Scottish Court of Session Decisions

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

Lord Bamff
v.
The Laird of Rosa-Solis

1677. January.

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In that intricate cause pursued this session by the Lord Bamff against the Laird of Rosa-Solis, the Lords laid little weight upon Bamff's letters to all and sundry, declaring that Where he had bought such a man's lands, and was to pay such a price, therefore, and on that reason, had subscribed blank bonds to that value, and declared he should be debtor to any whose names should be filled up in these blank bonds. He thereafter having acquired the gift of the liferent escheat of the seller of the lands, these bonds were found to fall under escheat, albeit he was bound by his letter in manner foresaid; unless the creditors whose names were now filled up in the bonds, would prove their names were filled up therein before general declarator. See the act of sederunt anent blank bonds, made in 1666, mentioned in Sir George Lockhart's Compend of Durie's Practicks, verbo Bonds, in ipso fine, immediately before the word “Brughs.” As to the insignificancy of holograph letters, see Durie, 14th February, 1627, Pyronon and Ramsay.

Advocates' MS. No. 538, § 1, folio 274.

II. By the law of England, the King can do no wrong; that is one of their maxims; and therefore he cannot be pursued in any court. But to put wrong out of his reverence, they do not allow him a power either to judge alone, or to execute the law alone, without his magistrates and judges, for he can neither give sentence nor imprison.

III. In England, he who is mute and stands silent, and neither pleads guilty nor not guilty, is pressed to death with weights, called, in their Norman jargon, mort forte et dure, and has no other water to drink but the gutter running by the Tower of London; and thus saves his estate to his posterity, if it be a crime that would have tainted the blood and forefaulted his lands. Which privilege of contumacy seems unreasonable. With us, traitors may be forefaulted in absence, yea, after their death, by two express acts of Parliament, the one in 1540, the other in 1669.

IV. A nobleman's daughter, in the custom of England, marrying a gentleman, retains her former rank and dignity; but loses it if she marries a nobleman, for then she takes place conform to his quality and degree; tunc sequitur illius conditionem, radiisque splendet maritalibus:—Quceritur, If it will be so in Scotland? See observes on this in my remarks ad annum 1670, on the act of regulations of the session. One of Duke William Hamilton's daughters being first married on the Lord Kilmawers, and now on the Laird of Robertland, by a special patent from his Majesty, (who is omnis nobilitatis fons et honoris,) retains the place due to her birth.

V. I heard Sir G. Lockhart affirm, that, by the law of England, tutors are not accountable for their intromission, but are like superiors in a ward; they make the haill fruits their own, giving the minor a competent aliment and allowance forth of the same. Which, if true, (for I doubt exceedingly,) is a most unreasonable law, and downright contrary to the nature and design of tutories, which is for the weal of the pupil, and not of the tutor. See Stair's System, titulo 14, Superiority, § 22, p. 257. Yet where the King nominates a tutor to an idiot or furious person, or in such like occasion and caducity, the haill profits go with the tutory, except an aliment, &c.

VI. I think a tutor with us cannot buy a right affecting his minor pupil's lands, but it must be presumed to be for the minor's behoof, and accresce to him. See Craig and Durie's Practiques for this. See 20th November, 1678, Wishaw and Lun-die. Vide infra, No. 709. But the difficulty will grow if the tutor sell it to a third party, who knows not of his being tutor, if it will be vitium reale against the singular successor, who is not particeps fraudis. De hoc cogitandum.

VII. A gift of escheat, if it be not declared, at least generally, was found by the Lords not to be sufficient to purge vitious intromission; ergo, non relevat, for purging thereof, to say he was rebel, or his escheat is gifted, unless it be farther added that there is a general declarator obtained thereupon.

VIII. If lands holden of a Bishop be resigned, ad perpetuam remanentiam, in the Bishop's hands, by the vassal and feuar, it makes it to become a mortification to the diocess and bishopric, and not to become a part of the Bishop's property, so as to transmit it to his heirs and assignees. If he minds to do that, he must interpose a person that must take the disposition in his name for his behoof.

Advocates' MS. No. 538, folio 274.