Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 YULE VACANCY.
Remarks on Sundry Points of Law
1677.
February.
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I. Home of Linthill suspended his minister of Eimouth, Mr Gilbert Innes's general letters, and offered him the worst victual, yea which grew on other lands he had, not lying within that parish. Certainly the Lords will not allow this, but ordain him to give neither the best nor worst. Some venture to give the lame to God, and what will not pay the master's farm shall pay the stipend.
II. I have heard that axiom of law, Dispositio hominis facit cessare provisionem legis, as in testamentaria tutela et successio preferred to the legitima, &c. called in question; for if it were not the will of the law that validated the man's disposition, it would not subsist; it would have no preference: so it is still legis dispositio ad-juvans et concomitans, that gives it strength: and so dispositio hominis non facit cessare dispositionem legis, for the law could prohibit that act which it permits, and overrule it. Yea, in the case of usury, or renouncing the benefit of the acts against it, pactio hominis non tollit legem; nor in a husband ordaining his wife to continue tutrix to his bairns, etiam si ad secundas convolaverit nuptias, it will not be supported by law: then law predomines over paction, et pactis privatorum ne-quit derogari juri publico. L. 39, D. de Pactis. Vide supra, numero 160, [July, 1671.] Yet this is only a sophism, for though the law interposes, yet it is only remotely, permittendo; the immediate and near influencing cause is the will of the party, and so in many cases, disposi tiohominis facit cessare provisionem legis. See for this rule, Cujace ad tit. 30, libri 5, C. de Legitima Tutela; et legem 130 D. de Verborum Significatione, ibique Alciatus et Wissembach.
III. The Sheriff's fiars are mainly set for this design, to regulate the prices of undelivered bolls by the tenant to their master, to make them liable in that price; yet some masters do, by act of Court, bind their tenants in payment of higher prices than the fiars, in case of failyie of delivery, as 20s. more, nomine pænæ. The Exchequer fialls are set for the King's vassals, who pay in their feu-duties to them as the King's Commissioners, and if it be within L.10, to the Sheriff, by the regulations of Exchequer made in 1672, act. Their prices are usually set very easy, just as the town of Edinburgh commonly deals with their vassals. This year, 1677, the wheat paid into the Exchequer is estimated to L.5 the boll, the bear to L.4, and the oats to L.3.
IV. Before the year 1646, a suspension of a debt or decreet or registrate bond, stopped both personal and real execution till it was discussed; now it impedes not real execution, except it expressly bear it, which is not frequent. Vide supra, 22d February, 1671, numero 141.
V. I find, by an act of the town-council of Edinburgh, dated 23d February, 1591, all that have either given over their houses within burgh, or have been warned by chalking the doors, must flit within 14 days after the term of Whitsunday, &c. (now custom seems to extend it to 40 days;) after which they are said to be so closed within terms that the landlord is not obliged to accept of the keys, but may cause them pay the next term's maill; yet see Durie, 20th July, 1633, Brown contra Maxwells; and the violent profits for sitting within burghs is declared to be the double maill. See Stair's System, Titulo, of Tacks and Removings, §
VI. In a contract-matrimonial, the husband provides the tocher and a sum added to it to himself and wife in liferent, and to the heirs of the marriage in fee, and for his performance finds a cautioner. This cautioner being pursued, offers to fulfil to the relict: but for the heir, says he cannot, because as heir he is bound to relieve and warrant him against his cautionary for his father: and quern de evictione tenet actio eundemagentem repellit exceptio; frustra petis quod moxes restituturus; et confusione tollitur obligatio, being both debtor and creditor. If the provision had been made to bairns, it may be it would have made some difference. See this decided, infra, 23d November, 1677, Kennoway. Vide supra, February, 1674, Dumfermling and Calender, No. 445, and the cases there cited: particularly Dury, 27th January,1630, Turnbull: and 22d February, 1656, Lady Lanton contra Rollo.
