Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 SUMMER SESSION.

Seton of Pitmedden
v.
Seton of Minnas

Date: 28 February 1679

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In Pitmedden his action against Seton of Minnas, I hear that the Lords found a discharge given to intromitting tutors, did liberate all the rest from omissions, even those who were not mentioned in the discharge.

Vol. I. Page 46.

Anent the Arrestment of Ministers' Stipends.

It was questioned among the Lords, whether ministers' stipends are arrestable. Ratio dubitandi is, because they seem only in some manner to be alimentary, and some of them scarce bear the proportion of an aliment. Præses Everhardus, in his Loci Legal, loc. 56, a milite armatce militice ad militem cælestis militiæ, is clear to exeme stipendia clericorum from legal distress.

Vol. I. Page 46.

Anent Remissions.

By Act 63, Parl. 1503; Act 118, Parl. 1540; Act 154, Parl. 1592, and sundry other Acts, our Kings are bound up and discharged to grant remissions for murder, fire-raising, &c. which I considered on the questioning the Earl of Danby's remission in England. With us, remissions commonly go through all the seals, but they may also pass the broad seal per saltum.

Vol. I. Page 46.

Anent Warrandice from Fact and Deed.

In a disposition, one gives warrandice from his fact and deed; thereafter, by committing adultery, his wife gets a decreet of divorce against him, and then has access to her jointure, as if he were naturally dead, and excludes the party who got the right. He pursues upon this as a contravention.

Alleged,—Warrandice is only incurred by legal deeds, as by a contrary disposition and double rights, and not by such a natural fact of unclean heart-someness. Yet I hear, the Lords, in the time of the English usurpation, in the case of Sir George Home of Manderston, found the warrandice equally incurred by both. Likeas the infeftment given to the wife, though it was anterior, yet it was a fact and deed: and it is always fit to explain the clause of warrandice, That he has not done, nor shall do; and so it comprehends both commissions and omissions, viz. that he shall not do; for tantum quis facit delinquendo quantum contrahendo. See M'Keinzie's Obs. on the Act 1621, Wissembac, ad 11. 169, 189, and 240, de V. S. But what if the exigetic clause of warrandice only say, that he hath not granted any assignation or discharge of the premises; whether is that restrictive, or would it extend to this case?

Vol. I. Page 46.

Anent Dispositions of Ward-Lands.

In disponing ward-lands, there should either not be two obligements to infeft a me and de me, for fear of recognition, but only one; or else the first should not be taken to be holden blench but feu, since ward, by Act of Parliament, may be turned to feu but not to blench.

Vol. I. Page 46.

Anent Registration of Writs, and Publication of Inhibitions.

In the registration of writs, by law ordained to be registrate, some upon fifteen days, as hornings,—some on forty, as inhibitions, &c,—some on sixty, as seasines,—quær, whether must the fifteen, the forty, or the sixty days be counted as beginning to run from the first execution, or last, of a horning, inhibition, or seasine, in more lands. As, for instance, a creditor inhibits the party personally, or at his dwelling-house; and then, ten, twelve, or twenty days thereafter, publishes the inhibition at the market-cross; whether must it be registrate within forty days of the first execution, (which may scarce be got returned from remote places,) or within forty days of the publication. Item, If it be a nullity and informality to publish an inhibition at the market-cross, before it be executed against the party. It seems it is, as if one should denounce lands to be apprised without a charge of horning or a search for moveables. Yet one may think it more convenient to inhibit first at the market-cross, lest the party inhibited should, medio tempore, before it is published at the market. cross, go and dispone; which makes another doubt if that disposition be reducible.

See 14th June 1670, Blaclcbaronie; 20th February 1680, Bothwell; and Wesembac. ad I.133, de V. S. Dies termini non computantur in termino.

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Anent Advocations.

Balfour, in his Pract, tit. Advocation, observes, that litiscontestation stops advocation, and that it ought to be reduced, and not advocated. See 2,0th February 1680, Aitken. But, for eluding this, some raise a blank reduction of the Act of Litiscontestation, and repeat their reasons of advocation, as if they were reasons of reduction, and so get it received; whereas they should go on in communi forma, in discussing their reduction.

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Anent Taxations.

Taxations, ordinarily, by the style of the Acts of Parliament, or convention imposing them, expire, if not pursued for within three years; which is just, but has no place but where the Act provides it. See Stair, tit. Prescription.

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Anent Legatahs.

Legatars, that cannot otherwise come by payment, have been advised to confirm a testament, and get themselves named executors qua legatars; which may afford a title to pursue as well as a confirmation qua executor-creditor.

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