Manuscripta juridica

Decisiones curiae supremae Scotiae - Practicks 1661-1663 .

Having spent half an hour on the analysis of the MS, I found the Latin quotations mentioned below. I may have overlooked others, but probably not many. The handwriting contains unclear abbreviations.

(Pag. 36) In a case 1662/11/20 six lines in Latin about trustworthiness of a book of 'rationes inter dominum et tenentem' - but no exact quotation.

(Pag. 54) In a case 1663/2/13 'cessio bonorum' is mentioned.

(Pag. 67) legatum speciei, etc., legatum quantitatis.

(Pag. 68) John Broun, skipper, haveing taken in some goods ... and that pretium in heall actions succeeds loco rei, even againest bonae fidei possessores, as to the pryce rece(iv?)ed at leist: l. 2 ff. de haered. petit. [D.5.3.2] et l. 15 ff. de rei vindicatione, § 10 [D.6.1.15]. The (ty.l) alledged that he bought them bona fide, and res wes fungibles.

(Pag. 56-57) An interesting case 1663/2/7 with argumentation based on Jus Commune. Might be identical to the case in Tait's index to Morison's Dictionary, p. 177, dated 1663/2/17, from Stair i.180: Forsyth v. Patoun = Morison 2941.

James Masone maries Aymes Forsyth to his second wyf and contracts thus, that if shoe should die before him, leving no children, he obliged him and his successors to pay to her neirest of kine or assigney 1000 pounds for all they sould crave as her pairt of goods. Ther wes many provisions besyd, bot on this the debait stood. Shoe died befor him and left a child, quhilk died 6 months after her, but by the intervall of government betuix the Comonwealth and the kings horne running, they could not confirme the child (inheritance [{i}abbreviation{/i}]), but took instrument and protestatione of the will and intentione. The child dyes, and (...quas [{i}abbreviation{/i}]) hir brother, on Mr. (James) Forsyth, serves himselfe (inheritance [{i}abbreviation as above{/i}]) to (...quas) and persewes for the z.d of all the moveables (...).

Alexander Measone, successor to James, defends first absolvitor for the (w...is) becaus of the contract, secundo absolvitor for the quhill becaus shoe left the child, who wes neirest of kine on the fathers side. Forsyth replyed that the clause in the contract for (w...is) wes not to be respeited, in respeit 'shoe left a child', and the clause in the contract wes in caice shoe left non. And for the second, the chyld could not transmitt, since he wes not confirmed.

They [{i}= Forsyth{/i}] replyed that, albeit the words of the contract wes 'if no children wes left', yet in this contract mens et intentio partium wes to be prefered, quhilk wes cleire, by argument 'ab paritate' [{i}MS garbled:{/i} penitate] et 'a contrario sensu' since (ever) the mor the neirest of kine could crave non if ther wer children, for as in common law such argumentations are ordinar - as in substitutions both vulgar, pupilar, ut 'Seius heres esto', 'Si Seius heres sit, et inter [{i}= meaning{/i} infra] pubertatem decesserit, Titius heres esto.' Now, si Seius decesserit et non extitisset heres, multo majus Titius esset haeres. Nam in talibus, casus omissus comprehenditur sub casu expresso. So in this it is a majori ratione to be supposed, that the provisione wes to tak place if ther wer a chyld (dead).

For the second, albeit hereditas non adita non transmittitur, yet confirmatio being nothing but declaratio voluntatis, which wes done be all possible means, videlicet protestations and instruments, dureing surcess of justice [{i}= meaning a standstill of justice{/i}], and that surcess being impedimentum juris, quoniam neque potuit provideri nec removeri, non obstat impedit(i)o. As also in causes of prescriptions of ejections and spulies, they dureing that intervall is ordinarie sustained. Multo magis in this case.

The Lords found that, since the goods wer not confirmed, they wer not transmissible, and therfor decerned for the (w...is) in favors of Mr. James Forsyth, quhich t(hey) thought (verie) (hard)

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Author(s):

• George Mackenzie Lord Tarbat

No. of pages: Part 2, p. 1-69