Selected quad for the lemma: kingdom_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
kingdom_n	king_n	law_n	prerogative_n	2,656	5	10.1872	5	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A52358	Some doubts & questions, in the law, especially of Scotland as also, some decisions of the lords of Council and Sessions / collected & observed by Sir John Nisbet of Dirleton ... ; to which is added, an index, for finding the principal matters in the said decisions.	Nisbet, John, Sir, 1609?-1687.; Scotland. Court of Session.	1698 (1698)	Wing N1170; ESTC R16027	472,476	492

pactum non intervenerit praevia tamen denunciatione ut debita solvat licet pignus alienare cessante debitore in solutionem per biennium post denunciationem Perez Lib. 2. Tit. 8. Plenishing If a Wife be provided to a part of it BY Contract of Marriage a Wife is provided in satisfaction of Terce Third or other part of Movables except the half of the Plenishing of the House the time of the Husbands Decease Whereto it is provided she shall have Right Quaeritur If there be no Free Gear will the Heir be obliged to free the half of the Plenishing Ratio Dubitandi The Contract bears she should have Right and she is in the same case as if her Husband had disponed for an Onerous Cause the Plenishing he should have the time of his Decease And on the other part it seems this Provision should be understood Conditionaliter if there be free Goods And the Clause being an Exception from a Renunciation both the Renunciation and Exception from it ought to be of the Regula and of that which would belong to her if she were not excluded which could only be the free Gear If the clauses do not bear besides the Heirship Quaeritur If she will have Right to the plenishing without Deduction of the Heirship Eadem Ratio Dubitandi Possessor PRocessum ligitiosae possessionis Hispani Interim Galli Recredentiam Belgi Provisionale remedium alii processum informativum appellare solent Budaeus litem vindiciariam Thes Bes in Litera I. 29. verbo interim mittel Possessor bonae fidei fructus consumptos suos facit absolute extantes vero Dominocedunt Possessor vero malae fidei nec consumptos nec extantes suos facit sed Dominus extantes vindicat consumptos vero condicit condictione sine causa Perez lib. 2 Tit. 5. Poinding of the Ground A Lord of Erection having Disponed Teinds and the Reddendo bearing a Sum to be payed for a proportional relief of the blensh duty payable by the Lord of Erection and certain Bolls of Victual to be payed also for his relief to the Minister Quaeritur Will the Minister have action for poinding the ground 2do What will the Superiors poinding the Ground import A Decreet of Poinding the Ground being got against the Heretor for the time and the Tennants Quaeritur If after the Death of the Heretor the Lands may be comprysed for the Bygones from the Appearand Heir without a Decreet of transferring or a new Decreet Answer It is thought there is no need of any other Decreet the Decreet being Really founded which may be recovered against an Appearand Heir and put in Execution by Comprysing or poinding against him Prerogative IF the Question betwixt Roxburgh and Lothian should be determined with respect to his Majesties Prerogative being the Fountain of Honour It is thought that His Majesties Concessions whatever the Subject be should be judged Jure communi And that Jus quaesitum whether as to Honour and precedency or any thing else cannot be taken away upon any such pretence The Prerogative is instar littoris which is defined quo fluctus Hybernus exaestuat So that as the Sea does not go beyond the Shoar when the Sea is most full so the Prerogative and Plenitudo Potestatis does never go beyond Law which is a great Littus and Boundary of just Power The Royal Prerogative is acknowledged and asserted by diverse Laws and Acts of Parliament of this Kingdom But how far the Extent of the same may reach is a point of State and Policy of the highest nature and importance and not to be defined by the Opinions of Lawyers but by the Highest and Legislative Authority The Royal Prerogative is not only asserted in the general by the Laws of the Kingdom but diverse and great Powers Rights and Priviledges belonging thereto are in special declared by diverse Acts of Parliament both in Relation to the Government and in Relation to His Majesties Interest and Questions and Causes betwixt Him and His Subjects As the Power of Calling and Dissolving Parliaments The Choising and Appointing Officers of State and Commissioners and Judges To make War and Peace And that there can be no Meetings to Treat or determine in Matters of State without His Majesties Authority and Warrand And that upon no pretence there can be any Rising in Arms without His Warrand And His Right to Custums And Power to grant Remissions for the Highest Crimes And that the Negligence of His Officers cannot prejudge Him And albeit by the Common Law the Eldest Superior is preferable yet when Lands are holden of diverse Superiors Ward the Marriage of the Vassal which otherwayes would belong to the Eldest Superior doth pertain to the King tho as to the Vassal his latest Superior And by custom albeit the going to a Miln for never so long a time being facultatis doth not import Servitude without a special Astriction yet the repairing to His Majesties Milns by the space of Fourty Years doth induce a Servitude without any other constitution As to which and other points of the Prerogative explained by Law and Custom Lawyers may and ought to give their Opinions in Law But as to Lawyers and Juris-consults it is said Turpe est sine lege loqui ubi leges silent they cannot but be silent And the Laws of Scotland which ought to warrand the Resolutions and the Opinions of Lawyers in Questions concerning the State and Government are only the Statutory Law and Acts of Parliament and the common Law and custom and undenyable practique of the Kingdom As to the Civil Law of the Romans it was only the Municipal Law of that People And by reason of the great Equity of it in Questions de Jure privato tho it has not the force of Law with us yet it is of great Authority and use in cases not determined either by statute or custom But as to Questions of State and Government the Civil Law is of no use with us in respect the Laws of all Nations concerning their State and Government are only Municipal and the Constitution of the Respective States doth varie both from that of the Romans and for the most part each from another So that any Questions concerning the same cannot be solidely or warrantably Answered upon Principles or Reasons brought from any Law but the constitution of the Government and Laws and Customs of the Nation and Kingdom concerned It is conceaved That when the Opinion of Lawyers is asked Res should be integra and they should be at liberty to give their Opinion freely and without prejudice which they cannot doe after His Majesty has any way predetermined them by declaring his own Royal Will and Pleasure As to that Question What can be said in Law in defence of these who have acted contrary to Law in Obedience to His Majesty or upon his Royal Dispensation if they should be questioned in the time of Succeeding Kings It is Answered That upon the Grounds foresaid

ordinary Clauses irritant for preserving of Families and with that in special to be added that it should not be lawful to any that should succeed to prejudge their Successors Delinquendo even by committing of Treason and if they be guilty of such Crimes that the Estate shall be Forfault as to themselves but not as to other Successors whether such a Clause will secure against Forefaulture Ratio Dubitandi That it would be an encouragement to Disloyalty 2do It is against the common Law pactis privatorum non derogatur Juri communi 3tio By the late Act of Parliament anent Tailȝies it is provided that the King should not be prejudged as to Fines nor Confiscations nor Superiors of their Casualities On the other part it is thought there should be a difference betwixt these who by their vertue and purchase have founded a Family and these who succeeded in the Right of Estates acquired by Loyal and Virtuous Persons In the first case it is just that the person who has purchast and Entailed his Estate with such Clauses if he commit Treason should Forefault for himself and all his Successors In the other case it is hard that a person descended of an ancient and loyal Family should Fotefault an Estate not acquired by himself in prejudice of the Family and that the personal delinquence of one should weigh down the Merits of many Predecessors A Family being like a Ship out of which the Jonas that has raised the Storm should be cast and not the Ship and whole Family perish And upon the consideration foresaid it has been provided for the standing of Families even by Divine Law that it should not be in the power of one to Ruine the Family but the Successors Right should revive by the Jubile And by the Feudal Law in the begining Feuda were not Haereditaria so as that the Heirs and Successors should be Forefaulted by the deed of their Predecessors And when Feuda came to be Haereditaria there were some that were ex pacto providentia so that the Succession was settled in such a manner that it could not be cut off by the deed or Forefaulture of any of the Descendents but as to their own interest And there are yet Entails elsewhere and in England of the nature foresaid as V. G. of the Lord Grayes Estate which was the occasion that not only the Family but himself was preserved It being thought fitter that his Liferent should be confiscat dureing his Life than by his Death his Estate should go presently to his Brother And as to that pretence that Disloyalty would be thereby encouraged it is of no moment seing qui suae vitae est prodigus will be prodigus as to all other interests And albeit by the common Law where there is no provision to the contrary Estates are Forefaulted as to all intents yet provisio hominis tollit provisionem legis and there is no Law nor Statute with us disabling the King to give Rights with such provisions as are consistent with and suitable to the Divine Law and even the Civil Law Fideicommissa being in effect Entails and the Laws of other Nations and of his other Kingdoms and the Brocard pactis privatorum c. doth militate most when the certain form and modus habilis is prescribed by Law for conveyances or Testaments which ought to be precisely kept and observed without Derogation In other cases Provisio hominis as said is tollit legem As by our Law a Relict has a Terce of Lands and a third of Moveables and Marriage being dissolved within Year and Day the Tocher ought to return and in case ward Lands or the major part be Disponed they are recognised and if a Feu-duty be not payed in the space of two Years the Feu may be reduced and yet as to these and many other cases derogatur Juri communi pactis privatorum And as to the Act of Parliament concerning Tailȝies it doth militate only in the case of Tailȝies with the ordinary Clauses irritant anent the contracting of Debts or doing other Deeds so that albeit by the said Clauses irritant the Debts or Deeds of the Contraveener are void as to Tailȝied Estates yet Confiscations and Fines in favours of the King doe affect the Estate and it is not provided by the said Act of Parliament that it should not be lawful for the King upon the considerations foresaid to grant a Right Entailed with the said Clause that the Estate should not be forefault in prejudice of the Entail and it cannot be said that the concession of a Prince qualifying his own Grant with such Provisions as he think fit is Pactum privatorum and seing other Superiors may so qualify the Infeftments and Rights granted by them to their Vassals that the Vassal should not forefault his Lands for Feudal Crimes for selling the Lands holden Ward without the Superiors consent or for being behind in payment of Feu-duties it is against Law and Reason to deny that power to the King to qualifie the Vassalls Right so that when Lands otherways would Forfault they should not Forfault in prejudice of the Family and Successors The Lands of Artloch being by Alexander Keith of Artloch Heretor thereof Tailȝied to himself and the Heirs Male of his Body which failȝieing to the Heirs Female of his Body without division which Failȝieing to his Sister c. And having secured the Tailȝie by Provision that it should not be in the power of any of the Heirs to alter the samen with Clauses irritant and resolutive whereby the controveening of the Terms of the Tailȝie are declared to be a ground of amitting the Estate and devolving thereof upon the next Member of the Tailȝie All which Clauses are insert in the Bond of Tailȝie Charter and Instrument of Seasin following thereupon Anna Keith being the only Heir of the Marriage and so Heretrix of the Lands she by Contract of Marriage with John Forbes of Assure is obliged to resign and provide the saids Lands of Artloch to him and her in Conjunct-Fee and Liferent and to the Heirs-Male to be procreat betwixt them which failȝiening to the Heirs-Male of her Body which failȝiening to the Eldest Heir Female to be procreat betwixt them which failȝiening to the Eldest Heir Female of her Body which failȝiening to him and the Heirs Male of his Body which failȝiening to the Eldest Heir Female of his Body Which failȝiening to him and his Heirs and Assigneys whatsomever 1. Quaeritur Who is Fiar by the Conception of the Tailȝie whether the Wife because she having been formerly Fiar the Tailȝie was made upon her Resignation and so the Heirs of the Marriage must in dubio be Heirs to her Or whether the Husband by the Prerogative of the Sex and by the last termination of the Tailȝie which resolves on his Heirs ut supra will be Fiar Or if the foresaid destination whereby the Wifes Heirs-Male or Female are preferred to the Husbands in all

Civili usucapi nequeunt Perez Instit. Tit. 10. Nihil enim operatur bona fides aut Titulus propter vitium nisi vitio purgato nempe re furtivâ reversâ in potestatem Domini Servus Fugitivus non usucapitur quia fugiendo sui furtum facere dicitur Si quis mala fide absente forte Domino vel negligente aut eo decedente sine successore fundum alienum possederit vendiderit Emptori bonae fidei non obstat usucapioni vitium quasi rei furtivae non enim fundi locive furtum committitur aut rerum immobilium facilis est interversio Res Fisci usucapi non possunt quia Juris publici sunt bona autem vacantia usucapiuntur quae haeredem non habent si antequam a Fisco occupentur ab alio possideantur quia nondum Fisco denunciata non sunt Fisci sed manent in Commercio Presentation upon Forefaulture QVaeritur If a Composition be due to the Superior for receiving a Vassal presented by the King upon a Forefaulture It is thought That it is not due seing he is obliged to receive him and the Lands belonging to the King by the Forefaulture he does a Favour to the Superior by presenting one in his place The King having presented a Vassal to the immediate Superior some years after the Forefaulture of the former Vassal Quaeritur Whether the Person presented will have Right to the Duties become due since the Forefaulture or if the same will belong to the Superior Cogitandum But it seems that the King having no Right to the Lands which he cannot hold of a Subject but having only Right to present a Vassal in the interim the Duties should belong to the Superior seing the Property belongs to no Person And the Superiority draws unto it the Right of Property and the Superior not having a Vassal ought to have the duties of the Lands Otherwise if the King should not present for many years he should want the Fruits and Benefit of his Superiority And it is not his fault that he wants a Vassal seing hardly he could force the King to present The Lord Tarras Process against Strangers IF a French Man or Hollander v. g. should retire out of France or Holland hither and should be Pursued in this Kingdom at the instance of these who have contracted with him in the Place where he was Quaeritur If Process should be Sustained against him here And if it should according to what Law should he be Judged Seeing our Judges are not presumed nor obliged to know any other Law but our own and the civil Law Answer They ought to have Process according to the Law of the Place where they Contracted which may be known upon a Commission Seing Mobilia and Immobilia habent situm viz. illa fixum ista vagum Quid juris as to nomina Debitorum utrum sequuntur personam Debitoris an Creditoris So that a Debt due by a Scotsman to a Stranger should be considered as a Scots interest res Scotica and a Testament concerning the same should be confirmed in Scotland Quid Juris as to annualrents when the Laws of the Place where the Creditor lives and our Laws do vary Quid Juris When the Debitor being a Scotsman and having granted Bond in Scotland has retired elsewhere both as to the effect of confirmation and Annualrent whether Lawful or no Lawful And if the Annualrent should be ever considered with respect to the Place where the Debitor was Incola the time of the contracting Procuratories of Resignation IF Procuratories of Resignation granted by Magistrates Expire by the decease of the granters Promise to Dispone not in writ IF any Person or their Heirs may be pursued for implement of a promise to dispone Lands and Heretages it being referred to the Oath of the Person that made the Promise or of his Heir if he be deceased that such a Promise was made Answer That it is thought that as when upon a Treaty and Agreement Writs are drawn Parties may Resile before Writs be subscribed There is eadem if not major Ratio in Promises which cannot be perfected but in Write Et nihil actum creditur dum quid supersit agendum nisi accedit Juramentum Vide Emphyteosis and what the Lawyers say in such Cases where Write is necessary Protections IF Persons cited to appear before the Justice or Council or imprisoned by order of the Justice or Council may be taken or arrested upon Caption or otherwise for a Civil Debt though they have not Protections Provision in favours of Bairns IT was provided by Contract of Marriage that the Conquest should be employed upon Rights to the Husband and Wife in Conjunct Fee and to the Bairns of the Marriage in Fee Quaeritur If the Husband having acquired a considerable Estate may he advantage his Heir or any other of the Children and give a greater Proportion to them than the rest Or will the Conquest belong to all equally Ratio Dubitandi It were hard that the Father should not have power to divide his Estate amongst his Children and in Consideration of it to oblige them to be dutyful On the other part the provision being in favours of the Children which is nomen collectivum universale indefinitum aequipollet universali 2do If that Power were allowed to a Father it may be abused and intending to marry again he may deal with one of his Children and giving more nor his Proportion he may by transaction settle all the Conquest on him and take a great part of it back from him in prejudice of the other Children 3tio By that Provision there is a Legitime settled upon the Children and as the Father cannot prejudge them of that which is given them by Law but the Bairns-part must divide equally so he cannot prejudge them of that Bairns-part provided by Contract unless by the same the Father had that arbitrium and Power given to him as sometimes it is Provision in Bonds A Bond of provision being granted by a Brother to a Sister for a Sum to be payed to her at the next Term after the Bond without mention of Heirs or Assigneys but with a Provision that if she should decease unmarried it should return to the Granter and his Heirs Quaeritur If she having assigned the Bond the Assigneys will have Right albeit she deceased unmarried And what the import of the said provision is whether a Substitution or a Quality of the Fee and a fidei commissum that she should not assign but with the burden of it Ancrum younger contra Mangertoun Provisions in Charters IF Lands be disponed to be holden of the Disponer with a Provision that if the Vassal be year and day at the Horn his Liferent shall not pertain to the Disponer but now as then and then as now shall be given and belong to himself Quaeritur Quid Juris Ratio Dubitandi Dolus futurus non potest remitti and being pactum contra legem

other papers now produced by the Duke for clearing his interest That the claim of that Honourable Familie was only of the Office of Admiralitie of the Kingdom without any mention of the Isles and much less of Orknay and Zetland in so far as his Majesties Fathers letter 16 June 1628 of which the extract is produced doth bear That he had been pleased to sign a signature In favours of the Duke of Lennox of the Heretable Office of Admiralitie of this his Kingdom And in the Act of Parliament produced of the date 28 June 1633 Mention is made that the deceased James Duke Lennox stood Infeft as Heir to the said Lodovick Duke of Lennox in the Office of Admiralitie of this Kingdom without the least mention of Orknay and Zetland It appears by the Writs produced for the Duke That until the Earl of Mortouns Grand-Father obtained a gift and Right of Orknay and Zetland from his Majesties Father The Duke of Lennox's Right as to the admiralitie of Orknay and Zetland was ever questioned and controverted by his Majesties Officers In so far that upon the last of March 1628 The King did set a Tack of the Earldome of Orknay and Zetland To Archibal● Lord Naper Containing a Right likwayes of the Admiralitie within the Bounds of Orknay and Zetland And the Earl of Linlithgow having appeared in behalf of the Deceased James Duke Lennox The said Lord Naper Declaired that he should be ruled as to the said Right of Admirality according as his Majestie should declare his will thereanent whereas if the Dukes Right had been clear and unquestionable neither a Tack would have been set of the Admiralitie of Orknay and Zetland neither woul● there have been any Reference made to his Majestie But upon the Ear● of Linlithgowes appearing and representation of the Dukes Right th● Clause of the said Tack as to the Admiralitie of Orknay and Zetland would have been Delet As to Possession the Earles of Mortoun have been in Possession of the Admiralitie of Orknay upon a Gift and Right from his Majesty ever since th● Earle of Mortouns Grand-Father obtained the Right of Orknay There is produced for the Duke The double of a Gift granted to the Earl of Linlithgow of the Admiralitie of the whole Kingdom of Scotland and Isles thereof and of the Lieutenendrie Justiciarie and General of the Sea with consent of the Deceast James Duke of Lennox and of his Curatorsf the said Earl being a Confident Person and Relation of the said Noble Familie And without prejudice of the Dukes Right But it is to be Considered that the said Paper is only a Double and not Authentick And the said Right is only Granted dureing the Minoritie of the said Duke of Lennox and is given upon a Supposition and Narrative of the Dukes Right Whereas no Right has been or for any thing that can be seen can be showen That the Dukes of Lennox have Right expresely of the Admirality of the Isles and of the offices of Lieutenendrie and Justiciarie As to the Priviledges and Casualities belonging to the Admiralitie of Orknay and Zetland it is represented that the Priviledges and Casualities of the Admiralitie are not specified nor defyned in any Charter or Record for any thing that does appear the Charter foresaid granted to Lodovick Duke of Lennox in Anno. 1603 bearing only as said is Cum Privilegijs commoditatibus eisdem Spectantibus And the Charter granted to Adam Hepburn Earl of Bothwell in the Year 1511 which is the most ancient Record of Admiralitie that we have seen bearing only the said Office of Admiral Totius Regni to be given to the said Adam Cum omnibus Libertatibus proficuis eschetis ejusdem without mention of the Isles of Orknay or Zetland or specifieing the Liberties and Casualities belonging to the Admirality It Appears by an Act of Parliament Intituled concerning certain abuses of the Admirals proceedings being 156. Act of King James 6th his 12. Parliament that upon pretence of an Infeftment granted to Francis Earl of Bothwell of the Admiralitie of Scotland containing greater Specialities and diverse Clauses which were not in the former Infeftments of Admirality The People being oppressed did Complain and by the said Act it is Statute that the Admiral and his Successors should exerce no Jurisdiction nor exact no Dutie nor Casualitie But that which was in use to be exercised and taken by the Admiral for the tyme before the Death of King James 5th And therefore it is humblie conceived that whosoever shall be found to have Right to the Admiralitie of Orknay and Zetland It is fit that the Priviledges and Casualites of the same be so defyned and cleared that the Fishing Trade and Trafficque be not interrupted nor disturbed And that his Maiesty be not prejudged of his Rents of Orknay It is humblie represented to his Majesties Consideration The Records being for the most part lost which might have cleared his Majesties Interest and the Right of Admiralitie being Granted to the Dukes of Lennox in manner foresaid and neither the Dukes Right nor the Right of Admiralitie granted to the preceeding Admirals being special as to the Isles of Orknay and Zetland and the said Isles of Orknay being the Kings Propertie and feued only to the Earles of Orknay and now Annexed to the Crown and the said Isles being so remote and of so vast an extent and formerlie possessed by the King of Denmark and upon Transactions with the said King which are not very ancient being reunited to this Kingdom Whether or not the Right of Admiralitie granted to the Dukes of Lennox ought to be extended to the said Isles of Orknay and Zetland FINIS THE DECISIONS OF THE LORDS OF COUNCIL and SESSION IN Most Cases of Importance Debated and brought before them from December 1665 to June 1677. OBSERVED By Sir JOHN NISBET of Dirleton Advocate to King CHARLES II. To which is Added An INDEX For finding the principal Matters in the said Decisions As also A List of the Pursuers and Defenders Names EDINBVRGH Printed by GEORGE MOSMAN and are to be Sold at his Shop in the Parliament-Closs Anno Dom. M.DC.XCVIII DECISIONS OF THE LORDS OF COUNCIL and SESSION In some Weighty and Important Affairs before them Beginning the 7. of December 1665 and ending the 29. of June 1677. Decision 1st Veatch contra Duncan 7. December 1665. THE Clause cum molendinis multuris importeth freedom from astriction though it be only in the Tenendas Me referente D. 2. Burnet contra Leys 12. Decemb. 1665. THe said Mr Robert Burnet Son to Alexander Burnet of Leys being provided by his Grand-Father Sir Thomas Burnet of Leys his Father having deceased before To the Sum of 10000. Merks to be payed after his age of 25. Years with Annualrent after that time conform to a bond pursued his Nephew Leys for the Annualrent of that Sum at least for an Aliment until he should attain to that age Upon that ground That he could