Burgh or to lands lands ar given in con-junctsee or life-rent The Schireffe or the Baillies sal cause the wardatar finde caution not to destroy the bigginges or uther policie And that he sall leave the samin al 's gud as hee fand them And that he sall susteine the aire not haveand sufficient blench or few-ferme landes Ia. 4. p. 3. c. 25. And gif the Schireffe or uther judge be negligent in requiring caution being required thereto be the heretoure or his friendes He sal refound and pay to the heretour of the landes at his perfite age all damnage and skaith susteined throw his negligence Ia. 5. p. 4. c. 14. Claithing The Schireffe suld take inquisition of them quha wearis Claith of gold silver velvet or silkes contrair the actes of parliament and send them to the King to be punished Ia. 3. p. 6. c. 45. Ia. 6. p. 7. c. 113. All they quha usis excesse or superfluitie in banquettes Banquets contair the tenour of the acte of Parliament suld be punished be the Schireffe and uther judges within the Royalitie and regalitie Ia. 6. p. 7. c. 118. And siklike the Schireffe suld send to the Thesaurar the names of all persones quha breakis and contraveenis the act of Parliament maid anent the ordering of ilk mannis house and quantitie of meat and dishes prescrived to ilk man of all estaites that they may be accused and punished therefore Mar. par 5. c. 26. The Provest and Baillies within Burgh suld cause Hostellares take reasonable price for ane mannis dinner and supper effeirand to the prices of victualles And suld also set downe reasonable prices upon ilk mannis wark and suld deliver the samin to the Schireffe Craftesmen that he may cause the samin price be keiped to Landwart Mar. p. 5. c. 22. Mair-over the Schireffe suld punish the Barronne quha examinis nor prices nocht the wark-man-ship of ilk craft within his Barronnie with the paine and unlaw of ten poundes Ia. 1. p. 7. c. 102. The Schireffe suld send or bring all Notars quha ar Temporall men within the boundes of his office and present them to the Lordes of Councell to be examined be them quhidder or nocht they be worthie or qualified for the office of the Notarie Mar. p. 5. c. 24. And the Schireffe with sik persones as the King pleasis to adjoyne to him suld call all Notars before him and examine them Ia. 5. p. 6. c. 76. The Schireffe suld up-take and inbring all taxationes Taxation and mak compt and payment thereof Ia. 4. p. 2. c. 9. The Schireffe with the Barronne or Lord of the lande Weaponshawing suld see and provide that ilk man be armed according to his estaite and rente And sall cause weapon-shawinges to bee maid Èeirlie after the Octaves of Pasche Stat. Ro. 2. Br. c. Ordinatum 27. Or at the least four times in the Èeir Ia. 1. p. 2. c. 44. I. 4. p. 3. c. 31. Or upon Thursday in the Whitsunday oulk Ia 4. p. 6 c. 75. Or twise in the Èeir throw all the Realme in the Moneths of Junij and October or ony uther day as sall please the Schireffe steward or Baillie Ia 5. p. 6. c. 85. The Schireff suld execut the act of Parliament Victuall anent the keiping or threshing out of victualles and cause the samin to bee keiped and obeyed under the paine of tinsell of his office in-during the Kingis will Iam. 2. par 9. cap. 37. The Schireffe and Chalmerlaine sall cause all mettes and measures to be keiped used and observed Mettes and measures conforme to the tenour of the actes of Parliament as they will answere to our Soveraine Lord. Ia. 3. p. 4. c. 22. The Schireffe and his deputes suld escheitte and intromet with all horse perteining to Earles Lordes Barronnes and utheris Horse halden at harde meate langer nor the time prescrived in the act of Parliament Of the quhilk escheit the ane halfe perteinis to the King and the uther halfe to the Schireffe Ia. 6. p. 11. c. 56. The Schireffe at command and direction of the Thesaurar suld take up Escheites and intromet with the escheit guds and geare perteining to rebelles Ia. 6. p. 6. c. 75. Divers and sindrie persones are disobedient to the Kingis Lawes baith civill and criminal Excommunicate persones and also refusis to obey and fullfill lauchful decreites given and pronunced against them be judges Ecclesiasticall civill and criminall For the quhilk cause some ar excomunicat and cursed uthers ar denunced rebelles and put to the horne And therefore the Schireffe to quhome perteinis the execution of the Kingis Lawes and decreetes suld take and apprehend all cursed and excommunicate persones at the desire of the Bishope or his Official and put them in prison until they satisfie God and the Kirk Stat. 2. Rob. Br. cap. Rex tali 31. Speciallie them quha hes remained under the censure of Excomunication be the space of fourtie daies Quoniam attach c. Rex tali 76 stat Rob. 3. c. Item 7. To the quhilk effect letters of caption being direct to the Schireffe he suld execute the samin against all cursed persones And gif they be fugitive their gudes and landes gif they ony have salbe comprised for satisfaction of the partie And gif they have nane they salbe denunced rebelles Ia. 2. p. 5. c. 12. All Schireffes Stewardes Baillies and uther officiares Rebelles baith to Burgh and to lande suld search seeke and apprehend all rebelles beand at the horne and bring them to our Soveraine Lordis justice to be justified conforme to their demerites Under the paine of tinsell of their office for three Èeires gif it be heretable And in all time cumming gif it be Temporall And mair-over to be accused for their negligence in the justice aires or at particular diettes as it sall please the King Ia. 5. p. 7. c. 97. Mair-over the Schireffe and all the saidis judges alsweill within regalitie as royaltie suld search seeke follow persew apprehend and commit to warde and present to justice all declaired traitures and rebelles contemnandlie remainand at the horne un-relaxed and suld do justice upon them gif they have commission to that effect And gif the saidis rebelles be fugitive the Schireffe and uther judges foresaidis suld make denunciation thereof to the Schireffes and judges Ordinar of the foure halfes about and require them to use the like diligence under the paine to the quhilk the traitoures and rebelles ar subjects or hes incurred Iam. 6 p. 12 c. 124. And furder the Schireffe suld incurreand fortifie uther officiares to take up the escheite of rebelles and suld make convocation of the Kingis lieges to that effect Ia 6. p. 6. c. 74. Mair-over all letters of horning with the indorsation thereof suld bee registrat be the Schireffes Clerke within fifteene daies Ratification of letters of horning after the denuntiation And being marked and
for the blench ferms of the lands of Airlie And sik-like the thrid of the Kings rent of the Assise That is to say the lands and customes suld peneine to the Queen as hir dowrie Ja. 3. 9. Octob. p. 1. c. 2. In this realme an Assise is called ane certaine number of men lauchfullie summond received sworn and admitted to judge and decerne in sundrie civil causes sik as perambulations cognitions molestations purpresture division of lands serving of brieves and in all and sundrie criminal causes For be the law of this Realm all crimes suld be decided and tryed be an assise Twa formis of assises Stat. Alex. c. 3. Quhair of their is twa kinds Ane ordinarlie in use quhilk may be called ane litil assise of the nummer of 13. or 15. persons lib. 3. c. generalia 25. The uther called ane great assise quhilk consists of 25. persons l. 1. c. poena 16. lib. c. 2. dos 19. and all the assisors in baith the ane and the uther assise suld swear ane solemn aith to judge and decerne richtly vid. bona pat For the quhilk cause they ar called Juratores li. 1. c. poena 16. and in sum buiks assisa is called jurata patriae and in the English lawes an Iury. The great assise quhilk is not commonly used in this Realme is chosen against sik persons as hes bin upon an litil assise and ar accused de perjurio vel temerario juramento and that they have done wrang against the laws in clenging onie trespassor quha is guilty and fowle of the crime In the quhilk case the man that is clenged albeit wrangously cannot be filed againe or punist for he being anis quite he is ever quite for that crime bot the assisors may be accused of their wrangous deliverance I. 3. p. 8. c. 20. N-c 63. The great assise suld be of 25. persons Nobill and gentilmen And the Lords of the Session upon the first daie of Junij 1591. declaired all them to be esteemed halden and repute as Nobil persons and gentilmen that sal happen to be summond upon sik an assise quha are landed-men albeit they be inferior in rank and dignitie to them upon quhais assise they suld passe ATTAYNT Taynt an word meikle used in the English lawes Attayntus is accused filed or convict for ony crime or cause Stat. 2. Ro. Br. c. Item 9. c. Item dominus 21. c. Item 24. An Judg being convict or attaynt of taking of budds or of partialitie suld be punished at the Kings wil and tine his office Sta. 2. Ro. Br. c. c. dominus rex 22. Stat. 1. Ro. Br. c. Item quòd nullus 8. I. 5. p. 7. c. 104. Bot attaynt or Taynt is called the deliverance or probation of 24. alias 25 leill men the quhilk may be called an great assise lib. 1. c. poena 16. ATTACHIAMENTUM from the French word attacher ligare nectere ane charge or binding of ony person to the effect he may be drawn and compelled to compeir in judgement and answer as law wil. In the preface and beginning of the buik called quoniam attachiamenta attachiamentum dicitur quoddam vinculum legitimum per quod pars defendens invita astringitur ad standum Juri respondendum parti de se conquerenti juridicè And attà chiament sumtimes is of guds and geare as in contractes conventiones and actions of moveabill gudes in the quhilk the gudes and geare of the defender are attached untill he find caution and pledges to answer as law will quhilk being funden the attachiamente is relaxed and lowsed Sumtimes attachiament is of ane mans person and body as in actiones of wrang or criminall causes In the quhilk the person of the transgressours suld be first attached and gif he be disobedient or fugitive his gudes and gear may be attached untill he find caution to underlie the law Swa commonly bot not perpetually attachiamentum vel est bonorum vel corporis sicut arrestamentum bonorum as gif the Crowner can nocht apprehend onie man indited to attache him personallie to compeir in the Justice aire then he suld arreist all his gudes moveable and unmoveable to remaine under sure pledges And to be furth-cummand to the King in case he compeir not l. Malc Mak. c. 1. And in criminal causes speciallie in treason the person or bodie of the defender suld be first attached and put in sure firmance until he have tholed ane assise quhidder he be quite or foule I. 2. p. 12. c. 49. And in civill causes the guds and geir of the defender suld be first arreisted Li. 4. c. 1. as writes Matthaeus de afflictis in consuetudines Siciliae constit Humanitate Nu. 33. Be the civill Law in execution of decreites first the moveabill gudes perteining to the debtour suld be first discussed thereafter his lands and immoveabill gudes may be comprised Thirdlie the debts auchtand to him quhilks are called nomina debitorum may be persewed and discussed L. a Divo Pio. 15. Sect. 3. De re Judicat Quhilk is conforme to the act of Parliament quhairby it is statute that the lands perteining to the debtour suld nocht be comprised untill his moveabil guds be first searched socht and discussed Ja. 3. p. 5. c. 36. AVERIA li. 4. c. si quis sederit 23. c. quicunque 31. ass Reg. Da. c. si quis sederit 41. In the quhilk place it is called melius animal the bestaucht from the French le meilleur auoir Quhilk be the Law is given be the husband-man to his maister as ane hereÈelde and lib. 4. c. quicunque 31. averia is called animal The quhilk place is de namatione animalium that is of poynding of cattell AVUNCULUS properly is the mother-brother bot sumtime conform to the French maner of speach it is taken for the father-brother in Latin patruus li. 2. c. si quis liberum 24. c. deficientibus 34. de judic c. Item nota 15. In quibus loeis jus successionis dicitur pertinere ad avunculum ejusque liberos quod non est consentaneum juri nostro civili si avunculus propriè accipiatur pro fratre matris quia cognatorum h. e. consanguineorum ex parte matris apud nos nulla est successio h. e. cognati non succedunt aliis B. BAGIMONT his taxation of benefices Ja. 3. p. 6. c. 43. Ja. 4. p. 4. c. 39. The Pape in the time of K. James the third send in this Realme ane cardinall and legat called Bagimont Quha did make an taxation of all the rentalles of the benefices that the samin micht be knawin to the Pape To the effect that quhen onie person came to Rome seikand bulles or richt to onie benefice fra him he micht conforme to the said rentall as he pleased sell the samin for sameikle Silver or Golde as he thocht maist profitable Quhilk taxation is grounded upon the Canon Law in the Extravagant suscepti regiminis lib. 6. BAIRMAN Vid. Dyvour
and returnis to the awin perpetuall nature and swa remainis untill ane new dissolution be maid The King may set his propertie in few-ferme allanerlie The King after ane dissolution may set his landes in few-ferme allanerlie and not in blench or nomine albae firmae nor be service of warde reliefe or utherwaies bot in few-ferme as said is Iam 6. par 15. ca. 234. The King may not set his landes in few-ferme except the samin bee done with expresse augmentation of his rentall That is his gressumes customes burrow-mailles fermes martes mutton pultrie avarage cariage The Kings rental of the propertie baith unannexed and annexed suld be augmented or ony uther dewties service Quhilk is not only manifest in the alienation of the annexed propertie Bot likewise suld be observed and keiped in the disposition of the un-annexed propertie For it is certaine that the Kingis of this realme the time of their Coronation makis faith solemnelie that they sall not annalie transfer nor dispone the richt and rents of the crown As it is statute be David 2.6 No. 13 57. sa as the K. may not sell the richt of the crowne na mair may he annalie the rentes theirof quhairof the un-annexed propertie is ane parte Mair-over albeit an dissolution is not necessar in the allienation of the unannexed propertie because that quhilk is not bound requiris na lowsing Èit in al dislutions maid be kingis of this realm expres mention is maid baith of the annexed unannexed propertie to be set in fewferm for augmentatioÌ„ of the K. reÌ„tal quhairby it is certaine that the an alsweil as the uther being set in fewferm caÌ„not be disponed in diminution of the rental And coÌ„cerning that qualitie condition expreemed in the form of all dssolutiones the un-annexed annexed propertie ar of like nature Et in hoc casu pari jure censentur Sa that neither the ane nor the uther may be disponed with diminution of the rental utherwise the mention of the unannexed propertie in the acts maid annent dissolution were superfluous Thir ar the substantiall conditiones expreemed in the dissolutiones of the propertie The annexed propertie may be annalied be the three Estaites maid be the Kings of this realme quhairof gif ony ane be not observed the alienation disposition maid after the dissolution is null of nane availe l 6. p. 15. c. 236. By attour the forme of dissolution aboue expreemed it is leasum to the King with advise deliverance decreet of the haill parliament and for great seand and reasonable causes concerning the weil-fare of the realme first advised and digestlie considdered be the three estaites To sell annalie and dispone the kings annexed propertie Ia 2. par 11. cap. 41. Ia 5. p. 6. c. 84. DOS hes twa significationes First it signifies that quhilk is given to the husband Maritagium with the wife be reason and in contemplation of mariage In the civill law is called Dos in our municipall law Maritagium Tocher gud Lib. 2. c. Dos autem 19. Secondly Dos is taken fot that gift disposition of lands tenements quhilk ane man givis to his wife quhen he maries her at the Kirk dure or in the face of the halie kirk Quhilk aucht suld be ane reasonable third part of all and haill the tenement of land quhilk the man or husband hes the time of the desponsation or mariage lib. 2. c. Dosautem 19. c. 20. lib. 4. cap. quatuor 49. Sta. Alex. c. 8. de Iudic. 163. And is given in recompensation of the tocher payed be her or in her name Antidos to her husband And therefore is called antidos Cornel. Tacit callis dos that quhilk the husband givis to the wife and not that quhilk the wife gives to the husband Livius lib. 3. callis it munus nuptiale In France it is called DotalitiuÌ„ Dotalitium Doarium Vitalitia Morganaticum or doarium It is given to the woman to the effect that after the decease of her husband she may susteine nurish hir selfe induring all the daies of her life-time Therefore it is called Vitalitia Morganaticum for the Dutch word Morgengab morning gift is ane kinde of dowry in the second signification signifies the gift of guds moveable or immoveable quhilk the husband givis to his wife the day or morning after the mariage and commonly is used in the Dutch lawes in speculo Saxonico Landrecht in Greek hypobolon in latine matutinale donum Cuiacius li. 4 de fewd DUELLUM duorum bellum vel plurium singular battell or combat vide Campiones Noble persones or landed men may fight in proper person or be uthers in their name quha ar called Campiones in Latine duellatores Speciallie sik as ar their awin bondmen or tennentes quha in bodie guds ar under their maisters protection maintenance And therefore suld hazard and employ the samin in the defense of their maisters honour and actiones Bot husband-men ignoble and unlanded men suld fight personallie and nocht be Campiones Ass reg Cap Statutum fuit per regem 32. Bot all men that are decreeped lamed mutilat or passed the age of threescore Èeires ar excused from singular battell Lib. 4. c. 4. leg Burg. c. Si burgensis 24. And siklike religious persones clerks weemen may not be compelled to fight Lib. 4. c. 3. stat Alex. c. 5. Ass reg Dav. cap. statuit dominus 38. It is in free will and election of the defender to fight or to passe to the knawledge of ane Assise Lib. 4. Cap. 2. Quia defendens debet primo eligere deinde vadiare postea jurare lib. 4. ca. Iexstatuit 46. The appealer or prover suld sweare that his quarrell is just the defender sweare the contrair avowand the equitie of his cause Iter. camer c. Comparentibus 29. It is not leesum to ony person to provok ane uther to battel or being provoked to feght without licence of the King utherwaies baith the appealer the defender tinis forefaltis al their guds moveable immoveable de Iudic. c. 87. Because na Barrone hes power of singular battell or of probation be water or Irone except the Kingis Schireff or his deputes be present to see justice done stat Alex. c. praetered 32. Mairover gif ony man havand the Kings licence happenis to be convict be battell or of breaking of the Kings peace he sall pay to the King xxij Kye tres cathorios vel pro quolibet cathorio novem vaccas Stat. Alex c. apud 28. Quhilk paine unlaw appearis to be ordained to stay sik ungodlie strife dabate for the law of singular combat is ungodlie suld not be used amang Christianes albeit the same was permitted used be the Longobardes in civil and criminal causes Alciat de sing-certam Cuiac in Lib. feudorum Quhilk is conforme to the Canon law cap. 1. 2.
of the said King Robert or of King Alexander the third or of the said King David the second suld returne all and haill to the crown with all advocations of Kirkes and all service perteining theirto To remaine perpetuallie with the Crown nocht-withstanding onie alienation theirof maid to onie person and that na disposition theirof be maid thereafter without consent of the three Estatis And gif onie person had onie of the saides landes laboured with his awin pleuch It was ordained that he suld paie alsmeikle ferme and dewtie therefore as the samin micht gudlie pay or as onie uther lands as gud and alsmeikle used to pay And siklike all the great and small customes and burrow mailles of the Realme are ordaned to abide and remaine with the King till his living be ane act maid be Ia. 1. Parl. 1. c. 8. Of the second forme of Annexation quhairby landes The second kinde possessiones and uthers per expressum are annexed united and incorporate diverse and sindrie examples are extant in the actes of Parliament of King Iames the 2. 11. Par. 4. Aug. c. 41. of uthers maid theirafter Lands annexed and nocht dissolved may nocht be analied Of the profits of landis annexed wrangouslie analied Landes and uthers dewties or possessions quharsum-ever annexed to the crown being annalied or disponed na lauchful dissolution maid theirof it is lesume to the King nocht-withstanding the said allienation to put his hand to the saides landes and take tham back again to the Crown brevi manu without onie ordour or proces of law And as concerning the proffites theirof quhilkis are extant pendentes nondum consumpti the time of the said intromission the king or his comptrollar maie intromet their-with in the samin maner as he maie intromet with the landes Iure soli quia fructus pendentes extantes censentur pars soli And tuitching the fructes and proffites of the landes quhilkis are spended and consumed The King and his comptrollar aucht suld repeete the samin fra the possessoures and uptakers of the saidis fructes of all Èeires of their intromission there-with be waie of action because they ar consumed and spended Quhilk deed consistand in facto suld necessarlie be proven be ordinar waie of action To the quhilk hail proffites the King hes gud richt in respect that of the Law malae fidei possessor can never acquire and conqueis to himselfe onie fructes or proffites ather extant or consumed And trew it is that al thay quha receivis ony infeftment or unlauchful disposition of the Kings annexed property ar malae fidei possessores they receiving the samin against the manifest law of this Realm the ignorance quhairof excusis na inhabitant of the samin And mair-over trew it is that the foresaid forme of intromission with the Kingis annexed landes and repetition of the proffites theirof hes bene in use and practik sen the making of the actes of Parliament theiranent Likeas in the beginning of the reign of King Iames the Fourth 18. Ian. 1488. the landes and Lord-ship of Brechen and Nevar were taken fra David Earle of Crawfurd and ane terme assigned to proove against him the availl of the mailles and dewties of the saides Landes with the pertinentes The Kinges property wrangouslie analied intrometted with be him sen the time of the gift thereof Item the King may intromet with his annexed propertie and proffites theirof quhidder he be Major or minor For gif their be na lauchfull dissolution of the samin he is aye as it were minor anent his said propertie Al annexations ar perpetuall and induris continuallie ay and quhill ane lauchfull dissolution be maid be onie King Induring the time of the quhilk dissolution the annexation ceasis and sleepis and the dissolution being ended be decease of the maker theirof Annexation is perpetual the said annexation beginns to quicken quasi reviviscere In sik sort that the King quha succeid is to the maker of the said dissolution may set na fewes of his annexed propertie be vertew of the dissolution made be his predicessour bot mon make ane new dissolution to the effect foresaid Quhilk fault and vice I finde in divers and sindrie infeftmentes of the propertie and specially in the minoritie of King Iames the Fifth quhilkis are wrangeously given be vertew of the disolution maid be King Iames the Fourth his Father vid. Dissolution ANNUELL ane word used in the practik of this Realme for an Èeirelie revenue or dewty payed at certaine termes ather legal quhilks are called termini legales vel legitimi prescrived and appoynted be the law of this Realm sik as Martin-mes Whit-sonday Or conventional as pleasis the parties till agree and appoynt be paction and contract as betwixt Èœule and Candl-mes or onie uther time In the Actes of Parliament maid be Queene Marie 4. Parlia 29. Maij c. 10. mention is maid of ground annuell few annuell and top annuell quhairof I have red nathing in onie uther place and am incertain quhat they do signifie Ground annuell bot referris the samin to the judgement and opinion of the Reader Alwaies ground annuell is esteemed to be quhen the ground and propertie of onie land bigged or unbigged is disponed and annalied for ane annuell to be payed to the annalier theirof or to ane uther person Top annuell sik as onie Chaiplaine or Priest Top annuell is ane certaine dewtie given and disponed furth of onie bigged tenement or land Few annuell of the quhilk tenement the propertie remains with the disponer and he is onlie oblished to pay the said annuell Few annuell is ather quhen the few maill or dewtie is disponed as ane yeirlie annuel Or quhen the land The annuell of Norway or tenement is serte in few-ferme heretablie for ane certaine annuell to be payed nomine feudi-firmae The annuell of Norwaie quhairof mention is maid in the actes of Parliament of King James the third and in the Register of this Realm was ane annuell of the summe of an hundred markes sterling money quhilk the Kings of this Realme was oblished to pay yeirlie to the King of Norwaie for the cause after specified Because Donald Bane brother to King Malcolme Cammoir wrangeouslie after the decease of his brother usurped the richt of the Crown against his brother sones Edgar Alexander David and uthers And for help and supplie gave all the Iles of Scotland to the King of Norway quhairthrow and for uther occasiones monie bluidie and cruell battalles followed untill the battell of Larges 3. August 1263. In the time of King Alexander the third And Acho King of Norway Quha thereafter in the samin Èeire 22. Januarie departed in Orknay And the Scottis beand victorious Magnus the fourth of that name King of Norway sonne to the said Acho maid peace and concorde with the said King Alexander in anno 1266. and renunced quite-clamed and
COLLISTRIDIUM Collistrigium quod collum stringat Quhilk maie be called the Joggs and is ordaned for punishment of baxters leg Burg. c. si aliquis 21. quhair it is called an pillorie or stocks or onie band quhairwith the craig or hals is bund as an halse-sang in the laws of England anno 51. Henr. 3. in latin Numellae Numelia CONQUESTUS quhairof frequent mention is made in the lawes and practik of this Realme is different from heretage Because heretage signifies lands and immoveabil gudes quhilk perteinis to onie person as aire and universal successour to his father or onie uther predecessour and be the civill lawes hareditas nihil aliud est quam successio in universum jus Heretage quod defunctus habuit l. hereditas 62. de regul jur l. nihil 24. de verb. signif and be the municipall law of this realme the eldest sonne succedis jure universali in universam hereditatem patris sui lib. 2. c. cum quis 29. Conquestus signifies landes quhilk onie person acquiris and possessis privato jure vel singulari titulo veluti donatione vel singulari aliquo contractu lib. 3. c. cum verò 28. Quhilk is conforme to the civill law ubi quastus dicitur lucrum quod exemptione Venditione locatione conductione vel generaliter ex opera cujus descendit l. coiri 7. cum seq ff pro Socio Et de jure hujus regui conquestus cujuslibet liberi hominis legitimi qui moritur de ipso sasitus haereditariè sine haerede de corpore suo gradatim ascendit haereditas verò gradatim descendit Stat. Wilh c. notandum 24. leg Burg. c. sciendum 155. Stat. Rob. 3. c. 3. vid. post-natus And it is to be observed that gif conquest landes after the decease of the conquerour do is anis ascend to ony person quha theirafter happenis to decease the samin landes sall descend as heretage to his hearest aire because conquest do is allanerlie anis ascend and thereafter perpetuallie descendis to the righteous aire gif onie be quia conquestus dicitur ratione primi conquestoris cum transmittitur ad ejus haeredem exuit naturam conquestus induit naturam haereditatis CORONER Crouner inquirs be ane inquest anent murther and slaughter done and committed quietlie The quhilk inquisition suld be taken in the hie streites or in open places in corona popuit for the quhilk cause he is called coronator or Èit because the violent death of the subjectes perteins to the Kingis Crown and power Quhair anent the crouner takis inquisition as said is D. Thomas Staith lib. 2. c. 23. of the common weill of England Reade the English lawes anno 4. Edward 1. c. 2. CREFFERA or hara porcorum ane cruife or ane swines cruif leg burg c. Nonlites 87. quhilk in sum auld buikes is called ane Stye CRO Croy in the actes of Parliament Ja. 1. p. 6. c. 93. is ane satisfaction or assithment for stauchter of ony man The quhilk the judge suld pale to the narrest of his kin in case he minister nocht the Law as he suld doe Ja. 1. p. 6. c. 89. CULRACH sumtimes is called an furth comand borgh but mair properly it may be called an backborgh or cautioner for quhen ony havand power or jurisdiction replegis ony man fra an uther mans court to his awin court he suld leif behind him in the court fra the quhilk the replegiation is maid an pledge or cautioner quha salbe bundin and oblished that he quha usis the replegiation fall do justice within Èeire and daie in his awin court to the partie complainand upon the person quha is repleged Quhilk cautioner left in the court be him and behind him quha usis the replegiation is called Culrach lib. 4. c. si qu is in alterius 20. quo attach c. 3. mod ten cur c. 12. de Judic c. 28. And gif the partie complainand gettis na reason in that conit to the quhilk the defender is borrowed and repleged he sall have regres againe to the first court fra the quhilk the replegiation was maid and their sall the mute and pley be ended and the Cultach salbe in ane unlaw gif the partie persewed compeirs nocht and he quha used the replegiation and did nocht Justice sall tine his court for Èeire and daie CURIA Ane courte quhairof sum are superiour and sum inferiour leg Malc Mak. c. 4. vide Amerciamentum The supreme court is the Parliament quhilk hes jurisdiction of all maters Ecclesiasticall civill and criminall All courtes by and attour the ordinar persones of the judge the persewer and the defender suld have certaine uther persones and members quhilkis are called claves curiae the keyes of the court that is ane lauchiull officiar or serjand quha suld summond Claves curia attache and arreist the parties Ane lauchfull Clerke quha suld informe the assise and the dempster and hes the cure and keiping of the proces Ane sutour quha wardis and pronunces the waird and interlocutour of the Court. Ane dempster or doomester quha gives the doome or sentence definitive conforme to the information of the Clerke or Judge CURIA christianitatis lib. 2. c. debet autem 37. lib. 1. c. platitum 17. Is called the ecclesiasticall jurisdiction or court uther waies forum ecclesiasticum lib. 1. c. 5. Curia Christianitatis opponitur laicali seu saeculati lib. 2. c. cum aliquis 59. lib. 3. c. preterea 23. For unto the ane perteinis the ecclesiasticall and to the uther the temporall or secular jurisdiction CURIALITAS curialitie curtesie from the French Curtoise civilitie gentlenesse humanitie for the law of curtesie is an gentill and favorable ordinance or constitution granted and observed in this Realme and nocht universallie keiped or used in uther cuntries And therefore it is called Curialitas Scotia the curtesie of Scotland And in the laws of England lex Anglia or the curtesie of England within the quhilk twa realmes and nane uther this law is in use That is quhen onie man maries lauchfullie ane wife and receivis lande and heritage with her And it happen that he beget with her ane bairne quha being borne is heard cryand betuixt four walles of ane house And therafter his wise deceasis before him he sall bruik and possesse all the landes quhilks perteined to her in-during his life-time albeit the bairne live or decease Lib. 2 c. cum itaque 58. The bairne borne being sonne or daughter maill or femaill de Iudic. c. Maritagium 127 Quhilk law hes place in landes and heretage lyand without burgh halden of the King or ony uther superiour And also in landes and tenementes lyand within burgh and halden in free burgage Leg. Burg. c. si aliquis 44. This Law is nocht introduced in favoures of the wife or bairnes bot is maid in favoures of the husband allanerlie And therefore it is nocht necessar that he have onie saising
14. rubric 1. § 8. Nu. 2. porrò jurisdictio dicitur notio quae juri magistratus competit Mistum imperium est potestas quae jurisdictioni inest Merum autem imperium estjus gladij vel alicuius gravioris coercitionis nominatim lege concessum Cuia l. 4. de feud tit 19. FRIEBORGH liber plegius vel fideiussor quem Galli francum plegium vocant In the auld Britton lawes Bopher vel Bores is that quhilk we call borrows borgh or cautioner And Aluredus King of England divided England in satrapias centurias decurias as fall be declared in the worde Schiref and ordained that decuria suld comprehend ten persones and centuria suld contein 100 persones quhairof ilk ane was cautioner and sovertie for uthers in sik sort that the haill number and ilk ane of them was answerable for the fault and deede of onie ane of them swa was called free-borgh free-pledge or cautioner vide antiquas leges Brittonum FURCHE ane word quhairof I find na mention in the written lawes of this Realme nor of onie uther cuntrie And Èit is used in the forme and ordour of the Chancellarie from furca ane forke For quhen onie person is served and retoured narrest and lauchfull aire to onie of his predecessors of ony lands halden in chiefe of ony uther superior then the King The directour of the Chancellarie causis his Clerkes direct to the said superiour three preceptes commanding him to give saising to the person retoured of all and sindrie the landes conteined in the retour he doing therefore to his superiour all quhilk he auclit to do of the Law Of the quhilk preceptes the second is called Meminimus a forma verborum qua praeceptum concipitur Meminimus For the precept bearis that the King remembers that he directed his first precept and command quhilk was nocht obeyed quhairof he mervailis And therefore Èit as of before commands the superiour to give saising The 3. precept is called furch for quhat cause I knaw nocht certainlie Bot like as ane fork hes twa graines this precept hes ane alternative command of twa parts for the King commandis the superiour to give saising or else he certifies him he wil commandis the Schireffe to give the samin Itaque hoc praeceptum est furcatum vel bifurcatum in eadem significatione qua barba bifurcata quhilk is divided in twa taits or parts And in French furche is called cloven sutted or forked G GAlenes lib. 4. c. si quis 37. c. statuit 66. Ane kind of mendis assithment or satisfaction for slauchter Of the quhilk word I finde na mention in onie uther place or law of uther cuntries GANGIATORES Iter. camer c. gangiatores 14. signifies them quha suld mark the claith breade or barrelles before they be sauld with the mark of their office or tryis or examinatis all measures weichts baith dry and weete for the French Iage is that quhilk we call jug met or measure GARBA sagittarum ane schaife of arrowes conteining 24. utherwaies called schaffa sagittarum Stat. 2. Rob. Br. c. ordinatum est 27. GARCIFER ane French word Ane Garson an servand quha servis in the myln ane myln-knave leg burg c. quicunque 64. GILDA ane societie and companie of merchandes For in the auld Britton lawes gilder signifies the ordour or societie of religious men or of craftes-men Vide antiquas leges Brittonum verbo Contubernales GIRTHOLL girth sanctuarie in latin asylum ass reg Da. c. si quis in aliquo 27. Asylum is driven from the greeke a particula privativa et Silao b. e. trabo gl in l. si quis 17. ff de aedilit edict Because it is not leasum to draw furth onie person furth of the girth Quhairanent sindrie actes of Parliament are maid conforme to the law of God Exod. 21.13 Ioshua 22. 1. c. GLEBA ane gleibe given and granted to Kirk-men and Ministers of the Evangel vid. Mansus GVERRA lib. 2. c. sunt quidam 72. Stat. 1. Rob. Br. c. 17. Stat. 2. Ro. Br. c. ordinatum est 27. Utherwaies called Verra battel weir and signifies nocht onlie publict weire and hostilitie Verra quhilk is proclaimed and denunced be the lauchfull authoritie of the Prince Bot also private deadlie feede quhen onie particular person wauld revenge onie privat injurie done to him For it is statute be K. David the second quod nullus de caetero moveat guerram contra vicinos suos quoscunque sub poena plenariae forisfacturae 6. Novemb. 1357. Mention is maid of courtes of Guerra 12 3 p 8 c 69. quhilkis were halden be schireffes Stewards Baillies and uther Officiars Bot quhat was the speciall jurisdiction belangand thereto I knaw nocht and find is na mention theirof in onie uther part of the lawes of this Realme alwaies as it appearis that they wer halden be the ordinar judges foresaides anent strife debates crimes and trespasses committed betuixt familiar and domestik persons subject to ane maister within the jurisdiction of the saides judges conforme to the lawes of the fewes in § ult de pace tenend li. 2. de feud Si ministeriales alicujus domin inter se Guerram habuerint comes sive judex in cujus regimine cam fecerint per leges judicia ex ratione prosequatur Quhilk forme of courtes being particular justice courtes was prejudicial to the jurisdiction of the justice and his deputes and grievous to the lieges of this Realme and theirfore are discharged be King James the third in the place foresaide GYSARUM ane hand axe Leg. Forest Cap. sciendum est 67. quhair it is statute and ordained that all men of the age betuixt sextie and sexteene fall have armour conforme to the quantitie and the valour of their landes and moveable gudes that is he quha hes fifteene pounde lande or fourtie markes in moveables fall have ane horse ane habergeon ane bonnet of iron ane sword and ane dagger And he quha hes fourtie schilling land or abone within ane hundreth shilling land sall have ane bow arrowes dagger and knife And he quha hes lesse then fourtie shilling lande fall have Gysarum quhilk is called ane hand axe ane bow and arrowes And all uthers quha suld or may have armour fall have ane bow and arrowes H HAIMSUKEN lib. 4. c. raptus 9. in sine quo attach c. de caetero 48. Stat. Wil. c. Item stat 9. Ane Dutch word For Haim signifies an house or habitation quhair anedwellis and quhair he hes his winning rysing and lying As we say aneman is at hame or nocht at hame In the quhilk signification Cuninghame is called the King is house or hame speciallie quhen the Kinges of this Realme quha of before did dwell in the Iles came to the maine land to dwell and remaine in Doundonald and uther places Suchen in the Germane toung signifies to seike or search
called raptores in French voleurs or Robeures Difference betwixt riefe and thieft is different from theft quhilk is committed quietlie and privilie without violence Mair-over reife is ane greater crime then thieft because reife is committed baith in the gudes and in the person of the possessour theirof and thieft is of the gudes and gear allanerlie Ches in consuet Burgund rab 1. § 5. Be the law of this Realme the complaint of reife or robberie suld be maid be him quha is robbed and damnified within the like time as is foresaid of the ravishing of weemen quo attach c. de caetero 48. lib. 4. c. raptus 9. RECOGNITION of landes is commonly used in the law and practicque of this realme Sicut feudum dicitur aperiri domino ita terrae dicuntur cadere in commissum sicuti fit in hoc casu ob culpam vassalli in Emphyteusi or fewe landes ob non solutum canonem seu pensionem lib. 3. c. ex locato 11. For the vassall tynes landes halden be him be service of warde be reason of his awin fault as salbe hereafter exponed and the proprietar of few-landes may tyne and for-fault the samin for non-payment of the Èeirly dutie Cognoscere is to knaw and understand recognoscere is to knaw again or at the 2. time to understand For generally all superiors of quhom lands ar halden in chief first hes bin proprietars of the samin lands quhilk lands being annalied and sauld be them heritably to be halden of themselves and their aires ceasis to be propertie to them and becomes tennendrie immediatly halding of them and their aires And gif it happens the vassall or possessour to quhom the landes are sauld to commit ane fault or crime quhairby he tynis and fore-faultis the landes the superiour hes entresse and regresse to the propertie of the landes and may recognosce the samin and as it were the second time vindicate to himselfe the propertie thereof Swa the samin landes quhilk were first propertie to him and thereafter tennendrie be reason of the alienation nowe becomes againe propertie and returnis to their first nature and condition Iure acerescendi seu potius consolidatione proprietatis cum superioritate ob culpam vassali Recognition properly in the practicque of this realme is quhen ony vassall or free tennent haldand his lanies be service of warde and relieve sellis and annalies all and haill his landes with their pertinents or the maist pairt thereof without licnce consent or confirmation of his over-lorde In the quhilk caise all and haill his landes alsweill nocht annalied as annalied and halden as said is may be recognosced and resaised in the superioures handâ—s and baith the propertie and possession theirof perteinis to to him to be bruiked or disponed be him at his pleasure quhairof divers and sindrie practicques are extant in the Register in the daies o King Iames the Fourt of gud memorie The superiour understanding the landes to be wrangouslie annalied as said is incontinent theirafter may use the recognition theirof without proces or ordour of law may take saising of the samin conforme to the auld practik of this realme Because the samin alienation is done to his dishonour and contempt be his vassal quha suld do reverence and service to him therefore without his consent suld nocht do onie thing to dissolve the league and band The causes of recognition quhilk is betuixt them Mairover the vassall may nocht make the said alienation because theirby he may becum puir annd unable to do to his superiour sik service as he suld do of the law Cuiac lib. 1. De feud And nocht withstanding that the saising is taken be the superiour Èit the vassall or possessour tinis nor forfaultis na waies the propertie of the saides landes untill Èeire and daie be out-run Swa that he doe diligence within fourtie daies after the said recognition and taking of the saising to crave and aske fra his superiour the saides landes to him to borgh that is to repledge them findand pledge and caution that he sall be reddie to do to his superiour anent the saides landes all that equitie and lawe requiris Stat. Rob. 3. c. 2. This kinde of recognition is conforme to the laws of the fewes Libellarius contractus quia feudum amittitur si fidelis libellario nomine amplius medietate in feudum dederit aut pro pignore plus medietate obligaverit § 1. quib mod feudum amittatur § 1. de alienatione feudi Et in jure Canonico c. 2. ibi gl extr de feud Porro libellarius contractus dicitur venditio quae fit scriptura interveniente certo pretio certa pensione constituta in annos singulos ut post Feudistas scribit Cuiac in d § 1. Recognition of landes is sum times generallie taken monie waies Stat. Rob. 3. c. nota quod iste 21. Sindrie formes of recognition First gif the vassall deceasis the superiour may recognosce and reteine all the landes halden of him untill they be recovered fra him be the entresse of the righteous aire and that be reason of none-entres 2 After that the aire hes recovered the landes furth of the handes of his superiour Nevertheles the superiour may recognosce and reteine the samin until securitie be maid to him for payment of the relieve 3 Gif the vassall is fugitive for slauchter and nocht law bidand the superiour may recognosce the land halden of himselfe sa lang as the felon or manslayer happenis to live Conforme to the quhilk be the actes of Parliament the liferent of the vassal being Èeir daie at the horn perteins to the immediat superiour except he be rebell for treason in the quhilk case his life-rent all his lands gudes and geare moveable immoveable perteinis to the King allanerlie Quia poena debet eidem applicari adversus quem committitur culpa 4. Gif the vassall annalies his landes or the maist pairt thereof without licence consente or confirmation of his Over-lord The Overlord may recognosce the same as said is Bot in this case he is oblished to let the landes to borgh to his vassall askand and cravand the samin within the lauchfull space of fourtie daies after the recognition and saising taken untill it be tryed be the judge Ordinar quhidder the cause of recognition be lauchfull or nocht quhilk being founde lauchfull the judge suld counsell the King and decern ony uther superiour to hald his handes fra the landes and let them to borgh to his vassall And gif the cause be found just and reasonable The judge suld decerne the propertie and possession of all and haill the landes to perteine and remain with the superiour 5. Quhen twa or mair parties contendis be way of deede and armes for the possession of landes the superiour thereof may recognosce and sequestrat the samin untill it be tryed quhilk of them is lauchfull possessour
and thereafter let the landes to borgh to him quha is found to have best richt of the possession 6 The superiour may recognosce and reteine landes halden of him in chiefe for service aucht to him furth of the samin landes Bot be the practicque of this realme The service aucht to be proven and liquidat and thereafter the landes may be lauchfully comprised 7 Landes halden in fewferm payand ane certaine Èeirlie dewtie Nomine feudi fermae may be recognosced be the superiour for none payment of the few dutie that twa manner of waies The first ex provisione legis natura contractus For the few sermorer not payand his few-ferm for his ingratitude and un-thankfulnes tinis and fore-faltis his few-ferm be the disposition of the Law quhilk as Èit was not in practicque and use within this Realme The seconde is ex provisione hominis et conditionibus contractui insertis Clause irritant quhilk is called ane clause irritant as quhen ane clause and provission is conteined in the infeftment that if twa or maa termes run in ane of non payment of the few-ferm duetie then and in that case the infeftment of few-ferme to be irritum null and of nane availl quhilk is conforme to the dayly practicque of this realm Quia pacta conventa legem contrahentibus praescribunt vid. l 1. et Tit. c. de jure emphyten Alwayes be the act of Parliament maid be Ia. 6. p. 15. C 246. Alienations of lands maid in few-ferm are null for not payment of the fewe-dueties be the space of twa Èeires albeit na paction or provision be maid thereanente in the infeftment RECORDUM Recordatio lib. 1. c. contingit 31. quhair-anent I finde difficultie Alwayes recorda summonitionis signifies the rehearse report or testification of the execution of the summondes brieve or uther precept Ia. 1. p. 9. c. 112. quhilk execution Indorsation is now called Indorsation Because commounly it is written in dorso and upon the backe of the summondes leg Forest c. 25. and be the practick and daylie consuetude of this Realme Èit observed the execution of all brieues before inferiour judges and of all criminall summondes before the three Estaites in Parliament are verified in judgement be the record of the executor theirof and twa witnes at the least And in auld times the serjandes or maires maid the record of the summondes be word or be writ as they pleased and verified the samin as said is And untill the samin were done the defender could nocht be compelled to make ane answer lib. 1. c. cum autem 8. de iudic c. 50. And King David the second 18. Febr. 1369. and of his reigne the fourtie Èeire statute and ordained annent the record of serjandes or maires that the summounds record theirof salbe put in wreit gif it please the serjand or mair and he sal reade the samin gif he can in plaine court Utherwaies he may make the record be word in the best form he may and gif he failÈies he may be helped and supplied be interrogatours of the judge concerning all and sundrie clauses or artickles necessarlie used in the record of ane summondes quhilk record the serjand or maire sall prieve sufficientlie be lauchful witnes And the said record being swa maid the samin salbe receaved as lauchfull and the contrair partie sall nocht be heard to object against the same or to propone ony exception against the lauchfulnes theirof And it sall be leisum to the schireffe his depute serjand mair of fie or onie uther depute serving in the office of ane serjand or mair be the authoritie of the King or of onie uther haveing power to make rehearsall of the summondes of the record or indorsation theirof swa that they be qualified and abill to doe the samin Ia. 1. p. 9. c. 112. ITEM recordum curiae signifies the report rehearsall or minute of that quhilk is done in court or the interloquutour of the courte lib. 1. c. contingit 31. Quo. attach c. nullus sectator 20. In the Normand law li. 9. c. 31. vid. Sectator vid Varda quhilk in auld times was nocht written in buiks bot inrolled togidder in paper Rollment of Courte Like as the Kinges rolles are Èit written in parchement in the Checker Therefore they are called the rolment of court As the Kinges rolles or rotuli and the Clearke of Registar clericus rotulorum in latine properlie volumina quia involvuntur in se quasi retorquentur And it is to wit that actiones and pleyes are aither directlie and from the beginning persewed in ane court or they cum fra an inferiour court to ane superiour per translationem lib. 3. c. praeterea 16. as quhen ane pley or cause is advocat from ane inferiour judge to ane superiour quhilks advocations ar permitted and leisum to be maid to the Kinges court allanerlie be the auld law of this Realme sik as the justice courte or schiref courte and nowe be the practik used and observed to Lords of Session and College of Iustice And swa because he quha alleged that wrang was done to him in the inferiour courte raised the record or interloquutor pronunced against him and summound the judge to compeire before the Kingis Justice or schiref to heare and see him decerned to have done wrang Therefore sola curia domini regis dicitur habere recordum h. e. Potestatem cognoscendi de recordis interloquutorijs quae transferuntur ab inferiore curia ad superiorem Albeit ilk lauchfull court sik as ane Barrone court hes their awin recordes in all sik actiones as are intended and decided before them and nocht Advocate to ane superiour judge REGRATERIS leg burg cregratarij 70. Quha byis onie merchandice or uther thing Dardanarii and takis unlesumlie greater price for the samin afterward as is exponed be Ia. 2. p. 6. c 23. 24 Ia. 6. p. 12. c. 148. In the civill law regrateris are called dardanarij qui emunt vt possint postea pluris vendere l. annonam 6. de var. extraord crim A quodam Dardano qui annonam flagellabat Alciat lib. 4. de verborum significatione Forestallers And swa regrateris are so called be reason of the augmentation and hichting of the prices Forestallares are properlie they quha pre-occupies and byes merchandes before it cume to the mercat or to the stall or place quhair it suld be sauld or the time of day statute and ordained theirto Ia. 5. p. 4. c. 20. And mair-over it is statute that na man dwelland within burgh or without the samin sall upon the Faire daie bye onie thing outwith the portes of the burgh leg burg c. nullus 75. And likewaies na person suld bye fish flesh victuall or onie uther thing before mercat day or the ringing of the bell in the steipell Stat. gild c. 29. And mairover forstallers are challenged and accused because they sell their gudes and payis
the Checker to pleye their causes contrare uthers as gif they were fechtand in ane arrayed battell Scata quhilk is the forme and ordour of the said playe Jus Normand Lib. 15. cap. 1. in fine Uthers alleadgis that it cummis fra ane aulde Saxon worde Scata as writis D. Thomas Smith quhilk signifies treasure taxation or imposte quhairof and of uther casualities compt and reckoning is maid in the Checker Quhilke compte like as all uther comptes is maide in sik sorte and forme that tabulae accepti that is the charge and tabulae expensi that is the discharge ar equall and sic aequè because the compter hes given furth na mair nor he hes received and alswa hes given al 's meikle furth as he hes received Quhilk is called pariare rationes and this compter is called Pariator Pariare rationes Pariator l. ult § idem quesiit de condict indeb l. penult § conductore de jure immunitat Or els the charge and discharge are inequall in sik maner that the compter hes received mair nor he hes expended and sa at the fute of the compt he is found restand awand certain sums up-taken be him and not given furth quhilk is reliquare rationes and this compter is called reliquator Reliquare rationes and is oblished reliqua inferre to pay the rest auchtand be him l. creditor 102. § Valerius de solutionibus Or thirdly tabulae expensi superant tabulas accepti quhen the compter hes given furth nor he hes received and swa is superexpended Superare rationes quhilk is called Prosdapanan h. e. supererogare vel superare rationes seu tabulas accepti And the compter quha makis sik ane compt is called Prosdapanetes supererogator Quhilk word is used in the Evangell of S. Luk. c. 10. 35. quhair the Samaritane haveand pittie and compassion upon the man quha betwixt Ierusalem and Jericho was spuilÈied and wounded be thieves and robbers did commit him to be cured be the hoste of his ludging and gave him twa pennies and promised to recompense quhatsumever he spended mair vid. Ballivus SACREBORGH or rather Sickerborgh securus plegius ane sicker sure sufficient cautioner quo attach in prin Ia. 2. p. 14. c. 75. Is ane maner of borgh or caution quhilk ane findis to ane uther and speciallie in actions or pleyes for quhen onie man hes action to an uther for thieft or slaughter quhairof he offers to accuse him judicially it behuiffes the persewar to knit and oblish him in the hands of ane officiar or before ane judge competent and find sure caution and sicker borgh that he sall persew in forme of Law Mod. ten cur c. 44. lib. 4. c. 1. Stat. Alex. c. 9. c. si quis conquestus 10. In the civill law the accuser in criminall causes cogitur inscribere nomen l. 3. ff de accusat And conforme to the practick and law of this Realme the persewer quhan he raisis the letters findes caution to report the samin againe dewlie execute and indorsat And also to persew at ane certaine daie conforme to the tenour of the letters And moreover quhen he accuses ane uther criminallie before the justice and his deputes he suld sweare the dittay to be trew quhairupon he accusis the defender bot the Kings advocat accusand criminally ony of the Kings lieges is na waies oblished to swear in this case SAK lib. 1. c. 3. In sum auld buikes it is called placitum emenda de transgressione hominum in curia nostra In the Britton lawes of King Edward it is written Sacha Sacha est si quilibet aeliquem nominatim de aliquo calumniatus fuerit ille nagaverit forisfactura probationis vel negationis si evenerit sua erit Garba Quhilk may be called the unlaw or amerciament paied be him quha denies that thing quhilk is proven against him to be trew or affirmis that thing quhairof the contrar is of veritie SAISINA ane French word saising or possession vid. Dissasina SCHAFFA sagittarum ane schiefe of arrowes conteining twentie foure Utherwais called garba Ane scheife of Irone containes sexteene gades ane scheife of steile conteines fourteene gades leg navium or schip lawes c. 2. SCHIREFF ane principall ruler or judge of ane certaine part of the Realme In latine praeses provinciae Aluredus in the confederation maid with Guntherus king of Denmark divided England in Satrapias centurias decurias and called Satrapiam ane schire That is ane cutting or section Schira as is written in the auld Britton lawes verb. centurìa like as we say as Èit scheire cornes or scheire grasse or an pair of scheirs quhairwith claith is cutted And swa ane schire or schiref-dome is an part of land cutted and separate be certaine meithes and marches from the rest within the quhilk the schireffe as judge dois justice and pronuncis decreites and doomes to all the inhabitantes theirof Quhilk is called comitatus provincia vel vicecomitatus lib. 3. c. tali autem 18. lib. 4. c. si quis 28. c. si quis in manibus 42 schireffs in this realme hes their offices given to them be the King in heritage contrair to the act of Parliament Jam. 2. par 11. Cap. 44. Quhilk is the cause of great enormities and wranges be reason the Schireffes being infest heretablie thinkis themselves sure of their office and regairdis nocht the execution theirof And to the effect that gude men may make conscience of their calling quhairof they sall make compt and reckoning to God of all evill committed and of all gude omitted And that uthers may be instructed of their dewtie and ather mooved to doe the samin or els be punished for neglecting theirof I have collected and gathered furth of the lawes of this Realme ane schort rehearsall and summe of all thinges perteining to the office of ane Schireffe And first of persones sik as Schireffes deputes Clerks and serjands Secondlie of Schireffe courtes Thirdlie of his office and jurisdiction quhilk generallie consists in observation and execution of all the Kinges lawes And particularlie in particular actiones and pleyes perteining to his jurisdiction and court Quhairof sum ar civill uthers are criminall and last of the paines and punishment of malitious or negligent Schireffes Deputes and Clarkes First Schireffs suld be in all and sindrie partes throwout the haill realme and speciallie in the North partes and West partes of the samin sik as the North Iles and South Iles for the acquieting of the peopill be justice and in Rosse and Caithnes Ia. 4. par 6. Cap. 59. Cap. 61. And to the effect they may the better exerce their office and do justice to every person as effeiris they suld be gud sufficient and qualified men as is statute be King David 2 6. Novemb. 1357. In ilk schireffdome they suld do justice to the Kinges lieges hauld courtes in
summond warne the parties suld be execute upon fifteene dayes Iam. 1. par 9. cap. 130. Iam. 5. par 6. cap. 72. And gif the indwellers within the Schireff-dom and royaltie thereof compeiris nocht in sufficient number or sendis nocht their attournayes to passe upon serving of in-queists or retoures swa that thereby the Schireff-court is weake and nocht weill stuffed The Schireffe may warn the gentlemen of the regalitie to compeire and enforce his Court but prejudice of their regalitie Iam. 1. par 9. cap. 130. Item all Barrones Knightes free-halders and stewardes of Bischoppes of Abbotes and of Earles suld be present at the Schireff-court under the paine of the Kingis un-lawe Lib. 4. c. statutum 19. Ass reg Da. c. ad summonitiones 19. All the saidis persones and uthers quha comes to the courte sulde come in sober and quiet maner with al 's monie persones as they daylye susteine in house-halde and familie and beand come to their ludgeing they sulde weare na weapones but their knife and gif ony of them dreadis bodily harme of ane uther the schireffe suld grant him law-burrowes Ia 2. p. 14. c. 83 and it is leasum to the schiref to charge all persones to cum to his court in sober maner and gif they refuse to skaill their gadderinges and convocation he may stay or continue the court and the persones disobedient sal be punished be warding of their persones be the space of ane Èeire and be payment of the expensis and damnage susteined be the partie throw delaie of justice Ia. 3. p. 14 c. 104 And albeit all friehalders and uthers persones suld cum to court in quiet maner as said is Nevertheles it is leasum to the schireffe stewart bailly and uthers the kinges officiars to ride with greater number for execution of justice The unlaw of courte and furth setting of the Kingis authoritie Ia. 5. p. 4. c. 27. The unlaw of the Schireffe in his court suld not exceede the summe of 16 schillinges and to his clerk 2. schillinges and to his serjand an colpindach or 30. pennies leg Malc Mack c. 2. Jurisdiction The Schireff hes na jurisdiction outwith his awin territorie The jurisdiction of the Schireffe consistis and standis generallie in diverse and sindrie pointes Bot first of all it is to wit that the schireffe his depute and serjand hes na jurisdiction or power outwith the boundes of his awin schireffdome to sumund or attache ony person or to poynd or take ane destres of onie mans gudes and geare for they suld make faith that they sall faithfullie serve the King within their awin Schireffedom and sal nocht trouble or molest onie person within the samin against law and reason Ass reg Da. c. nullus 13. quo attach c. nullus 57. Swa it is manifest that the Schireff hes onlie jurisdiction within his awin Schireffedome The Schireff suld cause the lawes be proclaimed and observed Within the quhilk he and his deputes suld cause the lawes acts of Parliament to be published red and proclaimed in his courtes and to be keiped and observed be all our Soveraine Lordes lieges alsweil in the courtes of all Prelates Erles Barrones and uthers haveand power to hald court as in his awin schireffe court and suld give to them the copie of the lawes that na man pretend justlie ignorance thereof Stat. 2. Rob. c. Robertus 28. And siklike in all burrowes of this realm the schireff sall cause 12. leil and honest men of the burgh sweare and make faith that they sall cause the Kingis lawes be keiped and observed Stat. Alex. c. Item in omni 25. to the effect the samin may be the better done be him the acts of Parliament being registrat suld be delivered be the Clerk of the Register to him quhilk he sall cause be proclaimed oppenlie in chiefe place of the schireffdome and suld give copies of them to prelates barrones burrows within his schireffdome upon the expenses of the asker suld cause all indwellers within his schireffdome baith to land and to burgh to keipe and observe the said lawes and statutes under the paine of deprivation of his office Ia 1. p. 3. c. 67. Ia. 2. pr 14. c. 90. The Schireff suld be present in all courtes And likewaies to the effect the schireff suld see justice lauchfullie done and ministred he suld be present in al courts of Bishoppes Abbots Earls Barrones and friehalders to quhoÌ„ it is not leasum to hald their courtes except the schireff or his deputes be present or summoned to that effect li. 4. c. die lunae 14. Stat. Alex. assisa 10. Ass reg Da c. 1. And siklike na barrone may hald court of battell water or jron except the schiref or his deputes be present to see justice done Stat. Alex. c. praeterea 28. vid. duellum vid mahamium And mairover the schireff and all uther judges within the schireffedome The Schireff suld repair to the King suld repaire and cum to the King the first night he cummis within the schireffdome to answer to all complaintes maid against him anent the nocht keiping and observation of the lawes and sal nocht departe nor passe away without licence asked and obteined under the paine and unlaw of aucht kye Ass reg Da. c. statutum 20 quo attach c. Statutum 80. And also sall nocht passe awaie fra the King except he have with him the Actes of Parliament and his instructiones given to him in writ Ass reg Da. ex libro Sconensi He suld not execute or obey unlauchfull commandes Last concerning the execution and observation of the lawes the schireffe nor na uther officiar of the law sall onie waies obey or execute onie command direct to them be the King under the great seale privie seale or signet repugnant or contrarious to law or reasson Bot gif onie sik precept be presented to them they sall receive the samin reverentlie write upon the back thereof and remit the samin againe Rob. 2. 1372. And of his reigne the first Èeire The schireffe suld nocht onlie make the publication of the laws and cause the samin to be keeped and observed Bot also suld concur and assist with uthers to do the samin sik as the justice generale chalmerlane auditours of our Soveraine Lordes Checker The Schireffe at command of the justice generall suld summound certaine persones to burgh and to land to give up dittay to the justice Clearkes The Schireffs office in the justice aire and suld be present in proper person at the justice aire with the verification of the saides summonds He suld susteine and pay the expenses of the justice clearkes in the time of the taking up of the dittay Quhilk suld be allowed to him in his comptes he suld conforme to the justice precept direct to him summond all Bishops Abbotes Erles Barrones Freehalders and al uthers quha aucht presence in the justice aire are
the creditor be payed And gif the debtor denyis the debt the poynd sall not be taken fra him except it be manifest that the debt is auchtand to the creditor because na distres or poynd suld be taken bot for debt confessed or proven li. 4. c. Si quis names 30. And gif the debtor hes na moveable gudes or hes not sameikle within the Schire as is equivalent to the debt recovered against him And gif it happenis that he have some moveable gudes within ane uther Schireffdome The Schireff of the uther Schire within the quhilk the saids movable guds lyis sall cause the same to be poynded comprised the creditor to be payed And failÈieng of moveable guds the schireff sal cause the lands immoveable guds perteining to the debtour to be comprised conforme to the act of Parliament and cause the samin to he sauld and annalied to the availe of the debt and the creditour Ia. 2. p. 5. c. 36. Diverse and sindrie criminal actiones perteinis and belangis to the Schireffe and his jurisdiction quhairofsome ar capitall Criminal causes perteining to the Schireff uthers ar pecuniall as after followis And first generallie the Schireffe may follow and persew al trespassoures in the Kings name and cause his Maires and serjandes arriest them albeit na partie persewer compeir or assist Ia. 1. p. 13. c. 139. Like as the Thesaurar and advocat may persew slauchter and uther crimes albeit the parties keipe silence or uther-waies privatlie agree Ia. 6. p. 11. c. 76. And swa quhen ony complaint is maid be ony person to the justice Generall or to the Schireffe or to ony uther officiar of law within burgh or without the samin The Schireffe or uther judge sall summond baith the parties And gif the deede be done be Chaudmelle the partie sall persew as effeiris of the law Bot gif it be done be fore-thoucht-fellonie the committer thereof salbe accused of the breaking of the Kings peace He sall satisfie the partie and be imprisoned in the kingis prison Because his life and gudes ar in the Kingis will I. 1. p. 3. c 51. And gif ony trespassor be fugitive for ony crime the schireff suld persew and follow him And ilk Gentle-man not followand the schowte or out-horne sal pay xl s. And ilk Èeaman xx s. to the king I. 1. p. 6. c. 9. 8. The Schireffe Crowner or Provest within Burgh suld cause burie him quha is murthered Leg. Mal. Mak. c. 1. Murther Witchcraft The Scheriffe suld punish Witches Sorcerers Necromancers and them quha seekis helpe response or consultation of them unto the death alsweill the abuser as the seeker of the response or consultation Mar. p. 8. c. 78. The Schireffe and uther ordinar judges suld search take and apprehend all them quha not being lauchfullie admitted Messe dois minister the Sacramentes sayis Messe or hearis the samin to be brocht to the King to be punished conforme to the Law Ia. 6. p. 1. c. 5. The Schireffe suld take strait inquisition of them quha strikis false False cuinÈie or forbidden cuinÈie and suld cause them to be broucht to the King to be punished to the death Ia. 3. p. 3. c. 18. The Schireff beand certified of slauchter Slauchter committed within his Schireffedome and royaltie thereof he sall incontinent raise and follow the slayer with sound of horne and convocation of the Kingis lieges And gif he beis apprehended with reid hand justice sall be done within that Sunne And gif he be taken and apprehended without reid hand Hee salbe put in prison and law salbe done upon him within 40. daies And gif he escaipis or flyes furth of the Schireffedome the Schireffe sall certifie the nixt Schireffe thereof quha sall persew and follow the slayer in maner foresaid And consequentlie ilk Schireffe sall certifie uther until the trespassour be put furth of the Realme or els brocht to justice The like certification suld be maid be the Schireffe to the Lord of regalitie quha suld persew the malefactoures as the Schireffe suld do Iam. 1. p. 6. ca. 89. Iam. 3. par 5. c. 35. Iam. 4. par 3. c. 28. Quhen the committer of slauchter cummis to the Girth The Schireffe suld advertise the Maister of the Girthe and cause the slayer bee put to the knawledge of ane Assise quhidder the slauchter committed be him was done upon suddaintie or be fore-thoucht-fellonie And gif it be found suddaintie he salbe restored to the libertie of the Girth and Sanctuarie And gif it be founde fore-thoucht-fellonie he salbe punished to the death Ia. 3. p. 5. c. 35. Ia. 5. p. 4. c. 22. The Schireffe suld not only punish commiters of slauchter as said is Law-borrowes bot also suld after his power stay and stop the committing thereof And therefore quhen ony man her doubt of his life either be ony deede menacing or violent presumption and verifies the samin be his aith or uther probation And for that cause askis law-sovertie to be given to him be the Schireffe that he salbe harmeles and skaithles of him of quhom he dreadis the bodielie harme The schireffe suld grant his petition gif he refusis the same he sal pay 40. pound to the King assyith the partie I. 1. p. 9. c. 129. Ia. 2. p. 6. c. 13. Ia. 2. p. 14. c. 83. And gif the law-borrowes happenis to be broken the paine thereof suld be payed to the Schireffe for the quhilk he salbe comptable in the Checker Ia. 3. p. 1. c. 5. It is leasum to the Schireffe and his deputes Thieft to persew ony persone for theift Albeit na partie concur and informe him there-anent Quoniam attach c. vbi aliquis 25. As likewaies he is judge competent to thieft and slauchter quhen ony person compeiris and insistis with him in the persute Bot gif the saids crimes be followed be way of dittay the justice generall is judge thereto lib. 1. c. 2. And quhen ony thief is condemned before the Schireffe and execute for thieft Al the moveable guds quhilk perteine to him suld justlie perteine to the Schireffe lib. 2. c. Forisfactum 55. de Iudic. c. Praeterea 148. Bot gif ony man findis in ony town his awin silver stollen fra him It is not leasum to him to intromet-there-with Bot he suld put and leave the samin in the keiping and custodie of honest men of the towne and sall declare the samin to the Schireffe quha sall compell the Provest or ruler of the town and three men with him to mak faith that he knawis na-thing of that thieft And thereafter the compleiner proovand the silver to be his awin suld receive the samin to be used be him as his awin proper geare Lib. 4. c. Si quis 21. stat Alex. c. Assisa 20 All thieves suld be punished to the death And it is not leasum to the Schireffe to sell ony thiefe or to fine