Maker was reconvalasced but since the Law has fixt upon Kirk and Mercat as open places where the disponer may be seen by all men and by unsuspect witnesses equivalent acts as going to make visits though at a greater distance will not be sustained and so the deeds reconvalasce with him But though a man cannot grant a new right upon Death-bed yet he may perfect an old right or do a deed to which he might have been otherwayes compelled as foâ— payment of his debt or may grant a rational Ioynter to his Wife though he cannot grant provisions to his Children in that Condition Title VIII Of Succession in Moveables THE same Rules are observed in the Succession of Moveables that were formerly specified in the Succession of Heritage except as to these particulars viz. all of one Degree succeed equally and so amongst Brothers and Sisters the Elder seclude not the Younger nor Males the Females as in heritage and in moveables there is no right of Representation as in heritage and therefore if there be a Brother and two Sisters alive and a third Sisters Children the Brothers and Sisters who are living will succeed equally excluding the Children of the Sister who is dead The Executor is also onely lyable according to the value of the Defuncts estate Because he gives up an inventary of his goods but an Heir is lyable for all the Defuncts debts A Testament or Latter will does require to be in Write for nuncupative Testaments which were so called in the Civil Law Because the Defunct named his heirs without Write are not allowed by Our Law by which a Testament must either be holograph all written with the Defuncts own hand or at least subscrived by him before two Witnesses if he can Write or if he cannot Write by a Notar or Minister and two witnesses No Heritable Right can be left in Testaments though the Testator was in leidge poustie and perfect health and though the Testaments be made in other Nations where Heritage may be disponed by testament vet it will not transmit a right to Heritage lying in Scotland and yet a Testament made according to the solemnities of these Nations will be valid in Scotland for though they may regulate us as to solemnities yet they cannot alter the nature and so not the transmission of our Rights A Legacy is a donation left by the Defunct in any Write to be payed by his Executor But if the Legator die before the Testator or before the condition is fulfilled on which the Legacy was left then the Legacy evanisheth and though neither other mens moveables nor a mans own heritable rights can be left in Legacy yet such Legacies are valid if the Testator knew that the sum left was heritable or belonged to others and the Executor in those cases must pay the value A Minor being above 14. years may make a Testament without the consent of his Curators but under 14. years he can make none A Wife may make a Testament without the consent of her Husband And a person interdicted without the consent of the Interdictors but Idiots nor furious persons can make none except in their lucid intervals nor Bastards except they be Legittimated or have Children of their own If a Man be Married the Wife has without paction a share in his Moveables of which he cannot defraud her by his testament and this is called jus relictae and if there be Children the Law has provided a portion of the Moveables for them which is therefore called their legittim and of which their Father cannot prejudge them by his testament but there is no legittim due by the Mothers death nor have Children who are foris familiâ—â— that is to say who are married and have renounced their portion natural any Legittim due to them This Legittim is also due only to the immediat Children but not to Grand Children The Remander of the Defuncts Moveables beside what is due to the Relict and Children is called the deads part and upon that onely he can dispone If a Man have no Wife nor Bairns all is the deads part and may be disponed by him If there be either Wife or Bairns and not both then the Defuncts Testament receives a bipartite division but if there be both Wife and Bairns then it receives a triâ—artite division By the Civil Law a Testament was null if the heir was not named but with us a Testament is valid though the executor be not named who is the heir in mobilibus and is called executor because he executes and performs the Defuncts will and for executing thereof the Law allows him the third of the deads part if he be a Stranger but if the nearest of kin confirm he has right to the whole deads part except the whole be exhausted by legacies and the superplus over what is left in legacy and the third due to the Executor for his Office belongs also to the Children and they may call the Executor also to an account for it but the Heir has no share in the Moveables except he collate that is to say be content that the rest of the Children share equally with him in all that he can succeed to as Heir or in case there be but one Child for then that Child is both Heir and Executor without Collation An Executor Nominate is he who is named by the Defunct in his Testament And is therefore likewise called an Executor Testamentar but if there be none named by the Defunct then the Commissar will make an Executor dative and ordinarly they prefer the nearest of kin but if the nearest of kin being charged will not confirme then they name their own Procurator Fiscal Executor and if thereafter the nearest of kin compear they use to surrogat him and this is called an Executor surrogat But no Executor Dative has a third of the Defuncts third as others have A Creditor may confirm himself Executor Creditor and so may pursue the Defuncts Debitors and least that Creditors should wrong one another by nimious diligence Our Law has appointed that all who shall confirm themselves Executors Creditors or shal do diligence against Executors or Intromitters within 6. Moneths one of another shall come in pari passie Executors Creditors are onely obliged to confirm as much as may pay themselves and are for the same reason only liable to do diligence for what they did confirm Because Moveables may be easily concealed from Creditors or dissipated therefore the Law appoints that the Executor shall upon Oath give up Inventar and find Caution to make these moveables forthcoming And then the Commissar confirms him nor can he pursue or dispone as Executor till he be confirmed he is onely lyable for the Defuncts debt in as far as the goods confirmed will extend Executory being a meer Office it accresses to the Survivers if there be moe Executors and in so far as the Executors have
the breach of a vow And to scandale because it is an offence against Christianity and of teinds and benefices because these are the patrimony of the Church And of all matters referred to Oath if the same exceed not 40 lib. Scots because an Oath is a Religious tye Every Bishop has his Commissar who has his commission from the Bishop only and this extends no further than the Constituents Diocy But the archbishop of St. Andrews has power to name four Commissars who are called the Commissars of Edmburgh because they sit there and they only are Iudges to divorce upon adultery and can only declare marriages null for impotencie and to bastardy when it has any connexion with adultery or marriage And they only may reduce the sentences of all inferrior Commâ—ssars though the Lords of Session may reduce even their decreets and sentences They have instructions from the King which are their Rule And these are likewise recorded in the books of Sederunt of Session Tit. VI. Of MARRIAGE Having spoken fully of Persons at they are considered in a Legal sense We shall now treat of Marriage which is the chief thing that concerns Persons and their State in Law MAarriage is defâ—ned to be the coâ—â—unctoâ—n of Man and Wife vowing to live inseparably together till death By conjunction â—ere consent is understood nâ—m consâ—nsus non â—oactus facit matrimonium Consent is either de futuro or de presenti consent de futuro is a promise to solemnize the Marriage which in Law is called Spousalia and this is not marriage for either party may resile rebus integris notwithstanding of the interveening Promise or Espousals consent de presenti is that in which marriage does consist and therefore it necessarly follows that none can marry except these who are capable to consent and so Idiots and furious Persons durante furore cannot marry nor Infants who have not attained the use of reason that is when they are within the years of pupillarity which is defined in Law to be 14 years in Males and 12 in Foemales nisi malitia suppleat aetatem The Law in decencie requires the consent of Parents though a marriage without it is valid if the persons married be capable of consenting By our Law none can Marry who are nearer relations than Cousin germans which is suitable to the Iudicial Law of Moses and the same degrees porhibited in Consanguinity are also forbidden in Affinity Marriage is either regular and solemne or â—landestine the regular way of Marrying Is by having their names proclaim'd in the Church three several times which we call Proclamation of Banns without which or a Dispensation from the Bishop the Marriage is called a Clandestine Marriage and the parties are finable for it but the Marriage is still Valid Cohabitation also or dwelling together is presum'd to be Marriage if the Parties were repute Man and Wife dureing their lifetime and so the Children are not Bastards though they cannot prove that their Parents were Marryed unless it be clearly prov'd that they were not Married From the coniugal Society arises the communion of moveable Goods betwixt Man and Wife but the administration thereof during the Marriage is solly in the Husband which reaches even to Alienation and disposing upon the Moveables at his pleasure though they be not dispon'â— to him by her Marriage being a Legal Assignation as to thiâ— effect but he has no further Right to her Heritage save that he has Right to the Rents of it and to Administraâ—â— and Manage it during thâ— Marriage and this is called Ius Mariti and is so inseparable from the qualitie of â— Husband that he cannot bâ— Our Law Renounce his Ponâ—â— of Administration so that theâ— are both Domini by this communion but the Husband hâ—â— a Dominium actu and thâ— Wife only habitu The Husband is lyable dureing â—he Marriage to pay her moveable â—ebts but how soon the Marâ—iage is disolv'd he is no â—urther lyable to pay her debts than in as far as he was a Gainer by her Estate If the Wife contract any debt or doe any other deed after the Proclamation of Banns the Husband will not be thereby Prejudg'd The Husband is also oblig'd â—o Aliement his Wife and if he â—efuse the privy Council or Lords of Session will modific â—n Aliement to her out of her Husbands means suitable to â—is Qualitie which they will â—lso grant ob saevitiam if he â—reat her Inhumanely The Husband is Tutor and â—urator to his Wife and thereâ—ore if she had Tutors or Curators formerly their poweâ— is devolved over by the Law upon the Husband and whatever deeds she does withouâ— his consent are null when sâ—â— is Cited he must be Cited foâ— his Interest or if she Marriâ— during the Dependence of aâ— Process the samen must upon Supplication be continued against him Because the sole administration during the Marriage belongs to the Husband Law hath secured the Wife thâ—â— she cannot oblige her self when she is cloathed with â— Husband albeit with his consent and therefore all Bands and Obligations granted by â— Wife stante Matrimonio are 〈◊〉 jure null but if she oblige hâ—â— self ad factum prestandum sâ—â— will be lyable as if she shoulâ— oblige her self to Infest any Man in Lands properly belongâ—ng to her self During the Marriage all donations made betwixt Husband and Wife are Revokable at any time in their life except in so far as they are suitable provisions least otherwayes they might ruine themselves thorow Love Fear or Importunity and that either expresly by Revocking what is done though they obliged themselves not to Revoke or Tacitly by disponing to others what was so gifted All Rights made by a Wife to her Husband or any third partie with his consent and to his behoof are valid Rights if they be Ratified by her before a Iudge before whom she is to declare without the presence of her Husband that she was not compelled to do that deed and Swear that she shall nevâ—â— quarrel the same Whereas if they be not Ratified they may be quarelled as extorted vi metu or may be Revokes as donatio inter Virum Uxorem which the Ratification before a Iudge does absolutely exclude Propter Religionem Sacramenti the Ratification being extra presentiam mariti Marriage is disolved either by Death or Divorce and 〈◊〉 the Disolution of the Marriage be by Death there is a difference if the samen be within Year and Day of the Marriage or thereafter for if either the Husband or the Wife die within the Year all things done in tuitu Matrimonij become void and return to the same condition they were in before the Marriage except there be a living Child Procreat of the Marriage who was heard cry If the Marriage be disolved by Death after the Year expyres then the Wife surviving has right to a third of the moveable Estate if there be Children and to the half if there
not execute the Testament in their own Lifetime that is to say have not obtained Decreets for the goods belonging to the Defunct there will be place for a new Executor for executing these and they are called Executors quoad non executa or if the Executor ommit to give up any thing in the Inventar or do not give up the saids moveables at the full rates there will be another Executor Dative made by the Commissar who is called an Executor Dative ad ommissa vel male appretiata The Executor onely has power of Administration and the Creditors and Legators can onely pursue him except where there is a special Legacy left of such a particular thing or a sum owing to such a particular person For then the special Legator has the dominium transmitted to him and so he may himself pursue for his special Legacy but the Executor must be still called in the pursute to the end it may be known whether the Debts exhaust the special Legacies For no Legacy can be payed till the Debts be payed and therefore if all the Legacies cannot be payed the Legators suffers a proportional defalcation for payment thereof but if there be as much free goods as will pay the special Legacy it will be preferred without defalcation An Executor cannot dispone till he obtain a sentence but even the sentence states him not in the absolute right of the moveables otherwayes than that he may discharge and assign to the respective persons having interest For if he were denounced Rebel the Executory goods even after sentence would not fall under his Escheate nor would his Executors or his Creditors have right thereto in prejudice of the nearest of kin of the Defunct to whom he was Executor If there be moe Executors whom we call Co-Executors one cannot pursue without the rest for all of them represent the Defunct only as one person but if any of the rest will not concurr they may be excluded from their Office by a process before the Commissars nor can an Executor for the same reason discharge a debt wholly since the rest have an equal share in each debt but if the other Executors have got as much as their share will extend to the discharge even from one of the Executors will be sufficient nor are for the same reason Co-Executors lyable for the whole debt and so cannot be singlely pursued unless they have intromitted with as much as may pay the debt pursued for An Executor is lyable to do diligence for recovering the debts due to the Defunct and the diligence required upon his part is a sentence and Registrated horning against the defuncts debitors but if there be an universal or special legatar whereby an Executor confirmed has no advantage then the Executor is not lyable in diligence but only to assign the Creditors that they themselves may pursue The Executor likewise cannot pay any debt without sentence least otherwayes he might prefer one Creditor to another but yet the Executor may pay those debts that are acknowledged in Testament without Process providing the same be payed before the Creditors intent a persute or these which we call priviledged debts because they are preferred to all others viz. servants fies medicaments on death-bed house-meal and funeral-expenses After the Executors have executed the whole Testament they may get a Decreet of Exoneration before the Commissars against the Creditors and all having interest wherein they may prove that all they got is exhausted by lawful sentences but it is not necessar to have such a decreet when they are pursued before the Lords for it is sufficient when they are pursued there to alledge that they are exhausted by way of Exception If any Person intromit with the Defuncts moveables without being confirmed they are lyable to the Defuncts whole debts whether they were related to himor no and though their intromission was very small and this was introduced to prevent the fraudulent and clandestine abstracting of the Defuncts moveables without inventary in prejudice of Creditors and therefore this passive title is only introduced in favours of Creditors but of none others such as Legatars Bairns c. But if the intromitter confirme before any Action be intented this purges the Vitious intromission and the intromitter is only lyable for the value of the thing intromitted with or if there be an Executor confirmed no Person can be pursued as Vitious Intromitter for the Intromitter then is only lyable to the Executor But the Relict or the Defuncts Children confirming within year and day after the Defuncts death does thereby purge the vitiosity though they confirm not till after citation nor will necessar Intromission infer vitiositie and that is called necessar intromission when either the Husband or the Wife continue their possession of one anothers Goods after one anothers decease for preservation and that because there is no other person to look after them and this is for the advantage of the Creditors since it hinders the Goods from perishing If there be moe vitious Intromitters they are each lyable in solidum if they be pursued in several Actions and pro virili if they be pursued together but none of them get Relief for wrong in our Law has no warrant The Heir is obliged to relieve the Executor of all heritable debts and the Executor is bound to relieve the Heir of all moveable debts as far as the Inventar will reach Title IX Of last Heirs and Bastards WHilst there is any alive who can prove even the remotest contingencie of blood to the Defunct they succeed to him but if there be none the King succeeds as last Heir for quod nullius est est Domini Regis and so the King succeeds to the Defunct as last Heir both in Heritage and Moveables and is preferred to all Superiours and others whatsoever for which end he makes a Donatar who must obtain a Declarator before the Lords of Session against all who are supposed to have any Relation whereupon a Decreet being obtianed before the Lords declaring that the King has right as last Heir the Defunct having dyed without any Relation This Decreet is equivalent to a service but if lands be taken by a man to himself and his Heirs Male simply the King will succeed as last Heir if there be no Heirs Male though there be Heirs Female since the land was not provided to them and therefore men ordinarly in their tailzies adject the Clause whilks failzing to their Heirs whatsomeever Because the King succeeds here as Heir therefore he is lyable to pay the Defuncts debts but he is only lyable as farr as the Estate will extend and therefore the Creditors may adjudge the Real Estate and serve themselves Executors Creditors in the Moveables A Bastard by Our Law has neither Heirs nor Executors but yet he may dispone upon either his Heritage or Moveables inter vivos though he cannot make a Testament except
name to dispossess him by the Sword to raise Fire and use all other severities for which the Commission does indemnifie them If such as have debatable Rights choose rather an amicable than a Iudicial decision they subscrive a Submission to Arbiters and if they please to an oversman and another blank on the back of the Submission wherein they may fill in their Decreet Arbitral And though it be free to these Arbiters to accept yet if they once accept the Lords will grant Letters of Horning to force them to decide Though these Arbiters are not tyed to the strict solemnities of Law yet they must observe material Iustice and therefore they must advertise Parties that they may give in claimes for a claime to Arbiters is in place of lybels to Iudges and must allow Terms to prove And though Equity is to them a Rule as Law is to other Iudges yet if either Party be enormly lesed the Lords will suspend and reduce their Decreets If the Submission bear no special day betwixt and which they are tyed to decide they must decide within a year of the Submission and if Witnesses will not voluntarly appear before them the Lords will upon a Bill grant letters of horning to force them to appear Title IV. Of CRIMES CRIMES are either Private where the injury is committed against private Persons or Publick where it is committed immediately against the Common-wealth Private Crimes called also delicta in the Civil Law oblige the Committers to repair the Dammage and Interest of the private Partie Crimes are in Scotland either punished capitally by death or pecunially by a certain fine or Arbitrarly at the discretion of the Iudge Capitale Crimes are Treason which is punished by forefaulture of life lands goods It is Treason in any man to Plot contrive or intend death or destruction to the Kings Majesty or to lay any restraint upon his Royal Person or to deprive depose or suspend him or to endeavour the alteration or diversion of the Succession to Levy warr against the King or any Commissionated by him or to intyse others to invade him to make Treaties or Leagues with Forraign Princes or amongst themselves without his consent To rise in fear of warr against the King to raise a frey in his hoast to Assaile Castles where he resides to impugne the Authority of the three Estates to decline the Kings Authority not to come out to the Kings Hoast or to desert it to maintain or reset Treatours to conceale Treason to countersite the Kings coyne and to raise wilful fire all which are Species of high Treason We have a kind of Treason in Scotland which we call Statutory Treason because it is meerly introduced by statute and not by common Law viz. Theft in landed men because of the danger of that kind of theft murder under trust as if one man should kill another when he invites him to his house or a Tutor should kill his Pupill which because of the easiness and attrociousness of the Crime is made Treason The fireing of Coals heughs assassination the pursueing another for Treason without being able to prove it All Iesuits Seminary Priests and traffecking Papists and all thieves who take bonds from lealand honest men for re-entering when they please All who purchase benefices at Rome are guilty of Treason No Crime can be pursued against a man or his heirs after his death except that Treason which is committed against the Kings Person or Common-wealth The other Capital crimes are Blasphemie Mans slaughter or Homicide for all Homicide is Capital with us except it be Casual or Homicide in self defence Theft is punishable by death but we call small theft pickery and it is only punishable arbitrarly Notour Adulterey that is to say where there are Children of the Marriage or where the adulterers converse openly at bed and board or being discharged by the Church to converse do continue to converse is punishable by death but simple adultery is only punishable arbitrarly Incest * Buggery Duells the invading of any of his Majesties Officers for doing his Majesties service Forgery Witchcraft and the consulters of Witches Sorners that is to say such as masterfully take Meat and Drink from the Kings People without payment All wilfull hearers of Mass and conceallers of the same Mutilation which is the disabling of a member though de praxi this be ordinarly punished with an arbitrary punishment Or the Authours of infamous Lybells Seditious Speeches tending to sedition the strickers of any Iudge in judgement mixers of Wine and committers of hame-sucken by which we understand the assaulting or beating any man in his house The Crimes to be pecunially punished are the slayers of Red-fish killers of Daes Deer Roes destroyers of Bee-hyves Fruit-trees Greenwood kindlers of Mure-burn except in the Moneth of March Steeping of Green-Lint in runing Waters or Loches such as are guiltie of abominable Oaths and Furnication Crimes to be arbitrarly punished at the discretion of the Iudge are negligence in the Kings Iudges and Officers and such as unjustly murmure against them breakers of the Kings protection the bringing home of erroneous Books and the troublers of Church-men Crafts-men who wrongously refuse to fulfil the work which they have taken in hand verbal injuries and scandals against private Parties It is fit to know that no punishment left arbitrary by the Law to the discretion of the Iudge can be by him extended to death and that where-ever the Law appoints death to be inflicted the offenders moveables fall to the King though the Law does not express the same and though the sentence express not the confiscation There are other Crimes whereof the punishment is not reduceable to any of these kinds and thus perjury and Bigamie which is a kind of perjury because a man who marries two wives breaks his Matrimonial oath are punishable by confiscation of all the Offenders Moveable Goods Imprisonment and Infamy Deforcers of Messengers and breakers of arrestment are punishable by confiscation of all their Moveables Forestallers of Mercats by buying things before they be prâ—sented to the Mercat or before the Mercat be proclaimed are punishable by Imprisonment and Confiscation of what is bought Ocker or Usury which is the taking more than the annualrent allowed or the taking annualrent before the term of payment is punished by loss of the principal sum for the Debitor is to be free from the Obligation and the write being reduced the sum belongs to His MAIESTIE Stellionat or the making of double Rights is punished by infamy and their persons are at the Kings will The Keepers of Victual to a dearth are punishable as Ockerers and by the Civil Law per leg Iul de Annona Bribing of Iudges is