Protestation-money paid that he be not oblidged to an uncertain attendance at the Pursuers pleasure And incase at the calling of any Process in the Outer-house any Parties Advocat be in the Inner-house the Ordinary shall call the Cause the next day thereafter if he be desired upon a Ticket to be given to him before he go to the Bench but that no Advocat make interruption by calling otherwayes over the Bar. 11. That the Lords by no importunity alter the order of the saids Rolls by any Deliverance or Warrand except it be for discussing reasons of Reduction of small difficulty and importance in the Outer-house before they be Enrolled in the Inner-house which shall be Enrolled in the Roll of the Outer-house according as they shall be presented to the Keeper of the Roll in the same manner as other Processes 12. That if any Cause be called by anticipation out of its due place the Pursuers Advocat may refuse to insist or the Defenders Advocat to answer and it shall be a sufficient defence that he is not oblidged to answer before its due course in the Roll And although neither parties Advocats should object seing others who were anterior in the Roll are prejudged the Clerks are prohibit to write on any such Process called out of its own course or to extract any Act or Decreet thereupon 13. That the Lords of Session every Session go near the discussing of all Causes enrolled that Session and that as they see their work by the Books of enrollment they meet the sooner in the morning and also meet in the afternoon for taking in Reports from the Outer-house which requires not the attendance of Advocats and which consumes much of the time both in the Inner and Outer-house in the forenoon and also for advising of concluded Causes which of all other should be least delayed 14. That if any Act Decreet or Protestation be stopped either by the Ordinary or by the Lords the same shall be heard by the Ordinary who heard the Cause before untill the same be discuss'd delet or Protestation granted in manner foresaid and that the same shall not again be brought into the Roll. 15. That no Bill be presented to the Lords for stopping or rectifying any Act or Decreet past in the Outer-house untill the Party first make application to the Ordinary who heard and pronounced the same and if he refuse to hear the Party upon any new matter condescended on or in case of doubtfulness to report at least upon consignation of an Amaund In that case the Party may give in a Bill to the Lords expressing his application to the Ordinar and his refusal to hear or report as said is and expressing the special matter which he desireth in the Process and no otherwayes 16. To the effect the Lords of Session may be in better capacity to discuss the Processes which come before them not being overburdened with small and inconsiderable Causes That all Causes not exceeding the value of two hundred Merks Scots be in the first instance carried on before the inferiour Judges And that no Summons be raised upon Bill or otherwayes for Causes of less importance for which the Clerk of the Bills and Writers to the Signer are to be answerable at their peril except there be such reasons condescended on in the Bill as would be sufficient to procure an Advocation of the Cause from the inferior Judge in behalf of a Defender and competent Instructions thereof And that such Bills do not pass of course but be specially presented and read to the Ordinary and that the deliverance on the back thereof bear Because the Lords have found suficient ground for which the Cause ought not in the first instance to be pursued before the inferiour Judge Ordinar but before the Lords Excepting also the Causes belonging to the Members of the Colledge of Justice and except Sums due to Merchants Cooks Vintners and others in Burgh for Furniture taken off from them by such as dwell not within the Shire where the Furniture was taken off 17. That where Causes are begun before inferior Courts no Advocation thereof shall be past being of no greater importance then as aforesaid otherwayes then is provided by the Act of Parliament And that the Clerk of the Bills be answerable therefore not to present pass or write on any such Bill at his peril 18. That where Decreets are past before inferior Courts and craved to be suspended if the reasons proceed not on iniquity but upon alledgiance that the Decreet was in absence so that the craver of the Suspension hath never appeared or hath not continued to defend while there was no injustice done Then and in that case he shall be oblieged at the passing of the Bill of Suspension to consign in the hands of the Clerk of the Bills such sums for the expences of the Party as the passer of the Bill shall appoint according to the importance of the Cause and the distance of the Party which shall be given up to the Charger if the Suspender hath not compeared or continued to defend before the inferior Court as said is and that immediately at the calling of the Cause to be discust when the compearance in the Decreet may appear unless the Suspender improve the Executions of the Summons whereupon the Decreet did proceed 19. That Decreets in foro contradictorio before the Lords of Session be not again suspended upon reasons competent to have been proponed or which were repelled in the former Decreet And to the effect it may be known with the least expence what Decreets are in foro That the Keeper of the Minute-book make up a Book of the Decreets in foro according as the same shall each day be given in to him by the Clerks expressing the names of all the Defenders for whom there is compearance And that the Clerk of the Bills from time to time call for and receive a double of the said Minute-book of Decreets in foro And when any Bill of Suspension is to be presented by him that at his peril he write on no Suspension of any Decreet in foro contained in the said Book untill it be presented to the whole Lords in time of Session and to three met together in time of vacance the deliverance bearing that they were met together And where there is once compearance for any Party and Defences proponed the Decreet shall be holden as done in foro and all the Dispute proponed by the Advocats shall be insert therein albeit the Advocat thereafter past from his compearance And that the first Protestation shall not be suspended but upon consignation of thirty pounds and the Suspension thereof shall bear that it is the second Suspension And so forth all the Suspensions that shall be obtained thereafter shall bear that the same is the third or fourth Suspension and that no Suspension shall pass of the second Protestation but in presence of the whole Lords in time of Session and by
ARTICLES For Regulating of the JUDICATORIES c. Set down by the COMISSIONERS Thereunto Authorized by HIS MAJESTY Under the GREAT SEAL WITH His Majesties APPROBATION thereof prefixed thereunto C R HONI SOIT QVI MAL Y PENSE DIEV ET MON DROIT EDINBURGH Printed by Evan Tyler Printer to the King 's most Excellent MAjESTY 1670. HIS MAJESTIES APPROBATION OF THE ARTICLES FOLLOWING CHARLES R. CHARLES by the Grace of GOD King of Scotland England France and Ireland Defender of the Faith To all Our good Subjects whom these presents do or may concern Greeting Wee having perused and considered the Report under-written with the Articles Rules and Orders made by the Commissioners intrusted by Vs for regulating the Judicatories and the prices of all Writs relating thereto Wee do hereby Allow Ratifie and Approve the proceedings of the Commissioners with all the Articles and Orders after set down and Ordain the same to be duly observed in all time coming And for that end that they be recorded in the Sederunt-Books of the Session and in the Books of Adjournal and printed and published that none pretend ignorance thereof And Wee do recommend to Our Commissioners intrusted in this affair to be careful to see these Rules and Articles punctually observed and the contraveeners severely censured As also to take the whole affair into their further consideration that what by the shortness of time is not yet determined may with all conveniency be done And their Judgements of the remanent Judicatories and whole matter not as yet settled may be returned to Vs that Wee may thereupon give such Orders as Wee shall think fit Given at Our Court at Whitehal the fourth day of June one thousand six hundred and seventy and of Our Reign the twenty two year By His Majesties Command LAVDERDAIL THE REPORT OF THE COMMISSIONERS APPOINTED FOR THE Regulation of the JVDICATORIES Edinburgh 2. of March 1670. FOrasmuch as it hath pleased the Kings Majesty by a Commission under His Great-Seal of the twenty one of September last to authorize and impower some Noblemen and others of His Privy-Council and Session to consult concerning the Judicatories of His Majesties Privy-Council Session and Justice-Court and the Regulating of the same And for redressing and preventing all abuses that are already or may probably arise or creep into the saids Judicatories And to consider the best most summar and equall way of bringing in and calling of Processes for Dispensing of Justice And for shortning and abridgeing the long chargeable and tedious dependancy of Pleas And to settle such Rules and Orders as they shall judge necessary for these ends and to do every thing for making effectual His Majesties Royal and Gracious Intention that His Subjects be relieved and secured against oppression and exactions and that Justice be administrate unto them with expedition and as little trouble and charge as may be And that the saids Commissioners return to His Majesty an accompt in Writ of their Proceedings and Conclusion that His Majesty may take such course therein as in His Royal Wisdom He shall think fit Likeas the Kings Majesty with advice and consent of His Estates of Parliament did by another Commission of the twenty third of December last impower the Commissioners above-mentioned to consider and regulate the Commissar Courts the Sheriff-Courts and all other inferior Courts within the Kingdom And so set down Rules and Orders for regulating the same and the Formes of proceeding therein and the prices of all Writs Fees and Dues to be taken any manner of way by any Persons in or relating to the saids Judicatories In obedience to which Commissions The Commissioners having had several meetings together and consulted upon the best and readiest way for the prosecution of His Majesties Royal Intention for the good and ease of His Subjects And finding the same to be a matter of great importance and deserving most serious consideration and a longer time to make a full settlement therein Yet being desireous that assoon as is possible His Majesties Subjects may find the fruits and effects of His Majesties Royall care over them Have at present agreed unto and condescended upon the Rules and Articles after-following Which they do humbly offer to His Majesty as their Judgement in order to the present Regulation of the Judicatories Without prejudice alwayes of what upon further consideration they shall hereafter offer for a full settlement therein Concerning the SESSION 1. SEing a great part of the trouble and expences of the Liedges in obtaining of Justice in their Causes is occasioned through the uncertainty of their attendance upon Processes depending before the Lords of Session Whereby not knowing any certain time at or about which their Processes will be called They are necessitat to wait on the most part of the time of the Session during the dependance of their Processes or otherwise to be absent when the same are discuss'd That therefore all Processes shall be discussed and determined as the Parties are in readinesse and do call for Justice after the same have been seen by the Defenders Advocates and are returned by them And that according to the date of the Returns which are set down and signed by the Defenders Advocate upon the Processe it self that no Parties be preserred in obtaining Justice to any other who was ready and calling for it before And that Books of Enrollment be made for enrolling the said Processes according to the dates of the Returns that thereby notice may be timeously given to all Parties having intrest in the Processe how far the Lords of Session are advanced in discussing and determining Processes according to the saids Rolls that the Parties may be present when their Processes will fall in to be discuss'd and determined in their course as they stand in the Rolls and may in the mean time rest quiet and secure that their Rights and Interests will not be decided when they cannot know to be present which cannot be attained unlesse all priviledges whereby any cause can be called otherwise then according to its due course in the saids Rols be laid aside Excepting only the Causes belonging properly to the Kings Majesty and not to Donators or others which may be called at any time when his Majesties Advocat pleaseth upon either of the two next Sederunt-dayes after the Processe is returned or if the same be not called on either of the saids two dayes at any time thereafter upon fifteen dayes advertisement to the Defenders Advocats that they may acquaint their Clients to be present 2. That the Book of Enrollment for the Outer-house be kept and made up by the person appointed or to be appointed by the Lords of Session who shall attend in the Session-house each Saturday in Session-time from two a clock in the afternoon till four and shall take up a note of all Processes shown to him containing the names and designations of the Pursuers and Defenders and the name of the Cause whether it be
Advocation Suspension Declarator Reduction or any other having a special name or otherwise under the name of Lybell'd Summonds and contain the date of the return signed by the Defenders Advocats upon the Process and by the said note shall insert in the Book all that is produced that day according to the dates of the returns expressing in the Book the day of the month of the uptaking before the Causes taken up that day and also expressing the day of the month of the return before the Causes returned each day and shall interline nor insert no Cause in the said Book but set them down in order as they were presented according to the date of their returns and shall receive for inserting of the saids Causes in the Book and for affixing Rolls upon the Wall conform to the said Book for every Process four shillings Scots and no more although the said Process should continue to be Enrolled several weeks untill the Ordinary have called and heard the same which Book of Enrollment shall alwayes remain in the Session-house and be patent to the Liedges that thence advertisements may be given to all parties having interest and for shewing whereof the Keeper of the Book shall exact or take no money or gratification 3. That the Keeper of the Book of Enrollment for the Outer-house affix a Roll of Processes each Munday upon the ordinary place of the Wall of the Outer-house in all things conform to the said Book of Enrollment expressing the day of up-taking and that the day of the month of the several Returns be set before the Processes insert each day and each subsequent weeks Roll shall in the first place contain what remained undiscuss'd by an Act Decreet or Protestation or not delet by the Ordinary upon the Pursuers not insisting And where Processes are delayed to a day till the Parties see or something be produced or done which requires not an extracted Act the same shall remain in all subsequent Rolls in the same day that it was in the first Roll that after the day to which it was delayed it may be called by the Ordinary till it be discuss'd or delet And for that effect the Ordinary shall on the Margent of the Roll mark at that Process to what day it is delayed which shall remain so marked in the subsequent Rolls till the Cause be discussed 4. That the Keeper of the said Books of Enrollment for the Outer-house do exactly and punctually observe the Rules and Orders aforesaid and that he give his oath every Session for that effect and if he transgress the saids Rules the Lords shall deprive him of his Office and otherwayes punish him as they see cause and appoint another in his place who and his successors shall alwayes be lyable for observing the premisses 5. That in like manner there be a Book of Enrollment of Processes to be discuss'd in the Inner-house containing Causes proper for the Inner-house as the discussing of reasons of Reduction of Heretable Rights of Lands or Annual-rents Declarators of Rights thereof Probations of Tenors of Writs destroyed or lost Cessiones bonorum which Book shall be kept by a person appointed or to be appointed by the Lord Chancellour who shall insert the saids Processes as they are in readiness to be discuss'd in the Inner-house viz. Reductions after the Production is closed and Declarators Tenors and Cessiones bonorum after the Dilators are discussed in the Outer-house and a great avisandum made by the Ordinary in the Outer-house who is to proceed no further therein and that according to the date of that great avisandum as it stands written upon the Process by the Clerk of the Process And where the Lords upon report of Dispute from the Outer-house made by the Ordinary shall for the importance intricacy or preparative of the points reported ordain the Cause to be heard in presence of the whole Lords the said Process shall be insert in the Roll of the Inner-house according to the date of the Lords deliverance appointing it to be heard in their presence 6. That there be a Book of Enrollment of concluded Causes whereof the probation is to be advised by the Lords to be insert according to the date of the conclusion of the Cause as the same shall be presented by the Clerks of the Process to be kept by the Keeper of the said Book of Enrollment for the Inner-house 7. That the Keeper of the saids Books of Enrollment for the Inner-house shall attend in the Session-house each Saturday from two to three a clock in the afternoon and shall receive and insert all Processes which shall be offered to him in either of the saids Books according to the Order foresaid and shall receive thirty shillings Scots for each Process to be insert in the Book of Causes to be discuss'd and twelve shillings for each Cause to be insert in the Book of concluded Causes and shall exact or take no more for himself or his servants and shall make the saids Books patent to all the Liedges freely and shall affix a Roll both of Processes to be discuss'd in the Inner-house and of concluded Causes in all things conform to the Books upon Munday al 's oft as need beis and shall add to the Causes in the said Roll for subsequent weeks in the same manner as is appointed for the Rolls of the Outer-house and both in the Books and Rolls shall express the day of up-taking the Process and the day of the great avisandum or Ordinance of the Lords for hearing the Cause in their presence subjoyning thereto the Causes each day both in the Books and Rolls of Causes to be discuss'd and the like for the Book and Roll of concluded Causes according to the date of the conclusion of the Cause 8. That the Keeper of the saids Books of Enrollment for the Inner-house observe the premisses punctually under the pain of deprivation and being further censured by the Lords as they shall see cause And that the beginning of every Session he shall make faith to observe the premisses in all points 9. That the Lords both in the Inner-house and Outer-house shall proceed to the discussing of Processes in order as they stand in the said Rolls respectivè without passing over or anticipating any Cause and that each Process shall be still called in its order untill it be brought to an Act Protestation or Decreet and if it be delayed till something be produced or done which requires not an Act extracted that after the day to which it is delayed the same shall be call'd till it be discuss'd 10. And where at the calling of any Cause in the Inner or Outer-house the Pursuer insists not the Process shall be delet out of the Roll and Protestation shall be granted to the Defender without any other solemnity but the demanding thereof at the calling of the Cause whereby the Defender shall not be oblidged to answer untill he be summoned of new and the
is great clamor and complaint of the Exorbitant-allowance of late given to Advocats for Consultations far exceeding what was usual in former times That for remedy thereof the allowance of Advocats in time coming be regulat according to the quality of the persons who employes them and the Eminency of the Advocats employed in manner following viz. That for every Consultation pleading thereupon and drawing Bills upon any Interloquitor thereanent altogether there be given at most to any of these Advocats who ordinarily plead in the Inner-House by Noblemen eighteen pounds By Knights and Barrons fifteen pounds By Gentlemen and chief Burgesses twelve pounds And by all the rest of the People nine pounds And to the rest of the Advocats by Noble-men only twelve pounds By Knights and Barrons nine pounds By Gentlemen and chief Burgesses six pounds And by all the rest of the People four pounds And that nothing be allowed for drawing Informations to be given to the Lords after Disput but to one Advocat only and that the allowance therefore be only the half of what is allowed for the Consultation 28. That the Parties Pursuer and Defender do give in with the Process a Declaration under their hands bearing That as they shall answer to God they have not given nor shall give any more to any one Advocat employed by them in that Process for every Consultation comprehending as aforesaid then the foresaid allowance which Declaration is to be given in by the Defender at the return of the Process and by the Pursuer before the Process be called and incase of the Clients minority his Tutors or Curators and incase of his absence or that he hath employed another to disburse the mony for him the Person so employed shall give in the foresaid Declaration upon Oath which shall bear that he being the only Person employed to disburse mony to Advocats in that Process he hath not given nor shall give any more then as aforesaid And likewise that all who are already admitted Advocats before they be allowed to plead shall give their Oaths that they shall alwayes observe the saids rates and that no Advocats be admitted hereafter till they give that Oath 29. And because by the Act of Parliament one thousand six hundred and twenty one the rates of Writs are ordered conform to an Act of the Lords of Privy Council and Lords of Session in Anno one thousand six hundred and six the effect whereof hath been frustrate because nothing thereby is provided to Clerks Servants And in respect the rates of all things are much increased since that time Therefore that the rates of the Clerks of Session be as followeth viz. That the same rates be observed which are contained in the said Act of Parliament except as to Acts Decreets Protestations and Diligences for which there shall be only paid to the Clerk and his Servants three pounds Scots for each Sheet written in the same manner as they are now accustomed conform to a Pattern to be signed by this Commission and keeped by the Lords of Session And that the Clerks or their Servants take no money for production of Writs or giving up of the same again minuting of Disputes or booking of Acts and Decreets all which shall be paid by the saids Extracts but that there be allowed to them two Merks for taking a Parties Oath and one Merk for every Witnesses Deposition and thirty Shillings Scots for calling of every Act in presence of the Ordinary And that the Clerks or their Servants do not mark upon any Process Calling or Compearance or the calling of any Act but what was publickly done by a Macer that the Advocats may have timeous notice to satisfie the conclusion of Acts and that no Decreet be pronounced conditionally but simply according to the Act to be extracted twenty four hours after the same is read in the Minute book and that every Sederunt-day the Minute-book be read out fully that the Lieges be not delayed or necessitat to attend And that the Clients shall in the same manner as in relation to Advocats Allowance give their Oaths that they have keeped and shall keep the saids rates which shall be contained in one paper with their Declaration in relation to Advocats and that the Clerks and their Servants give their Oaths that they shall alwayes observe the saids Rules and Rates and that no Clerk be admitted hereafter till he give that Oath excepting Acts and Decreets of contentious dispute in presence of the Lords which are to be at the discretion of the Party conform to the Act of Parliament 30. And anent the Clerk of the Bills and his Servants that the rates in the said Act of Parliament one thousand six hundred and twenty one be in all points observed and also the rates for Allowance of Comprisings contained in the Act of Parliament one thousand six hundred and sixty one with this alteration That whereas that which is allowed by the said Act one thousand six hundred and twenty one for the Acts of Caution with the relief which comprehends the Bills of Suspension is too low for the Clerk and his Servants That there be allowed to the said Clerk and his Servants therefore three pounds and one merk Scots and no more and that the Clerk of the Bills and his Servants give their oaths in the same manner as the Advocats and Clerks of Session that they shall observe the saids rates And in case there be moe persons contained in the saids Bills of Suspension then one that every such person except the chief person shall pay six shillings eight pennies until they come the length of ten persons and no allowance is to be granted for any exceeding that number nor for a Community more then the said number of ten And for Relaxations six shillings eight pennies for every person more then one untill they come to the number of ten persons and no more to be taken for any greater number or Community and that this be in satisfaction of all that is to be given in that Office both for Master and Servants 31. In respect several persons being neither Advocats nor Advocats Servants do take upon them under the name of Agents to medle and negotiate in Processes who are found to be of no use but burdensom to the Lieges That hereafter all these Agents be debarred the House and not permitted to negotiate in or mannage Processes and recommends to the Lords of Session to see the same punctually observed Concerning the JVSTICE-COVRT SEing Causes Criminal are of the greatest importance and may extend to the Lives and Liberties of any of His Majesties Subjects and their Persons and Fortunes And seing the punishment of Crimes is of the greatest consequence for the safety and security of His Majesties Person and Authority and the Peace and Quietness of the Kingdom And therefore Matters Criminal ought to be determined in the most solemn exact and regular way that the Loyal and Innocent may be in
full security and Offenders may be punished either in the most publick places of the Kingdom or in the places where the Crimes have been committed to terrifie others from the like That whereas formerly Assessors from time to time were appointed to the Justice-General in matters of importance which being ambulatory cannot be so convenient as if all the Members of that Court were setled and chosen by His Majesty of fit persons who might make it their work to make a just and constant procedure in Matters Criminal 1. For that effect that the Office of Deputes in the Justice-Court be suppress'd and that five of the Lords of Session be joyned to the Justice-General and Justice-Clerk and all of them invested with the same and equal Power and Jurisdiction in all Criminal Causes That the Justice-General being present preside in his absence the Justice-Clerk and in absence of both that these present elect one of their number to preside four of the whole number being alwayes the Quorum of that Court except at the Circuit-Courts 2. That they be appointed to meet each Monday at nine of the clock in time of Session and oftner if business so require 3. That the persons to pass upon Assizes be listed and their Names and Designations insert in an Roll to be signed by the saids Judges or their Quorum 4. That for the splendour of that Court all the Judges sit in red Robes faced with white that of the Justice-Generals being lined with Ermine for distinction from the rest 5. That once a year in the Moneth of April or May Circuit-Courts be keeped two of their number appointed to go and keep Courts at Dumfries and Jedburgh two at Stirling Glasgow and Air and other two at the Towns of Perth Aberdeen and Innerness the Justice-General being alwayes super-numerary in any of these Circuit-Courts 6. That it be left and recommended to the Judges of that Court to regulate the inferior Officers thereof and order every other thing concerning the said Court 7. That a convenient Room be appointed for their meetings Benches for the Judges a place for the Justice-General more eminent then the Seats of the other Judges That the Advocats Clerk Assize and Pannels have distinct places appointed to them 8. That the Clerk of the Court nor no other person be present with the Assize after they are inclosed 9. That the Chancellor of the Assize mark what way every individual person who is upon the Assize shall vote whether condemning or assoilzeing and that on the same Paper wherein the Verdict of Assize is written which after the pronouncing of the Verdict is to be closed and sealed with the Seals of the Court of the Chancellour of the Assize and of so many moe of that number as the Chancellor shall think fit and never to be opened again but by order of the Judges With certification if the Clerk who shall have the keeping of the said Verdict do make open the same without warrand he shall be deprived of his Office and otherwayes punished as the Judges shall think fit 10. That in all Criminal Pursutes the Defender or his Advocats be alwayes the last speaker except in cases of Treason and Rebellion against the King 11. That when any Criminal Libel or Summons of Exculpation are given and execute against any Party that at the same time Lists of the Witnesses to be adduced for proving of the said Libel and Summons and of the persons who are to pass upon the Inquest be also given to them to the effect the Party may know what to object against the saids Witnesses and Assizers and may take forth Diligences for summoning of Witnesses for proving of their objections why any contained in the saids Lists should not be admitted to be a Witness or upon the Assize EDINBURGH Printed by Evan Tyler Printer to the King 's most Excellent MAJESTY 1670.