Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Watson of Edernie v. Williamson
Date: 21 June 1678
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The Lords, in Watson of Edernie's case against Williamson, were dissatisfied that the commission for the plantation of churches meddled with valuing the price of ministers' manses, and recommended to the President to acquaint them it was not within the four nooks of their commission. Some called this a derogating from and encroaching upon a committee of Parliament, such as the commission; yet they have no more of the Parliament's power than precisely what is delegated to them.
Vol. I. Page 4.
Anent a Disposition by a Wife.
Thir two points being reported to the Lords, they thought them worthy to ordain them to be heard in prceseniia; they are as follows, viz.:
A woman, infeft in lands, dispones them without her husband's consent: whereon the right so given by her is quarrelled as null.
Alleged,—The husband, by a writ under his hand, had given her a power and license to dispone them by herself alone. Answered,—That he could not do, for he is curator to his wife; and that is as if a tutor or curator should empower his minor to alienate his lands without his consent. See Balfour's Prac. tit. Husb. & Wife, c. 15; Stair, tit. 4.
Vol. I. Page 4.
Anent Sale.
A Horse is sold, having a disease upon him the time of sale: (the same will hold in any other thing that falls under commerce:) Queer, if the buyer come to know it, whether he can offer it back, actione redhibitoria, within forty or sixty days; or if he must immediately offer it back, so' soon as he knows the vitiosity, else will be secluded both from the redhibitoria et quanti minoris, on the edictum ædilitiwn. See some observes from the Roman law, in the beginning of another MS. ch. 14, de Edicto cedilitio, and the cases there mentioned.
Anent Witnesses.
By the English law, no witnesses are examined upon oath against the King's interest, even though they be led by pannels to prove their defences. But the witnesses' declaration is allenarly taken by the judge, who makes of it whatever he pleases.
Vol. I. Page 5.
Anent Forfeitures.
The case of forfeitures with us is very hard; and by it many loyal and innocent people come to suffer; and I think their exorbitancy should be hemmed in: and particularly all money due to hospitals or other pious uses (such as the debt owing by Argyle to Heriot's hospital, which now falls upon Errol and Kinghorn, his cautioners, without all hope of relief,) should be salved out of forfeitures; as they are exemed from bearing burden by the Act of Parliament 1633, where money is assessed.
This ridiculous clause was found in a certain contract, that the party observer, or willing to fulfil, should pay one thousand merks to the failyier.
Anent Oath De Calumnia.
Since it may be craved in quavis parte processus, it may also be sought after the decreet is pronounced. I think either the pursuer or defender may seek it before the decreet is extracted, at any time; and if the party in whose favours the decreet is pronounced, refuse to give it, he loses the cause; but, after extracting, it cannot be sought, because it is competent and omitted.
Anent Teinds.
None can pursue for valuation of teinds, but only heritors and liferenters, by the Acts of Parliament 1633, and sincesyne. Hence rentallers, tenants, and tacksmen, (though for never so many nineteen years,) cannot. Vid. Durie, 8th March 1639, L. of Hesleside.
