do. As to the Son the said Sum being provided to his Heirs in the first place It seemeth that the Fee should pertain to him: Seing the Heirs of his Body are to succeed in the first place, and the Fee of Money (as it is said of the Ʋsufructus of Money, That it is quasi Ʋsu­fructus) is quasi feodum & Proprietas: and properly that is said to be Pro­perty which belongeth to a person and descendeth to his Heirs: And yet it is thought that the Fee of the said Sum doth belong to the Husband, in respect the Money being his own was lent by him in behalf of himself and the foresaid persons: and albeit when a Bond is conceived simply to a Husband and his Wife in Conjunctfee and to her Heirs and assigneys, she is Fiar; for the reason foresaid, that it is to belong to her and her Heirs only. Nevertheless when there is diverse degrees of Substitution of Heirs of diverse persones and of a Wife in the last place, the person whose Heirs are provided for in the first place ought to be understood to be Fiar: and these in secundis tabulis and in a more remote degree, to be only Heirs of Provision Failȝieing the former: and if the Son had survived or his Heirs, It is absurd that they should be Heirs to their Mother and not to their Fa­ther; And that the Mother being Fiar should have power to Dispone of the Sum in prejudice of her Husbands Children. And albeit the said Sons Heirs be first named yet it is thought that he is not Fiar, seing he is to be Heir of Provision to his Father: as if an Infeftment were granted to his Father and Wife in Conjunct-fee; and failȝieing of them be decease, to a certain person their Son and the Heirs of his Body: The Son in that case would be Heir of Provision.

A Bond being granted to a Man and his Wife and longest Liver of them Two and their Heirs: And the Wife having survived, Quaeritur. If she will be Fiar of the said Bond?

A Person having Infeft his Creditors for security of Debts, and while they be payed respectively. Quaeritur, Quatenus They are Fiars whe­ther in solidum, or ex parte: And qua parte? Respondetur, They are Fiars proportionally, and ex parte effeiring to their Debt.

Fiars in Tailȝies.

BY a Contract of Marriage; Lands being given in Tocher and the Right thereof so conceived that they were Disponed to the Husband and the Gentlewoman in Conjunct-fee and Liferent, and to the Heirs of the Marriage: Whilk Failȝieing to the Heirs of the Husband his Body in any other Marriage: Whilk Failȝieing to the Womans Heirs and Assigneys whatsomever. Quaeritur, who is Fiar? Answer. That though where there is but one degree of Substitution, ( viz. Failȝieing the Heirs of the Marriage the Womans Heirs) The Woman is Fiar; Because res pertinet ad eos quo­rum haeredibus providetur: But where there are diverse Degrees of Sub­stitution (as in this case) the Husband (cujus haeredibus maxime prospicitur) It is thought should be Fiar; Seing not only the Heirs of the Marriage got­ten by him, But in the next degree his Heirs of any other Marriage are substitute: and in ultimis tabulis, The Wifes Heirs, and as Heirs of Pro­vision to the Husband: and the Husband having given a Jointure, it is [Page 70] thought to be in Lieu of the Tocher, and to belong to him as Fiar and not as simple Liferenter.

A Bond for a Sum of Money being granted to a Man and his Wife and longest Liver of them Two, and to their Heirs and Assigneys secluding Executors: And the Wife having survived the Husband, and a Bairn being likewise on Life of their Marriage: Quaeritur, Whether the Relict will be Fiar?

If a Bond be granted to Two Brothers in the terms foresaid, and one of them deceasing having left Children, and the other surviving having also Children: Quaeritur, who is Fiar?

Fictio Juris.

QƲaeritur, A Debitor being disseas'd what way can the Compriser be Infeft? Answer. The Decreet of Reduction putteth the Debi­tor quoad the Creditor in the same case as if he had not been denuded Fi­ctione Juris.

Fiscus.

IN Dubiis ubi non est plena Probatio fisco non favendum. Besol. Thesaur. liter. L. p. 556. vide Auctores ibi citatos.

Commissa Fisco.

MErces committuntur Fisco ex causa fraudati vectigalis ipso Jure; ita ut statim desinant esse ejus qui deliquit: itatamen ut ob contradictionem par­tis requiratur sententia declarativa. De Jure fluminum. 206.

Flumina.

FLumina a Rivis distinguuntur magnitudine, vel aestimatione circumcolentium Hering. de molendin. Quaest. 15. n. 4.

Flumina Publica.

FLumen publicum est illud quod perenne est. Th. Scipman. de Jure Fluminum seu. jus Fluviaticum p. 3. n. 20.

Flumina publica sunt in potestate & patrimonio Principis, & de Regalibus sunt, idem P. 5. n. 52.

Publica sunt superiorem non recognoscentis, & Majestate fulgentis, Ibid n. 7. & quorum usus omnibus Expositus est.

Flumina publica sunt, quae sunt perennia & de Regalibus, plerumque navi­gabilia, & quae navigabile aliud faciunt, & ad principem pertinent: Ʋsu ve­ro patent singulorum commodis & utilitati, non etiam commercio seu Juri emen­di, acquirendi, alienandi. Quaest. eadem. Num. 10.

Flumina Censitorum vice funguntur, & ex privato in publicum addicunt, & ex publico in privatum, dum uni adimunt & alteri addunt, Jus fluviat. p. 5. 24. &c.

Forfaulture.

A Subvassal being Forfaulted, Whether His Majesties Donator will have Right to the Estate free of Servitudes, and Rights not consent­ed to by the immediat Superior? Caldwells Relict contra Dalȝiel.

When the Lands fall in His Majesties Hands by Forefaulture, or other­ways by the suppressing of Benefices, or any other occasion; if there be Vassals holding of the same; May he Dispone the saids Lands and Supe­riorities? Ratio Dubitandi; That a Superior cannot interpose. Answer. There is a difference betwixt Vassals holding Originally of His Maje­sty, and these who hold ab initio of other Superiors: As to the first they cannot be prejudged so as to be put to hold of any other than His Ma­jesty, and to be more remote from the Fountain: The others are not pre­judged, seing they are put in the condition they were in formerly: and as the former Superior might have Disponed the Superiority, and resigned; so His Majesty cannot be denyed the same Power: and His Majesties Disposition is Fictione Juris equivalent to a Resignation, seing there is no other Superior in whose hands the King can resign.

If a Subvassal, to a Vassal holding of the King, be Forefaulted for Trea­son; will subaltern Rights granted by him fall under Forefaulture? Se­ing it is pretended that such Forefaultures belong to the King not as Supe­rior but Jure Coronae and as Prince; & noxa caput sequitur: and the King has no prejudice having a Vassal. Yet I think that these Rights should fall, Quia resoluto Jure Dantis resolvitur Jus accipientis: And if the Subvassal should Forefault his Lands by Recognition, his Vassals Right would Forefault: And it is against reason, That Treason being Crimen gravius, The Forefaulture and poena should be Levior: And Trea­son is Crimen feudale and against the King as Superior paramount: and as the betraying of a mediate Superior will import Forefaulture, not only of the Subvassal but of his Vassals; there is the same or greater reason, that Treason against the King should have the same effect: and the reason that the Forefaulture of the Subvassal should belong to the King is, because the Crime is committed against him as highest Superior.

If the Kings immediat Vassal should confirm the Inferior Rights, if there be any alteration of the case? Seing the King is in place of the Vas­sal, because the Crime is committed against the King as Superior, and he should be in no better case: and the Vassal if he were to have the bene­fite of the Forefaulture, could not Question the said Rights.

If a person Infeft in Liferent be Forefaulted for Treason, will the Liferent expire though he survive? Seing he is nullus, and after Treason doth neither transmitt cedendo nor delinquendo.

A Person being Infeft in Trust and to the use and behoof of another; Quaeritur, If he commit Treason will he Forefault the Right of the Lands to His Majesty? Seing albeit his Right be to the use and behoof of ano­ther yet he is Vassal; and as the French say he is homme vivant & confis­quant; and there is no reason the Superior should be defrauded; and the granter of the Right is to be blamed that he trusted such a person.

By the English Law, though a person Dispone for Onerous Causes, he is not Lyable to warrand unless he be expresly bound; otherways the [Page 72] acquirer is presumed to take his hazard: But with us no Warrandice, is absolute Warrandice.

Quaeritur, If a Donator to a Forefaulture has Action for Exhibition and delivery of the Evidents?

The Vassal of a Subject, having granted a subaltern Right to be holden base, and the same not being confirmed by the mediate Superior: Quae­ritur, Whether the Subvassals Right foresaid, will fall under the Fore­faulture of his immediat Superior being Forefaulted? Answer. It is thought that it will fall under the Forefaulture, in respect that if the per­son Forefaulted had committed a Crime against his Immediate Superior whereupon the Lands would have recognosced or Forefaulted to him, The Subvassal his Property would have fallen under the Forefaulture; and there is eadem if not major Ratio in the case of Treason, The King being Superior Paramount, and the Crime against him being also a Crime against the mediate Superior; there being no greater wrong than to be a Traitor to the Superiour. Caldwell and Glanderstoun.

Quaeritur, Quid Juris, If the mediate Superiour had confirmed the Subvassals Right?

Quid Juris in the case of Forefalture for Treason? And if there be a difference in the case of Forefaulture in Parliament and before the Ju­stices?

Lands being Comprysed and a signature being past upon the Comprysing, but no Infeftment being taken thereupon: Quaeritur, If the Debitor commit Treason in the interim, whether the same will fall under Forefaulture? Answer. It is thought that it will not, seing the Debitor was fully denuded; there being no vestige of Right in his per­son; seing he is divested by the Comprysing as if he had resigned, and the Superiour had accepted the Resignation.

Quaeritur, Quid Juris, If there were only a Comprysing without a Signature? And the Question may be more general; Viz. If in all cases the Heretor be so denuded that he cannot prejudge the Compryser, by any Deed whereupon Recognition or other Forefaulture may follow, in favours of the Superiour: otherways a Malicious Debitor may, of pur­pose, do such a Deed to prejudge his Creditor.

To consider if there be a difference betwixt a Disposition and Resig­nation accepted by the Superiour: And a Comprysing; whereupon no­thing has followed?

Item. If the presenting of a Signature on a Comprysing to the Exche­quer, be equivalent to a Resignation in the Superiours hands and ac­cepting?

Item. Whether a Charge to other Superiours to enter the Compryser be equivalent to a Resignation?

If after a Person is Forefaulted, an Estate should fall to him, as appearand Heir to any person, he being yet on Life; whether would the same pertain to the King or to the next Heir, as if he were Deceased? Seing he is nullus being Forefaulted, and is not in a Capacity to be Ap­pearand Heir.

If a Forfaulted person have Children that are ante nati; Whether or not will they be prejudged by their Fathers Forfaulture: as to any Capacity or Estate belonging to him? Whether will they succeed to their Grandfather [Page 73] or any relation upon the Fathers side; Seing their Blood is corrupted and they cannot represent their Father being nullus as said is?

A person having Married an Heretrix, and being thereafter Forfault­ed, Quaeritur, If the Blood of the Children be so tainted and corrupted That they cannot succeed to their Mother? 2do. If the Mother should not dispone in her oun Lifetime; Whether her Estate will fall to the King by the incapacity of the Children, being her appeirand Heirs?

An Heretrix being Wife to a forfaulted person, If als long as he liveth the King will have right to the Mails and Duties Jure Mariti? 2do If she may dispose of her Estate without his Consent seing he is nullus in Law: And yet is her Husband, the Marriage not being dissolved with the Fore­faulture?

A Father having Disponed his Estate to his Son, with Reversion and power either to Redeem or Dispone; Quaeritur, If the personal faculty may, notwithstanding, be comprysed during the Fathers Life; and may be used even after the Death of the Father? There is the same Question as to Forefaulture.

A Woman being Heretrix of Lands in Scotland; and the same being Tailȝied to the Heirs of her Body, whilk Failȝieing to certain other Heirs: with the ordinary Clauses irritant that she and they should not have pow­er to prejudge the Tailȝie; Quaeritur. If her Husband being Forefaulted, the Blood be so corrupted that her Children cannot succeed, and if their Interest of Succession will fall to the King?

If a Tack set for an Onerous Cause and for payment of Debt; will pre­judge the Donator to the Forefaulture?

The Creditor having an Action of Reduction competent to him for Reduceing an Infeftment as being in defraud of him; if thereafter the Debitor should be Forefaulted, and the Creditor reduce the said Right; what way shall he be Infeft; seing he cannot Compryse or Adjudge; the Debitor being Forefaulted?

There being a Minute of Contract anent the selling of Lands, and the Buyer being thereafter Forefaulted; Quaeritur, If the King or his Dona­tors will have Right to the said Minute in the same manner as the Buyer? or if the Seller can raise a Declarator to be free of the Minute? Seing al­beit where there is a clear Right and Interest belonging to a person Fore­faulted, the same will pertain to the King; yet when a Bargain is only in fieri, and there are diverse obligements upon the part of the Fore­faulted person, the Seller ought not to be in worse case, and in place of a Subject have so powerful an Adversary. The Earl of Tarras, and the Heirs of Walter Riddel.

The Laird of Cesnock having acquired from Castlemaines the Barony of Castlemaines, but not being Infeft but base before the Forefaulture, Quae­ritur, If by his Forfaulture, these who had Rights holden of Castlemaines not confirmed by the King will be in any hazard? Answer. It Is thought not: Seing any Right Cesnock had to the saids Lands, was not as the Kings Vassal: In which case the subaltern Rights would have fallen; and Castlemaines remaining the Kings Vassal, Cesnock had only the Right of property holden of Castlemaines: And as to Castlemaines Right holden of the King, Cesnock had only Jus ad rem by the Contract or Disposition; so that thereby the King by the Forefaulture may come to Castlemaines [Page 74] Right, and force him to denude himself of the same; but it cannot be said that the said Estate came in the Kings hand by the Forefaulture of a Vassal.

Sempronia having Right to certain Lands which are parcels of a Barony Feued to her Authors by the Earles of Argyle who held the same Feu of the Arch-Bishops of St. Andrews; who did confirm the subaltern Rights grant­ed by the saids Earles: Quaeritur, Whether the saids Lands belonging to the said Sempronia do fall under the Forefaulture of the Earl of Argyle, notwithstanding the confirmation granted by the Bishops: In respect the saids Rights are not confirmed by the King?

In Answer to the said Querie, It is thought, that the saids Lands do not fall under the Earles Forefaulture, for these Reasons.

1mo. The Earle of Argyle did Forefault only what did belong to him­self, Nam noxa caput sequitur; and the saids Lands did not belong to him in Property, but only in Superiority: And there is a difference betwixt the said case, and the case of Lands holden immediatly of the King himself; which by the Forefaulture of his Vassal are Forefaulted; and does return to the King as he did give them pure and free, and without the burden of any other Right granted by the person Forefault, but such as the King did consent to and confirmed: Whereas in the case in Question, The said Earl did not hold the foresaids Lands immediatly of the King but of the Arch-Bishop, who stands still His Majesties Vassal: And as his own Right is not prejudged by the said Forefaulture, so the Right of the sub-Vassal consented to and confirmed by him, is not prejudged by the said Forefaulture.

2do. Lands holden of the Bishop waird, or which would fall in his hands upon Recognition or otherways by the deed of the Earl of Argyle, being Disponed by the Earl to be holden of himself; will not recognosce by the Earles Deed in Disponing the Superiority or otherways, if the Bi­shop had confirmed the Subvassals Right; And there is the same reason in the case of Forefaulture, in respect by the common Law when Lands do fall and are confiscat, they fall to the immediate Superiour: And by our custom in the case of Treason the King has that Priviledge, that the Lands which are Forefaultare Confiscat and Forefaulted to him; because the Crime is committed against him. And therefore the Lands holden of o­ther Superiours do Forefault to the King, no otherways than they would belong to other Superiours, if the Forefaulture did belong to them; In which case the confirmation of the Subaltern Rights by the immediate Su­periour of the person Forefaulted, would save the Subaltern Rights that they could not fall under Forefaulture.

3tio. By the Law and Custom of the Kingdom it is lawful Subinfeodare; and albeit it may be pretended that if the Bishop had not confirmed the Fews granted by the Earl of Argyle they would have fallen by his Forefaul­ture though lawful ab initio, seing res devenit ad aliam causam & resoluto Jure dantis resolvitur jus accipientis: Yet in the case of confirmation by the Bishop, there is a great difference; seing the Subaltern Right doth not only depend upon Argyl's Right so that it falleth with it; but has another Foundation whereupon it does subsist; Viz. The Bishop's own Right and the confirmation granted by the Bishop; and specially in this case, seing it appears by the confirmation that the same is granted not to gratify the Sub­vassal, [Page 75] and to prevent prejudice to him by the Forefaulture of Argyle if it should fall out, but in order to the Bishop's own Interest and Advantage; In respect by the confirmation there is reserved to the Bishop, beside the Feu-duty payable to Argyle, a Feu-duty to himself and his Successors; with a Clause irritant if it be not payed: And fictione brevis manus, the Feuar is in the same case as if the Bishop ab initio by one Charter had Dis­poned the saids Lands to the Earl of Argyle in Superiority, and to the Feuar in property for payment to the Earl of Argyle of the Feu-duty men­tioned in Charter, and to the Bishop the said other Deuty: In which case Argyl's Forefaulture could not prejudge the Feuar of the Right of Pro­perty granted by the Bishop himself, nor the Bishop of the said Additional Duty.

4to. By the Acts of Parliament K. Ja. 2d. and K. J. 4. anent the set­ting of Feues and by custom ever since, The setting of Fews was so speedful and necessar in order to the policy of the Kingdom; That Vas­sals are not only allowed but invited to set their Lands in Feu; which in effect is a general confirmation of all Fews; so that the Fewers should not be in hazard either by the Waird or Non-entry or by any Deed or delict of their Superiour; but should be lyable only to pay their Feu-duties to these who should have Right upon occasion of the same: and the said Barony being of a large and vast bounds, albeit it was Fewed to the Earl of Argyle; yet for the labouring and bringing it in, it was necessary to set it in parcells to other Fewers holden of him: and the Fews in Question are granted before the Year 1606.

A Subvassal holding of a person Forefaulted, and his Right not being confirmed either by the Forefaulted persons immediat Superiour, or by the King, Quaeritur, If his Right will fall under the Forefaulture? Ratio Dubitandi; Licebat infeodare, & noxa caput sequitur: and yet is thought it will fall under the Forefaulture; Because resoluto jure dantis &c. And though it be lawful to grant Sub-altern Rights yet it is alwayes cum sua causa.

A Superiour being Forfaulted, and his Vassals Right not being con­firmed, and so falling: Quaeritur, If His Majesty should confirm the Vas­sals Right, if that will be habilis modus to secure against a poster or Do­nator? Ratio Dubitandi; The Vassals Right being altogether extinct by the Forefaulture, there is nothing to be the subject of a confirmation, which cannot be of non entis; and the Vassal should have obtained a Gift upon the Forefaulture. And contra, The Vassals Right not being null of it self, but such as could not prejudge the King when Lands return to him by the Forefaulture of the Superiour, because he did not consent to the same; his consent thereto at any time may convalidate the Right before Jus be quaesitum to a Donator.

If, after Forefaulture His Majesty having granted a Remission, the per­son Forefaulted is redintegrated to his Estate, as if the Forefaulture had not been: or if he should take a new Right upon the Forefaulture?

When a Forefaulted person has Right to succeed to any other person as Heir; so that not only his own Estate but what would belong to him if he had entered Heir, would fall to the King by his Forefaulture; Quae­ritur, will the King be Lyable to the Debts of the Defunct; seing he does not succeed to the Traitor's own Estate and Patrimony, but in haereditatem [Page 76] quae est nomen universitatis, both as to the Debita and Bona: and there is no reason that the Defuncts Creditors should be prejudged, unless they had been in culpa either themselves or their Debitor.

His Majesty having presented, upon Forefaulture, a Vassal; If that Superiour should be thereafter Forefaulted; Quaeritur, If the Feu not being confirmed, will fall under his Forefaulture? Ratio Dubitandi: The Feuer is in the same condition with other Subvassals; so that if he do not apply for confirmation he is lyable to the same hazard. And yet on the other part it may be thought, that the reason why Confirmation is neces­sary is, because when Lands return to the King they return as they were given free of all Rights and Burdens, but such as the King did consent to; which doth cease in this case; seing the King is not only Consenter to the Subvassals Right but is Author by the presentation.

A Person having committed Treason, and thereafter his Kinsman to whom he might have succeeded, being Deceased, Quaeritur, If that De­functs Estate will fall to the King, or go to the next Heir? Ratio Dubi­tandi: That there seems to be a difference, betwixt the case in the fifth Question of the Title Heirs, when a person being Appearand Heir, and having haereditas delata before he commit Treason, the same should fall to the King; seing he was Haeres habitu, and had jus radicatum in his Person before his Treason, and therefore Forefaults the same to the King. Whereas in this said other case, when the Succession fell, the Traitor could not have any Right in his Person being nullus and incapable of Succession: So that it cannot be said that he is Legitimus and propinqui­or haeres.

A Person holding Lands Ward of the King did give an Infeftment to be holden of himself Blensh, and the same being confirmed by the King, the granter was thereafter Forefaulted, so that the Subvassal did come to hold of the King: Quaeritur, Whether he will hold as he did formerly, or Ward as his immediat Superior did?

A Person being Appearand Heir both in Land and Heretable Sums, but not being served Heir; And being Forefaulted after the Decease of his Predecessor: Quaeritur. If he doth Forefault not only the Lands but the said other Heretable Estate? Answer. It is thought there is a difference betwixt Lands, and any other Heretable Estate; seing the Appearand Heir is obliged to enter to his Lands to the Effect the Superiour may have a Vassal Lyable to Service or other Duties; so that his not entering is delictum, vel quasi; and the Lands are in Non-entry: And he is in the same case in Relation to the Superiour, as if he were entered: Whereas, as to any other Heretable Estate, he needeth not owne or claim the same but if he pleases; and he cannot have Right unless the same be settled upon him by a Service: and consequently cannot Forefault that which is not his. Vide supra, in the Question concerning Cesnocks Forefaulture.

A Band being granted to an Englishman, but bearing Registration in Scotland; and being granted by a Scotsman: If the Person Creditor be guilty of Treason, whether it will fall under Forefaulture in England, or Scotland?

Cum essent Sempronio duo filii, Primogenitus patre adhuc vivo perduellionis damnatus fuerat; postea patre mortuo, utroque filio superstite (nam perduellis fuga se subduxerat) de haereditate patris ambigitur an ad primogenitum & ex [Page 77] ejus persona ad Fiscum pertineret? Nam Jure civili quod indigno aufertur fisco quaeritur: & Jure nostro haeres apparens, Majestatis damnatus, nedum sua sed bona haereditaria & praedia quae sua forent, si adita esset haereditast, amittit & ad fiscum transfert.

Sed distinguendum, Et multum interest, an filius, praemortuo patre, crimen postea admiserit; an vero (ut in casu praedicto) ante patris obitum Majestatis reus & damnatus sit: priori casu cum primogeniti persona adhuc integra sit, con­festim a morte patris dies cedit & haereditas ei delata est; adeo ut qui etiam pa­tre superstite haeres fuerat in spe, Jam incipit haeres esse habitu & spe certa & radicata, cum libuerit actu & aditione haeres futurus: si igitur postea maxi­mam capitis diminutionem patiatur, haereditas ipsi delata & jus succedendi infis­cum transit: altero vero casu, filio ante mortem patris damnato, haereditas pa­tris morte nec delata est nec deferri potuit, utpote poena servo, & qui in jure nul­lus, nec personam habeat in qua successionis jus radices agere queat: his conse­quens est, fratrem juniorem patri haeredem fore; quia absurdum esset patrem a crimine alienum, & forte tam suis quam familiae meritis commendatum, ex de­licto filii nihil amittere dum viveret (noxa enim caput sequitur) morientem autem tum bona tum familiam & memoriam perdere: nec perduellis aut fisci melior debet esse conditio, quod damnatus poenae se substraxerit: & extra quae­stionis aleam est, secundogenitum patri haeredem futurum primogenito patri prae­mortuo.

2da. In ista specie facti suboritur quaestio, viz. si venia data restituatur pri­mogenitus, an frater desinit esse haeres? Et quidem distinguendum est, 1mo. An cum restituitur, haereditas integra & ex asse adita sit, fratre ex inquisitione haerede renunciato, & in omnibus quae patris fuerant praediis investito (cum enim terrae in haereditate sunt, ante investituram haud censetur esse aditio) isto casu restitutio quae est ex gratia nemini nocet nisi concedenti; nec adimit jus fra­tri quaesitum: & quod rite constitutum & quaesitum est haud corruit etsi casus evenerit a quo incipere non poterat.

2do. Sin restituatur primogenitus, haereditate nondum ullatenus adita; eo casu quia res adhuc est integra & sublato obice per restitutionem, qui oberat ne haeres esse possit; incipit haeres esse habitu & aditione actu haeres erit.

3tio. Haereditate partim adita partim non, fra re in quibusdam terris in­vestito in quibusdam haud sasito; novissimo isto casu frater in iis quidem terris in quibus investitus est haereditatem retinebit; in reliquis primogenitus haeres erit: tantum adeo discrimen est inter jus inchoatum & id quod penitus consum­matum & quaesitum est: Multa enim cadunt inter calicem supremaque labra.

Forisfamiliation.

QƲaeritur, If the granting of a Provision to a Child importeth Forisfa­miliation; so that the Child cannot claim a Bairns part? Or if it be to be considered what the subject of the Provision is? Viz. Whether it be Heretable or Moveable: Seing in the first case it seems that the Pro­vision being out of a different Subject should not exclude from a share of Moveables? David Scot Son to Walter Earl of Buccleugh.

Funeral Charges.

IF Funeral Expences should be deduced as a Debt off the whole, or only off the Deads part?

[Page 78]If the Funeral Charges for Burying the Husband, should affect the whole Moveable Estate, or the Deads part? Answer. It should affect the Deads part; seing it is not a Debt contracted during the Communion: And the Deads part cannot be used or employed better than to Bury him.

If the Funeral Charges should be deduced in Relation to the Quot, so that the Quot should be only of the Deads part free of the said Debt? Answer. It is thought, it should not be deduced, for the reason contained in the preceeding Querie.

Gestio Haeredis.

IF an Appearand Heir medle by entering to the possession of Lands, whereof the Defunct was in possession; but his Title is found there­after to be void: Will his medleing import Behaviour & aditio­nem passive.

Gift.

THE late King having granted to a certain person the Gift of an Office at His Majesties presentation; There is a Gift of the said Office granted to another person by one having Right by a late Gift to present to the said Office; notwithstanding that the person who had the for­mer Gift ad vitam or culpam is yet Living and is not deprived: And it is now desired, that His Majestie should not only ratify the said late Gift, but that of his certain knowledge, proper motive, and by vertue of his pre­rogative he should give a new Gift of the said Office; Revocking and annulling the former Gift granted by the late King to the present incum­bent; and giving power to the person to be presented by the New Gift, to enter presently to the Exercise and benefite of the said Office, by him­self and his Deputes: And ordaining the present Incumbent to deliver up the Registers; and recommending to the Lords of Session to con­struct His Majesties Gift with the greatest latitude that their Nobile Offi­cium can allow: And containing a promise to ratify in Parliament.

Quaeritur. Whether a Gift of the Tenor foresaid be according to Law? It is Answered, That the samen is altogether against Law and Form, for these Reasons.

1mo. By the common Law there can be no valid Gift of an Office or place, unless the same be Vacant, and the manner of Vacation exprest in the Gift; seing the Office belonging to another who has Right to and in possession thereof, the same is not in the hands and power of these who has Right to present, so that they may give the same. 2do. If it be pretended, that it may be taken periculo petentis, and that the Incumbent may be thereafter deprived or may decease; and that the Gift may be effectual in either of the said cases: Such a pretence is both against Com­mon [Page 79] Law and our Practique; seing it imports votum captandae mortis: And, by an express Act of Parliament, Gifts of Escheat should not be given before they fall by Horning: and there is the same Reason as to all other Gifts. 3tio. That a former Gift granted, by the late King, who undoubt­edly had Right to give the same, should be Revocked and Annulled without a previous citation of the person concerned; and without so much as a hint of any reasons why his Right should be taken from him; is a Streach not only against Law and Form but against Humanity and Justice which is defined Jus suum cuique tribuere, & neminem laedere. 4to. That, what cannot be done in Law and Justice, should be desired to be done by vertue of His Majesties Prerogative, is an Injury to so just a Prince; And it is of a dangerous preparative that His Majesties Prerogative should be pretended for Favours to private persons, that are Unjust and Illegal. 5to. Whereas it is desired, that it should be recommended to the Lords of Session, to construe His Majesties Gift, if it should be granted, and if there should be any Question upon the same; with the greatest Latitude that their Nobile Officium may allow; The said Desire and Stile is Illegal, and without any precedent; and should not be a precedent hereafter: seing there ought to be no prelimitation upon the Lords of Session: And it is their Duty, and may be expected from them, that they will con­strue His Majesties Grants according to Law and Justice: And their Nobile Officium; being as the Highest Judicatory, to do Justice according to Law, they have no Latitude to recede from the same.

Gift of Escheat with Backbond.

IF a Backbond do so affect the Gift of Escheat, that the Donator cannot Assign the same?

Gifts of Forefaulture.

LAnds being Disponed by His Majesty, as being in his hand upon Fore­faulture, conform to a certain Decreet of Forefaulture mentioned in the Right, with the Clause cum omni Jure; and the King having, the time of the granting the Disposition, Right to the Land as being in his hands for committing another Deed of Treason after the former; whereupon there was not a Decreet the time of the Disposition: Quaeritur. If the said former Decreet be taken away, whether the Donator will have right to the Lands upon the Supervenient Deeds, and new Decreet of Fore­faulture following thereupon? Ratio Dubitandi, The said Right is upon a special Ground, & causa limitata limitatum producit effectum: And the Clause [...]um omni Jure is only Clausula executiva; and is only to be un­derstood of Inferior Rights to Mails and Duties, by reason of Ward, Non-entry or otherwayes; and not of the right of Property upon other Grounds. Swinton.

Gifts of Recognition.

A Gift of Recognition bearing Lands holden of the King Ward, to have been Disponed; but not specifying the same; or special as to [Page 80] the Lands but not as to the persons in whose favours the Disposition is made: if it will be valid?

Gift of Ward.

THE Superior having gotten a Gift of his own Ward, either to him­self or to another for his behoof, gratis; Quaeritur, If the Sub­vassals may claim the benefite of the said Gift, and to be free of the said Ward? Ratio Dubitandi. That in effect the said Gift is a Discharge of the Ward; which being Discharged to the Superior is Discharged to the Subvassal, whose Property falls in Ward only consequentially: and on the other part, as the Superior and Donator to the Ward, may take ad­vantage of the same both against the Vassal and Subvassals; the Vassal ought not to be in a worse case than another Donator.

If Gifts of Ward and Non-entry prejudge singular Successors.

THere are some Casualities which are Fruits of Superiority, and have Tractum temporis as Ward and Non-entry &c. And these being Gifted will be effectual, during the whole time of their endurance; as to the Granter and his Heirs: But there may be question as to singular Successors; Whether the Donator will have right to the Ward and Non-entry, for Years after the Giver is denuded? Ratio Dubitandi; That resoluto Jure dantis resolvitur jus accipientis; and such Gifts are of the na­ture of Assignations to Mails and Duties, which are not effectual but dur­ing the Right of the Cedents: And the Ward and Non-entry do belong to the Superior by reason he wants a Vassal to serve him; and the singu­lar Successor having that prejudice, he ought after his Right to have the benefite of the Casualities. Vide Liferent-Escheat. Quaest. 7. in Lit. E.

Goods belonging to the Rebels at the Horn.

A Creditor having affected the Moveables of the Defunct, by confirming himself Executor Creditor; and having got possession of the same whereby he is satisfied of his Debt: Quaeritur, If the same may be evicted from him by a Donator to the Defuncts Escheat? Answer. It is thought, they cannot be evicted: Seing, in favorem commercii, Goods be­longing to Rebels may either be Disponed and given by themselves in pay­ment of their Debt, or poinded or otherways affected, before Declarator and Diligence, done by the Donator to affect the same.

Grana crescentia.

WHat is the reason for the astriction of Grana crescentia? Answer. Feuers are in effect Coloni and perpetual Tacksmen; And they ought not to be in better case than Tennants, whose Grana crescentia were upon the matter thirled, the Food and Expences of Labouring being [Page 81] deduced, it is thought the Tennent will have no more than will enter­tain him.

Great Seal.

A Gift of the Estate belonging to Bastards or Forefaulted persons where­upon there was no Infeftment, being granted under the Great Seal, Quaeritur, will it be valid? Ratio Dubitandi, The ordinary way of pas­sing such Gifts is under the Privy Seal.

Heirs.

A Child being served Heir to his Mother, and thereafter the Childs Father being served Heir to the Child; Quaeritur, if he can be said to be Heir of Line to his own Wife, and ought to be dis­cust before other Heirs?

A Woman being Married to a Bastard, and having a Child, Quaeritur, as the Child will succeed to the Mother, whether the Child having no o­ther Heirs, his Father being a Bastard; (so that he cannot have any Cognati upon the Fathers side) will his Mother be Heir to him? Ratio Dubitandi, That by the Common Law the Mother does succeed; and as the Child does succeed Ratione Cognationis and Relation to his Mother, it seems that for the same reason she should succeed to him, the Relation being mutual.

Quaeritur, If a Son of a former Marriage having Right to succeed by Substitution, in the case where the Father provided Lands to the Son of a second Marriage, and the Heirs of his Body: Whilks Failȝieing to the Fathers other Heirs and Assigneys, for implement of his Contract of Mar­riage: There being no other Children of the second Marriage, must he be Heir to his Father; the substitution being (as said is) in favours of the Fathers Heirs? Ratio Dubitandi, That in many cases the word Heir to another person than the person De cujus successione agitur, is to be under­stood haeres habitu vel potentiâ, & non actu; As if upon considerations a Bro­ther should pass by his Brother of purpose, and Failȝieing his own Heirs should substitute the Heirs of his Brothers Body: But in this case it would seem by the Obligement of the said Contract of Marriage and the said right, he has intended that he should be represented himself, Failȝieing the Heirs of his Marriage. Vide the tenth and eleventh Questions in the Title, Successor titulo Lucrativo, Litera S.

If that should be the Construction; Quaeritur, Quid Juris, If the Son of the second Marriage should decease, the Father living: Seing the Son of a former Marriage cannot be served Heir to his Father? Cogi­tandum.

[Page 82]Lands being entailed to diverse persons substitute and the Heirs of their Bodies, whilk Failȝieing to the other Heirs of Tailȝie successivé, Quaeri­tur, If one of the said Heirs of Tailȝie be Forefaulted before the Death of the person in Fee leaving descendents of his own Body, whether will the next Heir of Tailȝie succeed? Ratio Dubitandi; Because the next Heir who would succeed, Failȝieing the Forefaulted person and the Heirs of his Body, cannot be said to be proximus; seing the Children of the Traitor are nearer: And though they be nulli and mortui civiliter they are not naturaliter nulli: So that they being incapable; and the others not having jus sanguinis; it may appear quod nullius est pertinet ad Regem. It is thought, that the nearest of Kin should exclude the Fisk; Seing qui sunt nulli, they are not to be considered as to any effect; and especially in that which is odious and exclusive: And it is hard, that the Estate should be Forefaulted by the Crime of a person who had never Right to it.

Behaving as Heirs.

QƲae Ratio, That the owning a Title of Honour, and sitting in Parlia­ment doth not import Behaving as Heir; and yet the owning and in­trometting with a Sword, or Armour, or any thing else will import Gestionem? Answer. That Creditors being to be satisfied out of the Goods and Estate belonging to a Defunct Debitor; If the Appearand Heir doth meddle with any part of the samen, Eo ipso adit passive, quia miscet se rei, which should be Lyable to the Executors Execution: But a Title of Ho­nour is not such an Interest, as could be any way Lyable to the Creditor, and the Appearand Heir in owning the same non libat haereditatem.

Quaeritur, If a Ratification by any Appearand Heir of a Right grant­ed by the person he was to succeed to, being yet on Life; will import Gestionem? Ratio Dubitandi; That he could not be Heir nor Gerere dur­ing the Defuncts Lifetime: And on the other part, the ratification is granted because he is Appearand Heir, and might question the Right: And as one may be Lyable passive by accepting a Right in the Defuncts time, whereby he is Successor titulo lucrativo; so he may Behave by a Deed in the Defuncts time.

Heir of Conquest.

THere being three Brothers, and the middle Brother having an Estate and deceasing after the decease of his Elder Brother, who had di­verse Sons; and the Younger Brother being on Life, Quaeritur, Who will succeed to the middle Brother as Heir of Conquest? Ratio Dubitandi; 1mo. The Younger Brother being Heir of Line; and who would be Tu­tor to the Children of the middle Brother, if he had any; it may be doubted if there should be a representation in conquest; the Heir of Conquest not being properly Heir? 2do. Conquest ascending gradatim, whether would the Youngest or Eldest Son of the Elder Brother succeed as Heir of Con­quest, being both collateral to the Defunct?

Discussion of Heirs.

A Person, having provided his Estate to his Daughter, with power to Dispone and Redeem, is obliged that if he should make use of that power in prejudice of his Daughter, he and his Heirs Male and Suc­cessors, in that Estate and Dignity, should be obliged to pay a certain great Sum of Money at the first term after his Decease: Quaeritur, whe­ther his other Heirs or Executors, and not only the Heir Male, will be Lyable to pay the said Sum, at the least in subsidium, The Heir Male being first discust? Lauderdale and Lady Yester.

Quaeritur, Quo ordine, A Successor Titulo Lucrativo should be Discust? Answer. It is thought, that he should be discust before the Heir of Tailȝie, being in effect a general Heir: Unless Lands be Disponed to an Appear­and Heir of Tailȝie, in which case he should be considered as an Heir of Tailȝie.

When the order of Discussion is Renounced; If the Heirs of Tailȝie or Provision may have recourse for their relief against the Heir general; who by Law is first Lyable to the Debts: Albeit as to Creditors that order be Renounced?

Heir and Executor.

GIfts of Ward, Marriage, Non-entry, Do these belong to the Heir or Executor? Answer. They are in rem, and some has tractum, and therefore belong to the Heir.

A Person being obliged by a Bond to Dispone Lands for a certain price, and the Creditor having charged upon the said Bond, and being content to pay the price, and in the interim the Debitor deceasing; Quaeritur, If the Creditor obtain a Decreet for implement against the Heir, whether the party bound to Dispone, his Heirs or Executors will have Right to the Price? Answer. It is thought, that the Heir will have Right; seing there is no Sum due to the party bound; but if he Dispone, which is only in obli­gatione, the said Sum becometh due upon his Disposition; and is not due to any but to a Person who is to Dispone; and the Heir only can Dispone.

If by Contract one of the Parties has Disponed and is obliged to In­feft in Lands; and the other is obliged to pay a Sum of Money as the Price. Quaeritur, If the Seller decease before the Disposition be fulfilled, whether the Sellers Heirs or Executors will have right to the Price? Ratio Dubitandi, The Heir only can fulfil, and therefore ought to have the Price; and on the other part, the Heir is Lyable to fulfil by the Disponers Obligement: But the Disponer having taken the Obligement to pay the price in favours of himself his Heirs and Executors, the Sum by the Act of Parliament should pertain to the Executors; And it appears that the Disponer, in place of his Lands, intended to have a personal and Moveable Estate.

What is the Reason of Difference betwixt the last and former case? An­swer! In the last, there is a Moveable Obligement for payment of Mo­ney: And in the other there is no Obligement upon the Creditor, but upon the Debitor to Dispone; But so that if the Disposition be made, a Sum is to be payed, which cannot be payed but to the Disponer's Heir [Page 84] after his decease, who only can Dispone, the Debitors Executors can have no right to the same; and it was in the Creditors option either to charge for implement or not, so that the Money was not in Obligatione but in Conditione or modo, If implement should be craved.

When an Order of Redemption is used, and the Money consigned, and thereafter the person against whom the order is used deceases; Quaeritur, Whether the same will belong to his Heirs or Executors? Answer. It is thought, it should belong to the Heir, for the reason foresaid in the last Querie; Specially seing an order of Redemption may he used against an Appearand Heir: And if that Appearand Heir should after Consignation decease, the Money could not belong to any representing him, who had no Right; and therefore it can belong to no other, but to the Heir, who should be thereafter Heir, and Infeft and should Renounce: And there­fore it is thought, that the Money being the Redeemers Money, and upon his hazard untill Declarator, it is never Money of the person against whom the order is used until Declarator; and then being his in specie is moveable, and belongs to his Executors.

If a Wadset be granted to a Man, and his Wife, and the longest liver of them two, and the Heirs of the Marriage &c. And an order of Re­demption be used and declared against the Husband; and thereafter he decease: Whether in that case, the Money consigned will be heretable, and ought to be given up to be employed for the Wife in Liferent, and the Heirs in Fee? Answer Affirmative.

A Bond being ab initio heretable by Obligement to Infeft, and Infeft­ment thereupon; And thereafter there being a Bond of Corroboration granted for the same Sum, but not heretable; bearing to the Creditor only his Heirs and Executors: Quaeritur, Whether the Sum be Heretable or Moveable? Ratio Dubitandi, The same is due, both by an Heretable and Moveable Bond; and the Moveable Bond being Posterior seems to be a Novation of the former, & posteriora derogant prioribus. Et contra, the said Sum is due still upon Infeftment, and the subsequent Bond is only in accessorio; So that jus principale & primordiale is more to be considered, as to the question concerning the nature and quality of the Right.

Heirs Male.

A Father, his Eldest Son being Dumb, of purpose to exclude him, as being unable to manage, Doth by a Bond of Tailȝie settle his Estate upon another Son, and the Heirs Male of his Body; Whilk Fail­ȝieing to his other Heirs Male; with a Provision, That his said other Son and his foresaids should be obliged to entertain the Elder Brother: And if the said dumb person should at any time have the Faculty of his speaking, he should succeed, and the said Bond should be void: Quaeritur, If the Brother who has got the Estate decease before the Elder, without Heirs of his Body; If the Elder Brother would succeed to him, as Heir Male? Answer. It is so evident, that it was intended, that the Elder Brother should not succeed, except in the case foresaid, if he should have the said Faculty of his speaking, And the said Tailȝie being made of purpose to seclude him: It is thought, that he cannot succeed by vertue thereof; And his Heirs Males is to be understood his other Heirs Male, by the Dumb Person, who is excluded.

Obligements, in Contracts, in favours of the Heirs of the Marriage.

A Person being obliged by his Contract of Marriage, with a second Wife to resign certain Lands, for an Infeftment to himself, and the Heirs Male of the Marriage; and to employ also 60000 lib. for the Heirs of the Marriage; And his Eldest and only Son of the first Mar­riage being bound by a Bond granted thereafter, for implement of the said Contract of Marriage, in the same manner, as if he had been obliged by the Contract; And the Father having accordingly resigned, and taken Infeftment; and the Son of the second Marriage being Infeft as Heir of Provision, in the Lands provided as said is in favours of the Heirs of the said Marriage: Quaeritur, If the Son of the first Marriage, being after the said Contract Infeft in the Fee of the Fathers other Estate, will be Ly­able to relieve the Heir of the second Marriage, of the Debts contracted after the said Fee, as Successor Titulo Lucrativo; or being bound for his Father as said is: Upon that pretence, that his Father ought to perform the Obligements of the said Contract cum effectu; and to free the Heir of the second Marriage of his Debts? It is thought, that the Contract being once fulfilled by taking the Infeftment foresaid, and by employing of the said Sum; both the Father and his Cautioner, the Eldest Son, were im­mediatly Liberate, the said Obligement being satisfied; The import of the same being, that the Son of the second Marriage should succeed as Heir in the saids Lands, but not that he should be free of his Debt: Or that being free, the Father could not Dispone the Lands for an Onerous Cause. But if the Father had Disponed the Lands, provided by the Con­tract, without an Onerous Cause, after the Elder Son his Fee; or had resigned of purpose, to defraud the Heir of the second Marriage; the Father would be Lyable de Dolo, and the said Deeds reduceible: But the Eldest Son, being once Liberate, by implement, would not be Lyable. Tweeddale contra Drumelȝior.

There being Heirs General, and Heirs Male, and of Provision; and Heirs of a second Marriage, being provided by their Mothers Contract of Marriage to certain Provisions, whereunto they have Right as Heirs of Provision: Quaeritur, quo ordine will the Heirs of the second Marriage be lyable to Debts and Discussion? Answer. It is thought, that they being Heirs upon an Obligement & quasi creditores, it would appear that they should be Lyable in the last place in subsidium, all others being discust.

In Contracts of Marriage, The Husband being for the most part oblig­ed to provide and resign his Estate, for Infeftment to himself and the Heirs Male of the Marriage; which Failȝieing to his Heirs Male of any other Marriage; which Failȝieing, the Heirs Female of his own Body, the Eldest succeeding without Division: Quaeritur, If the Husband should resign and take such a Right upon Resignation; but thereafter should resign in favours of other Heirs: Whether the Heirs of the Mar­riage may question the said alteration, and what way? Ratio Dubitandi, That an Heir is eadem persona, and cannot question the Deed of the Person whom he represents. Answer, He is not simply Heir, but Heir of the [Page 86] Marriage: And as to Obligements in his favours he is Creditor. 2do. It is thought, he may pursue a Reduction of the foresaid Deed, as being in prejudice of him as Creditor: or he may pursue the Heir of Provision by the posterior Right, for implement of the said Obligement.

Quaeritur, When by such Provisions, there are other Heirs substitute to the Heirs of the Marriage: Whether the Husband may alter the Desti­nations as to the said other Heirs? And if he do, if they may question the Deed? Answer. It is thought, that the Heirs of the Marriage are only in Obligatione: And the other Heirs in destinatione mariti, which he may alter.

A Person being obliged by Contract of Marriage to resign certain Lands in favours of himself and his Wife in Liferent, and the Heirs Male of the Marriage; whilk Failȝieing, his Heirs whatsomever: And like­wayes being obliged, that what he should get by his Wife, by any Le­gacy, or Right. or Assignation in her favours, to secure and employ the same to himself, and her in Liferent, and to the Heirs of the Marriage; which Failȝieing to his Heirs whatsomever: And he having accordingly resign­ed, and taken Infeftment, to him and her, and the Heirs foresaid: And a Sum of Money having fallen to her, and being uplifted and Discharged, both by him and his Wife, before Inhibition; and thereafter there be­ing Inhibition upon the said Contract at the instance of certain Friends, at whose instance Execution is appointed to follow: These Questions do arise. 1mo. If notwithstanding the said Inhibition, he may Dispone the Lands? Answer. He may Dispone the same, being Fiar: And the import of the said Obligement is, that the Right of Succession, as to the said Lands, should be secured to the Heirs of the Marriage, in case the Father should decease in the Fee of the same; so that he cannot provide them to other Heirs: But it is not intended thereby, that the Father should not have the Right competent to all Fiars: Viz. That they may dispose of the same, if their condition requires.

Quaeritur, If he may at least Dispone the same without an Onerous Cause? Answer. It is thought not, seing all Obligements should be un­derstood, ut actus valeant & operentur: And though the Father be Fiar, his Fee is by the said Obligement so restricted in favours of the Heirs of the Marriage, that he cannot, fraudulently, and to evacuate the said Obligement, Dispone without an Onerous Cause.

If the Inhibition will be effectual as to the Sum e. g. of 10000 lib. neveremployed? Answer. It will be effectual as to the Wife: But as to the Heirs of the Marriage, there may be question. Ratio Dubitandi, That there being an Obligement, it ought to be once fulfilled by employ­ment to him and his Wife, and to the Heirs of the Marriage: And on the other part, seing notwithstanding the Inhibition he might have dis­posed of the said Sum, if it had been employed; there is eadem Ratio, if it be not employed; Seing his Condition may be such, that he cannot em­ploy the same.

If it be not to be considered, what truely his Condition is? And if it be such that he cannot employ the said Sum without Ruine; That he should not be obliged to employ it Dicis Causa to be thereafter uplifted? And if a Process may be intented against his Children, to hear and see it Found and Declared, that he should have power to Dispone notwith­standing [Page 87] of the said Inhibition and Obligement foresaid, both as to Lands and Money? Seing if the Money were employed, he could, and might dispose of the same being Fiar: And he is not in that Condition to raise the said Sum, and employ it. Watson of Damhead.

Heirs Portioners.

WHen Women succeed as Heirs whatsomever ( v. g. Three Daugh­ters) they succeed as Heirs Portioners, without any priviledge of Primogeniture. Quaeritur, if the Three Daughters succeeding be deceas­ed, leaving each of them Sons and Daughters: Will the Eldest Son of any of them exclude the rest of the Children, and be Sole Heir Portioner to the Grandfather? Ratio Dubitandi, As Primogeniture is introduced for the preservation of Families, which does not militate in successione Foeminea, Women being finis & caput Familiae; There ought to be no respect to the same in the second Degree, & nepotibus, as there is not in primo gradu in filiabus: There being utrinque eadem Ratio.

Where there is a plurality of Heirs Portioners, and some of them be­come Lapsi: may the Debt be recovered in solidum, from these who are Responsal? Cogitandum.

If a Barony descend to Heirs Portioners, will all have Right of a Barony?

If any Superiorities belong to the Barony, will the Eldest only be Su­perior?

Heirs of Provision and substitute.

WHatever belongeth to a Defunct in Fee and Property (whether Land or any other Interest) the time of his decease, cannot be transmitted but to Representatives; or these who are instar haeredum, and bonorum possessores, as in the case of Lands provided to Bairns of the Mar­riage, the Bairns are in effect Heirs of Provision: And if Sumes be pro­vided by way of Substitution to another person, after the decease of the Creditor; the Substitute will be Lyable to the Creditors Debt, other Heirs being discussed.

Heirs of Provision being oftimes Strangers, and in re certa: Quaeritur, will they only be Lyable secundum vires?

If a Right of Lands be given to a person without mention of his Heirs; And Failȝieing of him by decease, to another and the Heirs of his Body: Quaeritur, Will not the said person who is so substitute be Heir of Tailȝie? And if it be so in Lands, why not so in Bonds granted to persons and Fail­ȝieing of them by decease to other Substitutes?

Heirs of Tailȝie.

QƲaeritur, If there be no Heretable Estate belonging to an Heir of Line, out of which the Executor may be relieved of heretable Debts: Will the Heir of Tailȝie be obliged to relieve the Executor of such Debts? Ra­tio Dubitandi; Heirs of Tailȝie are not properly Heirs, but Bonorum pos­sessores; and Lyable to Debts only in subsidium: whereas the Heirs of [Page 88] Line and Executors are properly Heirs: and the Heir of Line, if the Exe­cutry be great and more considerable than the Heretable Estate, may Con­fer: which is not competent to the Heir of Tailȝie or Provision.

The same Question may be betwixt an ultimus haeres and the Executor nominate of a Bastard Legitimate.

Haereditas being successio in universum Jus; Quaeritur, Why is an Heir of Tailȝie called Hoeres, who succeeds only in rem particularem, as Fundus? Answer. He succeeds in omne Jus talliatum, & non singulari Titulo; But as representing the Defunct in ea re: et non interest Whether there be any thing in haereditate quando haeres succedit eo jure; et majus et minus non variant speciem.

If after a person has succeeded as Heir of Tailȝie to a certain Barony, the same be evicted; whether will he be Lyable to the Defuncts Debts? Ratio Dubitandi; semel haeres semper haeres, & sibi imputet that adit damnos­am haereditatem: On the other part, the Heir having succeeded, and hav­ing contracted quasi aditione with Creditors; intuitu, that the said Land was to be his; the said quasi Contractus should be considered as ob causam da­tam & non secutam.

Heirs of Provision and Tailȝie, who are to succeed only in rem singula­rem, albeit Titulo universali: Quaeritur, If they will be Lyable to the De­functs whole Debt, though far exceeding the value of the Succession: Or if they should be considered as haeredes cum beneficio Inventarii; and should be Lyable only secundum vires: There being no necessity of an In­ventar, the subject of their Succession being only as said is res singulares? Answer. It is thought, that if one be served general Heir Male, without Relation to a singular Subject (as to certain Lands) he would be Lyable in solidum: But if he be served only special Heir in certain Lands, he should be Lyable only secundum vires.

There being a Right made in favours of a Person as Heir of Provision of a great Estate; and in favours of another as likewayes Heir of Provision of an inconsiderable parcel; Quaeritur, If the person succeeding almost to all the Estate will be considered as Heir of Tailȝie, and will be Lyable to relieve the other as Heir of Provision?

When there are two Heirs of Tailȝie in diverse Lands, of which the Rent is not equal, but the one much disproportionable and less than the other; Quaeritur, If they will be Lyable to the Debts equally, or propor­tionally?

Quo casu, Heirs of Tailȝie may be considered, as Creditors.

ONe having Tailȝied his Estate by a Disposition to One and the Heirs of his Body, whilk Failȝieing to other Substitutes; and by a Contract betwixt him and the Person to whom he Disponed his Estate, he having taken the said person obliged to do no Deed in prejudice of the Tailȝie, but to preserve it inviolable: Quaeritur, If he the Disponer should make a Dis­position notwithstanding; may the Heirs of Tailȝie pursue Reduction of the same, as being made in Defraud of them, being Creditors by the said Contract?

[Page 89]If after the said Contract is Registrate, the Heirs of Tailȝie have Jus quaesitum: So that the Contracters cannot Discharge, or prejudge the same?

Haereditas.

OMnis haereditas quandocunque aditur, cum tempore mortis defuncti continua­tur, Perez. Lib. 2. inst. tit. 14.

Haereditas jacens sustinet Personam Defuncti. Ibidem.

Si Haeres instituatur sub impossibili conditione; instituitur pure; & conditio habetur pro non adjecta. Perez. ibidem.

Idem, Si institutio fiat ad tempus: habetur enim tempus pro non adjecto, & utile per inutile non vitiatur, Ibidem.

Aditio haereditatis.

ADitur haereditas, vel verbo, vel facto; verbo declarat (scilicet voluntate) se velle haeredem esse: Facto vero Gerendo pro haerede, & immiscendo, Dummodo sciat delatam ad se haereditatem: Regula enim est, Omnia quae animi destinatione agenda sunt, non nisi vera & certa scientia perfici possunt. Perez. Lib. 2. tit. 19.

Aditio haereditatis non requirit hodie solennia verba, ut olim Cretio. Ibidem.

Haeres Contrahens.

HAEres videtur contrahere cum Creditoribus & iis satisfacere debet.

Repudiatio Haereditatis.

QƲi repudiavit haereditatem, non amplius ad eam admittitur: qui tamen a Creditore rite interpellatus est ut haereditatem adeat, & repudiat; non prohibetur eam adire quoad alios Creditores.

Qui haeres institutus est sub conditione, ut non adire, ita non potest repudiare ante eventum conditionis: Regula enim est, Quod quis si habere velit habere non potest, repudiare nequit.

Servus Haeres.

INstituto servo haerede; eo ipso datur libertas sine qua haeres esse non potest, Perez. lib. 2. inst. tit. 14.

Ʋltimus Haeres.

IF a Donator by a Gift of Ʋltimus Haeres will be Lyable to the Defuncts Debt personally Effeirand to the Estate? And if he be not, what course shall be taken to affect it?

If such Universal Successors be Lyable in solidum, (If they be found to be Lyable Personally) unless they give up an Inventar? And what shall be the method of giving up an Inventar?

Heirship Moveable.

IF a Son that is Forisfamiliat, and has a Family, will get a Moveable Heirship by his Father? Ratio Dubitandi, He is sufficiently instruct­ed, and aocomodated as Pater Familias: And e Contra, the other Chil­dren, though Forisfamiliat will be Executors, and Exclude him; and in that case there is no Reason, that all should be Executry, and the Heir Excluded.

Whether a Coach and Cart will fall under Heirship with the Horses belonging thereto the time of the Defuncts Decease? And whether not only the Plough, but Oxen or Horses that goes in the same, will belong to the Heir?

An Heretrix being Married, Quaeritur, If she may have a Moveable Heirship? Ratio Dubitandi, That she is in Familia Mariti, and has none of her own? Lady Levin.

Quaeritur, If a Jewel may fall under Heirship; upon pretence, that it is the Jewel of the Family? Ratio Dubitandi, Jewels are only Jocalia; and Heirship is properly Instrumenta fundi, or Domus: And in England are called Heir-looms.

In Saxonia & finitimis regionibus peculiares quaedam species sunt in quibus proximus agnatus succedit; quas Heergevvettam, vel res expeditorias vocant.

Inter reliquas res, ad eum pertinet equus optimus cum ephippio viri mortui, gladius, optima armatura, &c. Besold. Thesaur. litera H. 33. Heergev­vettam.

Money consigned for Redemption whether Heretable or Moveable?

MOney being consigned upon an order of Redemption, Quaeritur, If after Decreet of Declarator the same be heretable or moveable? Ratio Dubitandi, That it belongs to the Creditor, and is moveable, and as it were in Cash; which of its own nature is moveable: And on the other part, Surrogatum sapit naturam surrogati, and as the Relict would have a Terce, so the Heir, who only can Renounce, ought to have right.

Sums Heretable or Moveable.

A Sum being due by Contract, wherby the Buyer of Lands is obliged to pay the price; But so, that it is provided that it should be retained for payment of annualrent, until an infeftment of warrandice upon the Lands be purged: Quaeritur, whether the said sum be Heretable or move­able?

Homologation

Sir William Ker having got a Right under the great Seal to debateable Lands upon the borders, wherein Ker of Cherrytrees pretended a Right and Interest and Property by a prior Gift; and Bennet of Grubet an interest [Page 91] of Commonty: The said Sir William Ker and Cherrytrees did by a minut oblige themselves to communicat their Rights, so that Sir William Ker should dispone to Cherrytrees his Right as to the part of the saids Lands Cherrytrees was in possession of; and that Cherrytrees and his Successors should be obliged not to question Sir William Ker his Right: Thereafter Cherrytrees offered to assigne the said minut to Grubet: Quaeritur, whether or not the accepting of the said assignation would import an homologation of Sir William Kers Right, and a passing from Grubets Right: And if Grubet by the Obligement forsaid, would be obliged not to question Sir William Kers Right as to Grubets part of the said Commontie? Answer, That actus agentium non operantur ultra eorum intentionem; and Grubet did not intend to prejudge himself, but to better his Right and to be free of a plea; and he could not question Sir William Kers Right upon that which he was to have from Cherrytrees; But could not be barred to question the same upon his oun Right which he had not from Cherrytrees.

A Tailȝie bearing a clause irritant, That the course of Succession should not be altered, and that the Contraveener should Lose the Right; And the Heir of Tailȝie in minority having resigned in favours of other Heirs that were not contained in the Tailȝie, and being infeft upon the said resigna­tion; Quaeritur, if the said Heir after majority continues to possess and to administer, and has granted Commission for doing other deeds concern­ing the Management of the Estate intra quadriennium utile, but before inten­ting of reduction Ex capite Minoritatis: Will he be thought so to homologat the said alteration, that he cannot question the same, and cannot be reponed against the committing of the said clause irritant? Answer. It is thought that the possession will not import homologation, seing it may be ascribed to the former Right which cannot be said to be altogether extinct by the said other Right; the same being null at Least annullandum and reduce­ible. Vide Tailȝie altered in Litera T.

Horning

IF a person charged may be Denounced year and day after the charge without a new intimation?

If a Pupil may be charged and Denounced, and taken with Caption? It is thought not, seing he can neither Velle nor Nolle, nor obey nor disobey.

There is not Eadem Ratio as to Minors.

If it may be objected against a Judge that he is at the horn, seing Parties may be debarred from pleading as not having Personam; And there is the same Reason to debar Judges a Judicando?

How far a Husband is lyable for his Wifes Debt?

SEing the Husband by his Marriage has Right Jure Mariti to all move­able Estate belonging to the Wife; and acquires the same per Ʋni­versitatem, as if she had made an Assignation and Right in his Favours. Quaeritur, Whether he will be lyable to all her Debts, at least Moveable; quia penes quem commoda penes eundem incommoda? At least if he will be lyable peculio-tenus, in quantum locupletior factus est?

[Page 92]If there be any difference betwixt a Husbands getting a Tocher, and when there is no Tocher but Jus Mariti? Seing in the first case, he is a Creditor by Contract singulari Titulo: And in the other, he has right Titulo Ʋniversali omnium bonorum, which are understood Debitis de­ductis.

If a Husband may be lyable for his Wifes Debt, the Marriage being dissolved?

Item, If after the Marriage is dissolved, any Debt come to his know­ledge, that did belong to his Wife during the Marriage: Whether he might pursue for the same?

How far the Husband will be concerned in his Wifes Debts, Activé or Passivé?

De Hypothecis, vulgo Wadsetts.

‘LIcet tam instrumento alienationis quam Charta a Domino directo concessa terrae ipsae alienentur, Jus proprietatis nonnunquam haud transit; sed inferius, Hypothecae forte ceu impignorationis: Cum enim juxta regulam plus cautionis sit in re quam persona, aliquando praedia a de­bitore alienantur in majorem cautionem & securitatem ut loquimur. Hy­potheca autem terrarum alia apud nos impropria dicitur, alia propria, nec minus ista, haec magis propriè est impignoralis. Pignus siquidem & hypotheca proprie datur, ut Creditori caveatur, non vero ut utatur nisi die solutionis adveriente, debitor in mora aut non solvendo sit: impropria vero Invadiatio ea dicitur, cum creditor praedii jus & investituram nan­ciscitur ut sibi tam de sorte quam usuris cautum sit, sed ea Lege ut prae­dii possessio penes debitorem remaneat, non jure proprietatis qua pror­sus exuitur, sed conductionis: id fit pacto in Instrumento alienationis in­serto, quo Creditor qui per alienationem Dominus et vasallus est, praedium ut suum relocat debitori, stipulatus annuam mercedem quae solennes et licitas pecuniae usuras haud excedit; addito etiam pacto de reversione seu retractu, seu redimendo, quando aut debitor aut creditor voluerit; aut prout convenit inter contrahentes: Hypotheca quae propria dicitur ea est, quando sciꝪ. praedium non tantum in Cautionem sed [...] alie­natur; & tam terrae quam pecunia quasifunctionem recipiunt; ita ut pecu­niae usus quaecunque sit ad Debitorem; praedii vero usus & possessio etiam naturalis ad Creditorem pertineat; sed sub modo & pacto de retroven­dendo: Ex his varia nec levia emergunt Dubia.’

‘Inter ea est illud, si ex delicto Creditoris qui ex Investitura vasallus est, feudum ad Dominum Superiorem redierit; terris forte (si praedium militare sit) ultra modum licitum & semissem alienatis, aut alio delicto feudali, vel ex crimine laesae majestatis: An Dominus illud habeat ut opti­mum maximum, & quale ab initio charta originali ab eo aut ejus Decesso­ribus aut Authoribus profectum fuerat: vel tantum ut Hypothecatum aut Impignoratum, & Retractui & Juri reluendi obnoxium.’

‘Plerisque (ut arbitror) videtur Creditorem mulctandum jure suo tantum, salvo debitori ejus culpae haud affini jure suo & Retractu, cui Do­minus Superior consenserat pacto isto de redimendo in ipsa charta inser­to: & pro hac sententia stare videntur trita illa Juris Axiomata; Noxam [Page 93] caput sequi, Nec ullum facto suo sive ex facto sive ex delicto, plus juris in ali­um transferre posse quam ipse habet.’

‘Verumtamen acriore & fixo obtuitu penetrantibus & ut par est omni­bus rationum momentis ultra citraque scrutinatis, Jurisconsultis adversa ut opinor placebit sententia, earum (quae sequuntur) rationum suffra­gio subnixa, siquidem illud quod agitur magis inspici quam quod con­cipitur, & actus agentium ultra eorum intentionem haud operantur: quicquid autem inter Debitorem & Creditorem agatur, id inter Domi­num & Creditorem vasallum agitur, ut ex alienatione prioris vasalli isti is sufficiatur & ei vasallus sit, eodem nec alio modo aut jure quam pri­or, Dominio directo & ejus fructibus & compendiis salvis & illibatis: in­terea haud autem exiguum est, ut, ex Recognitione ob alienationem aut quovis delicto Feudali, Feudum domino commissum, ad Dominum re­maneat quale ab initio fuerat, aut rediturum fuisset, si prior vasallus deliquisset: Nec praesumendum Dominum, pro laudemio quod in Hypo­thecis si non minus haud majus esse solet eo, quod pro alienatione sim­plice dependitur, Dominium suum ejusque fructus velle carpere aut im­minuere.’

‘Accedit, quod pacta ista inter Debitorem & Creditorem, quoad Dominum sunt extrinsica; nec ejus jus aut Dominium directum sed vasalli & Domi­nium utile afficiunt: Quamdiu igitur Creditoris Jus & Dominium utile adhuc durat, pactis istis subjacet; eo autem sublato & amisso, pacta ista, quae ei inhaerent & accessoria sunt, cum principali evanescunt.’

‘Adhaec; feudo ex delicto Creditoris qui vasallus est Domino commisso aut ob Perduellionem amisso; vel praedium ad Dominum pertinebit, quale fuerat ante Hypothecam, aut jus tantum Hypothecae: Dici autem nequit Hypothecam Domino committi, ea enim est cautio in rem pro pecunia, & inanis & accidens esset sine subjecto, si Domini esset sine pecunia, quae, ut nunquam ejus fuit, ita demum redire nequit.’

‘Nec obstat illud, Neminem plus juris in alium transferre quam ipse habet; multis enim casibus Jus quod vasalli fuerat, sed facto suo imminutum, & vel servitutibus, vel Juri Retractus ab eo concesso obnoxium, plenius ad Dominum redeat, feudo ex delicto commisso.’

‘Nec magis officit, quod Dominus pactis istis videtur consensisse; ea enim non inter Dominum & Debitorem & Creditorem inita sunt, sed a contra­hentibus ipsis apposita & chartae inserta ne personalia videantur; & ut affi­ciant vasalli jus ad quoscunque ejus successores perveniat; non vero ut imminuant aut laedant jus Domini directi; id ex ipso pacto de reversione ejusque verbis elucescit; eo enim cavetur praedium per Debitorem ejus­que haeredes & assignatos redimi & relui posse, sed a Creditore ejusque haeredibus & assignatis in jus creditoris succedentibus; Dominio autem utili ex delicto caduco & extincto nillum jus superest creditori, in quod ejus haeredes aut assignati succedant; quodque ab iis redimi & retrahi possit; nec Dominus, vasallo ob delictum dominio utili privato, in id creditori succedit: Jus enim suum ex delicto amittit quidem, non au­tem transmittit nec amissum transferre potest: utque unaquaeque res ad naturam suam facile redit; ita plena proprietas, quae ante concessio­nem vasallo aut iis a quibus causam habet domini fuerat, eorum jure ex­tincto ad dominum redit & reviviscit.’

‘Porro, si ex delicto Creditoris, qui solus in feudo & vasallus est, non [Page 94] committatur feudum ipsum quale a domino profectum fuerat; sequitur illud tum incommodum tum absurdum, Latifundia sciꝪ. & Baronias quae pro modicis pecuniarum summis in cautionem & Hypothecam impro­priam dari solent, spreto domino impune alienari posse; debitore penes quem est jus reversionis illud cedente; ex ejus enim facto & alienatione nihil domino obvenit aut committitur, in quem nihil commisit aut de­liquit jure suo usus, cum in feudo & sasina haud sit nec ulla inter eum & dominum necessitudo & obligatio interveniat, quae alienationem im­pediat.’

‘Ex supra dictis conficitur, in Hypothecis, vasalli jus quoad Debitorem pactis de retrovendendo & relocando substrictum & obnoxium esse; quo­ad vero superiorem liberum & solutum: & creditorem eodem quo alii vasalli jure censeri: nec queri potest debitor, cum creditoris fidem & conditionem suo periculo elegerit; & si locuples sit adversus eum pro damno resarciendo agere possit.’

‘Si haec sententia durior videatur, facile erit ejus rigorem emollire pacto de retrahendo, ita ut diserte caveatur praedium, nedum a creditore e­jusve successoribus, sed & a Domino si ad eum pervenerit ex delicto creditoris, retrahendum; pecunia credita ei persoluta: sic domino sci­enti & volenti nec fraus nec injuria fiet.’

Tacite Hypotheck.

QƲaeritur, If a Tacite Hypotheck being not only of Fructus, but Instru­menta Fundi, Quid Juris in Grass-Rooms, where there is nothing payed but Silver?

What is the effect of a Tacite Hypotheck? And if a Tennent should sell his Corn in a Mercat, may not the Master pursue Actione Hypo­thecariâ against the Buyers, who should know the condition of these with whom they Deal?

The Heretor of Lands or Master having a Tacite Hypotheck for a Years Duty: Quaeritur, If the said Hypotheck be alse well for the Stocking upon the ground, as of the grouth and Encrease?

Quaeritur, If the Rests of diverse Years amount only to a Years Duty; whether the Master will have any Hypotheck as to an Years Duty so made up? Or if it be understood only of the Rests of the immediatly pre­ceeding Year?

Immobilia.

QƲAE res inter Immobilia computentur? Thes. Bes. litera L. p. 597. ad finem.

Poenae & mulctae non exactae immobilibus accensentur Ibid. Item servi ascriptitii, Ibidem.

[Page 95]Munitiones cum castro consideratae tormenta & arma bellica, si testator res pretiosas in Familia servari jussit. Ibidem p. 597.

Immobilia per applicationem & aliis modis.

IMmobilibus accrescunt & accedunt mobilia variis modis; quod enim applica­tione perpetua corporibus alterius naturae affixum infossum aut inaedificatum est, Immobile fit; nam mobile Immobili cohaerens Immobile censetur, Hering. de mol. quaest. 8. N. 18. & 19.

Per immutationem res mobiles sortiuntur naturam Immobilium, ex quinque causis. 1. Facto hominis, ut Affixione, Infossione, Adjectione. 2. Legis potestate & fictione, ut cum colonus ascriptitius aut mancipium rusticum glebae serviens pro re Immobili censetur. 3. Attributione seu destinatione, ut lig­num ad aedificium destinatum inter Immobilia computatur. 4. Subrogatione ut, quibusdam casibus, pecunia. 5. Subjecto v. g. quando Jura nomina & actiones ad Immobilia competentes aut mobilia pro talibus habentur. Hering: de. molend. Ibidem. n. 20. & sequen.

Imposition upon the Pint of Ale.

QƲaeritur, If the Gift of the Town of Edinburgh and other Burghs, of Two Pennies upon the Pint of Ale, or Two Merks upon the Boll of Malt, may be questioned by any concerned, upon that ground, that be­ing a burden upon the People it could not be laid upon them, without con­sent of Parliament? Answer. It is thought, it may be questioned. 1. For the reason foresaid, being the fundamental of the Liberty of the People. 2. The whole Countrey is concerned, and has prejudice thereby, In re­spect that they who dwell within the Lothians, will suffer as to the price of their Bear; which will be less in consideration of the said burden of Two Merks upon each Boll, and consequently the whole Countrey will be prejudged; The price of the Bear in Lothian being the standart almost of the whole Countrey, Edinburgh being Communis Patria; And the Drink upon that occasion being both worse and dearer: And the Shires of Lo­thian having concurred they came, in end, to a condescendence, that the Town should be obliged never to desire the like: And it is thought, that the Gift, both in passing at the Exchequer, and ratification thereof in Par­liament, was so qualified. 4. A Bond was given by the Town to that purpose to the Colledge of Justice, and also to the Shires, and both were trusted to one of the Commissioners for the Shires to be keeped; and, it's informed, was given back by him viis & modis, 5. The pretence of Debts, and alteration of the way of living of the Magistrates is frivolous, Seing the Town ought not to Contract Debts, the Magistrates being only in effect Curatores; And the King could not lay a Burden upon the Coun­trey for payment of his own Debts; and the Debt of the Town is no less than it was formerly before the first Gift: and the Magistrates should not live upon what is given to the Town. 6. As to the pretence of his Maje­sties Prerogative; it is against Law, and the common stile of the Chance­ry, which should not be altered; and His Majesty doth make use of his Prerogative to remitt the rigour of Law, but not to give Illegal Grants, rei alienae, to prejudge and Burden others: And therefore such Grants are ever understood Salvo Jure, and to be periculo petentis. 7. The dis­pensing [Page 96] with the former Bond is of dangerous consequence; His Majesties Prerogative being never against Justice; and for taking away the Bonds and Rights granted to the People, without their own consent: otherways there should be no security for Liberty and Property.

Impositions of Burdens upon Shires.

SEing Shires are not Incorporations, Quaeritur, If upon any Pretext whatsomever, The Major part may lay any Burden upon the Shire, or any part of it without their Consent?

Impositions voluntary upon Shires.

WHen any Charges for Banner, Trumpet, or Coat &c. for the Heretors, are to be payed, Quaeritur, Whether the same are to be pay­ed viritim & per capita; or proportionally according to the Valuation? Answer. They are Personal and not Patrimonial: and are to be payed with respect to the persons, and not their Estates.

Improbations.

IF Pursuers of Improbations should consign? Of late some are of Opini­on, That Consignation is to be made only when Improbation is pro­poned by way of Exception: But the Act of Parliament anent Caution in Improbations, in place of which Consignation is come, is clear as to all Improbations by way of Action or Exception.

It appears, there should be a difference betwixt a general Improbation, at the instance of Heretors and Buyers, which is a Tentative used to try the condition of the Lands if they be affected with any latent pretences: And the case of special Improbations, and Improbations of certain Writes; and that in this case there should be Consignation; but not in the other: unless upon Production, a particular Right be taken to be Improven.

When in Improbation Writes are produced, and certification craved contra non producta; and it is alledged that the Defender has produced sufficiently to exclude the Pursuer: Quaeritur, If notwithstanding certi­fication should be granted? Answer. By the late Practique the Lords are in use to hear the parties debate upon the Right: which is thought hard, seing if the Defender be confident of the Right he has no prejudice by granting the Certification, and having gotten long termes he ought to produce all Writes called for: Seing Improbation est processus tentati­vus, and in order to try the Defenders pretence, and not to debate a Right.

Impugning the Authority of Parliament.

BY an express Act of Parliament, The Impugning the Authority of the Parliament consisting of three Estates, is Treason. Quaeritur, If the misconstrueing, or Impugning the proceedings of the Parliament, if they amount to Treason? Answer. There is a difference betwixt Im­pugning Authority, and Proceedings of Judicatories; seing Judges may have an unquestionable Authority, and yet their proceeding may be que­stioned: [Page 97] And Papists, and Hereticks cannot controvert the Authority of Parliament, and yet may be dissatisfied with and misconstrue the proceed­ings of the same: Which practice, though Criminal, doth not amount to Treason. Traquair. Item, The Earl of Argyle.

Incendiarium.

INcendiarii. vide in Thes. Bes. Lit. M. 72. p. 647.

Incorporations.

JF a Colledge or Corporation, being in Law a Body, may Forefault the Rights of the Corporation, and in what case? Ratio Dubitandi, Ma­gistrates are only Curators, loco Curatorum; and the University never Dieth; and Bishops, and such other sole Corporations, though they com­mit Barratry, do not Forefault in prejudice of their Successors.

When a Town or Incorporation, that has Power to Contract Debts, do grant Bond obliging the Magistrates and their Successors, and bearing Horning and other Executorials, Quaeritur, If succeeding Magistrates may be charged with Horning? And if they be denounced, will the Escheat of their own Moveables fall, or only of Moveables belonging to the Town? Ratio Dubitandi, Officium nulli debet esse damnosum; and they are not bound themselves personally, but only they and their Successors in officio in behalf of the Corporation: And on the other part, if they should not be Lyable, the Execution would be elusory: and though it is not just that they should pay such Debts out of their own Estate, yet they are lyable to pay the same out of the Estate of the Corporation: and if they cannot raise so much for the time, out of that Estate; they should Suspend, and make it appear, that they are neither in mora nor in culpa.

Quid Juris, As to Comprysing or Adjudication as to such Bonds? Whether it should be only of the Publick Estate, or of the present Magi­strates likewise? Specially after the Letters are found orderly proceeded, upon a Suspension discust against them.

After the Magistrates are denounced and Year and Day at the Horn, Quid Juris, as to the Liferent Escheat, whether will that of the Town fall? and how long their Liferent shall be thought to endure? Or if the Life­rent of the Magistrates, and each of them will fall?

If the succeeding Magistrates may be charged summarly, and if they be Denounced will their own Escheat fall?

Infeftment of Annualrent.

LAnds being affected with two annualrents to diverse persons, and being comprised for the bygones of the first; Quaeritur, If after the expire­ing of the Comprysing, the Compryser (the Lands being sufficient to pay both annualrents) will be Lyable to the second Annualrenter? Seing the Lands were affected therewith the time of the Comprysing: And though [Page 98] the first annualrent was prior, the Debitor did no prejudice to give the second; the Lands (as said is) being able to pay both.

If the second Annualrenter may redeem?

Base Infeftment.

LAnd, holding Feu, being disponed to be holden either of the Dispon­er or of the King; And the Disponer being obliged to infeft by two Infeftments, the one to be holden of himself Blensh; and the other of the Superiour as the Disponer held: Quaeritur, If the Buyer think fit to hold of the Disponer and does not make use of the Procuratory; Whether during the time that he continues to hold of the Disponer will he be lyable to releive him of the Feu-duty?

Infeftment in a Right, both of Property and Annualrent.

A Sum of Money being lent, and thereafter (for further security) the Debitor having granted a Disposition, whereby he is obliged to infeft the Creditor in an annualrent out of certain Lands; And like­wayes to infeft him in the property of the Lands (being extended to a twenty pound-land) for security both of the principal Sum and annual­rent; So that he might have Recourse both to the Lands and Possession of the same; until he be satisfied, both of the principal Sum and bygone Annualrents: And that by two Infeftments under reversion: and that he may have recourse to either Right as he should think fit: and though he should make use of either, that he should not be precluded, but make use of the other alse oft as he thinks fit: which Right is granted by a Charter and Seasin following upon the same. Quaeritur, There being a Non-entry of the Creditor; whether before Declarator, the Retour-Duty of the Lands, or the Annualrent of the Sum (being one hundred pounds sterling Yearly) will fall and belong to the Superior? Seing the Annual­rent valet seipsum. It is Answered. That it is thought, the Right being instar Hermaphroditi, and neither properly a Right of Annualrent nor Pro­perty, and yet both, It is thought, that in Law (as a Hermaphrodite is repute to be sexus praevalentis) so in this case Jus proprietatis trahit ad se Jus inferius: And it being the Design of the Creditor, to secure both the principal Sum and Annualrent, and that the Debitor should continue in possession (and in Wadsets improper, where the Debitor is to possess ei­ther upon a Back-tack, or otherways, the Annualrent is not Debitum fundi) It is therefore intended that there should be a Right of Property; But so that the Annualrent should be secured in manner foresaid: As if in a Right of Wadset with a Back-tack, it should be also provided, that the Back-tack Duty should be Debitum fundi, and that it should be lawful to the Creditor to poind the Ground for the same, as if it were secured by an Infeftment of Annualrent.

Infeftment for the use and behoof of another.

IF a Right be granted to the use and behoof of another, will the Right Forefault by the Treason of the Vassal, in prejudice of him to whose use it is? de quo vid. Wadset Heretable or Moveable, Let. Ʋ q. 4.

And farder if the Vassal be Year and Day at the Horn, whether will his Liferent fall in prejudice of the Ʋsuarius? And if the Ʋsuarius be Year and Day at the Horn, whether will his Liferent fall to the Superior or not? Ratio Dubitandi. That Ʋsuarius is not Vassal, and yet has real Interest out of the Lands holden of the Superior.

Conditional Infeftments.

A Mother, being debarred from her Joynture many Years, upon occasi­on of Incumberances, and upon that Ground being Creditrix to her Son for a considerable Sum of Money; and likewayes out, of respect to her Son, having taken a Right to a Comprysing for certain great Sums, Did Assign to her Son (being the only Son of her Marriage with his Fa­ther) both the saids Interests, to himself and the Heirs of his Body, whill [...] Failȝieing to herself and her Heirs; with a provision that he should not have Power to alter the said Destination; and if he should alter the same, the Assignation should be void: But the Son, having made no use the said Comprysing, and there being no Infeftment thereupon, is Infeft in the Estate as Heir to his Father, Quaeritur, What way his Mother and her Heirs may be secured, so that the said provision may be effectual to them, in case the condition exist by the Failȝieure of the Heirs of his Body? An­swer. It is thought, that the Son should give her a Bond, making mention of the Mothers favour to him, and of the said Substitution and provision, and that it is just it should be made effectual to her in the case foresaid, if it should fall out; and that by the Assignation her Right is Liquidate in the case foresaid, to 40000 Merks, to be payed to her and her foresaids: Therefore, without prejudice of the said Assignation and Provision, he should be obliged and his other Heirs succeeding to him in his Estate, Failȝieing Heirs of his Body, to pay to her and her Heirs the Sum fore­said at the first Term of Whitesunday or Martinmass after the existence of the said Condition, and the Failȝie of the Heirs of his Body: And for her better security he is to be obliged to Infeft her, and her foresaids in an Annualrent effeirand to the said Sum out of his Estate, beginning the first Terms payment, at the Term of Whitesunday or Martinmass after the Failȝie of Heirs of his Body in case they faill; with this provision, that in respect the said Infeftment is not to be effectual, but in the case foresaid, it shall not be prejudged nor questioned upon pretence of any length or lapse of time or Prescription: And that the same shall not Commence or begin to run, until the said Right become effectual in the case foresaid.

Publick Infeftments.

IF an Annualrent to be holden of the Disponer, be confirmed by the King: Quaeritur, If that Confirmation will make it publick?

[Page 100]If an Annualrent be Disponed out of diverse Lands, to be holden of the Granter; and a Decreet of poinding of the Ground be got as to some of the Lands, will it make the Right publick as to others?

Inhibition.

INhibitions upon Bonds or Contracts, if they import only, that nothing should be done in prejudice of the same and execution thereupon? So that the person having reduced upon the Inhibition, cannot make use of the same to sustain any Right, but such as Depends upon the Ground of the Inhibition?

Both the person Inhibited, and the person receiver of a Right being out of the Countrey the time of the Inhibition: Quaeritur, If the Right be Lyable to Reduction? Ratio Dubitandi, Both the Inhibited and the par­ty Receiver should be certiorated, and put in mala fide: And as the Per­son Inhibited is not certiorate, if he be out of the Countrey, if the Inhibi­tion be not Execute at the Peer and Shoar of Leith, so there is eadem Ratio as to the Lieges.

An order being used upon a Conventional Reversion or Legal, against [...] Person Inhibited: Will the Inhibition affect the Renounciation granted by him; seing he may be forced to give it, and it has Dependence upon a Right before the Inhibition?

If an Inhibition being Execute against the Debitor only, and being in cursu only as to the Inhibiting the Leiges, where the Lands lye being at a great distance; and Intimation in the mean time to the party who is about to bargain with the Debitor; will put the said party in mala fide; So that there may be a Ground of Reduction, Ex capite Inhibitionis a­gainst the party Inhibited; and that the said Right is fraudfully made and accepted, without a necessary cause, in defraud of the Creditor, and after intimation of his Diligence?

A whole Barony of Land being affected with an Inhibition, and being thereafter Disponed in several parcels to diverse persons: If one of the saids purchasers should be distressed by a Reduction ex capite Inhibitionis may he have recourse against the others for their proportional parts, for his Relief they being in rem correï debendi? Vide Annualrent Quaest. 1ma.

If after an Inhibition is Registrate, and Fourty Dayes are past; if the Creditor getting notice that his Debitor has Lands within other Shires, may inhibite the Leiges there, and Registrate within Fourty Dayes? And if in that case the Debitor must be himself again certiorate?

By a Minute, an Estate much incumbered being Disponed; and the price being agreed upon at a certain rate per Chalder or 100 Merks, But so that the Incumberances should be purged by the price pro tanto, and any Ease by the Creditors should redound to the Seller; and the whole incumberances being purged, the Buyer should Compt for the superplus of the Free-Mo­ney, and should pay beside 20000 Merks, after all is purged: Quaeritur, Whether the Benefite of the said Contract can be affected with an Inhibiti­on, or with Arrestment, at the instance of Creditors of the Disponer? Ratio Dubitandi; The said Benefite is not Liquid.

If Inhibition does affect Lands acquired after Inhibition? Answer Af­firmative, The Debitor not being Discharged to Dispone the Lands he has presently, but simply his Lands and Estate.

[Page 101]If at least it affecteth such Lands as are acquired, within the Shire where the Inhibition has been used?

Quaeritur, If Inhibition doth affect Bonds though Moveable by the Act of Parliament, so that the Creditor cannot Assign the same?

Quaeritur, If Inhibition doth affect Bonds, so that the Creditor cannot thereafter Assign the same? Ratio Dubitandi, That it is thought, they affect only real Estates and Interests; and there is no mention of Bonds and Debts which are Personal; and they come not under the General of Goods and Gear, which are real things: Whereas Debts are Nomina, and Entia Juris & Rationis.

If Inhibitions affect Lands acquired thereafter? The Ratio Dubitandi is, No Diligence can affect non Ens, and what did not belong to the De­bitor: And if Inhibition will not affect Lands when it is not Execute at the Mercat Cross where they lye, much less can it affect Lands that has not Situm as to the Debitor, and does not pertain to him: and the narra­tive of the Inhibition is, that the Debitor intends to defraud his Creditor, by putting away his Lands, which does not militate, as to Lands which he has not then.

A Bond being granted after Inhibition, and thereupon the Debitor be­ing denounced, and his Escheat Gifted, Quaeritur, If the Horning and Gift may be Reduced ex capite Inhibitionis? Ratio Dubitandi, That the Ground being taken away the Superstructure falls, so that the Bond being reduced the Horning doth fall. Contra, The King is not concerned upon what Ground the Rebel is at the Horn, if the Horning be valid and for­mal; and the Inhibition doth import only, that the Debitor should not give any voluntar Right, whereupon his Estate (which is the subject of Execution for Debt) may be taken away: but not if he should commit Crimes, either of Treason, or should be Rebel, or do deeds wherupon Recognition may follow; That the King or other Superiors should be prejudged of their Right and Casualities of Forefaulture, Liferent-Escheat, &c. George Marshal contra

Inhibition upon Teinds.

IF Inhibition upon Teinds interrupteth prescription, without a citation; specialy where the possessor is in possession by a Right?

If Inhibition puts a party bruiking by a Right, in mala fide; so as, be­fore his right be reduced, to be lyable for bygones after the Inhibition? Tweeddale.

If to the effect foresaid he be in mala fide, because being Commissioner for the Earl of Lauderdale; he prevailed upon the same Grounds against Oxenford.

Insinuatio.

DOnationes, quae excedunt summam quingentorum solidorum sive aureorum, insinuandae sunt; ut effusae donationes coerceantur, & ne fraus struatur Creditoribus falsis donationibus. Insinuatio est publicatio donationis apud acta, vel ejus quod agitur apud Judicem in scripturam redactio. Perez. Inst. Lib. 2. tit. 7.

Instance.

BY the common Law of the Romans, and by the custome of France, Instantia perit after three Years, as to all effects of it, v. g. Interrup­tion of Prescription: But without prejudice of the Action, if it be not prescribed, so that a new Action may be intented.

Instantia.

INstantia perempta omnia acta perire dicuntur, quod intelligendum de ordina­toriis non de decisoriis: & Instantia perempta vitium Litigiosi non atten­ditur. Thes. Bes. in Liter. I. 22. verbo Instank.

Instrumentum Guarentigiatum.

INstrumentum quod Doctores vocant Guarentigiatum (seu confessatum habet Executionem paratam, & vim sententiae. Besold. Thes. verbo Guarenti­giatum Instrumentum. p. 338. Sect. ultima.

Interdiction.

IF Interdictions be null, because the Executions do not bear Oyesses? Park Gordon.

If a Person having no real Estate, but personal Bonds, may he not be interdicted if there be cause? at the least that he cannot give away his Estate without an Onerous Cause? Ratio Dubitandi, Interdictions, are thought only to affect Immoveables. Mr. John Bruce Minister.

If a Husband can be interdicted to his own Wife, being in ejus potestate & cura?

If an Interdicter can consent to a Deed in his own Favours?

If Interdiction be loused, will Debts contracted in the interim be va­lid? Ratio Dubitandi, That by the lousing it is acknowledged that he is not prodigus: And seing no Act of Prodigality or Facility before or after can be instructed, ex extremis praesumitur medium, and that he was not prodigal in that interim.

If the Heir of a Person Interdicted will be lyable to a Personal Executi­on, or real against his Moveables?

Inter decem Dies.

DIctio (Intra) includit sua extrema, & excludit ea quae sunt extra: & si Terminus assignetur ad aliquid faciendum Intra decem Dies, qualibet die dictorum decem dierum actus fieri potest. Thes. Bes. Lit. I. 16. verbo Inner.

Intrometter.

THere being a difference between an Executor confirmed after Intro­mission, and a Donator to the Defuncts Escheat though declared: [Page 103] viz. That the Executor is lyable to the Creditors, but not the Donator. Quae Ratio, that the Escheat declared should free the Intrometter?

If the Declarator be after intenting of the Cause, will the Intrometter be free?

Invecta & illata.

IF a Person astricted as to Invecta & illata tholing Fire and Water, should buy unground Malt, and after he had brought it within the bounds astricted has sold it; will he be Lyable for astricted Multures?

Duobus Investitis per modum Confirmationis, sed posterius acquirentis Jure prius confirmato, uter sit potior?

CƲm praedia alienantur de superiore tenenda, id fit vel per modum Resigna­tionis vel Confirmationis: si igitur Alienatio fiat de Domino superiore te­nenda, per modum Confirmationis, & ex ea sasina secuta sit: postea vero alie­natio terrae eodem modo tenendae alteri fiat, & ex ea nedum sasina sed Confirma­tio accesserit, ac denique prioris acquirentis Jus sed posterius, confirmatum fu­rit: Quaeritur, Ex iis acquirentibus uter potior sit? Et quidem dubitationis si ulla, ea subesse videtur ratio, quod per Resignationem alienans penitus devesti­tur: sasina autem cum sit in re, plus posse & tribuere videtur quam resignatio quae ad rem tantum est: verum explorati Juris est posterius acquirentem potiorem esse, cum prior nactus sit jus perfectum & omnibus numeris & partibus absolutum, idque a potestatem habentibus; alienans siquidem nec alienatione nec sasina priori data Dominus esse desiit, & penes quem est Dominium penes eum remanet potestas alienandi per quam Dominium definitur: sicut autem alienatio alienanti Domini­um haud adimit cum sit jus personale, nec in re tantummodo sed ad rem conse­quendam, ita nec sasina ex ea dissasitur, cum sit prorsus nulla & irrita utpote praedii de Domino directo tenendi: nam sasina praedii de aliquo tenendi inanis & sasina haud censetur, nisi is de quo tenendum est praedium vel per se vel per bali­vum suum eam dederit; vel per alienantem dandae vel prius datae confimatione sua consensum & autoritatem accomodaverit.

Ex istis elucescit quanti momenti sit habilis agendi modus: ut enim apud Phy­sicos tria rerum naturalium dicuntur esse principia, Materia Forma & Privatio; totidem etiam apud Jurisconsultos rerum agendarum statuuntur principia, Pote­stas scilicet Voluntas & Modus: sine potestate velle vel conari dementia est: sine vo­luntate potestas iners, nec in actum sese exserit: si adsit utraque tam potestas quam voluntas etiam enixa, desit autem modus habilis & ad actum explicandum idoneus, actus nullus & inefficax est; Forma enim & Modus (ut vulgo dicitur) dat esse rei: Et haud fieri, & haud rite & debito modo fieri, paria sunt: Cum igitur ac­quirens omisso modo acquirendi per resignationem, quâ resignatione factâ, tam alienanti quam alteri, tum alienandi tum acquirendi potestas praeriperetur, istum per confirmationem maluerit; in eum quadrat (quod multis aliis casibus locum habet) illud Brocardicum, Quod potuit noluit, quod voluit facere nequivit.

Investitura.

INvestitura est vel propria vel abusiva, per illam possessio vacua in accipien­tem transit; per hanc haud transit, nec enim in possessionis substantia sed in signo & praeambulo quodam consistit. Jus fluviat. p. 737. n. 77.

Jura complexa.

JƲra complexa as Escheats single, Societies for certain Years, do these fall under Executry? Ratio Dubitandi, The subjects are mobilia: Contra, they are not liquid and cannot be valued, so that there can be no appretia­tio or male appretiata.

Juramentum.

JƲramentum sortitur naturam, & conditiones contractus cui adjicitur, & intelligitur rebus in eodem statu permanentibus. Thes. Besold. verbo E­hegelubd. p. 207.

Jurisdictio.

MOribus Jurisdictio non datur Jure Magistratus sed in agris consistit, ab iis inseparabilis sicut servitus in gleba, & sigillum in cera: & est super territorium prout nebula super paludem, per potentiam activam.

Proinde si territorium dividatur, minime Jurisdictio separatur, sed una cum partibus dimembratur. Thes. Besold. Litera L. p. 547.

Jurisdictio Camerae Imperialis.

AN Caesaris morte, Jurisdictio Camerae Imperialis expiret, vel sit in Suspen­so? Besold. Thes. verbo Camergericht. 136.

Jus accrescendi.

WHen a Sum of Money is payable to a Widow in Liferent, and to the Children of her late Marriage in Fee: Quaeritur, If any of the Children should decease, Whether their part will accresce to the Sur­vivers? or if they must be Executors or Heirs to the Child deceased? Ratio Dubitandi, That the Fee is not given to individuals nominatim, but to Bairns & Liberis; and before it be declared that they have Right as Liberi and so the Fee established in their person, they are deceased; and there­fore locus est Juri accrescendi: as in the case of Heirs Portioners before they be served Heirs, if some of them decease, their Right will accresce to the Survivers.

Jus Mariti.

MArriage being dissolved within Year and Day, by our Custom the Husband has neither Tocher nor any other Benefite by the Law [Page 105] as Courtesy: Neither the Wife, if she survive, will have Jointure or Terce, if there be no Children. Quaeritur, if the Husband has not Jus Mariti as to Moveables, whether Extant or consumed? Ratio Dubitandi. These other Provisions are presumed to be in respect of a Marriage durable and standing, at least for the said space; whereas the Right foresaid is founded upon the Relation of Maritus; & ipso momento that he was Married he was Husband: But it seemeth, that seing the Wife would not have Jus Re­lictae by the Death of her Husband, he should not have Jus Mariti; ne So­cietas iniqua & Leonina sit: But as to bona consumpta, it seemeth that fecit sua, being bona fide Possessor.

If a Husband lying at the Horn, and being thereafter relaxed, will lose only the Mails and Duties of his Wifes Lands resting before and be­coming due during Rebellion? Or if his Jus Mariti and Right to these Mails and Duties, during the Marriage, will fall entirely; seing he might Assign his Jus Mariti, and his Right not being during Life he is in the case of an Assigney to a Liferent, which falleth under the Assigneys single Escheat?

If a Provision in a Contract of Marriage with a Widow (having given a Tocher) that her Husband shall not have Jus Mariti to a certain Sum, nor to any other Sum except the Tocher (specially she having diverse Children of her first Marriage) be not valid? Lady Red-house.

A Bond being conceived in favours of a Woman conditionally, who thereafter Marrieth, and dieth before the condition exist: Quaeritur, If the Husband will have Right Jure Mariti? Answer, he will; per Legem quae Legata. ff. de Reg. Juris.

Quid Juris, As to conditional Legacies, if the condition exist after the Husbands Death, if they will belong to her self? Vide the said Rule and the reason of the Difference.

If his Jus Mariti may be Comprysed? And if it may, whether the said Right will fall under the single Escheat of the Compryser?

If a Husband be Forefaulted; Quaritur, If his Jus Mariti falleth un­der the Forefaulture? Ratio Dubitandi. The Husband has Jus Mariti, upon pretence and in order to Administration; and the Law presumeth that he will Administrate as he ought: and the Relation and Jus Mariti haeret ossibus and is personal.

There being a Provision in a Contract of Marriage; that the Woman should be excluded from any Interest in Terce or third of any other part of Moveables; so that the Terce is no Communion as to her; Quaeritur, If notwithstanding there will be Communion as to the Husband, so that he will have Jus Mariti, as to any Moveable Estate belonging to his Wife?

A Woman having Right to an heretable sum, if Diligence and charges be used for payment, Quaeritur, If ipso Jure it becomes moveable, so that the Husband has therafter Right Jure mariti? Answer, It is thought that, as to the Decision of this question, much will depend upon circumstances; and if diligence be used in order only to secure the Sum, and that the De­bitor be suspect, the Sum will be still heretable: specially if adjudication follow in favours of the wife and her Heirs.

Quaeritur, If a Provision in a Contract of Marriage, that the wife should retain a Right of sums belonging to her, and that she may dispose of the same without consent of her Husband, be valid and to be sustained? Answer [Page 106] Affirmative, seing such pactions are not contra bonos mores or jus gentium; But on the contrare, are conform to the Roman Law: and when any ad­vantage is introduced in favours of a Husband, or any Person jure positivo or municipali, they may renounce the same. Mr. Iohn Arthur.

Quaeritur, If the Husband be Lyable to the Wifes debts & quatenus? An­swer. It is thought, he should be Lyable; quia penes quem Emolumentum, penes eum onus; But it is thought he should be Lyable only quatenus Locupletior, and according to his intromission and as a Tutor, the Wife being in Tutela mariti: and though he has Right jure mariti & Communionis, to that which belongs to his Wife, that should be understood Debitis Deductis.

If, after the Marriage is dissolved, it be found that there was a Debt be­longing to the Wife during the Marriage, Quaeritur, If the same will belong to the Husband surviving, Jure Mariti? Answer, It is thought, The Law gives what belongs to the Wife, to the Husband as Admini­strator; And the Law presumes that he Administers behoovefully: But if a moveable Debt was not known the time of the Marriage, and is yet due, there may be some Question; and yet it is thought, that it should fall under the Communion.

If the Wife be provided in satisfaction of Terce or Third; Quaeritur, In that Case, If such a Bond will fall under Communion, or if it will belong to the Husband Jure Mariti? Cogitandum.

Jus Mariti & Relictae.

IF the loss ariseing by the act of Parliament anent Ʋnlawful Ordinations and Marriages, be understood to be a Privation; so that such Rights cease as if they were not Married; amittuntur, non commutantur: and the wife and Husband have Right to their own estate, free of jus mariti & relictae, as if they were not Married? Lady Aitoun.

Jus Relictae.

A Woman, by contract of Marriage being provided to a Liferent of all that should be Conquest, whether Lands, Sums, or Goods, Quaeri­tur, If she will have Right to the half or third of the moveables jure relictae? or if eo ipso that she is provided to, and accepteth a Liferent, it appeareth that she renounceth her Communion? Whereas on the other part, that provi­sion being in her favours, and she not being excluded; it seemeth she and her Executors should not be excluded by it.

If the Husband may, by Donations in Liege poustie, prejudge the wife and bairns of their part? Answer the nature of the Gifts is to be considered, if they be so immodicae & inofficiosae, as it may be presumed, they are given of purpose to frustrate them.

Jus Superveniens.

IF a Person having no Right to Lands should dispone the same, so that the acquirer should be infeft upon his Resignation; and there after the dis­poner should acquire the same, and being infeft upon the resignation of the Heretor, should dispone and resigne in favours of another for onerous [Page 107] causes so that he should be infeft: Quaeritur, which of these, who acquired these Lands, from the same author will, be preferred?

That Brocard Jus Superveniens &c. will it hold in the case, where the Right is supervenient not to the disponer, but to his heirs? or where the Heir to the Disponer had Right himself the time of the disposition?

Quaeritur, quo casu Jus Superveniens accrescit? And if it should be un­derstood of the Right only of moveables, and such things as may be trans­mitted without infeftment? And not of Lands and others, which cannot habili modo be conveyed, much less accresce, without Infeftment?

Justice-General.

IF the Justice-General may be Judge to Ryots, or any Crime or Delict, whereof the pain is not defined by Law, but left arbitrary?

Nearest of Kin.

THE Interest of the nearest of Kin is, that they may be confirmed Executors, and if they die before confirmation they do not trans­mitt: and yet if the Testament be confirmed by any person, na­scitur actio against the executor, who is Lyable to the nearest of kin which they transmitt.

There being three persons who are nearest of kin to a Defunct, and the edict is moved and served at the instance of the Procurator-fiscal, and two confirmed only: whether will the third have action against the other two as nearest of kin for a part? Ratio Dubitandi. That these who are executors of Law cannot have Right de facto; unless they confirm; that being modus adeundi in mobilibus: and the nearest of kin by the act of Parliament has on­ly an action in the case where he cannot adire, there being executors nominate and confirmed who have Right to the office and a third part, so that the nearest of kin may pursue for the rest.

When the nearest of kin have action against the Executor Nominate, if some of them decease before confirmation, whether will they transmitt the forsaid action? Ratio Dubitandi, it is not Officium but Jus legitimum, which may be transmitted, as the relicts part and bairns part, without re­spect to the confirmation: and on the other part, it may seem, that seing they did not intent action before their decease, they do not transmitt; and in such cases the intenting of action is instar aditionis, and there is no re­presentation in moveables.

There being two Daughters, of which one, being Married, by her Con­tract of Marriage accepts her Tocher, in satisfaction of what she could Pre­tend to by the decease of her Father and Mother, Quaeritur, the Father having survived the Mother, whether will the other Sister have entirely her Mothers part as nearest of kin to her? Ratio Dubitandi, The other had renounced: And on the other, part the Mothers part did entirely belong [Page 108] to her self and to her nearest of kin: and the said sister that renounced is alse near to her Mother as the other? Vide Renunciation, Litera R.

KING.

IF the King take burden, in a Discharge granted by a Minor, that he shall ratify at perfect age, Quaeritur, whether the Kings successors will be ly­able representing their predecessors? Ratio dubitandi, The King succeeds not as Heir but Jure Coronae: as in the case of single incorporations, V: G: Bishops, who are said to be successors, and are not Lyable to the debts of their predecessors, or in the case of feuda ex pacto & providentia? Cogitan­dum. Earl of Tweeddale and Duke and Dutchess of Monmouth.

If the King be in the case of other Minors? So that a revocation is not suf­ficient, unless a reduction be intented Debito tempore, intra quadriennium utile?

King and Prince.

IF the King and Prince be to be considered as incorporate, so that these who succeed are in the case of successors of Church-men, and do not succeed by Inheritance, but by succession?

Laudimium.

‘LAudimium debetur Usufructuario, non Proprietario. Thes Bes­oldi verbo Handlohm. P. 359. versus finem.’

‘Licet Dominus directus, post alienationem ab Emphyteuto factam, novum possessorem investiat, nulla facta mentione Laudimij aut ab eo censum recipiat, tamen suo juri non censetur renunciare, sed Laudimij integram exactionem habet, nisi expresse donaverit, Ibid. p. 360. sect. 2.’

‘Laudimium nondum exactum connumeratur inter fructus pendentes: & si Emphyteusis pertinet ad parochum, illud non exactum, ad haeredes haud transmittitur; sed cedit ei qui in beneficio succedit. ibidem.’

Lawburrows for Burghs.

IF a Burgh be Lyable to find Lawburrows for their Burgesses? The Lord Thesaurer-Deput.

In Lecto.

IF in Lecto, a Person, having children, may marrie their Mother, in order to their Legitimation, in prejudice of his Heirs?

If after a criminal and capital sentence, a person condemned be in Legi­tima [Page 109] potestate? Seing he cannot be said to be in Lecto, and the Sentence doth not affect immobilia.

If a man on death-bed be accessory to Treason, whether will his Estate forefault in prejudice of his Heir? It seemeth, that though in Lecto Lands cannot be sold or annailȝied any way in prejudice of the Heir, that being only the case of the old Law of deeds in Lecto: Yet consequentially a man on death-bed may do many deeds in prejudice of the Heir, and a Traitor on death-bed may be taken out and punished.

If a Band being heretable, may be made moveable of purpose in Lecto? Executors of Colonell Mathison. George Hadden.

If an infeftment be given, of Lands holden Ward, upon the resignation of the Father in Lecto; and a reversion apart to the Father to redeem upon a Rose-noble; Quaeritur, if the Ward and Marriage be cut off? Answer. if the Lands hold of a Subject, Sibi imputet that he did not enquire and know the condition of the Disponer: But if they hold of the King, there may be some question; Seing the Kings Grants may be questioned upon Obreption or Subreption, and the negligence of his Officers should not prejudge him: and it appears the course forsaid, was taken of purpose to defraud the King of his casualities, being in spe proxima; and the disponer having Provided for himself that he should be master of his Estate by the Reversion forsaid: It is thought there is a Decision in the said case, in favours of the King which should be tryed.

A person on death-bed having made a Disposition in favours of a Credi­tor, but to the Prejudice of his other Creditors (The Defuncts whole estate being disponed in favours of the Creditor forsaid) Quaeritur, If the De­funct could on death-bed prejudge his other creditors, and preferr one to all his other Creditors? Seeing persons being on death-bed are not in Liege Ponstie as to any deeds But the making of Testaments; and not as to deeds inter vivos; and if the Defunct in his Testament had made such a Conveyance in favours of a Creditor it could not have been sustained; and any deed done on death-bed is upon the matter but a Legacy or codicill: and a dying person should not be allowed to do any fraudulent deed; and it is a fraud where, there are many creditors, to give one the whole estate: and a person in Lecto cannot Prejudge his Heir; and a fortiori ought not to prejudge his creditors, who would be preferable to Heirs: and as in the case of comprysings within year and day all creditors should come in pari passu; So Dispositions on Death-bed ought to be to the behoof of all other creditors? Cogitandum.

A Defunct having on death-bed made a Disposition relating to a former and in corroboration of it did nominate two of his Name to succeed; Quae­ritur what will be the import and effect of it? Answer. It being on Death-bed it cannot have the effect of a Disposition unquestionable; but only of a declaration of the defuncts will, which ought to Determine (at least to have weight with) the friends.

If a person stricken with a Palsie, So that he cannot go abroad, but other­wise having sound Judgement and Memory; if after a considerable time he decease in that condition, will he be thought to be in Lecto after the contra­cting the Palsie? Ratio Dubitandi, That persons Paralytick cannot be said to have morbus sonticus; and diverse, after they have been so, have been able to do affairs and have had Children; and therefore it is thought, [Page 110] that it is to be considered if there be a Complication of any other disease, of which it may be thought that he dyed; and from the time of the contra­cting that sickness he is to be esteemed to be in Lecto.

What is the reason that a third party acquiring a Right made in Lecto, though bona fide will be lyable to reduction?

Legacies.

Quaeritur, If an universal Legacy, which upon the matter is a Testament and ultima Voluntas de universitate Bonorum, may be proven by the oath of the nearest of Kin? Answer. It is thought it may be so Proven; Seing Scriptura is not de forma Legati; and a Legacy not exceeding an hundred pounds may be proven by witnesses; and a Legacy exceeding that value is not probable by witnesses, not because That Scriptum is de essentia, but ob fluxam fidem testium: and therefore whatever value it be of, it may be pro­ven by the oath of the nearest of Kin.

If a Person being named Executor and universal Legatar shall be fore­faulted before he be confirmed, will his interest forefault to the King? Ratio Dubitandi. albeit a Legacy will forefault, yet in this case the Legacy being universal, and being subjoyned to the Nomination, is of the nature of Insti­tution; which, being an office, does not forefault.

If a Legatar should commit Treason before the Testators decease, will his Legacy be void, as in the case of his decease? Answer, The Legatar not being capax tempore mortis Testatoris, having committed Treason, the Le­gacy is void.

If a Legatar doe not own the Legacy may a creditor affect the same? and if there be a difference betwixt the Legacy and a Donation? vide Donatio non acceptata. in Litera D.

Conditional Legacies.

A Legacy being Left to an appearand heir, with that provision, that the Legatar should not question the Defuncts will, having disponed his estate both heretable and moveable to another, both by Disposition and testament: and a clause irritant being adjected to the Legacy, That the le­gatar should both not impugn, and should ratify the Defuncts deed; and should dispone and convey any Right he had, in favours of the said other party; and if he failȝied or contraveened in either, that he should lose his le­gacy: Quaeritur, If the appearand heir should pursue an Exhibition ad Deliberandum, and being required should not be free to ratify and dispone presently; whether the clause irritant be committed? It is answered, That the said legacy is not left in these terms, that if upon Deliberation having a time granted for that purpose; he should think it his interest rather to accept the legacy than to own his Right of succession, he should have the said legacy: But the samen is left, in case he should cheerfully acquiesce to the Defuncts will, which he is obliged to do presently; being obliged to dispone Sine die: & ubi Dies non adjicitur praesenti die debetur.

Legal Reversion.

IF a Minor have a Right to a legal reversion, as singular successor to the Debitor, Quaeritur, If he will be in the same case as a Minor that is heir to the Debitor, so that he may redeem at any time before he be of the age of twentie five years? Or if there be a difference, upon that account that the Heir or his predecessor has Right ab initio; whereas the singular successor Incidit in jus; and the reversion being Limited by the Law in favours of the Creditor, it ought not to prorogate by the deed of the debitor Hamilton of Wishaw.

Legatars and Intrometters.

IF Legatars may pursue Intrometters, and if the Defenders will be heard to debate whether there be free Gear?

De Legatis.

‘LEgata sunt Testamentorum appendices, & legatarij quo dammodo haeredes. Perez Lib. 2. Tit. xx.’

Legatum Rei alienae.

QƲaritur If a person on Death-bed should name his appearand heir Ex­ecutor; and should leave in Legacy to another an Heretable interest, or should otherwise dispone Lands; whether or not the Heir confirming the Testament may question the same as to the Legacy foresaid? But in this case the question will be, how far Res aliena (or such as is aliena as to the power of disposing the same in Lecto) may be Left? and Testaments being favorable, and the Intention of Testators being most to be considered, whether or not the Executor should redeem that which is Left in Legacy being Heretable, and be lyable in estimation and to the value thereof if it be res aliena? Or should satisfy the Legacy if it be res sua but Heretable, at least so far as the Executrie will extend. v de Death-b d. Quaest. 2 & 3. Literá. D.

Res aliena si Legetur, non debetur nisi sciverit Testator rem alienam esse; non enim praesumitur Legare voluisse si scivisset rem alienam esse. Perez. Lib. 2. Tit. xx.

Incumbit autem Legatario probare Testatorem scivisse rem esse alienam, nisi con­junctis personis Legata fuerit: pro quibus praesumitur ex affectu eum Legaturum fuisse etiamsi alienam, Perez. ibid.

Ʋbi Legaturres haredis valet Legatum, nec refert sciverit Testator, an non haeredis esse; facile enim praestetur nec redemptione opus est. Perez. ibidem.

Dominium rei suae legatae transit in Legatarium statim a morte Defuncti. Ibi­dem.

Legatum a Legatario acquisitum, ante mortem Defuncti.

SI Legatarius, vivo testatore, rem Legatum consequutus est Titulo oneroso emptionis vel alio, haeres tenetur solvere pretium quod dederat Legatarius; nec enim censetur habere rem cui pretium abest; sin vero Legatarius eum adeptus est titulo Lucrativo, aliter dicendum est, nihilque ab haerede petere potest; nihil enim ei abest & duae causae Lucrativae in unum hominem, & unam rem, concurrere non possunt. Ibidem. si ex duobus testamentis.

Res eadem duobus Legata.

CƲm eadem res pluribus Legatur conjunctim, singulis debetur in solidum sed concursu fiunt partes; & ideo si unus defecerit, vel sprevit Legatum vel decessit vivo testatore Collegatarijs accrescit. Perez. Lib. 2. Tit. xx.

Legitima Liberorum.

‘MOribus nostris Primogenitus est Haeres ex asse; & in universum Jus immobilium; Terrarum scilicet & aliorum quae immobilibus accensentur: nec minus ex mobilibus libat & praecipit mobilia haeredita­ria, vulgo Moveable Heirship: Et apud Anglos Heirloom, optione per­missa optimum quodque eligendi tam ex supellectile quam ex instrumen­tis rusticis, & militaribus Armis, Equis, aliisque ejusmodi; ut tam Domi quam Ruri ad colendum, & si opus fuerit ad militiam & profectio­nes tum in bello tum in pace utcunque sit instructus: reliqua autem mo­bilia sive res sive nomina, Marito & uxori & Viri liberis, etiam ex diver­sis Matrimoniis (si adhuc in Familia) communia sunt, deductis debitis, si Pater-familias obaeratus aut Debitor sit; nec enim aliter bona intelli­guntur nisi aere alieno subducto: Ea communio licet sit inter conjuges & liberos habitu & spe; haud cedit tamen nec actu vim suam exerit, nisi Matrimonio dissoluto per alterius conjugis obitum. Matrimonio duran­te, rerum communium non solum Administratio sed Dominium est pe­nes Maritum, & potestas disponendi haud aliter quam de suis: nec ut communio ista cedat, opperiendum est ut conjux emoriatur & penitus fato defunctus sit, sed confestim ut mori incipit potestas illa Legitima (vulgo Liege poustie) desinit, & communio effectum sortiri incipit. Mori ve­ro incipit, imo civiliter, pro mortuo habetur, postquam morbus invasit Lethalis & sonticus, qui cuique rei agendae impedimento sit; adeo ut nec domo proreptare possit, nec negotiis (uti solitus erat) superesse, eundo ad Templum aut Forum & loca publica ubi plerumque salus animae & negotia procurantur: quamdiu enim animus Ergastulo corporis coer­cetur & ejus Ministerio & organis necessario utitur, vix fieri potest ut corpori aegro mens sana sit: Accedit, Quod ubi Cadaver ibi aquilae, & moribundis adsunt & advolant plerumque (amici ut videri volunt sed) corvi & haeredipetae, ut captent & eblandiantur aliquid; nec id difficile est: aegri siquidem tam corpore quam animo infirmo, & assiduis eorum (quorum opera tunc opus habent) officiis & Blanditiis impares & obnoxii, [Page 113] facile dant & jactant quae propediem sua haud futura sunt: ex eo tempore igitur quo aeger sese domi abdidit, nec amplius in propatulo, Foro aut Ec­clesia sui copiam facit, licet ex morbo non decumbat lento sortasse eoque magis periculoso, dicitur esse in Lecto aegritudinis & in extremis agere: & alienatione Terrarum, aut rei alicujus haereditariae ei prorsus interdici­tur: Et si secus faxit aut alienarit, haeredi actionis rescissoriae remedio facile succurritur: Sic non sine summa ratione prospectum est haeredibus, ne quid in eorum fraudem fieret a parentibus aut decessoribus in extremis, cum sui parum compotes sunt: idque non semel cautum Jure veteri, quod Libris Majestatis aliisque Libris Juris continetur; iis Elogium illud, quod Libri Juris nostri sint, haud negarunt Principes nostri; nec immerito, quod dictum velim pace viri Consultissimi Cragii iis paulo iniquioris: Quemadmodum enim Virgilius aurum ex stercore colligit Ennii; Juris Studiosis ex Libris istis (& non tam stercore quam Juris nostri veteris sive ruderibus sive Rudimentis) licet multa colligere aurea & scitu nec in­amoena nec inutilia.’

‘Sed moribus nostris & usu Fori (cum eadem subsit ratio) idem Jus intro­ductum est in favorem Viduae & Liberorum; & ut plerumque ubi Jus deficit Senatus supremus supplet instar Praetorum, ita ex aequitate accommodavit remedium utile ne Legitimis suis fraudentur, nec liceat Patri familias in Lecto aegritudinis, conjugis aut Liberorum, mobilium partes & Legitimas imminuere, nedum abalienando penitus eripere: quin etiam in Matre­familias praemoriente, ex communione ejus Legitima cedit statim eâ in Lecto aegritudinis constitutâ; nec ex eo tempore Marito, quam vis Domino & in Legitima potestate permittitur aliquid facere in fraudem uxoris, aut eorum qui in Jus ejus succedunt: multum autem interest, uter viran uxor praemoriatur; viro enim superstite cum Liberis, ex obitu uxoris cedit communio, & Legitima tantum uxori ejusque proximis & successoribus, iis mobilium triente ceu quatuor unciis & partibus decisis: quae supersunt Bes, viz. Ceu octo unciae & partes adhuc communia sunt Patri & Liberis. Sed ut superius dixi habitu tantum & spe; fieri enim potest & saepe evenit, ut Communio inanis sit, Liberis Patri praemorientibus, vel Patrimonio acciso, vel aliquo casu defecto: ubi autem viro contingit in fata conce­dere uxore & liberis relictis, communio cedit ad omnes effectus tam uxo­ri quam liberis; adeo ut ex mobilibus triens uxori, alter triens accedat li­beris, tertius Patri-familias relinquitur, de eo, nec ultra testari potest si voluerit: si intestatus decesserit, suum trientem liberis relinquit adinstar haereditatis, adeundum Jure quasi haereditario, sed haerede submoto & ex­cluso: Liberi enim trientem Patris haud vindicant ut suum & Legiti­mam, sed in eum succedunt, quasi haeredes in mobilibus modo solenni: & haeredi legibus satis superque consultum est, cum solus haeres sit ex asse in immobilibus, reliquis liberis praeteritis & exclusis: Sin haeres e re suâ esse duxerit, haereditate omissâ, inter liberos admitti & ex Patrimo­nio paterno sive haereditate & terris, sive mobilibus, aequo cum caeteris nec ampliori Jure aut parte, Potiri; id ei facile permittitur; unicuique enim licet renunciare Juri pro se introducto: nec minus haeres haereditatem adit, & in Terris (si quae sunt) investiendus est, ut rerum haereditaria­rum Jus adeptus, Fratribus habili modo eas conferre & impertire possit. sic collatione facta, defuncti Patrimonium, quod ad haeredem vel ad liberos ut liberos, aut Executores, aut proximos cognatos pertineret, ab [Page 114] intestato ultra citraque inter haeredem & liberos communicatur. Testa­mento autem facto si ex liberis aliquis vel Executor vel Legatarius sit, quod ex Testamento consequitur haud tenetur conferre; nec enim id habet ut legitimam & ex dispositione Juris vel ut unus ex liberis, sed Testa­toris voluntate & ut quilibet; verum cum penes haeredem sit optio, ma­turè & re integra debet eligere; si enim haereditatem adeat purè nec te­status se velle conferre, vix postea aditur nec ad collationem admittitur, elegit enim nec eligenti licet variare.’

‘His altius positis & praemissis, uti par erat in materia usu quidem & moribus satis obvia, sed (quod sciam) in libris non satis enucleata, ex iis eliciendum, Quid Juris sit in ista specie facti.’

‘Diem obiit Sempronius sed intestatus, Maevia uxore superstite cum tri­bus liberis Caio, Titio, & Publio; Viduae triens mobilium Jure relictae (ut loquimur,) Titio & Publio alter triens cesserat ut Legitima & liberis, tertius etiam triens iis obtigit sed ut executoribus & quasi haeredibus mo­bilium ab intestato; adierant etiam dati a Judicibus ad quos pertinet Te­stamentorum probatio & Executorum datio; sed Caius promogenitus cui delata erat haereditas decessit haereditate haud aditâ, eo forte peregre pro­fecto aut aliter impedito; ejus morte ea ad Titium secundogenitum de­venit & adita est: Contra Titium agebat Publius frater condictione ex causa ut restitueret quae ex mobilibus, vel ut Executor, vel unus ex li beris nactus fuerat; cum res ad alium casum devenerat & eum a quo non potuisset incipere; quod ea habuerit causam & unicam fuisse quod hae­res non fuerat sed unus ex liberis, & cum eo effectum evanuisse; eum nunc haeredem & integrâ & opimâ haereditate locupletatum, eâ debere esse contentum; nec sine injuria aut invidia ex mobilibus aliquid libare aut retinere posse: & in Libro isto cujus mentio superius facta vetus re­peritur Decisio. 1553. Julii, quâ contra haeredem Judicatum in causa Alexandri Law contra Robertum Law.’

‘Sed cum ista ex libris Curiae & Regestis Decisio haud promatur, sed ex compilatoris nescio cujus libro & notis, salvâ rerum Judicatarum Au­thoritate quae apud me magna est, integrum mihi esse reor ut in contrari­am sententiam pronior sim, iis adductus argumentis: Cessit siquidem Legitima liberorum ejusque semis ad Titium pertinens confestim a morte Patris; Theoph. lib. 2. Titul. de Legatis. §. 20. Theoph. eo­dem libro Instit: ti­tulo. 19. de haeredum qualitate & differentia §. 5. cedere autem tum Legitima tum Legatum dicitur cum actio pro iis competit; & ii, quibus Jus cessit, si decesserint antequam res ab eo sibi debitas consequantur, Jus tamen & actionem ad haeredes transmittunt. Ea autem est definitio Juris con­summati & perfecte quaesiti: Jus igitur, Titio ita quaesitum & in eo quasi fixum, quomodo avelli & ei eripi queat haud video: alia quidem est ra­tio defuncti (ut loquuntur) partis ceu trientis, ejus semis ad Titium perti­bat ut unum ex proximis cognatis & executoribus; is a morte Sempronii statim Titio delatus est: haud cessit tamen ex eo tempore sed tunc de­mum cum Titius adiit, & Patri Executor datus est: Jura enim haeredi­taria, vel quasi, quae pertinent ad aliquem ut haeredem & successorem in alterius Jus universum, non cedunt nec quaeruntur nisi haereditate adita; in mobilibus autem Executoris datio & confirmatio est instar aditionis: utcunque enim suppositum sit Titium Executorem datum a judice, de­functi triens cessit Executoribus & istius semis Titio, Jus adeo firmum & ad haeredes transiturum, si Titius Caio praemortuus fuisset, morte Caii [Page 115] intercidere & irritum fieri, a Jure & Ratione videtur alienum. Ad haec mortuo Patre-familias, cum de patrimonio quaeritur, an integrum & ex asse ad eum pertinuerit coelibem forte & orbum, an vero commune fuerit uxori & liberis; Et quota uxoris & liberorum pars sit, utrum se­mis an triens; Et liberorum Legitima an ex asse unius sit; An si plures sint liberi in quot uncias & partes dividenda sit: Tempus mortis Patris-familias inspicit Lex, de futuro haud solicita, nec quae tunc sunt quotae augeri aut minui possunt; quamvis Patrimonium rerum quae in eo sunt interitu & fructuum & foetuum accessione augeri potest & minui. Po­sito igitur Patrem-Familias decessisse testatum, relictis viduâ & liberis; viduam autem & liberos haud diu superstites fuisse morbo aut alio casu ex­tinctos; tamen Executor Patris-familias haud assem sed trientem tan­tum consequitur; licet tempore aditionis ceu confirmationis, nec liberi nec vidua extiterint; extiterant enim tempore obitus Testatoris & tunc partes fecerant; eae autem semel quaesitae eorum morte haud evanes­cunt, sed ad cognatos proximos & Executores transeunt. Posito etiam Patrem-familias mortuum, superstite uxore & unico tantum filio praeter haeredem, nec alios reliquisse liberos, filium autem secundo genitum im­puberem postea obiisse; fratre superstite; eo casu ex patris mobilibus hae­res trientem consequitur sed ut Executor fratris & ejus Legitimam; nec vidua aut Patris Executor audiendi si pro trientibus semisses petant, causa­ti rem ad alium casum devenisse, nec haeredem ex mobilibus aliquam partem carpere posse. Si Objiciatur in isto casu haeredem ex mobilibus nullam partem nancisci immediate & Jure suo, sed mediate & morte fra­tris, & ut ejus Executorem; In specie autem facti de qua agitur Titium tum haeredem fuisse tum unum ex liberis, & suo Jure haereditatem patris adiisse, nec minus ut unum ex liberis, Legitimae liberorum semissem adeptum; Jura ista [...] nec penes unum consistere aut retineri posse. Istud facile diluitur; tempus enim mortis Sempronii Patris-famili­as intuendum; eo autem tempore Titius erat unus ex liberis, nec haeres erat aut esse poterat, Caio primogenito superstite; ei haereditas morte patris delata, ad Titium haud immediate sed ex fratris morte pervenit; Titio quasi per surrogationem & [...] in locum primogeniti sub­eunte: Cum igitur Titius, eo quo Pater obiit momento, inter liberos fu­erit, & ipso Jure Legitimam nactus est, nec injuria retinet quod Jure ha­buit: Si Caius patris adiisset haereditatem ei Titius haeres foret, nec minus sic patris haereditate potitus legitimam retineret: Quod autem Caius haud adierit, Titio nec imputandum nec officit: Patrimoniorum siquidem conditio, & Jura viduae & liberorum, legibus constituuntur; nec aequum est ea ex arbitrio haeredis pendere aut ambulare. Porro hae­reditatis delatio & Facultas adeundi, aliis casibus nedum hoc, haud pa­rum operatur; haerede enim perduelli & Majestatis reo, haereditas etiam non adita amittitur & Fisco quaeritur.’

Legitimation per subsequens Matrimonium.

A Person after his first Marriage, of which he had Children, having Married again, and having diverse Children by the Woman Mar­ried to him in that second Marriage, elder nor the first Children, which are thereby legitimate: Quaeritur, Whether the Eldest Son with the se­cond [Page 116] Wife, will be preferred to the Son of the first Marriage, as to the Right of Succession? Ratio Dubitandi, The first Marriage was Contract­ed Spe, and in contemplation that the Children of that Marriage would succeed, and the Eldest Son by his Birth had Jus primogeniturae, as the first Lawful Son, which could not thereafter be taken from him: & e con­tra, the Son of the second Marrriage, the time of the Fathers Death, which is to be considered as to the question of the Succession, is his Eldest Law­ful Son. Cogitandum.

If a Person may Marry on Death-bed, in order to the Legitimation of Natural Children, in prejudice of his Agnats, who would otherwayes succeed?

Marriage and Legitimation.

THere being a Declarator intented, to hear and see it found that the Children were Lawful; in respect there was a promise and Copula, Quaeritur, If the pursuit, being after the Fathers Decease, in order to the Succession to the Good-sire, the promise may be proven prout de Jure, as it might have been before? My Lord Neutoun told me, that after the Fa­thers decease it is found not probable by Witnesses. Laird of Lauder.

Lenteratio.

LEuteratio. vide Appellatio in Litera A.

Libellarius Contractus.

LIbellus, sive Libellaria, est contractus, quo interveniente scripturâ res immo­bilis venditur, certo pretio, certa insuper pensione in singulos annos; ea lege plerumque addita ut stato & condicto tempore renovetur; denuo numerato pretio certo vel arbitrario. Hering de molendin. q. 29. n. 4.

Est Italis usurpatus, & dicitur a scriptura & Libello, seu brevi charta. Ibidem. n. 6.

Liberi.

INdefinito Liberorum nomine, censetur actum de natis tempore Contractus, non de nascituris. Hering de molendin. quaest. 20. n. 19.

Liferenter.

IF a Liferenter of Lands Stock and Teind having Set the Lands to Ten­nants for a Duty for the Stock and drawing the Teind, and having deceased before Martinmass after drawing the Teind: Quaeritur, will she be Lyable to the Heir for the half of the Teind? Ratio Dubitandi. For the Heir; That she dying before Martinmass, he ought to have the half of that Years Duty: And for the Liferenter, that she had Right to the Teind after it was separate and collected, so that she might have dis­posed of it; and having gotten it, it cannot be taken from her; and that [Page 117] the Legal terms are to be considered in the case of Debt, when dies cedit; but in this case nihil debetur, but she has Right to the Fruites Teinds, and Quota of them in the same manner as the Tennant, and as if she had la­boured. Vide Third and Teind. Letter T. Vide Titular. litera T. q. 2. vide Milns. Litera M.

Where Grass Roums are set for payment of a Silver Duty (by the Ten­nent entering at Whitsunday) the half at Martinmass, and the other half at Whitesunday thereafter; Quaeritur, If the Liferenter decease after Martin­mass, whether the Martinmass Duty will belong to her Executor? Ratio Dubitandi, That the Duty payable by the Tennant, entering as said is, and going away at the next Whitesunday is payable in respect of the Cropt, and proventus of the next Year, either of Corns or foetura animalium; and it is without question that a Tennant paying a Silver Duty for a Corn-Roum, albeit he pay at Martinmass after his entry, yet it is payed for the next years Cropt; so that the Liferenter can pretend to no part thereof, deceasing the time foresaid: and on the other part, it appears that there may be a difference as to Grass Roums, seing the half of the Duty seems to be payed for the profite of the Grass, from Whitesunday to Martinmass, which falls within the Liferenters Right.

Quaeritur, Quid Juris, As to Salt-pans and Milns if the Liferenter have the same in her own hand, whether her Right is presently determined by her Death?

The same being set to Tennants from Candlesmass to Candlesmass: If the Liferenter deceased after Lambmass and Martinmass, will her Execu­tors have any part of the Duty after Lambmass?

When Rentals are set in these terms, That beside the Rental Duty there should be every five Years a considerable Sum payed, as in Contractu Libellario; Quaeritur, If the Liferenter will have Right to that Sum, if it fall to be payed during the Liferent?

When the whole Estate of a Nobleman is Disponed reserving his Life­rent, or of a Baron; will the Liferenter have Vote in Parliament, and Voice in the Election of Commissioners for Shires?

A Lady being Infeft upon her Contract of Marriage in Lands for her Liferent; Quaeritur, If Tacks set thereafter by her Husband will bind her? Vide Terce quaest: ultima.

Executors of a Liferenter.

IF a Woman deceaseth after Whitesunday before her Husband, will her Executors have Right to a part of the years Farms?

Liferents.

DIes as to Liferents (when the question is betwixt the Executor of the Fiar and Liferenter) cedit at Whitesunday and Martinmass as the Legal Terms.

Quaeritur, If a Bond be, to a Man and his Wife the longest liver, payable at Lambmass and Candlemass; and the Husband deceasing after Candlemass will the Husbands Relict have Right to a half year at White­sunday?

[Page 118]If a Father be Infeft in Liferent in Lands, and be content to renounce his Liferent in favours of his Son? Quaeritur, If it be habilis modus to extin­guish his Liferent? Ratio Dubitandi, He is the Superiors Vassal during his Life, and cannot cease to be Vassal without the Superiors consent, at least sine refutatione.

When a Vassal is Year and Day at the Horn, if he has granted a Right to be holden of himself, what will be the Import of his Liferent?

If a Liferenter do Dispone his Liferent of Lands; or if the same be Comprysed from him, and thereafter he be Year and Day at the Horn: Quaeritur, If the Superior will have Right to the Liferent, as if the said Right had not been granted? Answer. It is thought, he can have no other Right, than such as the Liferenter had, and affected with the said Right.

If the Liferenter be Forefaulted, will not the King have the Right of the said Liferent without the burden of the said Rights? And if it be so, Quae Ratio Discriminis? Answer, The King will have Right to the said Liferent entire; and the reason of the Disparity is, that Treason is Cri­men feudale, and when the Vassal Fiar or Liferenter doth Forefault, the Right cometh to the King Pure, and without any Burden but such as he has consented to; Whereas Horning is not Delictum feudale but commune: and the Liferent doth not belong to the Superior Jure feudali, but Statuto, so that he ought not to be in better case than the Rebel.

Quando Dies cedit as to Liferenters.

WHen Rent of Lands is Victual, the Heretor dying before White­sunday the Liferenter has Right to the whole Year; if after White­sunday but before Martinmass, The Relict has Right to the half; but if after Martinmass to no part, because Whitesunday and Martinmass are Ter­mini Legales as to the question, Quando dies cedit. Quaeritur, therefore, whether when Rent is all in Highland Roums & agris pascuis, the custom being in some places that the Tennants entering at Whitesunday, payes the half of the Rent at Martinmass next; and the other half at Whitesunday thereafter, Quid Juris as to the Relict, the Husband dying after White­sunday or after Martinmass?

The same Question is, If, in the Lowlands in Corn-Roums, the Ten­nant and Master agree, that the Duty should be payed in Money by the Tennant entering at Whitesunday, the half at Martinmass, and the other half at Whitesunday?

Vasallus Ligius.

NEmo potest esse simul duorum Vasallus Ligius. Thes. Bes. litera L. p. 597. ad finem.

Limitation of Fees.

LAnds being Disponed to a person, and the Heirs Male descending of him; which Failȝieing to the granter and his Heirs, Quaeritur, If his foresaids faill; what way will the Granter being Superior and his Heirs [Page 119] attain to the Right, whether as Heir of Provision to the Vassal? or per vi. am Consolidationis, and by a Declarator that he has Right by the return foresaid; and that the Property is consolidate with the Superiority?

Whether he will be Lyable to the Vassals Debts? Ratio Dubitandi, The Vassal was Fiar and might Contract Debt, and whoever succeedeth to him ought to be Lyable thereto.

If the Right be granted to a Person, and the Heirs of his Body, with­out any further Provision or mention of return, whether will the King have Right as ultimus haeres, or the Superior? Answer. The Fee not be­ing simple but limited; It is thought, that the Superior should have Right seing the Fee is limited. And the King cannot succeed but by way of Re­presentation and as haeres ultimus, and there can be no Transmission beyond the Limitation. But if the Lands be given to a Man and his Heirs what­somever, the Fee is simple; and the Granter having simply and absolutely given away the same, he can pretend no Right to the same; and the King cometh under the generality of Heirs whatsomever, being ultimus haeres.

Litiscontestation.

IF Removings, Spuilȝies, and Ejections, which are interdicta possessoria Litiscontestatione perpetuentur for fourty years, or only three?

The same Question may be for Servants Fees, House-Mails, and such other Actions which prescribe in three years.

Quo casu Possessor in mala fide constituitur per Litiscontestationem & quando non?

LItiscontestatio possessorem malae fidei constituit, adeo ut ab eo Tempore; ad restitutionem fructuum teneatur: hoc tamen verum est in iis, qui per Li­tiscontestationem vere in mala fide constituuntur, veluti si res feudalis Emphyteu­tica petatur, aut vindicetur, ob feloniam commissam: aut quia tempus locationis transactum est veraque sit causa vindicationis, quam etiam possessor nec minus obstinate contendit.

Secus est, si ego rem emo ab eo cujus esse putabam, tu vero dicis eam ad te per­tinere, & nihil adducis praeter petitionem & nunciationem, tunc quia bonam fidem habeo, Litiscontestatio me non vera sed ficta efficit malae fidei possessorem; & a fructibus merito excusor, donec sententia feratur. Thes. Besold. in litera K. 48. verb. Kriegsbevvestigung. Sect. pen. p. 478.

Locus Poenitentiae.

AFter Articles of agreement are subscribed, of which one is, that they shall be extended in a Contract: Quaeritur, If there be Locus poeni­tentiae? Ratio Dubitandi, Because antequam totum negotium in mundum sit redactum licet poenitere L. 17. Cod. de fide Instrumentorum.

An agreement being to be perfected in Writ, whereby one of the Par­ties was to be obliged to pay a Sum of Money; there was a Letter Written thereafter by that person, desireing that the Write may be drawn, and [Page 120] bearing that he should perform conform to the said agreement, Quaeritur; If he be bound by the said Letter, so that there is no Locus poenitentiae? Answer. It is thought, that the bargain being to be perfected in Writ, and until then there being locus poenitentiae, The Letter promising performance doth imply a condition. Viz. If the Write be perfected and subscribed: seing upon the drawing of Writes there may arise Questions which may hinder the perfecting of the same, & multa cadunt inrer calicem &c.

Mare.

MAre dicitur esse de districtu illius Civitatis. seu loci, qui confinit cum Ma­ri: & habentes Jurisdictonem in territorio cohaerenti Mari, dicuntur habere Jurisdictionem in Mari intra centum milliaria. Jus Fluviat. p. 152. & 496. n. 23.

Marriage.

IF the Superior Infeft the Appearand Heir being unmarried, doth he pass from the Marriage?

If Marriage be due, if the Appearand Heir be either senex or valetu­dinary? And either unfit or unwilling to Marry?

It seemeth Celibate is not Delictum, so that the Casuality thereby should arise to the Superior; but only the Marrying without the Superiors con­sent inferreth contempt, and consequently Delictum & poenam?

If the Appearand Heir be Married in his Fathers time and have Chil­dren, and thereafter Marry after his Fathers decease, will a Marriage fall to the Superior?

If the Marriage of the Appearand Heir of Ward-Lands should be mo­dified, with respect to the value of the Ward Lands, without consideration of his Debts? It appears that the Superior should not be in worse case by the Deed of his Vassal: and yet he may be in better, for if the Heir have beside a personal or other Estate, the Marriage will be modified to be such, as the Tocher to a Person of that Estate may be thought in probability to amount to.

If a Person holding of the King, and other Superiors Respective; of the King blensh, but of them Ward; may resign in the Kings hands to be holden Ward in aemulationem, and of purpose to prejudge the other Supe­riors? Saltcoats.

If Parties be Married publickly. Quaeritur, If it be not our that they are impotent, as if it may be proven that before the Marriage the Man was Castratus; is it competent to the Heir or any other person concerned in the point of Interest (but the party prejudged) to question or dissolve the Marriage as null or dirimendum, upon that or any other Ground?

If a Marriage be unlawful; and either of the Parties be in bona fide, [Page 121] which doth legitimate the Children. Quaeritur, If these Children will succeed with other Children of lawful Marriages, at least to their Pa­rents?

If they will succeed to their other Kinsmen? or if the Legitimation will only import that they are not Spurij, and that they have Testamenti facti­onem?

If a marriage after Inhibition, may be reduced upon that ground?

What are the Legitima Remedia to compell parties to consummate mar­riage upon Contracts? Whether they may not only be decerned by the Commissars, but by the Church, under the pain of Ecclesiastick censure?

Where some Lands hold of the King Taxt-ward, and others hold of him Simple ward, Quaeritur, will he get both the simple Marriage and the taxt? Sir Iohn Cuninghame saith, it was decided in the case of Innernytie, for both.

Marriage being dissolved within year and Day, whether the Gifts, and Jocalia given hinc inde may be repeated? Item, whether the gifts given by friends will fall under communion? So that the Maxim, that Marriage being dissolved within year and day is in the same condition as to all in­tents as if it had not been, Is only to be understood of Dos & Donatio propter nuptias.

If an old Woman super annos, and past the age of Marriage being about Threescore years, shall succeed in the Right of ward-Lands, whether Mar­riage will be due? Iohn Bonars Heir

Quid Juris if a widow either man or woman, inter annos nubiles shall succeed to Ward-lands? Barclay of Pearstoun.

If a Person have only two acres, or a mean interest in Ward-lands, but a very great interest otherwise, Whether will his Marriage be considered with respect to his whole Estate?

Seing the Marriage of appeirand Heirs belongs to the eldest Superiour, Quaeritur, who shall be thought the eldest Superiour, whether the eldest as to the Lands, or as to the Vassal; and if it be to be considered, which of the Lands, was first given in Tennandry?

Quid Juris when a Marriage is fallen, but not declared nor gifted?

A Marriage being contracted betwixt a woman Pubes, and one that is impubes, Quaeritur, If it be a Marriage, at least as to her, so that she can­not marry with another in the interim that he is not pubes? Ratio Dubitandi. That a Contract being mutual cannot Claudicate.

A Father, by his daughters Contract of Marriage, having disponed to her and the second Son of the Marriage, and the other Heirs therein menti­oned his Estate, under Reversion and certain other Conditions; and in spe­cial if he should ordain a certain Sum should be payed by these who should succeed to the Estate, to his Daughter and her forsaids: and the said con­tract bearing also a Tocher of five Thousand pounds to be payed presently to the Husband: Quaeritur, If the Marriage be dissolved within year and day without Children, whether the Contract will be ineffectual as to all intents, as being causa data & non secuta cum effectu? Or whether it be as to the Right of the person of the Daughter, either as to the Estate or as to the said Sum ipso facto void, at least reduceable? And whether she may repeat the Tocher from the Husbands Heirs? Lady Yesters contract of Marriage, being dissolved within year and day.

[Page 122]A person being Heir to his Father in a great Estate holden blensh; And having a small piece of Land holding ward, which he may succeed to as Heir to his Father. Quaeritur, If notwithstanding he is Heir general and Heir in special in the Lands holden blensh, he needs not Enter to the saids ward Lands, in order to be free of a Marriage, which would be conside­red with respect to the whole Estate? Ratio Dubitandi. That being Heir as said is otherwise, he cannot refuse to be Heir of the said Lands. Answer. It is thought, that if he was charged to enter Heir in special at the instance of a creditor in special, he could not renounce: But the superior cannot urge him to Enter, but will have only the benefite of a Nonentry: Seing the said other Lands, and any interest he had as general Heir are distincta patri­monia from ward Lands, and he may owne the one without the other.

If the superior may affect and evict the said ward Lands by adjudication, for the Marriage of the appearand Heir, considered with respect to his other Estate, in prejudice not only of the appearand Heir, but of any who should thereafter be appearand Heirs? Ratio Dubitandi, That the Marriage being but a Casuality may exceed more than the double of the value of the Lands, which is absurd. Cogitandum.

If the appearand Heir will notwithstanding be lyable to the Marriage, albeit he doth not enter nor renounce to be Heir, as to these Lands? Ratio Dubitandi. That Refutatio of vassals is not admitted, unless they satisfy the casualities already fallen. Answer. It is thought, he may renounce and be free of the casualities personally; without prejudice to the superior to affect the Ground: and the case is different from that of vassals infeft, Seing they having accepted the Right they cannot offer to renounce, unless they pay what was formerly due to the superior, being fructus Dominij; whereunto not only the Ground but they are lyable personally, by reason of their Right and possession, and it cannot be said that the appearand Heir, has either. Mortounhall.

There being diverse Adjudications of Land holding ward within year and day, but Infeftment only upon one; and that adjudication whereupon Infeftment is, being before the debitors decease, and therefore stopping the Ward; and the rest after but within year and day of the first Infeftment, Quaeritur, If the first be satisfied by intromission, may the superior claim the Ward of the appearand Heir of the Debitor being Minor, in respect the act of Parliament Debitor and Creditor doth relate only to the interest and and competition of creditors, and doth not prejudge superiors of their Right and casualities; and the adjudger Infeft is only vassal; and the other ad­judgers are not vassals; and by them the superior can have no casuality either of Liferent, Ward, or Marriage? Cogitandum. L. Bancreiff.

When diverse Lands are holden of the King, some in simple Ward and others Taxt as to the Ward and Marriage, Quaeritur, when the Marriage falls, whether the King will have both the simple Marriage and the taxt Marriage? Answer. That since at one time there can be but one Marriage, there can be but one Casuality for the same: and as the King would have but one Marriage, albeit there be diverse Lands holden ward of him simple-Ward; So in the case foresaid, where there are some taxt, he cannot have two Marriages; and the taxt being only aestimatio, where there can be no Marriage there can be no Taxt due: The same question may be of Lands holden simple and Taxt-Ward of a Subject.

[Page 123]A person being charged with Precepts out of the Chancery to Enter a person presented upon forefaulture, and in respect of his Contumacy the person presented being Infeft upon a Precept out of the Chancery and there­after deceasing. Quaeritur, the Lands holding Ward, whether the Marri­age of the appearand Heir will belong to the King or to the Superior? Ra­tio Dubitandi. That the Superior not having owned the defunct to be his vassal, he cannot claim the Marriage of his Heir: and on the other Part The King is not Superior, and grants only Infeftment in Subsidium: and doth what the Superior without reason refused to do: and there is a great difference betwixt the case foresaid, and that, when the Superior not being Infeft himself is therefore charged to Enter, with certification to Lose the Superiority during his Life; Because in the first case, there is no contempt of the Superior, but a wrong done to the person who would enter being a stranger to the Superior not being formerly his vassal: and in the other case there is both a wrong to his own vassal, and a contempt of his own Su­perior that he is in non-entry; and the more aggravated, that being charg­ed to enter he continues in non-entry; and the act of Parliament therefore provides that he should Lose the Superiority.

It is informed by Iames Hay, That the Lords have lately found, That when Lands are holden some simple-Ward and some taxt, both the single and taxt Marriage will be due: The President being of another opinion.

If a Superior Infeft his Vassal being Minor, before the Marriage fall by his attaining to the age of fourteen years, may he claim the Marriage after it falleth?

If he Infeft him after the Marriage has fallen, whether doth he pass from the Marriage?

Marriage Clandestine.

BY the act of Parliament anent unlawful Ordinations, these who are so Mar­ried amitting jus mariti & relictae, Quaeritur, If the Husband Loseth his Curiality or the woman her Terce? Or only Jus mariti as to the Com­munion of moveables; Acts Specially penal being stricti juris, and there being, beside, other pains?

If Clandestinae Nuptiae without consent of Parents, though they bind the parties so that they cannot Marry with any other, yet will be null as to Parents and friends, that the Children cannot succeed to them against their will?

Materna Maternis.

IF in no case that Maxime Materna Maternis has place with us? And in special (in that viz.) if a Person succeed to his Mother and decease without Heirs upon the Fathers side, will the Fisk exclude the Mothers friends, the Estate being profectitious and descended from her?

In Allodialibus there is no succession of the Mother or her friends active; but in feudis foemineis, if a Son should succeed to his Mother, and should thereafter Die; Quaeritur, whether his Heirs upon the Fathers side would [Page 124] succeed to such Lands, or his Mothers Heirs? Ratio Dubitandi That the said Lands are given ab initio, primo investito and his Heirs, which must be understood haeredes Sanguinis: and the son having succeeded to his Mo­ther, his Heirs upon the Fathers side cannot be thought to be Heirs either to her or her predecessors: and therefore in that case it is to be thought, that the Rule should have place Materna maternis: and there is the like reason in Patents of Honour being quasi feuda; and being granted by the King to the receiver of the Patent and his Heirs.

A Person, as said is, being infeft in Lands as Heir to his Mother, and die­ing without issue: whether will his nearest Kinsman upon the Fathers side or Mothers side succeed to him in the said Lands? Ratio Dubitandi, That by our custom the Fathers friends are alwayes preferable; and that Rule Paterna Paternis & Materna Maternis has no place: and yet it is thought that in mobilibus, when a person has Right to the same as Executor to his Mother they go to the nearest of Kin upon the Fathers side; Because there is no affectio as to mobilia, and there is no Limitation or Destination of Heirs as to these; But as to Lands, when the Right is taken to a man and his Heirs, and a woman succeeds to the said Lands, and thereafter her son as Heir to her, if the son die without issue, his Mothers Heirs ought to succeed: Seing by the Infeftment no person can succeed but he that is Heir of blood to the person first infeft, either immediately or mediately.

Quid Juris, as to Bands for Sums of money? Answer. It appears, that there is eadem Ratio, Seing there is in bands Limitatio haeredum.

Matrimonium

‘SOla nuptialis benedictio & solennis & publicus in Ecclesia benedicendi ritus, vera est Matrimonii apud Christianos executio; ex quo tem­pore jura Matrimonii vigorem suum obtinent, Licet concubitus non fuerit secutus. Christenius de jure Matrimon. Disser. 1. quaest. 1.’

‘Si post sponsalia pura, concubitus accesserit, & sponsa conceperit, spon­sus vero ante confirmationem diem obierit; de jure, partus non est Le­gitimus, quia non est ex justis nuptiis. Idem-eadem disser. Quaest. 2.’

‘Isto casu licet interdum Sponsalia habeantur pro Matrimonio, illud locum habet solummodo, quoad vinculum mutuae promissionis, ne illud temere solvatur, non quoad reliquos Matrimonii effectus. Idem. eadem. diss.’

‘Jure Civili, Divino, & Canonico, non aliter Legitimum est Matrimo­nium quam si Parentes consentiant; nec minus Matris quam Patris con­sensus requiritur, praesertim mortuo Patre.’

‘Non interest, utrum consensus sit expressus an tacitus; paria enim sunt consentire & non contradicere. Idem de sponsalibus. Diss. 1. quaest. 3. p. 17. & 18.’

‘Parentibus non permittitur Matrimonium impedire, si id fiat injuria; & cum causa sit cognoscenda, Statutis quarundam Civitatum, cautum est parentes isto casu ad Judices Ecclesiasticos seu Commissarios causarum Ecclesiasticarum esse citandos; & si Liberi sint minores viginti quinque annis, non tenentur parentes rationes sui Dissensus proferre; sin Liberi an­num vigesimum quintum expleverint, Parentum oppositio non aliter lo­cum habet, quam si justas Dissensus causas proferant. Ibid. P. 19.’

[Page 125]"Si Titiae ea conditione Legetur, si arbitratu Seij nupserit, habetur pro non adjecta, & debetur Legatum licet conditioni non pareatur. Christen: de spons. quaest. 17.

‘Si ad sponsalia clandestina, quae consensu Parentum carent, concubi­tus accesserit, non confirmatur Matrimonium, si parentibus justae causae sint dissensus: haec sententia curijs Holland: placuit. idem quaest. 20.’

Mensis.

‘SI Mensis simpliciter proferatur, intelligitur de mense solari & Duode­cima parte anni, vel triginta Diebus. Thes. Bes. in Litera M. 68. verbo Monat. p. 664.’

Mensura Taxative & Demonstrative.

‘INterest utrum Mensura in venditionibus Taxative, an vero Demon­strative adjiciatur: illud fit cum ab ipsa mensura contractus initi­um sumit, hoc cum a corpore. Jus fluviat, P. 810. n. 58.’

Militia.

THE Gentlemen that went out in a Troup in the late Expedition, having been at Charges for a Banner, Trumpet, and Coat, &c. Quaeritur, If the said Charges may be laid upon the whole Shire? An­swer Negative, Seing the Militia-Horse did not go out; and it was mu­nus Personale upon the Heretors within age to go out.

Miln.

A Defunct being in Possession of a Miln being a Horse-miln; whether will the said horse and other instrumenta mobilia that are in the Miln, belong to the Heir?

Quid Juris as to Milns when they are either sett to Tennants or possessed by Liferenters quoad the duties of the year wherein the Liferenter dyes? vide Liferenter Litera L. and the like cases of Third and Teynà and Titular. Li­tera T.

Ministers Stipends in a Reddendo.

IN Infeftments of Erection, the Reddendo is ordinarly a blensh Dutie, and beside to Pay to the Minister the stipend therein mentioned Quaeritur, whether the stipend be Debitum fundi? Ratio Dubitandi, That what is due upon the Reddendo not relating to Lands, but to Teinds which are not fundus & subjectum permanens, But a Benefit ariseing out of the Lands; such a Reddendo non afficit fundum; no more than Teinds and a valued dutie.

Minor.

WIll the Heir of a Minor be restored upon that ground, That the Lands being Entailed he resigned in favours of the Heirs what­somever? There being no Lesion to the Minor.

Minor non tenetur Placitare.

MInor non tenetur placitare holds not, ubi agitur de Dolo, culpa vel obliga­tione Defuncti, as in Recognitions, Forefaultures, &c. Cranburn contra Lady Carnegy. Humby contra his Neice.

Reduction upon minority.

LAnds being disponed to a Minor, and after his prefect age the Bargain being questioned as being to his prejudice, in so farr as the same was for Eighteen years purchass and a half, & the same might have been bought at Seventeen according to the rate of the times. Quaeritur, If such Lesion not being Enorm (and modica) be relevant? Ratio Dubitandi, The de­fender contracted bona fide with a Tutor the pupills Father, and Licet Con­trahentibus se invicem decipere, and non constat notourly, That that was the rate; and some of the witnesses declare the contrare; and the de­fender will get a Buyer at the same rate. Tweeddale contra Drumelzior. vide Annualrent for Damnage, Litera A.

Decreet against Minors.

IF a Decreet against Minores indefensos, no Curators being called in spe­cial but in general at the mercat Cross if they have any for their interest, be null? Ratio Dubitandi, Gesta cum adultis non habentibus Curatores are not void: and on the other part, by the common Law Datur Curator ad Litem, & Minor non habet personam standi in Judicio; & lata Contra Minores indefensos sententia, non Tenet. L. 45. § 2. ff. de re judicata. vide Perez. Institut. Lib. 1. de Curatoribus. § Danturne invitis.

Mobilia.

IF Mobilia has Situm, when they are here animo & destinatione Domini; so that when they belong v. g. to Englishmen they are to be thought Res Scoticae and to be affected with the Laws of Scotland; and he cannot dispose of them by a nuncupative Will. And e Contra, If he should change their situm, and transport them to stay in England?

Mobilium vilior possessio.

MObilium vilior & abjectior est possessio & facilius acquiritur & amittitur, quam immobilium; in ea non cadit tanta affectio: non est Locus in ijs re­dhibitioni Gentilitiae sive juri [...]. Hering. de molend. quaest 8. n. 58. & sequent.

Mobilia sequuntur conditionem personae sive Domini, adeo ut ejus ossibus adaere­ant active & passive: Immobilia autem co-haerent Territorio.

Modus habilis.

IF a person haveing Right to Lands (wherein another is infeft and in Pos­session, so that he has the benefit of a possessory Judgment) should dispone his Right, which is preferable in favours of the said party who is infeft and in Possession as said is; and thereafter another person upon a posterior dispo­sition should compleat his Right by Infeftment: whether or not will the said prior Right at least Extend to and import a discharge of the action of redu­ction, and militate against the singular successor?

If a Reduction being intented, the pursuer judicially Declare that he passes Simpliciter from the said action, will that barr a singular successor; Seing the said Declaration is upon record, whereas in the case above mentio­ned the disposition is a Latent deed, which cannot prejudge a singular suc­cessor?

If at least if it were Registrate in the register of seasins, it would prejudge; being none of the Writs appointed to be registrat therein?

Molendinum.

NOn licet molendinum exstruere in flumine publico, sine Principis consensu. Frits: Jus fluviatile p. 10. n. 128.

Molendina aquatica.

MOlendina igitur aquatica sunt de Regalibus. Idem p. 13. n. 175.

Molendina Bannaria.

MOlendina bannaria sunt, ad quae integrae Communitates vel Pagi praecise ire coguntur. Jus Fluviat. 1225 versus finem.

Quae appellatio inde videtur sumere originem, quia Bannire apud veteres Germanos idem significat quod Sancire, Jubere, Edicere. Hering. de Molend. q. 11. n. 2, & 3.

Molendina navalia Immobilibus accensentur.

‘MOlendina navalia pro immobilibus habenda sunt. Hering de Molen­dinis q. 8. n. 26. quia aedificans ea intentione & destinatione ea extruit, ut semper & perpetuo non pro motu sed pro molitura in ipso flu­mine manerent; nec [...] & molendinum aquaticum perpetuae morae causa ad ripam exaedificatum, plus praestare potest quam Molendi­num navale; nec in illo quidquam nominari potest quod huic non insit, rotae molares & caetera omnia. idem q. 8. 26. & sequen. Ea destinatio & attributio ad molendum, molendinum immobile reddit.’

Molendina [...]

‘MOlendina [...] alata, seu vento agitata, immobilibus accen­sentur: Idem eadem. quaest. n. 40.’

Districtus Molendini.

‘VEnditâ moletrinâ, licet non fiat mentio districtus, id est, jus cogen­di subditos molitoris ad molendum, venit tamen; quia simplex rei alienatio pertinentias rei continet. Jus Fluviat. p. 1229. n. 31.’

Quomodo qui sunt in districtu Molendini cogi queant?

‘ETiamsi is qui emit Molendinum, non posset Jurisdictionaliter coge­re Rusticos inhabitantes in districtu Molendini; potest tamen eos cogere per actionem, per manus injectionem in frumenta & fruges Mo­lendas. Hering. de Molendin. q. 11. n. 145.’

An qui sunt in Districtu alibi molere possint?

‘SUbditi in aliis Molendinis molere possunt si Dominus Molendini non procuret eorum grana in mola sua bannaria contundi intra spa­tium viginti quatuor horarum. Idem quaest. 11. 139. & alii ibi ab eo laudati.’

An Extrui possit Molendinum quod noceat vicino?

‘SUperioris Molendini Dominus prohibere non potest, ne in inferiori loco alius Molendinum exstruat, tametsi ex eo futurum sit ut superio­ris reditus diminuatur; quia ex eo quod quis suo Jure facit, teneri non potest, licet alteri per consequentiam noceatur: distinguendum est, qua ratione superiori vicino noceatur, nam si ob id solum quod minus fre­quens sit Superioris Molendini commercium prohibendus non est, cum suam posset quisque conditionem Meliorem facere, etiam cum al­terius detrimento, dummodo citra injuriam: Si vero ob id quod cur­sus aquae impediatur, & ex restagnatione fiat ut superius Molendinum perinde exerceri nequeat, prohiberi potest: nam sic debet quis rem suam meliorem facere, ne vicini Deteriorem reddat. Heringius, de Molendinis. q. 14. n. 30.’

An Molendinum possit Extrui sine licentia Principis?

‘IN flumine publico navigabili aut tale faciente, non nisi ex principis licentia: sed in alio non navigabili, attamen publico, sola Gentium authoritate Molendinum extrui potest. Idem quaest. 15. n. 39.’

Restagnatio Molendini.

‘SI duo in eodem flumine Molendina possederint, quoad Restagnatio­nem pacta & consuetudo primum servantur; his deficientibus, qui prior aedificavit primas habet partes. Idem quaest. 20. n. 10.’

Ʋsus Molendinorum Juri Civili ignotus.

‘QUae de Molendinis nunc obtinent & in usu sunt, Juri civili ignota sunt maxima ex parte; nam post Imperii translationem ex Oriente in Occidentem tempore Caroli Magni, etiam Juris mutatio succes­sit; & usus Molendinorum alio loco esse coepit quam apud Romanos: adeo ut Molendina exstruendi facultas hodie non amplius sit communis, sed privata ut plurimum; siquidem Principibus, Comitibus, & Baronibus ab Imperatore; a Principibus rursus viris nobilibus & aliis cum Territo­rio & feudis Jure Clientelae tribuitur; ita ut jus Molendinorum pro bene­ficio Regali aut principali aestimetur. Heringius de Molendinis. Quaest. 7. n. 4. & sequent. p. 124.’

Ʋbi convenit, ut pro Familia molatur, quid Juris si aucta sit?

‘SI in concessione feudi aut Emphyteuseos aut simplicis Conductionis, pactum adjiciatur quod debeat accipiens molere frumentum pro tra­dente, ipsiusque tota Familia; eaque si aucta fuerit pro omnibus molere debet gratis, aut eodem quod convenerat pretio: potest enim evenire ut Familia minuatur & sic molitor est in lucro: Cum igitur penes eum eo casu foret Lucrum, debet damnum sentire: Idem obtinet in Furno, & concessione Lignorum pro familia. Hering. de molen. quaest. 20. n. 15. & sequen.’

If a Mother and her Friends may succeed?

IF in no case Cognati on the Mothers side can succeed? Answer. It is thought that they ought to succeed; seing the Son succeedeth to his Mother and her Friends; and Jus successionis should be reciprocal, being founded upon Proximity of Blood, which is the same to the Mother and to the Son: But in this our Custome is lame, and opus est vel constitutione vel Decisione.

Mutuum.

MƲtuum & Commodatum and such other Contracts which are said Re­contrahi, and not nudo consensu; Quaeritur, If they may not be said to be Contracted, when a Write is Subscribed thereupon, obligeing persons to lend Money or Commodare? Answer. Such Contracts cannot be said to be Mutuum or Commodatum nisi res intervenerit: And yet da­tur ex iis actio praescriptis verbis, or in factum.

Non-entry.

IF the Superior of Lands holden feu, will have, during Non-entry, both the Feu-duty as his own, and the Non-entry Duty as Casuality and Fruit of his Superiority?

The Superior being in Non-entry. Quaeritur. Though the Non-entry were declared, whether the Liferent Escheat of the Subvassal would be­long to the immediate Superior? Ratio Dubitandi, It is not a feudale Delictum and commissum; but ex lege, which is in favours of the imme­diate Superior.

If the Superior suffer the Appearand Heir to be in Non-entry and to possess without a Process for Nonentry; If he may have a real Action of poinding the Ground against a singular successor?

If the full Duties will be due to the Superior upon account of Non-en­try following the Ward, albeit the Superior was not in possession during the Ward?

Quaeritur, When Lands are Disponed by a Baron to be holden of him­self; If before Declarator of Non-entry the full Duties be due, when the Lands are Disponed without any mention of Retour or Extent? Answer. If the Lands be Disponed to be holden from the Disponer of the King, a proportion only of the Retour Duty is due; Because the King and the Dis­poner having condescended that the old Barony should be extended, That part which is Disponed to be holden of the King censetur eodem Jure with the rest of the Barony; But when the Baron Dispones a part to be holden of himself without any mention of Extent, the full Duties may be claimed, at least the proportion of the valued Duty.

Novo-damus.

THE King having granted a Charter with a Novo-damus, Quaeritur, If he should have succeeded to a person having a better Right either upon Forefaulture or Recognition, or as next Heir; will the Novo­damus barr him? Or if the Novo-damus should be understood to be re­stricted to any Right or pretence or claim the King may have to the Lands by the Right of the Resignant, as falling in his hands by Forefaulture of him or his Authors, or otherwayes from their Right, and the committing of the same, either for ever or for a time?

Quid Juris as to other Superiors having succeeded to persons having a better Right?

Quid Juris, If other Superiors have received any Vassal upon Resigna­tion or otherwayes; if they may question their Vassals Right upon ano­ther unquestionably better, falling to them as succeeding to any other person?

[Page 131]Lands having fallen to the King by Forefaulture, the person Fore­faulted having but a Right of Superiority, the Property belonging to Vas­sals: Quaeritur, If upon Resignation of the Subvassal in the Kings hands as immediate Superior by the Forefaulture; a Charter with a Novo-damus will put him in that Condition, as if he had from the begin­ning holden of the King; so that the King cannot interpose another Superior by Disponing the Superiority that did belong to the Traitor? Ratio Du­bitandi, That the Novo-damus is equivalent to an Original Grant: And yet is thought, That the Novo-damus is only an accessory Right, and in effect Clausula executiva; whereby the King gives the Property, that belonged to the Resigner with all Right he could pretend thereto; But not the In­terest and Superiority that belonged to the Traitor, unless it were expres­ly Disponed: & actus agentium non operantur ultra eorum intentionem. Dun­can of Lunaie.

The King having granted to my Lord Kincardine, and thereafter to the Chancellor a Gift of the Wards and Non-entries that had fallen or should fall during the time therein mentioned Respective; and thereafter having given diverse Infeftments with a Novo-damus. Quaeritur, If the foresaid Donators could be prejudged by the saids Novo-damus? Answer. It is thought that the saids Novo-damus are of the nature of Gifts or Discharges of such Casualities, which the King might grant before Intimation made to the persons of the said Gifts.

Nullitas ex verbis non licebit.

VErba non licet vel non licebit, annullant actum; important siquidem ne­cessitatem praecisam; negant potentiam, resistant actui & aliter factum in­validant. Thes. Bes. in Litera K. 31. verbo Kan. Sect. ultima. p. 469.

Clausula ex nunc prout ex tunc.

VErba Ex nunc prout ex tunc, sunt retro activa & important canonem la­tae sententiae; operanturque actum completum etiamsi verbum futuri tem­poris sit adjectum; adeo ut unum tempus insit alteri, extremum in primo, & primum in postremo. Heringius de Molendinis quaest. 1. n. 45.

Nundinae.

NƲndinarum solennium Jus, ad majora Regalia pertinet.

Nunquam Caesar consuevit alicui dare Nundinarum privilegium, nisi prius adjacentibus & vicinis Civitatibus quarum interesse potest, auditis.

Nundinarum favor magnus est, quia earum tempore res aut personae alicu­jus arrestari non debent; Secus in Mercatis.

Quemadmodum tempore Nundinarum in loco illarum arrestare aliquem non li­cet; ita etiam nec in illo sine quo Mercatores ad Nundinas venire non possunt, Thes. Besold. in Litera M. 43. p. 631.

Oath of Coronation.

IF what is required and promised, by the King the time of his Corona­tion, be understood to be Conditiones Regni, so that the same not being fulfilled the People is free? Answer. These are not Conditiones either Suspensivae or Resolutivae, but modus regnandi: And albeit Modus ought to be fulfilled, and subjects who are under a Coercive Power may be urged to observe the same; yet a Prince who is subject to no higher Power relin­quitur Religioni Juramenti, & Deum solum habet ultorem.

These Similies may be urged to this purpose, viz. A Father is oblig­ed not to provoke or wrong his Children, and that is Modus implyed in the Relation of a Father; and yet if he do otherwayes the Relation is not taken away: And when Parties are Married, there is Stipulation hinc inde of mutual Duty, not only as to Chastity, but as to other Duties, and yet though they fail in the same, being only Modus vinculi conjugalis, the Mar­riage is not dissolved except in the case of Adultery: That Duty of mutual Chastity being inter essentialia, and the other Duties inter naturalia con­jugii.

Qualified Oaths.

WHether qualified Oaths may be received before Inferior Judges? Answer. It is thought not: The question whether the qualities should be construed qualities or Exceptions, being of that difficulty, that they are not to be decided by Inferior Judges.

The Lords are not in use to receive qualified Oaths unless they be given in to be seen by the other Party, and upon debate be found Relevant; so that the person who is to give his Oath may be admitted to Swear in the terms of the same, as being properly Qualities and not Exceptions. Quae­ritur, What Qualities ought to be sustained? And seing it is the common opinion that intrinsick qualities may be received; Quaeritur, What Qua­lities are to be thought Intrinsick? Answer, These are Intrinsick that are inherent in the Act and Matter in question v. g. If it be referred to the Defenders Oath that he promised to pay the Pursuer a Sum of Mo­ney, he may declare in what Terms he promised, pure, in diem, or sub Conditione.

If it be referred to a Parties Oath that he is Lyable for a House-mail (having taken and dwelt therein) after three Years. Quaeritur, If he may declare with that Quality that he payed the same? Ratio Dubitandi. That it is Extrinsick, and not a Quality but an Exception: On the other part, quomodo unumquodque ligatur, solvitur; and the Debt not being proven but by his Oath, he may prove payment the same way. 2do. There is a pre­sumption in Law, which is the Ground of so momentary a Prescription, That such Debts are not so long owing; And therefore it ought to be pro­ven [Page 133] by the Defenders Oath they are owing. 3tio. It is the common practice, that Parties that are not bound by Write think they are in tuto to pay without Writ.

If he declare not positive that he payed, but that he Assigned a bond or Debt in satisfaction. Quaeritur, If that Quality should be received? An­swer. It is thought, that it is not intrinsick.

Correspective Obligements.

QƲid Juris, If there be correspective Writs of one Date, but not in one Body, as v. g. a Disposition of Lands and a Bond of the same date for payment of the price: If the Exception competent against the price ( viz. The Disponer cannot be lyable unless the price be payed) will mili­tate against the singular Successor? Ratio Dubitandi, The Disponer sequi­tur fidem: And the Obligement to pay the price is not in corpore juris; so that the Assigney is in bona fide to take a Right thereto: & Contra, Person­al Exceptions competent against the Cedent are competent against the Assigney, in Obligations personal hinc inde.

It is informed, that there is a Decision, That such Exceptions are not competent against Assigneys.

Mutual Obligements in Contracts.

IF there be a mutual Contract anent the selling of Lands and payment of the price; & the Buyers creditor comprise the minute in so far as it is in his favours; whether he will have action for implement unless he pay the price? Answer. He will not: Seing the final cause of the Disposition is the Price.

If Offices do Escheat by Horning?

IF the Keeper of a Register, or Writer to a Seal be at the Horn Quaeritur, if his Office will fall under his Escheat? Ratio Dubitandi, That no­thing is Escheatable but that which may be transmitted and is applicable to another; whereas an Office is a personal Function, and industria personae eligitur, which is so personal that it cannot be conveyed by his Escheat to another.

If at least the Rebell doth forefault his interest, if he be year and Day at the Horn? And Quid Juris as to Judges, who have places from the King, and as to Commissars, and Ministers, that are presented by other Patrons, whether by their Rebellion they be so disenabled, that they cannot enjoy their Places, and their Patrons can present others?

Whether at least Relaxation will repone the Rebell, and take away the Inability?

Omissa & male appretiata.

A Person being named Executor and universal Legatar. Quaeritur, If a Testament ad omissa & male appretiata be confirmed, will the prin­cipal [Page 134] Executor Loss both the Office and the Benefit of the Legacy, as to what is omitted and male Appretiat? Answer. It is thought, he will Loss both, in respect of his Fraud and Perjury, in the same manner as the nearest of kin confirming, will in the like case, loss not only the Office but the Benefite competent to him, as nearest of Kin, as to that which is omitted, or male Appretiate.

Operae.

IN Materia Operarum Consuetudo & praescriptio multum consideratur. Jus Flu­viatile p. 121. n. 3.

Order of Discussing.

WHen a Defunct doth oblige him and his Heirs, renuncing the order of Discussing, Quaeritur, will the Heir of Line be lyable to Re­leive the Heirs of Tailȝie and Provision, as to such Debts for which by the Law he should have been first Discust?

Pactis Privatorum non Derogatur Juri Communi.

THat Law That Pactis privatorum non derogatur juri Communi what way it is to be understood? And if it be only as to Solemnities, or Formalities provided by Law, and not when the Law pro­vides any benefit in favours of a person, as a Communion in favours of a Husband and Wife; or Courtesy or Terce, or such like?

The Prince, and under him the Judge, and in special [...] (sed quis custodiet ipsum Custodem) the Lords of Session, have not a Legislative Power: And when there occurres a Case not formerly decyded, and the best governed Nations do not agree anent the Point in question; some being for the Affirmative, some for the Negative; and upon pro­bable Reasons on both sydes, sustinendum Judicium: Or, if the Question be of an Exception from a general Rule; the Rule is to be stuck to, until there be a Law to the contrare; as in that case, whether Minors should be debarred from the Remedie of Restitution, by their Oath; conform to the Novel sacramenta puberum: Which in effect is to make a new Law.

Parliament.

IF Reductions may be pursued summarly before the Parliament in prima instantia? It is thought, that although when my Lord Lauderdale was [Page 135] Commissioner, that was done, in the Case of the Lord Forrester against Ge­neral Ruthven's Relict; and at the instance of the Lord Dundie against Pit­taro; And there is now a Complaint at the instance of Edzel against The Earl of Crawfurd for reducing the said Earl his Title: yet such Processes would not be sustained before the Parliament, If it were represented, That by Di­verse ancient Laws, and for great Reasons it is provided, that all Com­plaints in civilibus should be first pursued before the Judge Ordinary.

Passing from a Right.

IF a Tacksman of Teinds having a Tack yet to run, take another Tack of the saids Teinds: Will he be thought to pass from the former? Lau­derdale contra Tweeddale.

Patents of Honour.

PAtents of Honour being granted to a Person, and his Heirs Male of his Body; Quaeritur; 1mo Whether the appearand Heir may sit in Parlia­ment and not be Lyable as Behaving? It is thought, (whatever may be pretended as to Custom) in strict Law he should be lyable; seing in Ge­neral, the owning an Heretable Interest is aditio passive, and gestio pro haerede. 2do. Quaeritur If a Patent and Title thereby, may be resigned as feudum for a new Patent to the Resigner and other Heirs than in the former? Co­gitandum. If it may be resigned, Quaeritur, If the Resigner must be first served Heir? Cogitandum.

If a Nobleman having a Patent to him and the Heirs Male of his Body, should thereafter resign his Title and obtain a new Patent to him and his Heirs Male of his Body, which failȝiening to his eldest Heir Female with­out Division: And the Heirs Male should faill; may a Nobleman who in the interim has got his Title betwixt the first and second Patent; claim place before the Heirs Female, as having Right by the second Patent, being be­fore theirs: Or if the Heirs Female will have place as representing their Predecessor, who had Place by the first Patent, seing the second is but a Continueing of the first in favours of him who got it, with an alteration on­ly as to his Representatives: And they who had posterior Patents were not concerned who should represent him; and it was uncertain whether the first Heirs should faill; so that they might have any prejudice by the change Roxburgh contra Lothian.

Pecunia Pupillaris.

IF a Tutor uplift the Maills and Duties of Lands, a quo Tempore will he be lyable to stock the same, so that the Pupils Means be not unprofitable? Or if this be not Casus arbitrarius, according to the variety of Circumstances? Balhousy and the Tutor of Dumb Iames Hay.

If a Tutor be not lyable for Annualrents, and when should they be stocked?

Pensions granted by the King.

QƲaeritur, Seing Pensions granted by private Persons are binding, and are a Ground of Action; Whether Payment of Pensions granted by his Majesty may be denyed? And if not, What Remedy is competent?

Personalis Actus.

‘ACtus, in quo est apposita dictio Ipsi, in contractibus non stat restri­ctive, sed tantum demonstrative; ideoque non impedit transmis­sionem; & Contractus non obstante dictione ipsi ad haeredes transeunt, quia quilibet praesumitur suo haeredi ut sibi prospicere; quae praesumptio non tollitur ex dictione sibi, quia est violenta & procedit ex visceribus na­turalibus, contrariam probationem non admittentibus.’

‘Si in alia Dispositione sit simplex concessio, Dictio sibi non restringit: & adjectio personae in concessione de sua natura ad haeredes transitoria non facit quod concessio sit personalis, & non transitoria.’

‘Secus est in concessione non transitoria, puta ubi electa est industria personae: vel in actu personae cohaerente. Thes. Besoldi, in litera I. 10. verbo Ihme. p. 425.’

Pignora.

‘SErvi Aratores & Boves Aratorii, & Instrumenta rustica pignori haud capiuntur, l. 7. Cod. quae res pignori obligari, &c.’

‘In obligatione generali rerum quas quis habuit aut habiturus est, non continentur quae verisimile est quemquam specialiter obligaturum non fuisse, ut supellex quam quis habet in usu quotidiano & necessario, vel quae ad affectionem ejus pertinet.’

‘Invecta in praedium urbanum tacite oppignorantur; secus in praediis rusticis quia sufficit in iis fructus teneri, Heringius de molendinis q. 28 n 12 ad 18 inclusive.’

‘Studiosorum supellex libraria sub tacita illa oppignoratione non venit. Ibidem.’

‘Ea tantum invecta censentur obligata, quae illata sunt ut perpetuo ibi sint; ideo nomina & instrumenta obligationum & merces illatae ut venderentur haud veniunt. Ibidem 20.’

‘Creditor jure civili poterat pignus alienare, etiamsi pactum non inter­venerit; praevia tamen denunciatione ut debita solvat; & licet pignus ali­enare, cessante debitore in solutionem per biennium post denunciationem. Perez. Lib. 2. Tit. 8.’

Plenishing; If a Wife be provided to a part of it?

BY Contract of Marriage, a Wife is provided, in satisfaction of Terce, Third or other part of Movables, except the half of the Plenishing of the House the time of the Husbands Decease, Whereto it is provided she shall have Right. Quaeritur, If there be no Free Gear, will the Heir be [Page 137] obliged to free the half of the Plenishing? Ratio Dubitandi. The Contract bears she should have Right; and she is in the same case as if her Hus­band had disponed for an Onerous Cause the Plenishing he should have the time of his Decease: And on the other part, it seems this Provision should be understood Conditionaliter, if there be free Goods: And the Clause being an Exception from a Renunciation, both the Renunciation and Exception from it, ought to be of the Regula, and of that which would belong to her, if she were not excluded, which could only be the free Gear.

If the clauses do not bear besides the Heirship, Quaeritur. If she will have Right to the plenishing, without Deduction of the Heirship? Eadem Ra­tio Dubitandi.

Possessor.

PRocessum ligitiosae possessionis, Hispani Interim, Galli Recredentiam, Belgi Provisionale remedium, alii processum informativum appellare solent, Budaeus litem vindiciariam. Thes. Bes. in Litera I. 29. verbo inte­rim mittel.

Possessor bonae fidei fructus consumptos suos facit absolute, extantes vero Domi­nocedunt.

Possessor vero malae fidei, nec consumptos nec extantes suos facit, sed Dominus extantes vindicat; consumptos vero condicit condictione sine causa. Perez. lib. 2, Tit. 5.

Poinding of the Ground.

A Lord of Erection having Disponed Teinds, and the Reddendo bearing a Sum to be payed for a proportional relief of the blensh duty payable by the Lord of Erection; and certain Bolls of Victual to be payed also for his relief to the Minister: Quaeritur, Will the Minister have action for poinding the ground? 2do. What will the Superiors poinding the Ground import?

A Decreet of Poinding the Ground being got against the Heretor for the time and the Tennants: Quaeritur, If after the Death of the Heretor the Lands may be comprysed for the Bygones from the Appearand Heir, without a Decreet of transferring, or a new Decreet: Answer. It is thought, there is no need of any other Decreet; the Decreet being Really founded; which may be recovered against an Appearand Heir, and put in Execution by Comprysing, or poinding against him.

Prerogative

IF the Question betwixt Roxburgh, and Lothian, should be determined with respect to his Majesties Prerogative being the Fountain of Honour? It is thought, that His Majesties Concessions, whatever the Subject be, should be judged Jure communi; And that Jus quaesitum, whether as to Ho­nour and precedency or any thing else, cannot be taken away upon any such pretence. The Prerogative is instar littoris which is defined quo fluctus Hybernus exaestuat: So that as the Sea does not go beyond the Shoar when [Page 138] the Sea is most full; so the Prerogative and Plenitudo Potestatis does never go beyond Law, which is a great Littus and Boundary of just Power.

The Royal Prerogative is acknowledged and asserted by diverse Laws and Acts of Parliament of this Kingdom; But how far the Ex­tent of the same may reach, is a point of State and Policy of the highest nature and importance, and not to be defined by the Opinions of Lawyers, but by the Highest and Legislative Authority.

The Royal Prerogative is not only asserted in the general by the Laws of the Kingdom; but diverse and great Powers Rights and Priviledges be­longing thereto, are in special declared by diverse Acts of Parliament; both in Relation to the Government, and in Relation to His Majesties In­terest, and Questions, and Causes, betwixt Him and His Subjects; As the Power of Calling and Dissolving Parliaments; The Choising and Appointing Officers of State, and Commissioners and Judges; To make War and Peace; And that there can be no Meetings to Treat or determine in Mat­ters of State without His Majesties Authority and Warrand: And that upon no pretence there can be any Rising in Arms without His Warrand; And His Right to Custums; And Power to grant Remissions for the High­est Crimes: And that the Negligence of His Officers cannot prejudge Him. And albeit by the Common Law the Eldest Superior is preferable, yet when Lands are holden of diverse Superiors Ward, the Marriage of the Vassal, which otherwayes would belong to the Eldest Superior, doth pertain to the King, tho as to the Vassal his latest Superior: And by custom, albeit the going to a Miln, for never so long a time, being facultatis, doth not import Servitude without a special Astriction, yet the repairing to His Majesties Milns, by the space of Fourty Years, doth induce a Servitude, without any other constitution: As to which and other points of the Pre­rogative, explained by Law and Custom, Lawyers may and ought to give their Opinions in Law.

But as to Lawyers and Juris-consults, it is said, Turpe est sine lege loqui, & ubi leges silent they cannot but be silent: And the Laws of Scotland, which ought to warrand the Resolutions and the Opinions of Lawyers, in Questions concerning the State and Government, are only the Statutory Law and Acts of Parliament, and the common Law and custom and un­denyable practique of the Kingdom.

As to the Civil Law of the Romans; it was only the Municipal Law of that People; And by reason of the great Equity of it, in Questions de Jure privato, tho it has not the force of Law with us; yet it is of great Authority and use in cases not determined either by statute or custom; But, as to Questions of State and Government, the Civil Law is of no use with us; in respect the Laws of all Nations, concerning their State and Government, are only Municipal; and the Constitution of the Respective States doth varie both from that of the Romans; and for the most part each from ano­ther: So that any Questions, concerning the same, cannot be solidely or warrantably Answered, upon Principles or Reasons brought from any Law, but the constitution of the Government and Laws and Customs of the Nation and Kingdom concerned.

It is conceaved, That when the Opinion of Lawyers is asked, Res should be integra, and they should be at liberty to give their Opinion freely and [Page 139] without prejudice, which they cannot doe after His Majesty has any way predetermined them, by declaring his own Royal Will and Pleasure.

As to that Question, What can be said, in Law, in defence of these who have acted contrary to Law, in Obedience to His Majesty, or upon his Royal Dispensation; if they should be questioned in the time of Succeeding Kings?

It is Answered, That, upon the Grounds foresaid, nothing can be said positively to secure them, from Question, either by our Law or Custom; The said case being not mentioned nor determined by either: But it is to be thought and presumed, that His Majesties Prerogative being asserted by the Laws foresaid, and His Majesties owning that power to Command and Dispense as a part of His Prerogative, and they conceiving that it was not their duty to dispute His Majesties Power; Succeeding Princes will not think it their interest, to be severe against any person, for exceeding in Obedience to their Royal Predecessors.

Prescription.

IF a Feu-Charter of Kirklands, not confirmed by the King or Pope, with Seasins thereupon, may be a Title to warrand Prescription?

Temporary Prescriptions, as in case of House-Mails, Servants Fies, Eje­ctions, &c. If they run against Minors?

The Vassal retouring his Lands to be in Non-entry Fourscore Years, Quaeritur, If he may object Prescription quoad the retoured Non-entry Du­ties? Seing after the Years of prescription, he confesseth the same to be due: & Temporalia ad agendum sunt Perpetua ad excipiendum?

If His Majesties annexed Property does prescrive?

If Prescription run, against these who were Forefaulted by the Usur­per, Qui non valebant agere: Found for the Negative, Lauderdale contra Tweeddale; That Lauderdale his Father and Good-Sire non valebant agere, Because upon his Fathers Resignation Queen Ann was Infeft in Liferent, and might have excluded them during her Lifetime: and though he might have intented a Declarator; yet that being such an Action, as could not bring him to possession, he was not obliged to intent it: This Reason ap­pears not to be without some Question, seing if there were a Liferenter and Fiar, and the Fiar should not prevail with the Liferenter to join in an Action for interrupting prescription, the Fiar should be without remedy if he would not interrupt by Declarator: and if a Declarator do interrupt, it cannot be said that non valebat agere. 2do. A Declarator would have brought the Lord Thirlestoun to Civil possession, at least so far as it would have been declared, that the Queens possession was his, and by vertue of the Right thereof he was Fiar: And if the Queen would not owne the possession to have been by that Right, she should have been forced to re­move: So that by that Action they might have attained natural possession.

Before the Act of Parliament 1621. anent Comprysings, the Legal ran against Minors; which argues, that the Temporary Prescriptions of Spuil­ȝies, for House-Mails, Removings &c. run against Minors.

If there be a difference betwixt the time of prescription in England and Scotland? Whether is prescription inter decisoria?

Item, If Prelates, provided before the Act of Parliament 1585. (against [Page 140] Dilapidations) may notwithstanding thereof set Tacks without hazard? Seing the Act seems to militate only as to persons provided thereafter.

If a Feu-set contrary to the said Act against Dilapidations, may be a ground of Prescription? Ratio Dubitandi, That by the said Act, the Pa­trimony of the Prelates is extra Commercium, and is of the nature of the an­nexed property & quod non est alienabile non est praescriptibile. Vide, Di­lapidation in litera D.

If in all cases when an Obligement or Interest and Right is in the De­fenders Right, whereby he bruiks, may he alledge Prescription, as he cannot do in the case of Reversion, there being Eadem Ratio?

What is the Reason, that Reversions Registrate do not prescribe? Seing Bonds Registrate do notwithstanding prescrive.

If a Faculty granted to a Person as v. g. to the Disponer of Lands, and a power to Dispone the samen, or to Redeem upon a penny, doth pre­scrive being granted apart?

If, Prescription being alledged against a Bond, it be Relevant to reply and to offer to prove by the Excipients Oath, that to his knowledge the the Debt is due, and true, and not satisfied?

If a Reversion be granted only for five Years, Quaeritur, If in that case it prescribes against Minors? Vide de Retractibus Gentilitiis, if they pre­scribe against Minors?

If a Minor acquire Right to a Comprysing near expired, singulari titulo, will the Reversion be prorogate? and if there be a difference betwixt a Mi­nor succeeding as Heir, or otherways Singulari Titulo?

Prescription against the King.

THE Act of Parliament 1617. Militateth against the King, as to real Actions; when the Defender has prescribed a Right by possession founded upon the Rights therein mentioned; as appears by the express words and the ground of that Prescrption, being not so much odium & negligentia non petentis as favor possidentis, which is the same as to the King as to another: But in that part of the Act anent, the prescription of Per­sonal Actions, there is no mention of the King, and he cannot be said to be negligent; and it is declared by Act of Parliament, that the negligence of his Officers shall not prejudge him. Quaeritur therefore, if Prescription in that case be competent against the King?

‘Verba semper & quandocunque designant temporis infinitatem: & si in pacto de retrovendendo adjiciatur haec clausula, ut quandocunque vendi­tor & ejus haeredes velint pretium offerre, Praedium recipere possint, non ob­stante triginta annorum praescriptione, Jus redimendi semper & in perpe­tuum competit; nisi possiderit Emptor pro suo; vel contradixerit Relui­tioni: ab eo enim tempore incipit praescriptio: In Contractibus enim nullum verbum debet esse otiosum, verba autem quandocunque &c. es­sent otiosa si non operarentur. Thes. Bes. litera I. verbo 5. Je und allwegen p. 423. & 424.’

‘Princeps potest privato privilegium concedere, ut ipse solus in aliqua parte maris aut fluminis publici piscari possit; aliosque ne id faciant pro­hibere: Loca publica, & quae Jure Gentium communia sunt, praescribi [Page 141] possunt tanto tempore cujus initii memoria non existat: praescriptio enim immemorialis vim habet privilegii seu Tituli, & potius praesumpta concessio quam praescriptio dicitur; & praesumptio ex ea exsurgens est Juris & de Jure, nec admittit probationem in contrarium. Jus Flaviati­le. p. 260. n. 261.’

"Praescriptio impium praesidium Novel. 9.

‘Respublica & municipium non restituitur adversus praescriptiones temporales; quae Jure veteri, respuebant restitutionem. vide Frisch. Tom. 2. Exercitat. 2. n. 58. & sequent.’

‘Jure Novel: praescribitur contra Rempublicam & Civitatem, Tri­ginta vel quadraginta ann. ibidem. n. 63.’

‘Praescriptio Conventionalis a Defuncto coepta currit contra Rempubli­cam quae ei successit, Ibidem. n. 65.’

‘In Praescriptione, Jure Civili bona fides requiritur ab initio, nec desinet usucapiens acquirere licet mala fides superveniat: Jure autem Canonico bona fides requiritur toto tempore.’

‘Requiritur etiam Titulus, id est, justa causa possessionis & habilis ad transferendum Dominium.’

‘Res furtivae & vi possessae Jure Civili usucapi nequeunt. Perez. Instit. Tit. 10.’

‘Nihil enim operatur bona fides aut Titulus propter vitium, nisi vitio purgato, nempe re furtivâ reversâ in potestatem Domini.’

‘Servus Fugitivus non usucapitur, quia fugiendo sui furtum facere di­citur.’

‘Si quis mala fide, absente forte Domino vel negligente aut eo decedente sine successore, fundum alienum possederit & vendiderit Emptori bonae fidei, non obstat usucapioni vitium quasi rei furtivae; non enim fundi locive furtum committitur, aut rerum immobilium facilis est inter­versio.’

‘Res Fisci usucapi non possunt, quia Juris publici sunt: bona autem va­cantia usucapiuntur quae haeredem non habent, si antequam a Fisco occu­pentur ab alio possideantur; quia nondum Fisco denunciata, non sunt Fisci, sed manent in Commercio.’

Presentation upon Forefaulture.

QƲaeritur, If a Composition be due to the Superior for receiving a Vas­sal, presented by the King upon a Forefaulture? It is thought, That it is not due; seing he is obliged to receive him; and the Lands belong­ing to the King by the Forefaulture, he does a Favour to the Superior by presenting one in his place.

The King having presented a Vassal to the immediate Superior, some years after the Forefaulture of the former Vassal, Quaeritur, Whether the Person presented will have Right to the Duties become due since the Forefaulture, or if the same will belong to the Superior? Cogitandum. But it seems, that the King having no Right to the Lands, which he can­not hold of a Subject, but having only Right to present a Vassal in the interim, the Duties should belong to the Superior, seing the Property be­longs to no Person; And the Superiority draws unto it the Right of Pro­perty [Page 142] and the Superior not having a Vassal ought to have the duties of the Lands: Otherwise if the King should not present for many years he should want the Fruits and Benefit of his Superiority: And it is not his fault that he wants a Vassal, seing hardly he could force the King to pre­sent. The Lord Tarras.

Process against Strangers.

IF a French Man or Hollander v. g. should retire out of France or Holland hither, and should be Pursued in this Kingdom at the instance of these who have contracted with him in the Place where he was, Quaeritur, If Process should be Sustained against him here? And if it should, accord­ing to what Law should he be Judged? Seeing our Judges are not pre­sumed nor obliged to know any other Law but our own and the civil Law. Answer. They ought to have Process according to the Law of the Place where they Contracted, which may be known upon a Commission.

Seing Mobilia and Immobilia habent situm viz. illa fixum, ista vagum, Quid juris as to nomina Debitorum, utrum sequuntur personam Debitoris an Credi­toris? So that a Debt due by a Scotsman to a Stranger should be consider­ed as a Scots interest & res Scotica; and a Testament concerning the same should be confirmed in Scotland.

Quid Juris as to annualrents, when the Laws of the Place where the Creditor lives and our Laws do vary?

Quid Juris, When the Debitor being a Scotsman and having granted Bond in Scotland, has retired elsewhere, both as to the effect of confirma­tion and Annualrent whether Lawful or no Lawful? And if the Annual­rent should be ever considered with respect to the Place, where the Debitor was Incola the time of the contracting?

Procuratories of Resignation.

IF Procuratories of Resignation, granted by Magistrates, Expire by the de­cease of the granters?

Promise to Dispone, not in writ.

IF any Person or their Heirs may be pursued, for implement of a promise to dispone Lands and Heretages; it being referred to the Oath of the Per­son that made the Promise (or of his Heir if he be deceased) that such a Promise was made? Answer. That it is thought, that as when upon a Treaty and Agreement Writs are drawn, Parties may Resile, before Writs be subscribed; There is eadem, if not major Ratio in Promises, which can­not be perfected but in Write, Et nihil actum creditur, dum quid supersit a­gendum, nisi accedit Juramentum, Vide Emphyteosis, and what the Lawyers say in such Cases, where Write is necessary.

Protections.

IF Persons cited to appear before the Justice or Council, or imprisoned by order of the Justice or Council, may be taken or arrested upon Caption or otherwise, for a Civil Debt, though they have not Protections?

Provision in favours of Bairns.

IT was provided by Contract of Marriage, that the Conquest should be employed upon Rights to the Husband and Wife in Conjunct Fee, and to the Bairns of the Marriage in Fee, Quaeritur, If the Husband, having acquired a considerable Estate, may he advantage his Heir or any other of the Children, and give a greater Proportion to them than the rest? Or will the Conquest belong to all equally? Ratio Dubitandi, It were hard that the Father should not have power to divide his Estate amongst his Children, and in Consideration of it to oblige them to be dutyful. On the other part, the provision being in favours of the Children which is nomen collectivum & universale, indefinitum aequipollet universali. 2do. If that Power were allowed to a Father, it may be abused; and intending to marry again, he may deal with one of his Children, and giving more nor his Proportion, he may by transaction settle all the Conquest on him; and take a great part of it back from him in prejudice of the other Children. 3tio. By that Provision there is a Legitime settled upon the Children; and as the Father cannot prejudge them of that which is given them by Law, but the Bairns-part must divide equally, so he cannot prejudge them of that Bairns-part provided by Contract; unless by the same, the Father had that arbi­trium and Power given to him, as sometimes it is.

Provision in Bonds.

A Bond of provision being granted by a Brother to a Sister, for a Sum to be payed to her at the next Term after the Bond, without mention of Heirs or Assigneys, but with a Provision, that if she should decease unmar­ried it should return to the Granter and his Heirs; Quaeritur, If, she having assigned the Bond, the Assigneys will have Right, albeit she deceased un­married? And what the import of the said provision is, whether a Sub­stitution, or a Quality of the Fee and a fidei commissum, that she should not assign but with the burden of it? Ancrum younger contra Mangertoun.

Provisions in Charters.

IF Lands be disponed to be holden of the Disponer, with a Provision that if the Vassal be year and day at the Horn, his Liferent shall not pertain to the Disponer; but (now as then, and then as now) shall be given and belong to himself. Quaeritur, Quid Juris? Ratio Dubitandi, Dolus futurus non potest remitti; and being pactum contra legem made to fright from Dis­obedience and Rebellion, the Rebell ought not to have the advantage of it: Nor the Superior, because remisit; & quod aufertur indigno, cedit Fisco.

If such Pactions will bind singular Successors in the Superiority? Ratio Dubitandi, That they can be in no better case, than their Author; and these Pactions are in rem Active & Passive: And the Superiority being on­ly by the Disposition and Infeftment thereupon, it is qualified with the said Provision, and cannot be transmitted otherwise than as it is Jus affectum & limitatum.

Provisions in Contracts.

A Father being obliged by Contract of Marriage, to employ a Sum to himself and his Wife in Liferent only, and his Bairns of that Marri­age in Fee; which failȝiening to his Heirs and Assigneys: If Infeftment should be taken in these Terms, whether is the Father Fiar, so as the Bairns could not succeed but as Heirs of Provision to him. Mr Andrew Marjorie-banks Contract of Marriage.

If the Fee were secured to the Children, By and Infeftment to a Trustee to the behoof of the Children; if it be the Fee of all his Estate, and being a merchant, and thereafter People contracting with him as a Person of a visible Estate, would the Creditors be prejudged by such Provisions in a Contract, not publick by Infeftment upon it, or Inhibition? The same case.

Provisions in favours of Daughters.

BY Contract of Marriage it is provided, that in respect the Estate was Entailed, The Daughters should be provided, If there be one, to 50000 Merks; if two to 60000: whereof to the eldest 37000 Merks and to the other the remainder; to be payed at their age of sixteen years or their Marriage. Quaeritur, The Father having survived, and there being two Daughters of the Marriage at their Mothers Decease, of which the Elder died not long after; long before the age foresaid. 1mo. Will the younger sur­viving get 50000 Merks, being now the only Daughter of the Marriage? 2do If at least she will have the portion of the elder being 37000 Merks? 3tio. If her Sisters Portion will accresce to her as nearest of Kin? 4to. If the said Provisions be conditional, viz. If they Marry or attain to sixteen Years? 5to. If such Provisions be personal? at least so far, as if after the Term they be not assigned and the Daughters die, they will not transmit, there being no mention of Heirs? 6to. The said Sums not being due up­on account of Creditum, but of Provision for a Livelyhood, that they may be married, or at least have a Competency to live upon; Quando Dies ce­dit? Whether after dissolution of the Marriage, or when they attain to the Age foresaid? Scot younger of Ancrum.

Publica.

COnfirmatio munerum publicorum hodie a Principe successore petitur; sed si de­negaretur injuria fieret a Principe. Jus Fluviat.

Publicum seu publica utilitas varijs modis dicitur, viz. 1mo. Cum in univer­sum & particulariter Commodum affertur, quod in Sacris, Sacerdotibus, & Ma­gistratibus, consistit. 2. quae in universum conducit, non autem singulis; ut quoties de locupletando fisco agitur. 3. Quae privata proprie, licet ex ea con­sequatur publica utilitas; ut cum dicimus, Tutelam esse munus publicum, & Testamenti factionem esse juris publici. Hering. de molend. Quest. 15. n. 14.

Pupils.

IF in Law Pupils who have neither Velle nor Nolle, may be Charg­ed and Denounced?

Quartering.

IF there may be Quartering for Impositions laid on by the Major part of the Shire, though there were ground for the same? Answer, Negative, Seing Quartering is Remedium Extraordinarium & Mili­tare, and cannot be used but where there is a Law to warrand the same: But in such Cases, if there be any thing done behoovefully for the Shire, They who are refractory may be pursued actione negotiorum gesto­rum, before the Sheriff or other Judicatories, and upon Decreets the or­dinar Execution may follow.

Quorum.

IN the case of Mr. John Bayne of Pitcairly mentioned in the Title. Dis­positio collata in arbitrium alterius in litera D. The Friends being so nam­ed that the major part should have power to determine; There being Three of Ten. viz. The Chancellor, Sir John Nisbet, and Tarbat, sine qui­bus non, and in case of any of their decease, Sir William Bruce. Quaeritur, If all the three sine quibus non must consent? Or if it be necessar only that there should be a Quorum of the Meeting? Ratio Dubitandi, His name­ing Three sine quibus non, appears to be upon that account, because two might not agree. 2do. It were hard, if all the Friends should agree but one of the sine quibus non, It should be in his power to evacuate the Defuncts Will and Design. 3tio. When a Commission is given to Three Persons to be Judges or Arbitrators, they must all be present, and yet if two agree though the third dissent, their sentence will be valid.

If any one of the Quorum, sine quibus non, should settle with the Heirs, of design to question the Defuncts Deed. Quaeritur, If he (as having Fore­faulted his Trust) should be in the same case as if he were Dead?

Ratihabitio.

RAtihabitio retrotrahitur ad initium, & Mandato comparatur.

Jus Ratium.

JƲs Grutiae vel Ratium (Flotrecht) jus, viz. Traducendi ligna super flu­mine ad Regalia spectat. Jus Fluviat. p. 97. n. 11.

Jura Realia in Re & in Rem.

JƲra Realia vel sunt in Re ipsa vel in Rem tantum: Jura autem ad rem in­terdum sunt in rem, personalia tantum sed ad rem consequendam, ut Dispo­sitiones, Contractus, & Reversiones ubi non sunt Registratae.

Jura in Re & Terris sunt ea quae per Sasinam competunt (nulla enim Sasina nulla Terra) scilicet jus Dominii (vel directi vel utilis) vulgo superioritatis & proprietatis, Jus ususfructus & conjunctae infeodationis, Jus Hypothecae seu im­pignorationis vulgo Wadsets, Viduarum Triens seu Tertia, Curialitas Scotiae in­dulta Maritis conjugibus, si Ʋxor in Terris successor aut Haeres & prolem enixa fuerìt, licet haud vitalis statim moriatur: ea enim Jura Viduis tam marito quam conjugi competunt, ex sasinis & in terris in quibus alteruter obiit vestitus & sasitus; ut ex Brevipatet.

Jura autem Reversionis & Regressus moribus nostris Realia sunt & in Rem; ut adversus non tantum haeredes sed singulares successores efficacia sint; idque hand sua natura, cum re ipsa sint tantum personalia pacta de retrovendendo; sed mori­bus nostris ubi rite Registrata sunt, etiam adversus emptores, aut alios singulares successores, rata & valida habentur; cum insinuata iis innotèscant aut sciri possunt.

Nec minus servitutes praediorum, & conductiones seu assedationes, Jura Realia & in Rem sunt sine sasina, si ante venditionem possessio accedat.

Rebellion.

A Bond being Assigned by a Rebel and the Assignation not intimate before the Rebellion. Quaeritur, Whether the Assigney, or the Do­nator will be preferred? Ratio Dubitandi, That the Assignation denudes the Cedent, and the Intimation is not necessary but to exclude another Assigney: And the Rebel by his Rebellion does not transmit but amitts and Forefaults any Right that he has, which being in nullius bonis is Domi­ni Regis; whereas it cannot be said that the Bond was in nullius bonis after the Assignation, seing it is then in bonis Cessionarii.

Whether the Rebels Goods ought to be Lyable to Creditors?

SEing Bona are understood Debitis deductis, and by the custom of all Nations when they are confiscate Transeunt cum sua causa, and with the burden of Debts, what can be thought the reason that it is otherwayes with us? Answer, It is thought, that seing Lands when they are Fore­faulted either to the King, or to the Superior, they return in the same man­ner & ut optima maxima as they were given, that condition being implyed [Page 147] in all Rights of Lands that the Vassal should be faithful and Loyal. It has been thought (but upon mistake) That Moveables and other personal Estate should be confiscate in the same manner, without respect to Debts, whereas there is Dispar Ratio; Lands, as said is, being given by the Supe­rior with that quality, whereas personal Interests are simply allodial, and ought to be forth-coming to Creditors; who, though they have not a Right to the same, yet have that Interest, that they are the Subject of Execution: and it appears to be unjust, and to obstruct Trade, if it should be otherways.

Recognition.

LAnds being Wadset for a Sum, far below the value of the half, with a Back-tack. Quaeritur, if there be ground for Recognition, if the Land hold Ward? Ratio Dubitandi, The whole Lands are Wadset.

If Infeftments of Warrandice be Ground of Recognition?

A Vassal holding Ward, giveth a Charter to his Subvassal or his singu­lar successor upon Resignation, with a Novo damus, Quaeritur, If the Novodamus will import a Recognition?

A Gift of Recognition being given of certain Lands, whereupon the Donator is Infeft; and therafter another Gift being given of the same in favours of of another person, who is also Infeft after the former Donator, but preveens by obtaining a Declarator upon his Gift; the former not be­ing declared: Quaeritur, Which of the Donators will be preferred? Ra­tio Dubitandi, That the first Infeftment seems to be preferable, the Supe­rior being thereby denuded: And on the other part, when Casualities and Escheats are Disponed, which fall ex delicto (as the case of Escheats by Horning) There is no consummate Right before Declarator.

Whether an Appearand Heir if he Dispone, and Infeftment follow, the Lands will recognosce? Ratio Dubitandi, Quod nullum est, nullum sorti­tur effectum: And not being Infeft he cannot give any effectual Right.

Minors Disponing Ward Lands, Quaeritur, If they may be Reponed against Recognition? Ratio Dubitandi, They ought not to Reponed against Delicta, after they are puberes & Doli capaces: And such Deeds importing Recognition, are Crimina & Delicta feudalia.

A Person being Infeft in Ward Lands, with a Faculty and Power to the Disponer to Redeem and Dispone upon payment of a penny, Quaeritur, If the Disponer make use of that Power and do Dispone, and if an Infeft­ment without consent of the Superior be taken, whether there be Locus Recognitioni? Ratio Dubitandi, That he is not Vassal; and the Superior has not consented that he should have, and use that Power.

Lands holden Ward being Wadset for a Sum far beneath the value of the Lands with a Back-Tack, Quaeritur, If there be place for Recognition, seing it is intended only, that the Creditor should be secured, and the Back-Tack Duty is within the half of the Rent? Answer. It is thought, not­withstanding, that there is ground for Recognition; seing the whole pro­perty is Disponed, and the Vassal has only a Superiority, and is a Tennant only of the Property? And beside, the Superior has that prejudice, that if his Vassal be Year and Day at the Horn, the Liferent of the Property will not belong to him, but only the Liferent of what is payable to his Vassal by [Page 148] the Wadsetter by the Reddendo of the Wadset Right: and the Liferent of the Back-Tack will fall to the King, and the Vassal may thereafter Discharge both the Back-Tack and the Reversion, so that the Subvassal would have Right to the hail property without the Superiors Consent.

Redemption Heretable or Moveable.

QƲaeritur, If Lands being Redeemable and an order used, will the Sum consigned belong to the Heir or Executor? Ratio Dubitandi, Sur­rogatum sapit naturam surrogati, and the Defunct intended that the said Sum should be Heretable being fixed upon Land, and the Debitor had no power to alter the Defuncts Intention, as to the condition of any part of his Estate. It is otherwayes, when the same is consigned, in Obedience to a premonition at the instance of a Creditor. Vide. Executry quaest. 2da. in litera E.

If a Declarator of Redemption doth denude the Wadsetter, so that the Superior without any further Deed, either of Renounciation or Resignati­on, may Infeft the Granter of the Wadset?

If the Superior has receaved the Wadsetter, and has given him a Char­ter bearing the Lands to be Redeemable, will he be obliged upon Re­demption to Re-enter the Granter without a Regress? Ratio Dubitandi, That the Granting of the Charter with that Quality seems to import a Re­gress. Answer. It is thought, that it does not import a Regress; it being a Provision betwixt the Parties, and to be understood Civiliter, that the Su­perior should not be obliged to Re-enter the Debitor being once denuded, but upon such Terms as he shall think fit, otherwayes there should be no use for Letters of Regress.

Order of Redemption.

AN Order of Redemption being used, may the User pass from the same, the other Party being unwilling?

An Order of Redemption being begun, by Premonition at a certain time to receive the Money contained in the Reversion, and before the term the person premonishing being deceased, Quaeritur, If his Heir being served before the terme, may prosecute and compleat the order by Con­signation? Ratio Dubitandi, Premonition may seem to be personal. And e contra, the Heir is Eadem Persona, so that the premonished is not concerned, whether he receive the Money from the Person himself or his Representatives.

Reduction.

WHen a Right is reduced Ex capite Minoris Aetatis, or Circumven­tion, or upon any other Ground, so that the Infeftment where­by the Disponer was disseased is taken away; Quaeritur, If the Disponer must be re-seased? Ratio Dubitandi, Fictione Juris By the Reduction he is reponed as if he had not been disseased: And on the other part, Dis­sasina being facti, quod factum est fieri infectum non potest: And when Wad­sets [Page 149] are Redeemed, albeit the Right be loused and extinct by a Decreet equivalent to a Reduction, yet the Redeemer must be reseased.

After Redemption, What way should the Redeemer be reseased? Whe­ther upon the Resignation of the Party infeft upon the Wadset; Or what other Way? Answer, Wadsets were of old granted upon Reversions not contained in the Body of the Right; and then the Disponer was in use to get a Regress, whereupon the Superior did re-enter him; but now the Reversion being in the Body of the Right, the Disponer is in the same case as if he had a Regress, and should be infeft in the same manner: The Wadsetter being denuded by the Decreet, he has no Right in his Person to resign: and therefore it is thought, that the same course should be taken, both in the case of Redemption and Reductions, as formerly, when Re­gresses were in use.

Reduction Ex capite Fraudis.

IF a Reduction be pursued of the Right as Fraudulent, may not the Defender alledge, that the Disponer had Bona, either Movables or others equivalent to the Debt, which may satisfy the same; and offer to sa­tisfy the Pursuer upon an Assignation of the Debt due to him; to the effect he may have Recourse against the said other Estate of his Author? Answer. It is thought, the saids Defences would be relevant, and Assignations could not be denyed.

Infeftment after Reduction.

A Person having disponed Lands and resigned, and being so divested by Charter and Seasine, If he should thereafter reduce the said Right; Quaeritur, what way he shall be reseased, Seing the Right was not Jus Nullum sed Annullandum: and the Seasine and Resignation that di­vests is Factum quod non potest fieri infectum?

Reduction Ex capite Metus.

QƲaeritur, If Rights being made dolo vel metu, and upon these Heads or Ex capite Lecti being reduceible; and such Actions being in rem, a singular Successor acquireing a Right from the person lyable to such acti­ons will he be in the same case as Persons acquireing from Confidents? Ratio Dubitandi, Acts of Parliament are stricti Juris, and cannot be ex­tended.

Reduction upon Minority.

IF Interlocutors in Jure against Minors may be reduced ex capite Minoris aetatis and Laesion? Answer Negative, Seing Minors cannot be restored, but where either there is captio by the deed of another to their prejudice; or by their own deed, through their Facility; or where there is an omission of Defences: But where Defences are not omitted, and being proponed and advised are repelled as not relevant, The Interlocutor, which is a Deed of the Judge, cannot be reduced but upon iniquity.

Reduction Ex capite Lecti.

A Father having acquired a Right to his Eldest Son of certain Lands, reserving his own Liferent, and a Power to dispone etiam in articulo mortis: And thereafter having on Deathbed made use of the said Faculty, and disponed the said Lands to a second Son, Quaeritur, If the said Right may be questioned by Reduction Ex capite lecti, as being made in prejudice of the Heir? Ratio Dubitandi, That the said Disponer could not do any Deed then, in prejudice of his Heir; And on the other part, that the eldest Son, having accepted the said Right with the said Provision, cannot question the same. 2do. The Heir is not in this case to be considered as Heir, but as quilibet, Seing he is not in the case of an Heir succeding in a Right as Heir, seing the Right was not in the Person of his Father; and he himself was Fiar with the quality forsaid. 3tio The Law of the Majesty is only in the case of Rights granted to a Person and his Heirs simply; and the reason of the Law is express, that the Defunct, when he was in health having had no thought to dispose of his Heretage, when he grants Rights on Deathbed of the same, is presumed to have been imposed upon, or that the said Rights on Deathbed were Elicite, or granted by him in Delirio & fervore passionis in­stantis: Whereas the said Faculty, being reserved in the Right, argues the Fathers intention ab initio if he should think fit even then etiam in articulo, being sedati animi: Nevertheless the said Right was reduced. Davison con­tra Davison. November 1687.

Re-entry after Redemption.

IF Wadset Lands be holden of the Superior, and the Reversion be con­tained in the Charter; If the said Reversion be not equivalent to a Re­gress in respect of the Superiors consent to the same? And what way the Vassal may be entered upon the Redemption, especially if the Creditor be dead; and his appearand Heir will not grant a Renunciation, and cannot resigne? Answer. The Superior may be urged to grant a Charter, making mention of the Wadset, Redemption, and Declarator, and by Law that he is lyable to re-enter, the Vassal having redeemed.

Regalia.

MAjora Regalia cohaerere dicuntur Imperatoris ossibus, ut ab eo avelli ne­queant.

Imperator alios sibi assumere potest in partem Solicitudinis, non vero in pleni­tudinem Potestatis, quae omnem respuit Divisionem; & quasi Sanctum Sancto­rum est, in quod nemo admittitur nisi Princeps. Bes. Thes. in Litera K. 3. ver­bo Kayserliche, P. 450.

Integra Territoria, seu Provinciae, Ducatus, Principatus, Comitatus &c. cum Jurisdictione territoriali in feudum Statibus Imperii, Ducibus, Principibus, & Comitibus, & Civitatibus Imperialibus conceduntur: cujusmodi feuda Imperii immediata, omnia regalia Jura & Emolumenta eo spectantia continent. Frit: Jus Fluviat. P. 106. n 3.

[Page 151]Regalia non sunt Res, sed Jura Regi aut alii Superiorem non recognoscenti, in signum supremae potestatis, necnon in praemium immensi laboris, quem pro Im­perio & Regimine sustinent, ad Rempublicam tuendam competentia. Heringius de Molendinis. q. 9. n 47. & sequen.

Regality.

IF Rights of Regality imply and import a Right to Escheats upon Horn­ing, albeit they be not express thereanent? Ratio Dubitandi, It is the common Opinion, that they are imported: Ex adverso, Gifts of Escheat upon Rebellion are inter maxima regalia, and Rights of the same are stricti Juris. 2do. All Letters of Horning bear, That the Rebels Goods should be escheat and brought in for His Majesties use. 3tio. Regali­ties being Priviledges of Jurisdiction, and Exemption from the ordinary Courts of Shires and Justices, carry only such Escheats as are incident to Jurisdiction, as Mulcts and Fines of persons unlawed, or sentenced in Courts of Regality. 4to. Declarator of Escheats cannot be pursued be­fore Regality-Courts but only before the Session. 5to. In other Cases of Escheats, upon account of Crimes or Delicta, as for Theft, Slaughter, the Crime is not against the King directly, but consequentially, as concer­ned in the Loss of a Subject: But Rebellion on Horning is directly against the King. It will be fitt to see the Right of an Ancient Regality.