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.

I.

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.

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 applica∣tione 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 lig∣num 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 be∣ing a burden upon the People it could not be laid upon them, without con∣sent 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 re∣spect 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 Lo∣thian 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 Par∣liament, 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 Coun∣trey 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 Maje∣sties Prerogative; it is against Law, and the common stile of the Chance∣ry, 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 dis∣pensing

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 He¦retors, are to be payed, Quaeritur, Whether the same are to be pay∣ed 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 Opini∣on, That Consignation is to be made only when Improbation is pro∣poned 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 certi∣fication 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 tentati∣vus, 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 Im∣pugning Authority, and Proceedings of Judicatories; seing Judges may have an unquestionable Authority, and yet their proceeding may be que∣stioned:

And Papists, and Hereticks cannot controvert the Authority of Parliament, and yet may be dissatisfied with and misconstrue the proceed∣ings 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, Ma∣gistrates are only Curators, loco Curatorum; and the University never Dieth; and Bishops, and such other sole Corporations, though they com∣mit 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 Magi∣strates 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 Life∣rent 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 expire∣ing 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

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 Dispon∣er 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 like∣wayes to infeft him in the property of the Lands (being extended to a twenty pound-land) for security both of the principal Sum and annual∣rent; 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 Annual∣rent valet seipsum. It is Answered. That it is thought, the Right being instar Hermaphroditi, and neither properly a Right of Annualrent nor Pro∣perty, 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 ei∣ther 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 occasi∣on 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 Fa∣ther) both the saids Interests, to himself and the Heirs of his Body, whill•• Failʒieing 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 Failʒieure of the Heirs of his Body? An∣swer. 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, Failʒieing Heirs of his Body, to pay to her and her Heirs the Sum fore∣said at the first Term of Whitesunday or Martinmass after the existence of the said Condition, and the Failʒie 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 Failʒie 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?

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 par∣ty Receiver should be certiorated, and put in mala fide: And as the Per∣son Inhibited is not certiorate, if he be out of the Countrey, if the Inhibi∣tion 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 a∣gainst 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-Mo∣ney, and should pay beside 20000 Merks, after all is purged: Quaeritur, Whether the Benefite of the said Contract can be affected with an Inhibiti∣on, 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 Af∣firmative, The Debitor not being Discharged to Dispone the Lands he has presently, but simply his Lands and Estate.

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 De∣bitor: 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 narra∣tive 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 be∣ing 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 for∣mal; 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, be∣fore 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. Interrup∣tion 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 ordina∣toriis non de decisoriis: & Instantia perempta vitium Litigiosi non atten∣ditur. 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 Guarenti∣giatum 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 va∣lid? 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 Executi∣on, 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 Intro∣mission, and a Donator to the Defuncts Escheat though declared:

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 Resigna∣tionis vel Confirmationis: si igitur Alienatio fiat de Domino superiore te∣nenda, per modum Confirmationis, & ex ea sasina secuta sit: postea vero alie∣natio terrae eodem modo tenendae alteri fiat, & ex ea nedum sasina sed Confirma∣tio accesserit, ac denique prioris acquirentis Jus sed posterius, confirmatum fu∣rit: Quaeritur, Ex iis acquirentibus uter potior sit? Et quidem dubitationis si ulla, ea subesse videtur ratio, quod per Resignationem alienans penitus devesti∣tur: 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 Domini∣um haud adimit cum sit jus personale, nec in re tantummodo sed ad rem conse∣quendam, 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 bali∣vum 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 Phy∣sicos tria rerum naturalium dicuntur esse principia, Materia Forma & Privatio; totidem etiam apud Jurisconsultos rerum agendarum statuuntur principia, Pote∣stas scilicet Voluntas & Modus: sine potestate velle vel conari dementia est: sine vo∣luntate 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 ac∣quirens 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 accipien∣tem 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 appretia∣tio or male appretiata.

Juramentum.

JƲramentum sortitur naturam, & conditiones contractus cui adjicitur, & intelligitur rebus in eodem statu permanentibus. Thes. Besold. verbo E∣hegelubd. 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 Suspen∣so? 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 Sur∣vivers? 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 there∣fore 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

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 Re∣lictae by the Death of her Husband, he should not have Jus Mariti; ne So∣cietas 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 be∣coming 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 un∣der 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 De∣bitor 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

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 ad∣vantage 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? An∣swer. 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 be∣longing 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 Admini∣strator; 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, Quaeri∣tur, 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 provi∣sion 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 dis∣poner should acquire the same, and being infeft upon the resignation of the Heretor, should dispone and resigne in favours of another for onerous

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 un∣derstood of the Right only of moveables, and such things as may be trans∣mitted 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?