Some doubts & questions, in the law, especially of Scotland as also, some decisions of the lords of Council and Sessions / collected & observed by Sir John Nisbet of Dirleton ... ; to which is added, an index, for finding the principal matters in the said decisions.

P.

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 pro∣vides 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 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 (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 pro∣bable 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

Commissioner, that was done, in the Case of the Lord Forrester against Ge∣neral Ruthven's Relict; and at the instance of the Lord Dundie against Pit∣taro; 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 Di∣verse ancient Laws, and for great Reasons it is provided, that all Com∣plaints 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? Lau∣derdale 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 Parlia∣ment 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 Ge∣neral, 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? Co∣gitandum. 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 failʒiening to his eldest Heir Female with∣out 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 be∣fore 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 on∣ly 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 restri∣ctive, sed tantum demonstrative; ideoque non impedit transmis∣sionem; & 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 na∣turalibus, 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 inter∣venerit; praevia tamen denunciatione ut debita solvat; & licet pignus ali∣enare, 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

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 Hus∣band 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 Ra∣tio 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 inte∣rim mittel.

Possessor bonae fidei fructus consumptos suos facit absolute, extantes vero Domi∣nocedunt.

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 Ho∣nour 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

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 Ex∣tent 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 be∣longing thereto, are in special declared by diverse Acts of Parliament; both in Relation to the Government, and in Relation to His Majesties In∣terest, 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 Mat∣ters 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 High∣est 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 Pre∣rogative, 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 un∣denyable 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 ano∣ther: 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

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, Eje∣ctions, &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 Du∣ties? 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 Usur∣per, 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 ap∣pears 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 re∣move: 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 Spuil∣ʒies, 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

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 Pa∣trimony of the Prelates is extra Commercium, and is of the nature of the an∣nexed property & quod non est alienabile non est praescriptibile. Vide, Di∣lapidation in litera D.

If in all cases when an Obligement or Interest and Right is in the De∣fenders 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 pre∣scrive 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 pre∣scribe 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 Mi∣nor 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 Per∣sonal 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 vendi∣tor & ejus haeredes velint pretium offerre, Praedium recipere possint, non ob∣stante triginta annorum praescriptione, Jus redimendi semper & in perpe∣tuum competit; nisi possiderit Emptor pro suo; vel contradixerit Relui∣tioni: ab eo enim tempore incipit praescriptio: In Contractibus enim nullum verbum debet esse otiosum, verba autem quandocunque &c. es∣sent 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 pro∣hibere: Loca publica, & quae Jure Gentium communia sunt, praescribi

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 Flaviati∣le. 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, Tri∣ginta vel quadraginta ann. ibidem. n. 63.

Praescriptio Conventionalis a Defuncto coepta currit contra Rempubli∣cam 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 di∣citur.

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 inter∣versio.

Res Fisci usucapi non possunt, quia Juris publici sunt: bona autem va∣cantia usucapiuntur quae haeredem non habent, si antequam a Fisco occu∣pentur 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 Vas∣sal, 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 belong∣ing 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 can∣not 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 be∣longs to no Person; And the Superiority draws unto it the Right of Pro∣perty

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 pre∣sent. 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, accord∣ing to what Law should he be Judged? Seeing our Judges are not pre∣sumed 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 Credi∣toris? So that a Debt due by a Scotsman to a Stranger should be consider∣ed 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 confirma∣tion and Annualrent whether Lawful or no Lawful? And if the Annual∣rent 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 de∣cease 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 Per∣son 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 can∣not be perfected but in Write, Et nihil actum creditur, dum quid supersit a∣gendum, 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 arbi∣trium 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 unmar∣ried it should return to the Granter and his Heirs; Quaeritur, If, she having assigned the Bond, the Assigneys will have Right, albeit she deceased un∣married? And what the import of the said provision is, whether a Sub∣stitution, 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 Dis∣obedience 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 on∣ly 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 Marri∣age in Fee; which failʒiening 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 sur∣viving 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 up∣on 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 ce∣dit? 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 de∣negaretur injuria fieret a Principe. Jus Fluviat.

Publicum seu publica utilitas varijs modis dicitur, viz. 1mo. Cum in univer∣sum & particulariter Commodum affertur, quod in Sacris, Sacerdotibus, & Ma∣gistratibus, consistit. 2. quae in universum conducit, non autem singulis; ut quoties de locupletando fisco agitur. 3. Quae privata proprie, licet ex ea con∣sequatur publica utilitas; ut cum dicimus, Tutelam esse munus publicum, & Testamenti factionem esse juris publici. Hering. de molend. Quest. 15. n. 14.

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Pupils.

IF in Law Pupils who have neither Velle nor Nolle, may be Charg∣ed and Denounced?