therefore suld pay ane peece of money called Marca Hector Boetius lib. 3. c. 12. For the quhilk certaine Kye was used to be payed Lib. 4. cap. Sciendum 63. Bot utherwaies in my opinion Mark or March signifieth ane horse In the auld French Irish and Dutch tounges For in the French toung Marcher is to ride or gang as Marcher devant to ride or gang before And Paulus diaconus Histor Longobard writtis that Mar is called in Latine Mar. Equa quhilk wee call ane Meare Alciatus de singulari certamine c. 32. Marcam inquit Germani equam dicunt unde Marcomanni qui hodie dicuntur Moravi equitatu pollentes populi Et Maroboduus Rex Mar comannorum cui corpus instar equi erat Mair-over I finde ane auld constitution written be Lotharius Imperator Carolus Rex in this manner Vt missi nostri in illorum missatijs h. e. commissarij nostri in iis locis ad quos mittuntur curam habeant ne homines nostri aut alij quilibet vicinos suos majores vel minores tempore aestatis quando ad herbam suos caballos mittunt vel tempore Hyemis quando Marescalli illos ad fodrum dirigunt depraedentur aut opprimaÌ„t Be the quhilk it is manifest that fodrum is a dutch word pro paubulo equoruÌ„ quhilk we call fodder marchalcus or mariscallus Fodrum Marschallus Marche Schalk Trimarchisia Hors-marsceall Downe is a master of stable or a servand that hes cure of the horse for March signifies ane horse and Schalk in Dutch is ane servand as Godschalk the servand of God And Alciatus d. c. 32. Affirmis that the troupes of horse-men in the armie of Brennus was called Trimarchisia because ilk man had three horse And in the samin signification we use the word Hors-marschel Quhair horse is adjoyned for interpretation of the word Marche As likewaies in Silverdown hill This word hill is the interpretation of the uther word Downe quhairof the ane and the uther signifies anething In Latine Mons. Swa horse-marschel is ane servand that keipis or curis horse as is commonlie used within this Realme Quhilk oppinion sindrie Germane writters confirmes and speciallie the Scholiastes of Guntherus lib. 8 Austriados Swa leavand to ilk man his awin oppinion and judgement free to himselfe I think that Marcheta mulieris is the raide of the woman or the first carnall copulation and conjunction with her quhilk in respect of her virginitie is maist esteemed be men Quhilk interpretation is confirmed alswa bee Cuiac Lib. 1. de feudi MARITAGIUM Haeredis The marriage of ane aire maill or femaill Maritagium legale quhilk is modified and liquidat be the Lords of the Session to ane certaine summe of money after consideration of the rentall and valure of the lands perteining to the aire quhilk is either legall or conventionall The mariage Legall is that quhilk be disposition of the Law perteinis to the superiour and over-Over-lord For the mariage of ane aire maill or femail of landes halden be service of warde and relieve being within lesse age or being of perfite age and not maried the time of the decease of his father or uther predecessour to quhom he is aire perteinis to his immediat superiour be the commoun disposition of the law of this realme The mariage perteinis to the King And gif there be maa superioures the marriage perteinis to the first and eldest superiour to quhom the predecessoures of the said aire maid first leageance and homage Or of quhom they have the first infestment of their landes Leg. Forest c. si alicui 75. Mair-over gif an air haldis certain lands be service of ward of the King immediatlie And certaine uther landes be the like maner of halding immediatlie of ane uther superiour Spirituall or Temporall The Marriage of the aire suld perteine to the King allanerlie without ony respect of the quantitie of the landes or of the prioritie or posterioritie of the hading Because the King hes not ane peere or companion far les ane superiour within his realme Lib. 2. c. Restituere 44. c. 45 Maritagium conventionale is that quhilk cummis not be disposition of the law Maritagium conventionale bot be the convention and consent of parties As quhen ony man haldis his landes in blench or in few-ferme His awin or his aires mariage na-waies thereby perteinis to his superiour Bot Èit gif hee payis ony dewtie for his landes nomine albae firmae or nomine feudi-firmae vna cum maritagio haeredis cum contigerit Gif he happenis to decease the mariage of his aire nocht being maried perteinis to his superiour not be the nature of the halding of his landes bot be the convention and provision conteined in his infestment Single and double availe of mariage The availe of ane aires mariage is either single or double For gif the superiour requires not ane aire to marie and the aire marie with out his consent The superiour suld obtaine allanerlie for his mariage be the estimation of the ordinar judge sa-meikle as may be ane competent summe or tocher to the said aire conforme to his Èeirlie rente Or gif the aire refusis to marie hee cannot be compelled to doe the samin Quia matrimonia debent esse libera Bot quhen he cummis to perfite age he sall give to his superiour al 's meikle as he micht have fra ony uther person for the samin marriage before he receive his landes out of the hands of his superiour quia maritagium eius qui infra aetatem est de mero jure pertinet ad dominum feudi leg Forest c. Siquis 66. The double availe of the mariage of ane aire perteinis to the superiour quha makis ane lauchfull offer of ane partie to the aire in mariage Providing that the partie offered be of equal parage For gif the superiour dois marie the aire with ony persone in disparage as with ane burgesse man or with ane villaine Gif the aire bee of the age of fourteene Èeires or mair and givis his consent to the saide mariage the samin is gude and valiable of the law Bot gif the aire be within the age of fourteene Èeires quhair-throw he may nocht give ane lauchfull consent to his marriage In that case gif his kinsman compleinis the Over-lord sall tine and omit the warde and all commoditie that he may have thereby untill the aire be of lauchfull age of twentie ane Èeires Quhilk salbe converted and employed be the sight of his friendes to his use and commoditie be reason of the schame and dishonour done to him Leg. Forest c. Si qui domini 65 Quhilk is conforme to the Lawes of England Hen. 3. stat Merton c. 6. c. 7. Swa gif the Mariage of ony aire or heretrix be fallen in the superiours handes and the aire beand lauchfullie required be the superiour or his donatar or be ony
nocht the Kinges custome that they sell their gudes privatlie upon their awin fluire that they are fore-byars of quheat beare aits cattel are coperis and sellers theirof turnand the samin in merchandice leg burg c. de modo calumniandi foristallatores 154. RELEUIUM ane French word from the latine relevare quhilk is to relieve or to take up that quhilk is fallen for it is given be the tennent or vassall being of perfite age after the expiring of the warde to his over-over-lord of quhome he haldes his landes be knicht service that is be warde and relieve and be payment thereof he relievis and as it were raisis up againe his landes after that they were fallen downe in his superiouâ—â— hands be reason of waird lib. 2. c. dicitur autem 72. leg Forest c. si quis Comes 73. de judic 65. And the proffites of the landes of the Èeire foresaid after the end of the waird quhilk suld be given in name of relieve are understande to be the retoured maill of the saides landes conforme to the new extent thereof And therefore gif there be bot onelie wairde and the aire enter before ane terme run thereafter the King or uther superiour suld have na relieve quia haerede ad aetateÌ„ perveniente et facta ei haereditatis restitutione quietus erit a relenia ratione custodiae lib. 2. c. tandem 70. Be the auld law and consuetude of this Realme the superiour micht nocht bee compelled after the waird to restore the landes to his vassall untill he had been first satisfied for the relieve because he had libertie to reteine the landes untill the said satisfaction were maid Stat. Rob. 3. c. nota quod iste 21. Or else it was lesum to him as he pleased to poynd the ground therefore quia dominus potest distringere tenentes suos pro suo relevio servitio de feudo suo sibi debito li. 2. c. Sunt quidam 73. But now be the common practicque the non-payment of the relieve is na lauchful excusation to the superiour anent the receiving of his vassall But he will be compelled be precepts of the Chancellarie to receive his tennente or else he tynis the superioritie induring his life-time And it is leasum to him to poynde the ground for payment of the relieve Quia relevium est debitum reale adhaerei fundo The beginning and the first institution of the warde and relieve was in the time of Malcolme the seconde called Malcolme-Mac-Kenneth quha gave all and haill the landes of this realme to the inhabitantes thereof and reserved nathing to himselfe in propertie bot onlie his royal power and the Mute hill of Scone quhair he suld hald Court and receive homage and fealtie of his vassalles In recompensation quhairof all the Barronnes gave unto him the warde and relieve of the aire of ilk barronne for his princelie sustentation In the English Lawes read in Magna Carta Anno. 9. Hen. 3. cap. 2. And the statute of wards and relieves maid be King Edward the first 18. Èeir of his reigne REPLEGIARE To replege thatis quhen ony man be vertue of his awin jurisdiction bringis back againe or reducis to his awin court his awin man fra ony uther mannis court and leavis ane plege or cautioner behinde him for administration of justice vid. Culrach It is not leasum to ony man to replege fra ony uther court ony person bot his awin liege man or halding land of him or remainand in his service as ane of his familie or consanguinitie Stat. Alex. c. Anno 4. Statut. 2. Rob. Br. cap. 11. Ass reg Da. c. Statuit 37. RESEANTISA Lib. 1. c. Essoniorum 10. Ane seiknesse and infirmitie quhairby onie man is heavilie vexed Essonium de Reseantisa idem valet quod excusatio Essonium de Rescantisa de malo lecti Bedde evill Cum quis morbo ita affligitur ut sit lecto affixus In French Mal. de Lit. stat 1. Rob. Br. c. 5. In the Law of Normandie Lib. 9. c. 10. EssoinÈie or excusation of Mal reseant is quhen ony person lyand bed-fast in his awin house or ony uther place is heavilie vexed with seiknesse that he may not travell without danger of his life In jure civili morbus Sonticus dicitur qui eujusque rei agendae impedimento est Morbus Sonticus veluti febris Et legitimam excusationem ac dilationem praebet L. Quaesitum 60. ff de re Iudic. Aulus Gellius Lib. 20. cap. 1. Appellat Morbum Sonticum quemlibet morbum vehementiorem vim graviter nocendi habentem RESPONDE Or the buike of Responde Ia. 6. par 11. c. 73. It is maid and written be the directour of the Chancellarie For quhen hee directis preceptes to the Schireffe to give saising of ony landes retoured before him to the Chancellarie He makis ane memoriall of the dait of ilk precept and dewtie of the lands and commandis the Schireffe to take securitie for the samin during the time of the warde and non-entres and of the relieve auchtand to the King gif the lands be halden be service of ward and relieve Or of the doubling of the few-ferme or of the blench ferme according to the halding of the landes Quhilk buike Èeirlie is presented to the Checker And ilke Schireffe and uther judges givers of saisinges upon preceptes direct furth of the Kingis Chancellarie are charged there-with in their comptes compelled to make aunswere thereto and payment of all summes conteined therein for the quhilk cause it is called Responde quhilke is the first worde of ilke artickle of the said buik Further in the end of the saidis preceptes it is said praesentibus post proximum terminum minimè valituris And therefore gif the obteiner of the precept furth of the Chancellarie lye out and take nocht saising upon the samin quhill ane terme and maa be by-run after the dait thereof he sulde come againe to the Chancellarie and raise ane new precept quhairin is augmented the by-run mailles of the lands sen the dait of the first precept and ane newe memoriall or Responde is maide thereof RETOUR quhom be it is maid and quhy it is sa called vid. breve de morte antecessoris REGRES from Regrediendo likeas REVERSION a revertendo For like as the buyar of landes lettis them returne to the seller thereof be the reversion given unto him Even swa be the regresse of the superiour of landes wed-set be his vassall after the redemption thereof suffers the first seller of the samin to come back again to his awin place anent the halding of them as he did before the said alienation Swa reversion and regresse are different for reversion is given be him quha buyis the lande Reachept Cum pacto de retro-vendendo to the annalier thereof In French it is called Jus reacheptus or reachept And ane regresse is given be the superiour of landes to the annalier
broddes of Timmer quhilk commounlie conteinis fourtie skinnes In the quhilk maner merchands usis to bring hame Martrik Sable and uther coastlie skinnes and furringes TIMBRELLUS Dicitur parvis Cetus ane little Quhaill Le. Forest c Si quis cetum 17. de Iudic. c 27. TINNELLUS De Iudic. c 27 Leg Forest c. Si quis Cetum 17. The sea-marke uther-waies in English Tyde-mouth That is the farrest parte quhair the sea tyde flowis Littus Littus quo scilicet fluxus hybernus maris maximus excurrit hoc est quantumcunque mare aliquo tempore plus extenditur in hyeme vel aestate tantum est littus ejus § Flumina Et ibi Gl Instit de rer divis TRAISTIS Jam. 3 par 14 c 99. Signifies ane roll or Catalogue conteinand the particular dittay taken up upon malefactoures quhilk with the portuous is delivered be the justice Clerke to the Crowner to the effect the persones quhais names are conteined in the portuous may be attached conforme to the dittay conteined in the traistis For like as the portuous comprehendis the names of the persones indited swa the traistis conteinis the kindes of dittay given up upon them quhilk is swa called because it is committed to the traist faith and credite of the Clerkes and Crowner quha gif they be trustie and faithfull suld nocht reveale deleete change or alter the samin Jam. 2. p. 6. c. 28. TRIBULA Leb Burg. cap. Sihomo 16. Ane Flaile quhair-with corn is threshen A terendo quod frumentum terat Like as Tribulus is called ane thrissell and Tribulum ane Pestell quhair-with spices or ony uther thing is brayed in ane morter Barbarè magis quam Latinè secundum usitatum versum à pueris in scholis decantatum Tribulus thressill la staill lum quoque pestell TUERNAY Quid sit valde ambigo hic aliorum avidè expecto judicium In the Burrow lawes Cap. Quilibet 34. Si uxor alicujus fuerit calumniata de aliquo in placitis Burgorum utitur Tuernay That is as in the auld English buik the husband may do richt for his wife in courtes of Burgh Et de judic cap. cum quando 28. Si quis fuerit implacitatus coram justitiario domini regis vel alio ballivo si dominus ejus vel ejus Ballivus venerit allegaverit pro ipso in debita hora potest recuperare curiam domini sui Et si per negligentiam suam responderit dixerit tuentynay de omnibus sibi oppositis planè respondebit sic amittit curiam Domini sui In quibusdam libris legitur Twentynay Tuentynay Itaque conjicio esse antiquum verbum forense quo reus utens intelligitur approbasse judicem adeo ut eum postea declinare non possit V. VADIUM Vadimonium from ane auld worde veddum used in the Britton Lawes In Latine Pignus in French Gage quhilk we call ane wedde Immobile vadium Immobile vadium signifies immoveable gudes sik as landes annalied and wadset under reversion The profites quhairof computantur in sortem That is ar compted and reckoned within the stok Swa that the samin being payed in sik quantitie as extendis and is equivalent to the quantitie of the stocke and principall summe Thereby the principall summe is esteemed as compted and payed quhilk is called Mortuum vadium Bot now the contrair is maist commounlie used in the practicque of wadsettes and alienation of landes under reversion And be the aulde law of this Realme is called ocker and usurie and Èit be the samin was permitted and tolerated Lib. 3. c. 6. Quhidder the commoun forme of wad-setting of landes now used under reversion is leasum or unleasum vid Ias in Le cunctos populos C. de summa Trinitate Et Ches in Consuetud Burgund Rub 5 § 1. 2. In auld times I finde that quhen landes war wad-set nomine pignoris or ad immobile vadium The profites and rentes thereof were given and disponed be the annalier to the buyer for some certaine reasonable causes sik as pro consilio vel auxilio impenso vel impendendo to the effect that as the buyer bruikis the landes ex dispositione legis swa he micht have richt to the profites thereof Ex pacto conventione hominis vid. Reversion vid. Sterlingus vid. Mort-gage VADIARE duellum lib 4 c 2 A vadii datione to enact battell as in the English lawes be giving of pledges baith bee the persewer and defendar before the justice and his deputes The persewer is said vadiare duellum Quhen after leave asked and obtained from the King hee offeris to proove in plaine field al to be trew quhilk he affirmis to that effect offeris ane wad or pledge And the defendar is understand to vadiare duellum quhen he denyis all quhilk is spoken bee the persewer and affirmis the samin to be false and untrew and thereto offeris his bodie to fight with him and ane wadde or pledge to that effect de judic c. 61. c. 86. Molinaeus stil cur Par. part 1. c. 16. Et author tractatus de Corona Appellatus inquit defendet latrocinium feloniam totum factum per patriam vel per corpus suum secundum electionem suam prout curia consideraverit aut vardaverit Si autem elegerit se defendere per corpus suum vadieturinter eos duellum Et appellatus det Vadium defendendi appellans det vadium disrationandi Bot Philippus Pulcher King of France discharged all singular combattes and all finding of pledges there-anent Molinaeus D. part 1. c. 10. de duello in this realme the appealer and defender castis their glooves till uther quhilk representis the finding of the pledge VAGABUND is called properlie ane quha hes na certaine dwelling place Guido Papae quest 202. Per Gl. 1. Bart. l. § 1. Praetor ff de damno infecto Quhilk is verie speciallie declared in the act of Parliament Ia. 6 p. 6. 20. Octob. c. 74. VARDA ane French word Garde custodie or keiping For we use the letter W. quhair the French men usis the letter G. As wardaine for Gardaine Warderob for Garderobe Warrenne for Garrenne And the warde custodie and keiping of the aire haldand his landes be service of warde and relieve perteinis to his immediate superiour quhilk is conforme to the Lawes of Normandie Lib. 5. c 10. Quhair-anent thir rules after following suld be observed and worthie to be noted The ward perteinis to the superiour The warde and custodie of lands halden be service of warde and relieve perteining to ane aire being Minor and of lesse age aucht and suld perteine to the over-Over-lord and superiour of the saidis landes quha within the time of of the warde may present Ecclesiastical persones to Kirkes vaikand suld susteine honestlie the aire and suld nocht onelie pay the debtes auchtand be the defunct Bot also aske crave all debts auchtand to the defunct or to the aire
persew or follow as quhen ane gives up kindnes to ane uther he sayes Harr harr Ich wol euch suchen swa hame-suchen or hame-sucken is quhen onie person violentlie without licence and contrair the Kinges peace enters within an mans hous or seiks him at the same or assailÈies his hous as is written in the best buikes quhilk crime is punished as ravishing of wemen quo attach c. si quis aliquem 50 Stat. Wilh c. Item stat 10. quhilk is esteemed an greate crime contrair the common weill quietnes and peace of the cuntrie quia unicuique domus sua est tutissimum refugium Ideoque de domo sua nemo debet extrabi l. sed si 21. ff si quis in jus vocat quod verum esse in causa civili non autem in criminali notatur in gl ibidem quid sit domus vid. l. 1. ff de agnoscend liber HAWBERT there is foure maners of halding of landes outwith Burgh Sum landes are halden be the Kirk nomine pure eleemosynae paies nothing bot devota animarum suffragia as was used in the time of blindnes and papistrie De quatuor modis tenendi terras uther are halden in few or few-ferme of the King Kirk Barrones or uthers quhilkis payes ane certaine dewtie called feudifirma few-ferme uther are halden blenche be payment of ane pennie an rose ane paire of guilt spurres or sum uther dewtie quhen it is asked in name of blenche or nomine albaefirmae uther landes are halden be service of warde and relieve and the aire heirof beand minor is in the gairde that is wairde custodie and keiping of his superiour with all his saides landes untill he be major and of perfite age And siklike his marriage beand Major or minor and nocht maried before the decease of his predecessour perteinis to his superiour vid. Varda Landes halden in this last forme and maner are called feodum de Hauberk or Haubert or feodum militare de maritag c. diversa 7. ass reg Da c. statutum fuit 32. Or feodum Hauberticum or feodum loricatum Because it is given upon condition that the vassall possessour theirof fall cum to the hoist and armie with Iak Lorica and armes for lorica a loro signifies ane abulÈement maid of cordes and Haubert signifies ane kind of armour maid of mailÈies or circles like ringes called an Haubergion conform to the common proverb Haubergion manie mailÈies makis an Haubergion monie littles makis an meikle Of the maner of tenures in the English lawes read Litleton and in the Normand lawe lib. 5. c. 3. cum seqq HAIMHALDARE vindicare actione reali repetere to repeit seeke restitution of proper gudes and geare and bring the samin hame againe quo attach c. 4. as lauchfull and haimhald cattell mod ten cur c. 13. and haimhald lint or haimhald hemp is that quhilk growis at haime within this realme is opponed to lint and hempe quhilk is inbrocht furth of uther cuntries hamhaldatio catallorum is quhen onie man seikis restitution to be maid to him of his awin guds and geare wrangously taken fra him quhair of frequent mention is maid in the auld lawes of this Realme And he quha seikis the said restitution suld sweare in this maner ane buike beand put within the hornes or upon the fore-head of the beast that is clamed before twa lauchfull witnes that the said cattell acclaimed be him did wander away from him and that the samin was nocht given sauld or onie maner of way annalied be him to onie kind of person vid. Catalla HARA porcorum vid. Creffera HERREÈœELDA is the bestaucht ox kow or uther beast quhilk ane husband man possessour of the aucht pairt of ane dauach of land foure oxen gang dwelland and deceasand theirupon hes in his possession the time of his decease quhilk aucht and suld be given to his Landislord or maister of the said land lib. 4. c. si quis 22. ass reg Da. c. si quis 41. for Herr in dutch in latine herus dominus signifies ane lord or maister and Èeild is called ane gift Here. Èœelde tribute or taxation as in the auld actes of parliament maid be King James the first it is written that ane Èeilde was gaddered for the reliefe of him out of England And ane uther Èeilde was collected for resisting the rebelles in the North. Swa HerreÈelda is ane gift given be onie man to his maister and Lord quhilk suld be his best aucht 17. October 1470. Quhilk is conforme to the aulde lawes li. 2. c. tenentur 35. quhair ilk person makand his testament suld recognosce and acknawledge his maister with the best thing he hes Swa it is manifest that the HerreÈelde is given be reason of the tennents deceis to his maister as ane gift for acknawledging and honouring of him and therefore in the civill law is called laudemium a laudando domino Item in the auld Saxon Laudemium and Dutch language Herr is ane hoist armie or weirfare Swa as sum thinkis HerreÈelda signifies that quhilk is given to the Lord or maister passing to the hoist Here. or be reason of weirfaire For sik small husbandmen having onely foure Oxen-gang of land and thereby be reason of their povertie nocht able to passe to weirfare in proper person suld help their master Herischulda passand fordward theirunto like as Herischulda is the paine of him quha obeyis not the proclamation maid for weirfare for schuld is debitum or debt and heribannum is ane charge or proclamation maid for weirfare Heribannum Curia lib. 1. de feud HILDA terrae Hida terrae an pleuch of land vid. Carrucata HOMAGIUM dicitur quando aliquis promittit se esse hominem alicujus domini stare habitare ubi voluerit dominus Et super hoc facit homagium id est promissionem ut sit suus homo Vel homagium dicitur fidelitas hominis pro rebus temporalibus facta domino Chessan in consuetud Burgund rubric 3. § 1. verb. des fieds in § 3. nu 3. It is a band of man-rent quhen onie person promisis to serve ane uther in sik sort that he sall be friend to all his friends and foe to all his foes against all deadlie Lib. 2. c. praedictis 60. le Forest c. quando 60. It is therefore called hominium and suld be maid be the vassall being minor or major to his over-lorde Lib. 2. d. Cap. 60. And the samin being maide generally with-out exception of any man is called homagium cum ligeantia factum vid. Ligeantia homage differrs from fidelitie first be reason of the persones makeris theirof for weemen makis na homage bot onelie fidelitie lib. 2. c praedictis 60. Because homage concernis service specially in weirfaire to the quhilk weemen are nocht subject And likewaies consecrat bishops makis onelie fidelitie for their landes and barronies lib.
De Maritag cap. Sciendum 17. NATIVE Borne slaves or servandes vide Pondagium NONE-ENTRES Is quhen ane vassall vest and saifed in the fee and propertie of the landes deceasis leavand behinde him ane aire quha beand of lauchfull age may enter to the landes be taking of saising thereof and Èit enters nocht In the quhilk case the landes ar in the handes and power of the immediate superiour be reason of none-entresse Twa kinds of none-entresse Propter negligentiam haeredis jus suum non prosequentis Stat. Rob. 3. Cap. Nota 21. Mair-over there is twa kinds of None-entres The ane simple nocht follow and after ane warde in the quhilk the superiour of the Landes untill they be declared be decreete of ane ordinar judge to be in None-entresse suld have allanerlie the retoured maill thereof conforme to the new extent And after the declaratour the superiour may remove the tennentes or occupie the landes as he pleasis induring the time of the None-entresse The uther kinde of None-entresse is that quhilk followis after ane wairde As quhen landes are halden be service of warde and relieve and the aire is Minor and may nocht enter The samin landes perteinis to the superiour be reason of warde and nocht of None-entresse For quhair there is warde there is na None-entresse be reason the warde sa long as it indures stops the none-entresse Bot quhen the warde expyris togidder with the twa termes of the relieve The None-entresse beginnis gif the aire beand of perfite age enteris nocht to the landes and obteinis saising thereof The quhilk None-entresse requiris na declaratour bot is of the like nature with the warde preceidand And induring the time thereof the Èeirly mailles and dewties of the landes as they give be tack and assedation perteinis to the superiour or he may remove the tennentes and possessoures therefra and occupie the samin as he please like as he micht do in the time of the warde Mair-over this kinde of None-entresse beand given and disponed be the King or uther superiour to the appearand aire himselfe or to ony uther person is sufficient and valiable to the donatar for all Èeires and termes preceiding the gift and disposition and three termes after the perfite age of the aire allanerlie And endis and ceasis after the ischue out-running of the said three termes And gif the aire enters nocht within the said space It is leasum to the King or uther superiour to dispone of new the said none-entresse to quhom he pleasis to be used be him unto the entrie of the lauchfull aire as was decerned and ordained be the Lordes and Auditoures of the Checker in the Moneth of Julij 1596. And conforme thereto decided be the Lordes of the Session 9. Julij 1597. The Laird of Capringtoun contrair the Laird of Hessilhead quhilk is not disconforme to the Laws of the fewes quhair be the aire of the vassal not desirand investiture or possession fra his superiour within Èeir and daye after the decease of the vassal his predecessour tines and fore-faltis his few and the samin perteinis to his superiour § 1. Et ibi Gl. quo temp miles investitur petere debent lib. 1. de feud NOVA Dissasina recent spuilÈie or ejection vid. Dissasina O OCHIERN Ogetharint is and name of dignitie and of ane free-halder Stat. Alex. c. recordatio 26. and appeiris to be of equal honor and preheminence with the son or daughter of ane Thane quha baith hes the like Marcheta viêª twa Kids or twelve pennies lib. 4. c. sciendum 63. And likewise the Cro of ane Oye of ane Thane of an Ochiern is four Kye lib. 4. c. statuit 64. And the un-lawe quhilk the King may take fra ane Thane is sex Kye and from ane Ochiern fifteene scheip or sex schillings Ass reg Da. c. recordatio 17. ORA ane auld Saxon worde and signifies mettall sik as brasse or goldes And mairover in auld times it was ane piece of cunÈied silver or golde Vre For tres orae aureae are the price of ane Cowe lib. 4. c. sciendum 63. From this comes the worde Èit commonly used Vre as leid Ure and in the Garviach within the Schireff-dome of Aberdene there is ane hill called Dounyndure monticullus metalli and the scheep there pastured hes their teeth colloured with Èellowe coulour quhilk is ane taken of abundance of mettall ORIGELLUM quasi aurigellum ane Habergion maid of mailÈies quhairof the edges are of mailÈies of Èellow coulor resembland the coulour of golde or brasse Stat. 2. Rob. Br. c. ordinatum 27. quhair it is caled Habergellum vid. Hawbert OUT-FANG-THIEF vid. Infang-thief P PANNAGIUM Porcorum ane French worde signifies the deutie quhilk is given to the King for the pastorage of Swine in his Forrestes Leg. forest c. 5. 6. 8. As it is maniefest in the lawes of England in the chartour of Forrestes quhair Pannage is called ane certaine summe of silver quhilk the awner of ane Parke or of some great wood quhair-in there is great store and abundance of Maste Aik Betche or uther trees usis to take of his tennents or uthers for their swine that sall feed there betuixt Michael-mes and Martine-mes Item Pannagium signifies ane pairt of the Kingis demaine or propertie given to his second or uther Èounger sonne or cousing quhairof Chopinus writes de domanio regis Franciae But hereof no mention is maid in the lawes of this Realme PARTICATA vel perticata terrae From the French word perche meikle used in the English lawes ane ruid of land leg burg c. 1. c. particata 140. stat Wilh c. particata 13. quon attach c. de brevibus 31. It is of verity that three beare cornes without tailes set togidder in length makis ane inche Of the quhilk cornes Inche Fute Eln. Fall an sulde be taken off the mid rig an off the side of the rig and an off the furrow Twelve inches makis ane fute of measure Three fute and ane inche makis ane Elne Sex elnes lang makis ane Fall quhilk is the common lineall measure and mette And sexe elnes lang and sex elnes broad maks an squair superficiall fall of measured land Rod. Raip Fall lineall and superficiall And it is to be understand that ane rod ane raip ane lineal fall of measure are all ane and signifies ane thing for ilk ane of them conteinis sex elnes in length albeit ane rod is ane staffe or gade of tymmer quhairwith land is measured in latine pertica Ane raip is maid of towe sik as hempt or uther stuffe and sa meikle lande as in measuring falles under the rod or raip in length is called ane fall of measure or ane lineall fall because it is the measure of the line and length allanerly Likeas the superficial fal is the measure baith of the lengh the bredth quia linea est mensura
and persew and defend all actiones competent to him Bot he may nocht destroy nor annalie ony part of the landes Lib. 2. cap. Plenam 42. c. Restituerit 44. vid. Relevium vid. Hawbert The keiping of the bairnes perteinis to the mother Touching the custodie and keiping of the person of the air ofward lands or of ony uther landes or quhatsumever maill or femaill gotten or borne in lauchfull mariage the samin perteinis to the mother after the decease of the father untill the bairne be of the age of seven Èeires compleit conforme to the commoun practicque of this realme and the civill law L. 1. Tot. Tit. ff ubi Pupil educar debeat For be the Law of this realme grounded upon the Climacterick Èeires of Septenarius Ternarius That is of seven and three Èeires Three kindes of age there is three kindes of age The first is of seven Èeires during the quhilk time the bairnes ar in custodie of their parentes The second is of fourteene Èeires within the quhilk it is not leasum to marie The third is of twentie ane Èeires after the quhilk time ane aire may enter to his landes annalie and dispone the samin as he pleasis And before the quhilk time na person may be indited to the justice aire or accused of life and lim Leg. Forest cap. Nota quod 15. The keiping of the aire being Minor haldand Landes of the King The keiping of the aire perteinis to the King perteinis to him allanerlie albeit the said aire have uther superioures of uther warde landes elder and prior in time to the King Quia rex nullum potest habere parem multó minus superiorem in suo regno Bor gif ane aire haldis landes nomine Burgagij of the King And uther lands nomine wardae relevij of aneuther superiour prior or posterior to the King the custodie and keiping of the said aire perteinis not to the King bot to the said superiour Quia ratione Burgagii Dominus Rex non praesertur alijs Dominis capitalibus in custodia Lib. 2. c. Notandum 45. After the outrunning of the seaven Èeires The keiping of the aire perteinis to his superiour and the aire beand of that age haldand landes of warde of ane superiour and having na landes be reason of warde of the King The superiour suld be preferred anent the keeping of the person of the aire to the mother gud-schir tutour Èea to the King himselfe and all uther persones The saxteenth of Julij Ane thowsand five hundreth threttie twa Penult Julij ane thowsand five hundreth threttie twa Èeirs The Abbot of Abirbrothok contrair Marioun Forbes Twentie aucht of Julij Ane thousand five hundreth twentie nine Èeirs James Sandielandes of Calder contrair Edward Sinelar The custodie and keeping of the person of ane aire The eldest superiour is preferred to all uthers haveand landes halden of diverse superioures bee warde and relieve perteinis to the eldest superiour to quhome the first homage was made Or of quhome hee hes the eldest and first infestment or forme of halding For al-be-it ilke ane of the superioures hes the warde of the Landes halden of himselfe Èœit concerning the keiping of the person of the aire the principall and eldest superiour is preferred to all utheris Lib. 2. c. Restituere 44. The keiping of the aire havand lands blenche or in few-ferme and also ward lands perteinis to the superiour be reason of the ward and not to the tutour havand intromission with his blenche or fewlands The superiour is preferred to the tutor 28. Ianuar Patrick Hepburne contrair Elizabeth Ker. Gif the superiour havand the richt and title to the warde and mariage of ane aire disponis the warde to ane donatar and the marriage to ant uther The donatar to the mariage allanerlie The keiping of the aire followis the richt of the mariage suld be preferred in keiping of the persone of the said Minor to the uther donatar of the ward and all uthers Quia jus maritagij est personale sequitur personam The keiping of the air suld never be committed to him quha may claime or claimis ony richt of his landes and heretage Or may immediatly succeede after him thereto The keiping of the aire suld not be given to hi appearand aire The end of the warde Lib. 2. c. haeredes 47. Hac enim ratione illi posset praeberi occasio captandae mortis ipsius haeredis quod est periculosum impium Be the Lawes of this realm the aire mail and all his lands halden ward ar within ward and keiping of his superiour until he be of the age of xxj Èeiris And the airefemall untill she be of the age of xiiij Èeirs M. p. 3. c. 5. lib. 2. c. 39. de iudic c. 64. c. 121. Because the landes perteining to the aire mail ar subject to the King or uther superiour be service quhilk the Minor be reason of his les age and Èouth-head cannot do And therefore the King or superiour wantand the service hes recours to the land that he may be served be the profites thereof takin up to his awin use or be ony person to quhome he pleasis to dispone the samin untill his vassall be of perfite age and able to serve And the aire femail is in the warde and keiping of hir superiour untill sche be fourteene Èeires of age as said is for suppose ane woman of twelve Èeiris of age be the civill Lawe may marie ane husband Èit be the Lawe of this realme she may nocht marie until she be fourteene Èeires compleit At the quhilk time sche may lauchfully marie with consent of her superiour Lib. 2. cap. Mulier 48. cap. in Custodiis 90. And therefore sche being subject to her husband It is not reason sche suld be also subject to the warde of her superiour and consequentlie under twa wardes and twa sindrie severall powers Mair-over sche being maried with consent of her Over-lord her husband may doe sik service as suld be done to him be the possessour of the landes quhilk is conforme to that quhilk is written be Doct. Thomas Smith of the commoun weil of England Lib. 3. c. 5. c. 8. VARDA Curiae quoniam attach c. ubi aliqua 10. c. in omni 18. c. nullus 20. The interloquutor or decreet of the court Curia dicitur vardare considerare pronunciare in this forme The Court counselled and advised And I. N. Soytour of it be their informationes sayeth that this Court counselles and I. award that N. is in ane default for his absence this day The like form is used in the daily practicque quhen the judge or clerk be the mouth of the officiar or dempster decernis and adjudgis onie person to be in ane unlaw for absence or any uther cause and. lib. 2. c. that quhilk is called veredictum assisae Veredictum in the samin place in libro
tenementes within Burgh The sext the brieve of division The seventh the brieve of perambulation Quhairof the three first brieves are answered and retoured againe to the Chancellarie And the uther foure receivis na retoured answer The cause of the diversitie dependis upon the forme of the brieves direct furth of the Chancellarie Because the three first brieves in the end of ilk ane of them conteinis an command to the judge to quhome they are direct to send back againe his answere to ilke point of the brieve And the remnant foure brieves hes na sik command And theirfore requiris na answer BREVE de divisis faciendis Is the brieve or summonds of cognition or molestation anent the propertie and commontie of Landes anent the bounds meithes and marches theirof betuixt Neighbour and Neighbour Quhilk be the new act of Parliament suld be decided be ane assise before the Schireffe and his deputes Ja. 6. p. 11. c. 42. It maie be likewaies called the brieve of division or of perambulation or onie uther concerning the marches of landes lib. 2. c. dicitur 74. BREVE de nova dissasina quo attach c. de brevibus 31. Is the brieve or summondes of ejection or spuilÈie For dissasitor is he quha ejectis onie man furth of the possession of his landis without ordour of the law as writis John Rastel verb. dissasitor And nova dissasina signifies alswa spuilÈie maisterful wrangous or violent spoliatioÌ„ away taking of moveable guds and gear 22. March 1547. William Lindsay contrair Alex. Chene Molinans in stilo curiae parliament part 1. c. 10. c. 18. affirmis that noua dissasina is that quhilk in the civil law is called interdictum unde vi And coÌ„prehends also interdictum uti possidetis And in the Law of Normandy li. 8. c. 3. it is called interdictum recuperandae possessionis vid. dissasina BREVES pleadable breve placitabile are all sik brieves quhilkis are persewed and defended be ane ordinar forme of proces before ane competent judge at the instance of ane persewer against ane defender For it is Statute that na man sall be ejected furth of his land or tenemente quhairin he alledgis him to be vest and saised bot be an brieve pleadable or sum uther brieve accordand theirto that the said person be lawfully summound to answer upon his heritage at ane certaine day place Stat. 2. Rob. Br. C. Item 25. quhilk is conforme to the acts of Parli Ia. 3. P. 6. c. 41. BREVE de recto the brieve of richt was used before the Justice generall and his deputes in decision of the ground richt and propertie of lands and reduction of infeftments the quhilk forme of proces is declared at length in the first buike of Regiam Majestatem and in quo attach c. de brevibus 13. and be the Lords of councell and session is decerned nocht to have bene nor Èit to be thir mony Èeires in use and theirfore they find themselfe conform to the institution of the Colledge of Justice and jurisdiction granted to them to be judges competent in all causes of heretage vlt. Februar 1542 Patrick Weemes contrair Forbes of Reres BREVE de morte antecessoris the brieve of Mortancestrie l. 2. c. generalia 25. Or the brieve of succession or of consanguinitie de iudicib c. Natura 158. Or breve inquisitionis Stat. Rob. 3. c. 1. Or the brieve of inquest I. 4. p. 6. c. 94. Albeit all brieves are inquisitions because they are determinat per inqusitionem patriae de iudicib c. cum quis 152 or the brieve of recognition breve recognitionis Stat. 2. Rob. Br. c. Item quia 23. It is the maist necessar common and profitable brieve or inquisition that is used be the lieges of this Realme quhairby ane desiris to be served and retoured as narrest and lauchfull aire to his father or uther predicessour This brieve is rased furth of the Chancellarie and persewed be ane appeirand aire of perfite age The persewer of the Brieve for recovering of his landes furth of his superiours handes togidder with all the proffites and commodities theirof leg forest c. et si haeres 71. The raiser of the brieve at the samin time suld find caution to persew and follow the brieve and his clame conforme theirto lib. 3 c. generalia 25. The Judge Be the auld law of this Realme the Iustice generall and his deputes haveand jurisdiction nocht onelie in criminall causes bot also in civil actions was judge competent to the service of this brieve quoÌ„ attach c. de brevibus 31. Bot now the samin is served before the Schireffe Stewart baillie or onie uther judge havand power and jurisdiction Stat. Rob. 3. c. 1. Or before judges delegat be commission granted be the Lords of Councel Proclamation for the serving of the said brieve Ia. 5. p. 6. c. 82. The brieve suld be proclaimed upon fifteene dayes warning exclusivè That is upon fifteene daies nocht comptand the daie of the service of the brieve to bee ane of them be sik persones as hes power be their office or commission to proclaime the samin in ane lauchfull publick and convenient place That is to say in the principall Burgh of the Schireffe-dome Balliery or uther place quhair the landes lies at the mercat croce theirof and in mercat time of daie before twa witnesses at the least to the effect that the knawledge theirof may cum to the audience of all parties havand or pretendand entres theirintill and theirafter the brieve suld be lauchfullie execute and indorsate Indorsation be the officiar executor theirof and stamped with his seale or signet before the samin be presented in judgement Stat Rob. 3. c. 1. I. 1. p. 9. c. 127. 1. 4. p. 6. c. 94. 1. 6. p. 11. c. 60. In registro 16. No. 1537. It is necessar and also lesum to the Schireffe or onie uther Iudge of this brieve Assise suld be summound to suÌ„mmond certaine persons maist worthy within his jurisdiction to passe upon the assise and that upon the space of fifteene daies or Èit gif he pleasis upon ane schorter time and gif they be present in the tolbuith un-summoned it is leasum to the Judge to compell them to passe upon the said inquest Ia. 4. p. 6. c. 94. And all sik persones summoned and nocht compeirand ar charged at the barre and dissobeyand suld bee decerned in ane unlaw and amerciament of court The brieve beand lauchfullie proclaimed and the persons of inqueist like-waies summoned and the daie of compeirance being cum the persewer exhibitis and presentis the brieve dewlie execute and indorsate in judgement to the Judge and desiris him to cause the samin be red and put to the knawledge of ane assise Thereafter the officiar executour of the said brieve be his great aith Verification of the brieve sall sweare judiciallie that he did execute the samin brieve conforme to
the indorsation thereof in all poyntes and the witnesses insert there-in-till sall also make faith that they heard saw and bystude quhen the said officiar did execute and proclaime the Brieve in sik manner as is contained in the indorsation thereof The brieve and indorsation being swa verified Defender gif ony person havand entresse compeiris to defend and object against the brieve he sulde have inspection thereof gif he desiris the samin And gif he proponis ony relevant exception declinatour dilatour or peremptour Hee thereby castis and annullis the Brieve either until ane new brieve be raised againe or simpliciter in all times cumming utherwaies gif he hes na reasonable exception or defence to stop the brieve the samin sall passe to the knawledge of ane assise Quoniam attach c. de brevibus 13. An assise is chosen THEN Certaine lauchfull menne maiste worthie and quha beste knawis the veritie to the number of Thretteene or fifteene ar chosen in judgemente in presence of the persewer and defender Or in presence of the persewer and in absence of the defender knawin to have enteresse and being lauchfullie summoned and nocht compeirand to the said election to object against sa mony persones as he may leasumlie stop be the law to passe upon the assise For like as it is necessar that he be anis summoned Swa gif he compeires nocht being lauchfullie summoned the brieve suld receive processe and passe to the knawledge of ane inquest at the desire of the persewer in absence of the defender Lib. 3. c. Generalia 35. ass Reg. Da. c. sciendum est 44. lib. 4. c. Si petens 57. Continuation of the brieve Quhilkis persones na lauchful objection maid against them suld be received sworne and admitted And therefore ar called Juratores vid. Bona Patria And gif they or onie ane of them be sworne and received the judge may continue the brieve to ane uther daye gif he pleasis and as necessitie requiris utherwaies the continuation thereof is nocht leasum without the consent of the partie after the claime is given in And inquisition taken in the cause gif the persones of inquest being weill counselled The claime Service negative and advised deliveris and servis Negative in favoures of the defender and findes the persewer na waies nearest and lauchfull aire to him quha died last Veste and saised in the Landes acclaimed In that case the defender dois bruik and joyis the possession of the said lands and the persewer is debarred and secluded therefra Bot gif the assise deliveris and servis negative as said is or affirmative Service affirmative in favours of the persewer against the defender conforme to the claime in all poyntes This their answere to all and sundrie the pointes of the brieve sealed with all their seales or of the maist part of them togidder with the seale of the Schireffe or uther judge closed and the brieve inclosed therein to the effect the same may be conferred with the answer is sent back and retoured to the chancellarie conforme to the Kingis command Retour conteined in the end of the brieve Stat. Ro. 3. c. 1. Quhilk therefore is called ane retoure Twa kinds of retours And it is to wit that there is twa kindes of retoures or answeres maid be the persons of inquest to this brieve and retoured to the Chancellarie The ane is generall and the uther speciall The generall is Generall retoure and aire quhair na landes or tenements ar speciallie acclamed or soucht be the persewer of the brieve Bot onelie it is desired that hee may be served and retoured generalie nearest and lauchfull aire to his Predecessour To the quhilk generall claime ane generall retour is maid be vertue quhairof the said generall aire hes gude richt and title to all contractes obligationes and reversiones and to the moveable aire-schip guds quhilkis perteined to his predecessour and were not discharged or disponed before his decease in his liege poustie And sik-like he may persew and defend quhat sumeever action competent to him be decease of his saide predecessour to quhom he is served air generall 8. March 1540. Iames Scot contrair 〈…〉 Blair The speciall answere and retour is Speciall retour quhen the persewer of the brieve claimis speciall landes and the persones of inquest givis ane particular and speciall answer to ilk special poynt of the brieve l. 16. 4 c. statuit Dominus 45. The quhilk is direct and send to the directour of the Chancellarie to be tryed be him gif the samin be conforme to the direction and ordour of the brieve in all poyntes Here is to be understand that the landes conteined in the retour ar halden immediatlie of our Soveraine Lord the King or of ony uther superiour Gif the lands be halden of the King in chief the directour of the Chancellarie commandis his Clerkes to direct ane precept under the testimoniall of the great seale called the quarter seale in quhite Walx to the Schireffe of the Schire quhair-in the landes lyis commanding him to give saising to the person retoured or his Actournay of the landes conteined in the retour And to take securitie of the mailles and dewties of the landes sa lang as they ar retoured to have bene in the handes of the King or his Predecessoures be reason of warde or none-enteresse quhairof ane memoriall is made in ane buike called Responde vid. Responde Of lands retoured halden of an uther superiour Gif the lands retoured be halden of ane uther immediate superiour then the King The directour of the Chancellarie directis ane precept chargeing the superiour to give saising to the person retoured of all and sindrie the landes conteined in the retour He doand to him therefore all quhilk he is obished to do be the Law Quhilk precept gif the superiour dissobeyis beand required personallie or at his dwelling place to obey the samin And for verifying thereof The second precept ane authentick instrument reported to the Chancellarie Then the second precept called Meminimus is direct to the saide superiour bearand in effect that the King remembrand that of before he gave command to him to give saising quhilk command as Èit is nocht obeyed quhairof he mervailis And therefore Èit as of before chargis and commandis the said superiour to give saising to the person retoured of the landes conteined in the retoure The third precept And gif ane uther authentick instrument be reported to the chancellary for verification of the superiouris disobedience the second time The third precept called Furchae is direct commanding him to give the said saising or utherwaies gif he disobey the king certifies him that he will direct his uther precept to his schireffe to give the samin In the execution of al thir three precepts it is not necessare that the superiour sall be personally apprehended The fourth
4000. iiij ounce Ilk seck of gait-skins conteining 680. ij ounce Ilk three chalder of salt i. ounce Ilk hundreth of dailles i. ounce Ilk last of Narvis talloun ij ounce Ilk tunne of lead i. ounce Ilk four chalder of coales i. ounce Ilk three hundreth of drie fisch ij ounce Ilk thousand ling or killing in peill ij ounce For ilk four cradill of glasse ij ounce For ilk seck of wooll conteining xxiiij stanes ij ounce The last of wax conteining xiiij schip pund ij ounce BURLAW Byrlaw Lawes of Burlaw are maid and determined be consent of nichtbors elected and chosen be common consent in the courts called the Byrlaw courts In the quhilk cognition is taken of complaints betuixt nichtbour and nichtbour lib. 4. c. The quhilk men sa chosen as judges and arbitrators to the effect foresaid are commonly called byrlaw men It is an Dutch word for haur or haursman in Dutch is rusticus an husband-man And sa byrlaw burlaw or baurlaw leges rusticorum Lawes maid be husband-men concerning nichtbour-heid to be keeped amangs themselves C CADROW quhairof mention is maid in the act of P. printed 1568. Ia. 2. 4. An. 1454. c. 41 wrangously for cadÈou because furth of the barony of CadÈou an Èeirly pension or annuel-rent of 26. pound 13. schil 4. pen. was payed to the King in the checker as is manifest in the Schireff-rolles Ia. 2. 1456. and likewaies in the Schireff-rolles Ia 3. 1487. in the quhilk rol the barronny of CadÈou is called Hammilton in divers uthers rolles CANUM Cana. In sindrie charters and infeitments of lands specially halding of the kirk is commonly used for the duety and revenue quhilk is paied to the superiour or lord of the land and specially to bischops or kirk-men quhidder it be quheat beir aites or uther kinde of victuals salt or summes of mony as is manifest ult feb 1509. The King contrare the L. of Balmonth Èœit nevertheles the lands of Kilconquhair liand within the schirefdome of Fyfe are retoured to be halden be service of ward and relieve payand an certain sum of silver nomine cani to the B. of S. Andrews Quhilk to be weill done I cannot affirme for it is certaine that all lands halden nomine cani payis ane certain sum of silver or some uther certain duty particularly expressed in the infeftment Sa gif that maner of halding be like to the halding be service of ward and relieve of necessitie the samin mon be ane taxed ward and during the time thereof the tennent suld pay na mair but the particular sums or duty conteined in his infeftment Canum appeirs to be an Irisch word for Keane signifies the head as King Malcolm Kenmoir grandis Capite vel capito great head and likewaies kain or Chan is called tribute payed be the servand or subject to the maister as I have red in ane auld authentick register of the bischoprik of Dunkeld quhair it is called Chan or Chanum And amangis the Romaines there was twa kinds of tribute ane real quhilk was impute be reason of the quantity of the landes and guds immoveable quhilk is called jugatioÌ„ quod pro modo jugerum imponebatur l. 9. C. de agricol censil lib. 11. Ane uther personal quhilk was injoyned to the person and is called capitatio quod pro capite hominis praestatur d. l. 9. cum l. seq ibi gl l. sacrosanctae 8. C. de sacrosanct eccles l. ult C. de annon tribut lib. 9. And in the Evangel licetne dare censum Caesari Theod. Beza interpretit licetne dare capitationem Caesari Aulus Gellius and uther latin writers makis mention of them quha was taxed be the head or pow In latin capite censiti Sa this word Cane signifies the head or rather tribute or dutie as Cane fowles Cane cheis Cane aites quhilk is payed be the tennent to the maister as ane duety of the land specially to kirk-men and prelats quha in the time of their greatnes and supremacie used ane forme and stile divers from uthers and the auld form of precepts given in the time of K. Robert Èit extant anent the in bringing of the K. rents conteins censum Cana reditus custumas And canage of wol or hyds is taken for the custome theirof le navium fol. 171. in li. M. Willielmi Skene commissarij Sanctundreae fratris mei germani Specially quhilk is given for the mending and up-halding of the haven for schips leg burg c. ult in lib. Carbraith CAMPIONES ane word commonly used in singular battell For in auld times quhen controversies and debates culd not be utherwise decided bot be singular battell the parties did either fecht in proper person or conduced and fied for wage uthers to fecht for them Quha war called campiones because they faucht in campo or in the fields de judic c. 93. Albeit sumtime they did fecht in the K. palace lib. 4. c. stat 38. and sumtime in the common streits quo attach c. apud Dumfreis 59. stat Alex. c. apud 28. from the quhilk consuetude cummis the common saying Do thou richt do thou wrang cheis thou a campion strang for this is the law of Scotland Because in all actions and quarrels decided be campions in singular combat That partie did win the cause quhais campion was victorious he quhais campion was vanquished and overcum in battel did tine his cause vi Duellum gladiatores or duellatores are forbidden l. unic C. de gladiatoribus CATALA an French word Chattel as is commonly taken in the lawes of this realm for all guds and geare moveable li. 2. c. cum quis 52. c. usuratii 53. c. 55. ubi res mobiles dicuntur catalla and likewise in the lawes of Normandy gudes moveable signifies all things as possessions quhilkis may be removed fra ane place to an uther and commonly are called cattel as horse claith gold silver and uther sik things li. 5. c. 1. l. 8. c. 1. Like as haereditas or heritage signifies all lands immoveable guds in the said law of Normand li. 8. c. 1. And also in the lawes of this realme li. 2. c. 53. stat gild c. item quod quicunque 19. and leg burg c. si contigat 104. gif ane burges deceas without an testament his aire and his cattell salbe in the keiping of the kinsmen of the mother side called cognati And his heritage in the keiping of his kinsmen of the fathers side called agnati CATHORIUS Catherius The paine of him quha is convict in battell or break the Kingis protection quhat it signifies I cannot well declair alwaies it is equivalent to the valor of 9. Ky St. Alex. c. apud 28. quo at c. apud 59 quhair it is statute that gif ony person beis convict in singular battel or utherwaies of breaking of the K. protection or peace he sall give to the K. viginti duas vaccas tres cathorios vel pro
infeftmente or uther richt to the landes quhilk perteined to his wife heritablie Bot onelie the benefite and priviledge of the curtesie quhilk is valiable and sufficient to him induring his life-time for bruiking and possessing of the landes and for remooving out-putting and inputting of tennentes in sik maner as gif he were proprietare lyfe-rentar tackes-man or rentaller And maire-over the Lawe of the curtesie is extended in favour of the Second hus-band And theirefore gif ane man maries ane heretrix and after his decease shee marie ane Second hus-band and beare to him ane sonne or ane daughter and thereafter shee deceases hir second hus-band aucht and sulde bruike and jois the priviledge of the curtesie in sik manner as gif the first hus-band micht have done incase his wife had deceassed before him lib. 2. dic cap. 58. de Iudic. Cap. 127. As concerning the estaite and qualitie of the woman that is maried it is necessar that she be heretablie infest and saised in the landes as aire to hir father or uther hir predicessoures Bot it is nocht necessarlie required that she be ane virgine and maiden Because the curtesie perteines to the second hus-band quha maries ane widdow as saide is Alwaies quhidder the wife be widdow the time of hir second mariage or virgine and maiden the time of hir first marriage necessarlie shee suld be ane heretrix aire or universall successour to hir Father Mother or to sum uther of hir predecessours For gif the wife hes onlie richt and titill to the landes and heretage as singular successour be vertue of onie contract veluti titulo emptionis Hir husband after hir decease can never clame richt to the landis induring his life-time be the curtesie of Scotland Twenty aucht Januar an thousand five hundred nintie five Robert Lundie of Balgony contrair Robert Balfoure of Dovane The curtesie hes nocht place quhen na bairne is borne in lauchfull marriage for it is necessar that ane bairne be borne maill or femaill quick and liveand And for probation theirof he mon be heard cryand for the curtesie hes place in puero clamante or as it is written in sum buikes brayand squeiland or loudlie cryand For in Frenche brayer in the latin vagire is to crie or greite with ane loud voice Quhilk word in our language is alswa attributted to Hose Hartes and uther beastes And gif contraversie arise annent the life or crying of the bairne it is leisum to the Father to pruise the samin be twa lauchfull men or wemen quha heard the bairne clamare plorare vagire seu brayare leg burg d. cap. 44. The husband or Father suld bruike the curtesie after the death of his wife albeit the bairne being borne quick happen to decease immediatelie or shortlie after his nativitie Or albeit the bairne and the Mother baith departe this life for suppose the bairne happen to decease before his Mother and shee decease thereafter or albeit baith the bairne and the Mother decease at ane time or Èit gif the bairne levis and the Mother before the hus-band depart forth of this life the hus-band survivand after her death sall bruike the priviledge of the curtesie of all Landes quhairin his wife was heretablie infest ninth of Iulij ane thousand five hundreth nintie seaven Martha and Eupheme MackalÈeanes contrar Maister Iames Ward-law advocate swa the substantiall heades of the curtesie are thir following quhairof gif onie ane failÈie the curtesie ceasis First is required ane lauchfull marriage betuixt man and wife Secondlie the wife suld be ane heretrix haveand ius vniversale quhairbe she succeids to her Father Mother or some uther her forbeare Thirdlie She suld be heretablie infest and saised in the Landes For gif she decease nocht beand entered and saised hir hus-band suld have na curtesie Fourthlie She suld decease before her hus-band for sa lang as shee and the husband livis he hes ius mariti And after hir decease he hes ius curialitatis Fiftlie Bairnes suld be lauchfullie gotten borne at the least ane bairne maill or femaill quick and livand Last of all the curtesie is al 's effectuall to the husband tuiching wairde-landes perteining to his wife as the Kingis confirmation For landes halden of the King in chiefe and confirmed be him fallis nocht in wairde induring the life-time of the person to quhome the confirmation is granted He being theirby immediat tennent to the King And like-wise gif onie man maries ane heritrix of waird landes and after her decease her aire is Minor and of lesse aige Neverthelesse the landes fallis nocht in the superiours handes be reasoun of warde Bot the husband sulde bruike and posses the samin induring his lifetime be reason of the curtesie of this Realme Because the richt of the waird Perteining to the superiour ceasis quhair the curtesie belanged to the hus-band hes place Penvlt Februar ane thousand five hundreth fiftie three George Gorthie contrair the Lord Methven And Èit the hus-bande being onlie life-rentare may nocht sell or annaillie heretablie the saide Landes or onie pairte theirof in hurte and prejudice of the richteous aire leg burg c. 44. D DISCLAMATION is used in the law and practick of this realme Clamare Clamare idem est quod dicere affirmare As clamare aliquod tenementum aut aliquam terram esse suam to claime and affirme onie heritage or lands to be his awin Clamare aliquem dominum to clame avow and affirme onie man to be his maister or superior to quhom he aucht service of quhoÌ„ he haldis his landes in chiefe Disclamare Disclamare is to disclame disavow or denie as to denie ane uther to be his superiour as quhen the superiour affirmis the lands to be halden of him and the vassall denies the samin In the quhilk case gif the contrar be fund of veritie the vassal tines and amittis all the landes quhilk he haldes of that superiour the propertie theirof returnis to the superiour de maritag c 18. Stat. Ro. 3. c. primo 20. Quhair the auld forme and manner of disclamation is declared Mairover disclamation is quhen the persewer claimes landes perteinand to him and haldin of an superiour and the defendour affirmis the samin to be haldin of ane uther over-lord lib. 1. c. solet 26. lib. 3. c. tali 18. To the decision of the quhilk controversie baith the saids alleadged over-lordes suld be called And he quha failÈies to proove himselfe superiour sall never be heard to claime the samin afterward and the vassall being convict tynis the land and propertie theirof quhilk is adjudged to him quha was wrangouslie denied be the superiour is found to have richt theirto lib. 1. c. siverò 28. Last the vassall tynis forefaultis his landes gif he wrangouslie denies his few or the condition theirof that is the service aucht theirfore conforme to the French proverbe qui fief
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.
de purgat vulgar DYOUR Dyvour utherwaies Bair-man quha being involved and drowned in debtes and not able to pay or satisfie the same For eschewing of prison and uther paines makis cession and assignation of all his gudes and geare in favoures of his creditoures And dois his devour and dewtie to them proclaimand himselfe Bair-man and indigent and becummand debt-bound to them of all that he hes Leg. burg ca. Bairman 144. In Latine cedere bonis quhilk is most commonlie used amangst merchandes to make Bauk-rout Bankrupt or Bankrompue Because the doer thereof as it were breakis his bank stall or seate Cedere bonis quhair he used his trafficque of before de Iudic. c. Bairman 46. Be the civill law sik cession of gudes and geare may be maid judiciallie or furth of judgement be him quha is present or absent be writ or epistle or be ane mid person called Nuntius l. ult de cess bonor Bot to the effect that debtoures suld be feared to deceive their creditoures and suld the mair willinglie pay their debtes in sindrie places diverse shamefull formes of dyvourie ar used and observed for sum-times the debtour naked sittis upon ane cauld stane in presence of the people Alciatus lib. 3. Parerg. c. 47. Sumtimes his hinder partes or hippes ar dashed to ane stane Guido Papae decis 343. Or in publick place bair headed his belt is cutted quhairby he is proclaimed indigent of geare and credite And therefore may passe and repasse quhair he pleasis without ony trouble of his Creditoures Iuxta illud Horatii Epistola secunda 28. Ibit eò quò vis qui zonam perdidit Conforme to the quhilk in this realme he is said to have his belt cutted Zonam perdere quha hes na gold silver guds nor gear For in auld times like as it is Èit used in diverse places ilk man caried his silver and his gold in his belt either in ane purse hanging at the end thereof or sewed and inclosed within the samin Sueton. in Vitellio cap. 16. Quia zona aureorum plena se circumdedit Et Gracchus apud Gellium Lib. 15. ca. 12. Zonas inquit quas plenas argenti extuli eas ex provincia inanes retuli And in the tenth chap. of Mat. and ninth verse Christ commandis his Apostles nocht to possesse Gold Silver or Money in their Girdles Mairover the forme of the aith quhilk be the Lawes of this Realme the Dyvour suld make conteinis that he sall sweare that he hes nocht in free geare above five shillinges foure pennies Fra the quhilk cummis ane commoun speach dailie used amangst puir and indigent persons quha hes nocht in gudes nor geare the valure of five shillings and ane plack In the Law of Normandie Lib. 2. c. 10. Lib. 12. c. 21. Dyvoures ar called Banqueroutieris And if they do the samin fraudfullie they may be punished to the death E ENACH Lib. 4. c. statuit dominus 64. Ane mendis or satisfaction for ane fault crime or trespasse As gif the maister lyis with the wife of his bondman or slave The servand therefore salbe put to libertie and fall receive na uther Enach mendis or satisfaction for the violation or defowling of his wife Lib. 2. c. pluribus 14. Like as utherwaies si vassallus Cucurbitaverit dominum suum That is gif the vassall makis his maister ane Cuckold That is gif he hes carnall copulation with his maisters wife he tinis and forefaultis his landes lib. 1. de Feud Tit. quib mod Feudum amittatur § 2. Corbita in the Lawes of the Longobardes is adulterie Corbita Cucurbita Arga. Argos And Cucurbita signifies ane Cuckold quhais wife is ane huire quha utherwaies is called arga Gl. in D. Sect. 2. From the Greek argos desidiosus otiosus quha sittis idle and payis nocht his debt bot sufferis ane uther to woork his labour Alciatus in lib. de singulari certam c. 32. in lib. problematum Horatium sequutus Cucullum vocat ENCHESONE the cause occasion or reason quhairfore ony thing is done As quhen we say that ane is condemned for Enchesone of thieft That is be occasion or be reason of thieft committed be him Mod. ten cur c 21. Or that the vassall is in the keiping of his Over-lorde be Encheson of warde quoniam attach Cap. 51. And ane action or pley may be advocate fra the Schireffe Courtes to the Kingis Courte for mony causes Lib. 2. c. Dos autem 19 Quhilk in sindrie English buikes is said for mony Enchesones And Ed. 1. King of England Westm 1. c. 6. Statutis and ordainis that na-man salbe ane merchand without ane reasonable Enchesone ENEYA Pars haereditatis ane French worde for the first chiefe and principall parte of the heritage Leg. Forest c. si Haereditas 96. For in the French toung and speciallie in the Law of Normandie the eldest and first begotten sonne is called l'aisne in the Lawes of England Hen. 3 in stat Marlebrig Cap. 9. It is called Enitia pars haereditatis And likewise in ane uther place of the lawes of the samin King Ius esniciae quhilk in this Realme is the law of birth richt In Latine jus primogeniturae De jure successionis de quo Tiraquellus copiosè scripsit Be the auld civill Law of this realme there is na richt of succession in the richt line ascendent And therefore the father succeedis not as aire to his sonne Except speciall provision be maid in the contrar Quia provisio hominis tollit provisionem legis Et pacta conventa legem contrahentibus praescribunt Swa all succession is either in the richt line descendent or in the line collaterall De linea recta descendentium THey quha ar of the richt line desceÌ„dent suld be preferred to all uthers As the sonne the dauchter the nepuoy the neipce and sa descendand in infinitum observeand and leipand alwaies the prerogative of the degree For the Prior degree excludis the posterior from all commoditie title of succession As the son in the first degree excludis the nepuoy in the second and the nepuoy excludis the pronepuoy in the third degree De filio Gif ony man havand landes and heretage deceasis leaveand ane sonne allanerlie behind him without all distinction the sonne succeedis to all and haill the heretage quhilk is in Latine succedere in assem vel ex asse lib. 2. c. cum quis 29. De filiis Gif ony man deceasis and leavis behinde him maa sonnes nor ane either he is soccommannus and haldis not his lands be service of warde and then his heretage is divided amangst all his sonnes or he is Miles and haldis his landes per servitium militare be service of warde relief In the quhilk case the eldest sonne succeedis in the hail lands quhilk heretablie perteined to his father Lib. 2. c. Si quis plures 30. Bot this distinction is not
is deceased untill her dowrie be payed to her Vid. Quarentena viduarum EVE Et Treve dicuntur nativi de ave triavo quorum majores servitutem servierunt That is sik slaves or servandes quhais father gudschir grand-schir and for-bears hes been servandes to ony man and his predecessoures Quoniam atttach ca. de brevibus 31. vid. Bondagium EXITUS Terrae The rentes fruites and profites of the land Lib. 2. Cap. Si quis liberum 24. lib 3 c cum autem 6. quoniam attach cap. secus 28. leg Forest c Probata 87. Exitus justitiariae The profite or commodities of the justice aire Iter justic c. 3 4. Exitus curiae the commoditie and profite of the court sik as unlawes and summes of money payed be them quha are amerciat or convict of ony crime or comes in will therefore as is manifest be the forme of the precept direct be the Chalmerlane to the Schireffe to take up and intromet with exitus camerariae or the profites of the Chalmerlane aire Exitus haereditatis de actorn cap. 1. is called the fruites rentes profites and emoluments of the heretage quhilk in the English law is called the issues of the heritage Mag Cart Anno 51. Hen 3 cap 17. And siklike Exitus tenementi signifies the mailles and dewties thereof Quoniam attach c Secus 29 Mod ten cur c 30. EXTENT of landes signifies the rents profites and issues of the samin quhairof there is twa kindes The auld extent and the new extent For it appearis that the rentall and valour of landes hes been taxed and liquidat to ane certaine summe of silver conforme to the profites and dewties quhilk the landes payed at that time Quhilk is called the auld and first extent tempore pacis Bot because the revenues and dewties of landes be progresse of time did incresse and grow mair and mair ane uther taxation and extent was maid in the time of peace as the former extent conforme to the profites augmented as said is quhilk therefore is called the new or second extent And properlie is the verie availe that the land is worth and givis the daye of serving of the brieve Ja. 3. p. 7. cap. 55. To the quhilk the worde Nunc conteined in the brieve and retour suld be referred For tempore belli or in time of weire there is na ordinar or certain extent of landes prescrived be ony law for in sik time either the lands are wast and are not laboured or the lands-lordes servis in proper persone And it is na reason that they suld baith make personal service and also pay extent or taxation The lordes of the Session esteemis ane marke land of auld extent to four marke land of new extent 21. Mart. 1541. Quhilk commounlie is called the fourth maill and suld be generallie used in retouring of landes to the Kingis Chancellarie and uthers Chappelles Albeit the samin is nocht perpetuallie observed This distinction of the auld extent and new extent is necessar For taxation of landes are raised conforme to the auld extent and the relief of lands is the retoured maill according to the new extent And sik-like quhen landes are fallen in the superioures handes be reason of none-entres he suld have allanerlie the retoured maill thereof conforme to the new extent vide None-entres F FALSING of doomes Reduction of decreets vide Sok FARANDMAN De Judic c. 47. Ane stranger or Pilgrimer to quhome justice suld be done with all expedition That his peregrination be not stayed or stopped Peregrini mercatores dicuntur Farandman lib. 4. c. 30. in lib. Sconensi FELONIA signifies nocht onelie the falsed or the contumacie of the vassall toward his over-lord or of the over-lord toward his vassall Bot also all and quhatsumever capitall crime in Latine scelus in Dutch Schelmerie or ony uther fault or trespasse Iter Camer c. Si quis captus 25. Stat Alex ca. 2 lib 2 cap ultim 54. As to hurt or assailÈie ony man with sword either edge or ure Ja 1 par 6 c 97. Or ony lesse or private crime as suspition of theift or quhatsumever fraud deceate commonlie used in contractes pactiones and uther conventiones Lib. 3. cap. ex causa 8. in fine Cuia lib. 1. de feud Writtis that fellonie is not onelie rebellion bot also perfidie fraud or ony kinde of fault perfidia fraus culpa improbitas FEODUM Feudum signifies nocht as some affirmis life-rent in Latine usus fructus For he that is saised in the life-rent of landes is nocht understand to be saised in feodo or in the fee thereof For the ane is different from the uther 7. Mart 1561. The Countesse of Crawfurd contrair the Earle of Crawfurd And sik-like Feodum signifies nocht the superioritie of landes For gif ony maried man happenis to decease vest and saised in the superioritie of landes his wife suld not have ane terce or third thereof Bot Feodum commonlie signifies the heretable fee and propertie of ony thing and speciallie of lands as is commonlie conteined in brieves and retoures Cum aliquis dicitur obiisse sasitus vestitus in terris ut de feodo Lib 3 Cap. Cum verò 28. c. sequens 33. Stat Rob 3 cap 1 Of the quhilk landes the just thrid and reasonable terce will perteine to the wife fra the time of her husbandes decease induring her lifetime vid. Quarentena viduar Dom feodi or feudi Is called the Lord of the ground or land li 2 c. Usurarii 53. Quhair feodum haereditas ar baith ane haereditas damnati propter crimen dicitur pertinere ad dominum feodi tanquam escheta Item si quis condemnatus fuerit de furto res ejus mobiles catalla solent vicecomiti remanere Terram autem si quam habuerit dominus feudi habebit Lib 2 ca Forisfactum 55. He is called utherwise Dominus fundi Lib. 2. c. Defuncto 69. Et fendum idem est quod fundus lib. 2. cap. Mutua 68. And Actio feudi is ane action or pley of landes or heretage Lib. 1 cap. 2. Feodum militare signifies landes halden be service of warde and relief Lib 2 cap Maritagium 56. Feudum laicale Is landes perteining to Laicks and Temporall men lib 2. cap 59. As feodum Ecclesiasticum signifies landes perteining to the Kirk or Kirk-men Lib 3 cap sequitur 31. Cum seqq Swa be the lawes of this Realme all gudes and geare ar moveable and called Catalla Or immoveable and ar called feodum haereditas terra fundus tenementum Fee or propertie in latin dominium cannot pertein to maa persons nor ane Quia dominum unius rei uno eodemque tempore non potest esse in solidum penes plures And therefore gif twa or maa persons happenis to be infeft conjunctlie in ony landes the propertie perteinis to him in quhais aires and successours the infeftment resolvis As for example The husband and the wife ar infest in certeine landes
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
greate multitude is used be thousandes And therefore ane Mese comprehendis five hundreth quhilk is the halfe of ane thousand From the Greek word Meson In Latine medium MESSUAGIUM Lib. 2. c. Dos autem 19. c. Si quis plures 30. cum seqq Ane principall dwelling place or house within ane Barronnie quhilk in the laws of England Manour is called Manour ane hall place or court ludge or Manour house Albeit Valentine Leigh in his buik of surveying of lands affirmis messuagium to be the tenement or lands arable And the dwelling house or place or Courte hall thereof to be called Sit from the Latine Situs quhilk wee call the seate or on-sette And it is not leasum to give the principall messuage to the wife within burgh in life rent Leg. Burg. c. Nullus 107. MILITES Leg. Malc Mak. c. 2. And generallie in the auld lawes of this realm ar called free-halders haldand their lands of barons in chief quha hes na power to hald courts of life and lim bot onely of injuries wrang Servitium militare and unlaw Bot militare servitium Knichtes service is that manner of halding of lands quhilk is called service of ward and relieve Et miles opponitur Soccomanno and he quha haldis his landes Per militate servitium lib. 2. c. Si quis 30. MISERICORDIA Ane merciment amerciament or unlaw Leg. Forest c. 5. de judic c. 40. Misericordia domini regis or the Kingis merciment in purpresture Lib. 2. cap. dicitur 75. vid. Forisfactum vide Amerciamentum MOTE Mute pley action quarrell Quhen King Malcolme the Second gave all his landes to the Barrones of this realme he reteined to himselfe montem placiti de Scona The mute hill of Scone quhair he micht hald his courtes and do justice to his subjects in deciding their pleyes and controversies Leg. Mal. Mak in prin Mute in the Lawes of this realme is called placitum And like as in the civil law actiones ar divided in civill and criminall Swa platitorum aliud est civile aliud criminale Pleyes ar civill or criminall Civill ar called actiones of injuries wrang and unlaw Leg. Malc Mak. c. 2. And concernis pecuniall paines or lands and heretage Criminall pleyes touchis life or lim or capitall paines called poena sanguinis Lib. 1. c. 2. c. 3. MORT-GAGE mortuum vadium dicitur pignus cujus fructus vel reditus percepti in nullo se acquietant It is ane French word signifies ane deede wed sik as ane certane summe of silver given upon landes in wed-set and under reversion quhilk is called ane deede wed Because be the auld law of this realm the profit thereof that is the annual of the silver is reckoned as ane part of the stock and principall summe And therefore the said stock is dead without ony profite as ane barren and dead tree quhilk producis na fruit Lib. 3. c. 4. c. 6. Contrair the commoun forme of alienation of landes under reversion dailie used within this realme called pactum de retro vendendo quhair be the annuell is Èeirlie payed untill the redemption of the landes At the quhilk time the principall summe suld be likewaies compleitlie payed And swa baith the annuell and the stock being payed the profites are nocht reckoned in the stock bot ilk ane of them ar severallie reckoned and severallie payed sa-meikle for the profite and sa-meikle for the principall summe Vide Vadium MULIERATUS Filius is ane lauchfull sonne gotten with ane lauchfull wife Lib. 2. c. Si autem 22. Ex legitima muliere seu uxore quia mulieris appellatione uxor continetur L. Mulieris 13. ibi Gl. de verb. signif MURTHURUM Lib. 1. c. 2. lib. 4. c. 7. Quhairof sum is called privat that is mannis slauchter quhairof the author is unknawin Quhairof the inquisition perteinis to the crowner As quhen ane person is found slaine or drowned in ony place or water Uther is publick committed be forethocht-fellonie Quia non debet murthrum adjudicari ubi infortunitum intervenit sed locum habeat murthrum in interfectis per feloniam And swa murther is committed be fore-thocht-felonie and not be suddaintie Chaud-mella or infortunium That is be chaunce or fortune Leg. Malc Mak. cap. 2. And in the lawes of England Anno 13. Edward 2. cap. 1. Murther is quhen ony man be ane propensed malice lyis in waite to slay ane uther man And according to his malicious intent slayis him Molinaeus in stil Cur. Parl. part 1. cap. 13. Conforme to the law of Normandie Lib. 12. cap. 1. Affirmis that murther is different from simple slaughter Because murther is committed wittinglie and willinglie be ane quha of set purpose lyis quietly in awaite for that effect And slaughter is committed without ony fore-thoucht-fellonie upon ane haistie suddaintie quhilk in Latine is Rixa And in French Rixa Chaud-mella In the quhilk place he writtis that three crimes perteinis to the high justice wilfull fire ravishing of weemen murther Pleyes of the crown Bot be the law of this Realme foure crimes ar called the foure pointes of the Crowne wilfull-fire ravishing of weemen murther and robberie or riefe Because the jurisdiction or cognition thereof perteinis allanerlie to the King and to na subject Spirituall nor Temporall except the samin be speciallie granted to him be the King Lib. 1. c. 2. leg Malc Mak. c. 4. lib. 4. cap. Die lunae 13. ass rest Da. c. 1. N NAMARE Namos capere to take ane poynd or ane distresse It is ane auld Saxon word For Naman in Latine Pignorari sive pignus auferre And Namatio signifies the taking of ane poynd Nami Leg. Britonum verb. Pignorari In the law of Normandie Nami commounlie signifies ony gudes or geare moveable or un-moveable taken for execution of ane decreet Pignora capta bona capta pignori ut in L. a Divo Pio. 15. ff de re judicat Be the laws of this realm na poynd suld be taken bot for ane confessed or proven debt And the samin suld be publicklie schawin and maid manifest to all passengers be the way and to all parties following the samin Lib. 4. cap. Si quis namos 30. cum seqq Na man may poynde within ane uther mannis boundes or jurisdiction bot for debt auchtand to him except the Kingis Baillie be present The poynd or distresse suld be conforme to the quantitie and valure of the debt Na person may be poynded bot the debtour or his sovertie or pledge The poynd suld remaine within the samin Barronnie quhair it is taken in ane place perteining to him quha takis the samin or at the least in the nixt adjacent barronnie within the samin Schireffdome and not in Fortalices or Castelles Stat. 2. Rob. Br. cap. Item ordinatum 8. Curia de namo vetito that is of deforcement be the auld Law perteinis to the king allanerlie
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
thereof quhairby he promisis to receive againe him or his aires to be his vassalles as they were of before quhen it sall happen ony of them to redeem the saids landes 27. November 1567. George Halyburnton contrare the Laird of Haltoun Landes annalied to be halden of the annalier and his aires And gif ony man annalies landes under reversion to be halden of him and his aires ane regresse is not necessar For they being afterward redeemed he quha first annalied them recovers the property theirof without ony new saising and the same returnis to him is consolidat with the superioritie quhilk he reserved to him and his aires the time of the alienation Landes annalied to be halden of the superiour But gif ane man annalies landes to ane uther under reversion to be halden of the superiour and the byar thereof obteine infestmente and saising halden of him The annalier thereby is denuded of the propertie and alswa is na langer vassall to his former superioure and can na wayes recover his former estait but be redemption of the landes conforme to the reversion granted be him quha boucht them And alswa bee ane regresse given to him be the superiour In the quhilk caise it is necessare to him quha firste annalied the landes and there-after redeemed them to take newe saisinge To the effecte the propertie quhilke was firste annalied may returne to the seller And that he may halde the samin landes in chiefe of his superiour and his aires as he did before the alienation And it is generally to be observed that quhaire ane regresse is required ane new saising is necessare In aulde times the reversion was conteined in the chartour as is manifest be divers chartours Èit extant in the register given in the time of King David the second conteinand the tenour of the reversion after the clause Tenent habent and uthers aulde chartours in the forme after following Ane forme of chartour contenand ane Reversion OMNIBUS hoc scriptum visuris vel audituris I. dominus de A. Salutem in domino Noveritis me concessisse impignorasse ad immobile vadium dimisisse hoc praesenti scripto meo confirmasse nobili viro V. de F. Omnes terras meas de A. cum pertinentiis in baronia de C. infra vicecomitatum de B. proviginti Marcis usualis monetae Scoticae mihi per praedictum V. tempore confectionis praesentium ad opus meum valde necessarium gratanter mutuatis in usus meos conversis tenent habent praefato V. haeredibus suis assignatis à me haeredibus meis assignatis in feodo haereditate cum omnibus commoditatibus libertatibus asiamentis ac justis pertinentiis quibuscunque adeo liberè quietè plenariè honorificè benè in pace sicut ego vel praedicessores mei praefatas terras cum pertinentiis liberius aut quietius tenui aut possedi tenuerunt aut possederunt aliquo tempore praeterito Et semper quousque ego praedictus I. haeredes mei vel mei assignati viginti marcas praefatae monetae praedicto V. haeredibus suis vel suis assignatis in uno die inter solis ortum occasum ejusdem apud Abirdene in Ecclesia parochiali ejusdem super magnum altare simul semel persolvero vel persolverint sine fraude Fructibus firmis vel quibuscunque aliis commoditatibus seu emolumentis medio tempore per praedictum V. haeredes suos vel assignatos perceptis vel percipiendis levatis vel levandis indicta summa viginti marcarum aut ejus solutione nullatenus computandis Quia dedi contessi assignavi praefato V. haeredibus suis assignatis omnes praefatas firmas fructus alias commoditates quascunque emolumenta de dictis terris cum pertinentiis provenient toto tempore quo praedictae viginti Marcae ut praemittitur non fuerint persolutae ex mea libera donatione pura voluntate pro suis consiliis auxiliis gratitudinibus multipliciter mihi factis impensis In quibus-quidem terris cum pertinent praefato V. tradidi saisinam possessionem corporalem sibi haeredibus suis assignatis juxta tenorem praesentis scripti remansuram Ego verò praedictus I. haeredes mei assignati totas terras praedictas de A. cum pertinent praefato V. haeredibus suis assignatis juxta vim tenorem effectum praesentis scripti In omnibus per omnia contrae omnes mortales varrantizabimus acquietabimus defendemus In cujus rei testimonium huic praesenti scripto meo sigillum meum opposui propter majorem rei evidentiam sigillam Andreae Giffard tunc aldermanni de Abirdene praesentibus apponi procuravi Apud Abirdene 23. Augusti Anno Domini 1419. Testibus Laurentio de Abernethie Domino de Rothemay Domino Wilhelmo de Lundoris vicario de Abirkerdour cum multis aliis ad praemissa specialiter vocatis But now the Chartour is given be the sellar of the lands and the reversion be the buyar thereof severally sealed and subscrived be them and the buyar keepis the chartour and the annalier keeps the reversion Quhilk forme appeares to have the beginning in the dayes of King Iames the third quha in his actes of parliament p. 5. 20. November cap. 27. callis the buying and selling of landes be chartour and saising and taking again of reversions ane new invention and for the mair securitie ordainis all reversions to be registrate vid. Sterlingus vid. Vadium S SCACCARIUM the Checker in French Eschequier the place quhair the Kingis rentes and patrimonie alsweill propertie as casualities is inbrocht compted and received and the profites of all landes fallen in the Kingis handes be reason of warde Lib. 2. cap. Si verò dominus 46. Some callis it the soveraigne and supreame court in the quhilk all causis actiones are decided in the second instance speciallie in the cuntrie of Normandie For it is written in the lawe of Normandie Lib. 15. c. 1. in fine That Philippus pulcher did institute twa parliamentes in Paris and twa Checkers in Roan Paulus Aemilius writes Scaccarium to be as it were Statarium quód homines ibi in Jure sistantur vel quód fit Stataria perennis curia cum caeterae curiae essent indictivae nec loco nec tempore statae As writes Budaeus in Annotationibus in Pandectas Be reason as said is the Checker was ane certaine stable courte and nocht deambulatoure or runnand fra time to time or fra ane place to ane uther As the Session of this Realme was before King James the Fifth Qui instituit Statariam curiam cum anteò esset indictiva Be reason it did sit thrise in the Èeire quhair and quhen it pleased the King Uthers thinkis that Scaccarium is so called à similitudine ludi Scacchorum that is the playe of the Chesse because mony persones conveenis in
39. The schireff is judge to the brieve of inquest quhair be ane desiris to be served and retoured narrest and lauchfull aire to his predicessour lib. 3. c. Generalia 25. quo attach c. De brevibus 31. Ia. 1. p. 9. c. 127. Brieve of inqueist Quhilk brieve suld be served in plaine court be the maist worthie of the schireffdome summound and called upon the premonition of 15. dayes Stat. Rob. 3. c. 1. Vid. breve de morte antecessoris And na commission for serving of the said brieve or uthers suld be granted to onie person Commissions in prejudice of the schireff Stewart or baillie untill he be first warned to hear and see the samin given or else to alleadge ane reasonable cause quhy the samin suld nocht be granted Iames. 5. par 6. Cap. 82. And incase ony sik brieve sal happen to be served and retoured before onie judge commissionar the precept of saising suld be direct furth of the Chancellarie to the Schireffe as is before said verbo breve de morte antecessoris For generallie all preceptes of saising furth of the Chancellarie upon retoures suld be direct to the Schireffe Saisinges upon precepts of the Chancellarie and uther judges ordinar with the clause Capiendo securitatem Iam. 6. p. 12. c. 124. And all saisings passing upon sik precepts suld be given be them their deputes and Clerkes Mar. p. 6. c. 34. Quhairof they suld write the day and Èeir of the giving of ilk saising and bring the samin togidder with all uther saisinges given be private Noatars Èeirly to the checker Ia. 4. p. 6. c. 89. Ma. p. 6. c. 47. I. 6. p. 11. c. 65. Ejectiones and spuilÈie Sik-like actiones of ejection and spuilÈe perteinis to the Schireffe and his jurisdiction And therefore gif ony man is wrangouslie ejected furth of his land or violentlie spuilÈied of his guds and geare The Schireffe suld take cognition there-anent And the ejection or spuiliÈie beand proven sall cause him quha is ejected or spuilÈied to bee restored to his awin landes gudes and geare with the profites thereof and damnage and skaith susteined be the partie Ass Reg. Da. c. stat 31 Speciallie gif the persones quha ar ejected and spuilÈied be religious men clerks widdowes aged persones or sik uthers quha be the law ar excused fra singular battell Ass Reg. Da. c. Stat. Alex. c. 5. stat Ro. Br. 3. c. 6. 〈…〉 Ejectiones And in ejectiâ—â—â—â—â—â—en ony man is ejected furth of his landes fee or heretaâ—◠〈◊〉 Schireffe at command of the Lordes of Session sall f … 〈◊〉 gar restore the ground without prejudice of ony partie and â—â—â—ognosce the landes in the Kings handes untill they be lowsed be the King And in the mean time inquisition is taken be the Schireffe quha was lauchfull possessour of the landes And the samin beand retoured to the King the landes ar letten to borghe to the said person I. 2. p. 14. c. 62 And generallie the Schireffe suld arreist and put in the Kingis ward all maisterfull and wrangeous occupiers or uther mennis landes and sall cause the ground to be maid voyde of them and their gudes Ia. 2. p. 14. c. 78. SpuilÈie Concerning spuilÈie the Schireffe suld compell spuilÈiers and their receipters the spuilÈie being proven to restore their gudes spuilÈied and charge them to answer therefore as law will And in-case they disobey he suld denunce them rebelles and put them to the Kingis horne Quhairin gif he be negligent or partiall he salbe punished as the principall spuilÈier Iam. 2. parlia 5. cap. 10. The like restitution suld be maid be the Lordes of regalities quhilk gif they doe not the Schireffe suld cause the samin be done within the regalitie Jam. 2. p. 5. c. 11. Last of all actiones of recent spuilÈie may be persewed before the Lordes or the Schireffe within xv daies nixt after the committing of the spuilÈie Iam. 4. p. 6. c. 65. Execution of decreetes Execution not onely of decreetes of ejection and spuilÈie as said is bot also of all uther decreetes perteinis to the Schireffe be reason of his office and jurisdiction For ane decreet beand given against ony man letters are direct to the Schireff of the Schire steward or Baillies to burgh or to land chargeing them to put the said decreete to execution quhilk suld be done be ilk ane of them within their awin jurisdiction and suld receive for their office and fee xij d. for ilk li. recovered or conteined in the decreet to be taken of him against quhom the decreit is given And gif the Schireffe or uther officiar failÈies to do the same he sal tine his office for iij. Èeirs gif it be heretable and perpetually gif he hes it in life-rent or for ane certaine time sal pay the principal sume recovered to the partie with the coasts and expenses sustained be him I. 4 p. 3. c. 30. Ia. 4. p. 6. c. 67. Likewaies all sentences and decreetes given be the Lords of the session suld be execute be the Schireffe of the Schire or his deputes quhair the party dwellis against quhom the decreete is given Or els be Herauldes pursevantes or Maisers And for execution thereof nane sall take mair nor is prescribed be the act of Parliament foresaid except be liberalitie of the partie under the paine of deprivation of their office Ia. 5. p. 5. c. 58. For the better and mair reddie execution of decreetes It is leasum to the schireff Foynding to poynd the gudes and geare perteining to the debtour be the brieve of distres quhilk brieve perteinis to the Schireffs jurisdiction lib. 1. c. Placitum 7. Quha suld cause execute the forme of poynding taking of distres Quoniam attach c. de brevibus 31. Bot the Schireff or uther judge may not poynd ony man or take ane distres bot within his awin jurisdiction allanerly And gif he dois in the contrair it is plaine riefe or spuilÈie stat Rob. 3. c. Item stat 13. And it is not leasum to the Schireffe or ony uther judge within his awin jurisdiction to poynd oxen horse or uther guds perteining to the pleuch or that labouris the ground the time of the labouring thereof gif there be uther streinÈieable gudes quhilk may be poynded And gif ony man wil take ane poynd within the Schireffdom he sall cum to the Schireffe or his deputes and desire him to concurr and assist with him thereintill And thereafter the Schireffe or his deputes sall passe with him to the house of the debtour fra quhome the poynd suld be taken And gif the debtour confessis the debt and prievis payment thereof to bee maid be him or be uthers in his name Na poynd suld be taken And gif ony is taken the samin suld be delivered againe utherwaies gif he grantis the debt and proovis it not payed The Schireff suld take the poynd and cause
with him for thieft done or to be done under the paine of life and gudes Ia. 1. p. 13. c. 135. All Sorners taken and apprehended suld be delivered to the Schireff Sorners that justice micht be done upon them as thieves and rievers Ia 2. p. 11. cap. 45. Ia. 3. p. 10. ca. 77. The Schireffe suld arriest and challenge all sorners quha lyis and sojournis upon the Kings lieges and compel them to assyith the King and the partie compleinande And gif na partie compleinis he sall inquire at the head courte anent sik trespassoures And as he ony findis suld punish them I. 1. p. 1. c. 7. And mairover the Schireffe and all uther officiares alsweill to Burgh as to land sall punish sorners over-lyars maisterfull Beggars fuilles bairdes vagaboundes put them in warde and banish them the Cuntrie Jam. 2. Parli 6. Cap. 22. And all oppressoures strang vagaboundes beggars wandring athort the realme upon pretence that they are Schipbroken or banished for slauchter or uther odious crimes And dissimulat thieves and abusers caled Aegyptians Ia. 6. p. 12. c. 124. Sick-like the Schireffe suld arreist all idle-men and put them in sure firmance Idle-men untill it be knawin quhairon they live and take caution of them that the inhabitantes of the cuntrie sal be harmelesse and skaithlesse of them And that they sall get maisters or past to craftes within fourtie daies quhairin gif they failÈie the Schireffe suld inprison them untill they be punished at the Kingis will Ia. 1. p. 3. c. 66. Mair-over the Schireffe suld compell idle-men to passe and labour for wages within Schippes maid and prepared for fishing of great and small fish under the paine of banishment furth of the Schireffedome quhairin gif the Schireffe failÈies he sall pay twentie pound to the King in the Checker Èeirlie Ia. 4. p. 4. c. 49. Beggars All they quha ar suffered to beg a landwart suld have ane certaine takin given to them be the Schireffe Ia. 1 p. 1. c. 25. Under the paine of burning on the checke and banishment off the cuntrie of the beggars and of ane unlaw of fiftie shillinges to the King to be payed be the Schireffe in-case he failÈie in keiping of the premisses Ia. 1. p. 2. c 42. And mair-over the Schireffe Provest and Baillies within Burrowes of royaltie and regalitie sall pay ane mark for ilk beggar that beis found beggand except he be cruiked seek or weake Ia. 4. p. 6. c. 70. And mair-over the Schireffe suld suffer na beggar to beg within ony Parochin bot onlie them quha ar borne within the samin For ilk beggar suld be susteined within his awin Parochin and suld have the marke thereof Iam. 5. parlia 4. cap. 21. And for punishment of strange idle beggars all Schireffes and uther judges suld make prisones stockes and irons within Burghes throw-faire-townes and at all Paroch Kirkes Ia. 6 p. 12. c. 147. And suld punish beggars conforme to the act maid be King Iames the Sext. Ia. 6. p. 6. c. 74. TuilÈies and breakers of the Kingis peace To the jurisdiction of the Schireffe perteinis to cognosce and decide anent strife spulÈies straikes wounds and breaking of the Kings peace Lib. 1. c. 2. And the Schireffe suld take inquisition anent the breaking of the Kings protection and compel the breakers thereof to pay ten punds to the King and and assyith the partie Ia. 1. p. 11. c. 134 The Schireffe suld destroy veschelles creilles and uther ingines quhilk stoppis Smoltes to pas to the sea I. 2. p. 14. c. 87. I. 3. p. 5. c. 37. Cruves and fishing He suld cause the measure and quantitie of the cruves and Èaires to be keiped in waters quhair the sea flowis and ebbis To the effect the frie of the fish may ascend and descend and suld likewaies give up dittay to the justice in his aire upon slayers of Salmond in forbidden time stat Alex. cap. haec est Assisa 27. Leg. Burg. c. haec est Assisa 113 Stat. Rob. 2. Br. cap. Item ordinatum 12. The Schireff suld destroy cast downe and hald down all cruves within his bounds under the paine of xx pund to be payed to the King Ia. 4. pa. 2. c. 15. Mar. p. 8. c. 68. For the quhilk cause speciall commission is granted to him Ia. 6. p. 6. c. 89. Ia. 6. p. 7. c. 111. He suld execute the actes maid anent herring and quhite-fish and uptake the escheit of the contraveeners thereof and make compt in the Checker Ia. 6. p. 6. c. 86. Hunting of the Wolfe The Schireffes suld hunte and slay the Woolfe and her Quhelpes three times in the Èeir and all the indwellers of the Schire suld rise with him under the paine of ane Wedder Ia. 2. p. 14. c. 88. Archerie The Schireffe suld cause bow-markes to be maid for Archerie in ilk paroch under the paine of fourtie shillinges to be uptaken be him to the Kingis use Ia. 4. p. 3. c. 32. Schutting with firewarke The Schireffe suld punish all them quha shuttis at Deare Rae or uther wilde beastes or wilde fowles with Culveringes Pistolettes or Gunnes Ma. p 4. c. 9. Nocht onely the Schireffe bot all judges Ordinar suld accuse at particular dietes all them quha schuttis with Culvering Croce-bow at Dae Rae Hart Hinde Cunning Dowe Herron or fowle of riefe Ia. 6. p. 1. c. 16. p. 7. c. 123. The Schireffe and all uther officiares baith to burgh and to land at ilk Courte Forestallers sall inquire quhat persones byis victuall and haldis it to ane dearth And declare their names to the King that they may be punished as ockerers and the victuall escheit Iam. 2. p. 6 c. 23. Mair-over the Schireffe suld escheit all gudes quhilkis ar forstalled coft or arled be forstallers and in-bring the twa parte thereof to the Kingis use And the thrid part to himself Ia. 5. p. c. 4. 20. And sik-like the Schireffe suld punish bee confiscation of all their moveable gudes Cattell all them quha transportis Nolt Scheipe or uther Cattel furth of the realme Ia. 6. p. 7. c. 124. Ia. 6. p. 12. c. 149. Policie The Schireffe suld punish destroyers of planting of woodes Forrestes orchardes broome breakers of Dow-cattes cunningaires parkes stankes Èairdes slayers of Haires makers of Mure-burne in for-bidden time and uther destroyers of haning and policie Ia. 6. p. 6. c. 84. And likewaies suld in-bring to the Kingis use the paines of them quha plantis nocht wooddes makis not hedges and hainings Ia. 5. p. 4. c. 9. The unlaw of fourtie shilling suld be taken up be the Schireffe fra players at the fute-ball Fute-ball In-case the Lord of the land pretermit to do the samin Ia. 1 p. 1. c. 17. Caution found be the wardatar and uthers Quhen ony landes fallis be reson of warde in the Kingis handes or of ony uther superiour Or quhen to
non audes Vel amore dum causa amicitiae defendis amicum supprimis inimicum de Maritag c. 4. Facias igitur justitiam aequaliter tam pauperibus quam divitibus Stot 2. Rob. Br. Cap. 2. Quia omnes judices magnates qui plus favent his quam illis in judicio aut malefactores ullo modo manu-tenent sunt falsi perjurati contra Deum Regem populum regni leg Mal. Mak. c. ult in fine SCOTIA Sume-time signifies that part of Scotland quhilk is on the North part of the water of Forth Ass reg David c. statuit 21. And is opponed to Lodoneium quhilk now we call Loudiane For King David the First in the third Èeir of his reigne Anno Domini 1126. Be his Charter maid Omnibus Scottis Anglis tam in Scotiae quam in Lodoneio constitutis gave and disponed to S. Cuthbert and his Monkes in Durham Dunelmensi Ecclesiae The landes of Collinghame Lummesden Reningtoun Eiton Fissewik Auld-Cambus SWintoun Prendre-geist and uthers lyand in Lodoneio quhilk now lyis in the Mers and Schireffdome of Berwick And in the actes of Parliament justices generall ar ordained to be ane or twa on the South side of the water of Forth And ane or twa on the North side thereof Ia. 2 p. 14. ca. 97. Quhilk agries with the act maid be King Iames the Second par 3. c. 5. Quhair It is statute that the justice on the South side of the Scottish sea set their justice aires and halde them twise in the Èeir And also on the North side of the Scotish sea as auld use and custome is And in the laws of Malcome Mac-kenneth ca. 4. Mare Scotiae is taken for the water of Forth SECTATOR Ane soytor in court quhais qualities and office vid. verb. Sok SEK Of wool and fuiring of gudes be the sek serplath and tunne vid. Serplath SERIANTERIAE Sergenteriae Lib. 2. c. Dicitur autem 72. In the quhilk place pro Serianterijs mendotè legitur Suggestoribus Serianteria á seriando as ministerium à ministro or servitium á servo Signifies an manner of halding of landes speciallie in the lawes of England quhair Grande seriantye is quhen an man haldis his lands of the King For the quhilk he suld passe with him in his hoist or to beare his banner with him in his warres Or to lead his hoist or armie And hereto belangis warde mariage and relieve quhilk is ane maist speciall Knichts service petitseriantye is quhen ane haldis his landes of the King yeelding to him ane knife or buckler ane scheife of arrowes ane bow or uther sik service conforme to his infestment Quhair-unto na-waies belangis warde mariage or relieve quhilk we may call blench-ferme or alba firma Read the statute maid be King Edward the First King of England 18. Èeire of his reigne anent wardes and relieves SERIANT Sergeant ane French worde For like as messengers cummis fra the French worde Messiers Swa Sergeant likewaies cummis fra Sergent Quae est vox composita de Serrer quod est includere gent quod pro gente plebe vel populo usurpatur Itaque Seriandus dicitur qui jussu magistratus quemlibet de populoreum criminis in carcerem conjicit seu includit That is he quha at command of the Magistrate inclusis or lockis in prison guiltie persones delated or suspect of ony crime Seriandus curiae or serviens curiae the Seriante of the courte officiar executor of letters or summondes quha be the interpretoures of the civill law is called Nuntius vid. Recordum SERPLATH Jam. 1. p. 2. c. 38. Iam. 2. p. 14. c. 68. Conteinis fourescore stanes For the Lordes of Councel in Anno 1527. decerned four serplaithes of packed wooll to conteine sexteene scors stanes of wooll Be the trafficque of merchandes now used Three maners of furing of gudes The merchandes usis to pay frauchte for their gudes to Flanders be the Sek To France Spayne and England be the Tunne And to Danskine and the Easter Seas be the serplath As I understande ane Serplaith of gudes is onelie counted betuixt merchand and skippers for furing of gudes to the Easter Seas and frathine hame to this realme 1 Serplaith Swa that for everie Serplaith of gudes fured or promised to be fured Eastward the skipper is oblished to fuir hame to this realme twa last of gudes And this Serplaith of gudes is of na greater quantitie nor the sek of gudes to Flanders And ilk Sek be the act of Parliament Ia. 6. p. 7. cap. 108 Suld conteine twentie foure stane of wol And be the dailie calculation of merchands fourtie Trois stane 2 The Sek Troisstane Ilk Trois stane conteinis sexteene pound Trois And ilk pound weicht thereof conteines sexteene ounce Trois The sek of wooll is commounlie set be the Skippers to ane Tune Ilk Tun conteinis Sek of wool Sex hundreth pound Trois weicht Ilk hundreth weicht conteines five score pounde weicht Tunne Hundreth weicht quhilk is sex stane and ane quarter Trois The wooll quhen it is bocht be merchandes is bocht be the Trone stone Trone stane quhilk conteinis commounlie xix pound and ane halfe Trois Alwaies concerning the sek of wool I finde na solid or constant weicht thereof For some seckes will be mair and some will be lesse nor fourtie Trois stane Bot communlie the sek of wooll conteinis fourtie Trois stane as said is Ane Last of guds fured hame conteinis commonlie twelve Barrelles And the auld forme of furing of gudes fra Danskene to this Realme was for every serplaith 3 Furing of gudes be the Last Barrell as it is Èit twa Last Bot for this Last the Skippers fuiris hame fourteene barrelles Ilk Barrell being of weicht ane schip pound And of licht gudes sik as lint and hempt there is fured for the serplath twa last Ilk Last is twa packs And ilk pakis al 's great al 's halfe ane sek of wooll Skinnes Pack and conteinis in weicht threttie sex Sprusse stanes Ilk Sprusse stane conteinis twentie aucht pound Trois weicht Sprusse stane Swa the last exactlie weyed will conteine of our Trois weicht sex score sex stanes And for ane last of walx that is fured hame be strangers fourteen schip pounde Laste of walx And be Scotish skippers twelve schip pound Also of Tar pick and siklike wares twelve great barrelles for the last and fourteene small Barelles Of tarre Pick. Great and little barrelles Thir great barrelles ar called Hamburgh trees and ar in greatnesse nocht unlike to our Salmond trees and sulde conteine fourteine Gallounes and the small barrelles ar some what greater nor our herring trees Ry meill Likewaies of Rye meill some times twentie foure barrelles ar fured for the Last speciallie be strangers and be our awin Skippers auchteene barrelles for the Last thereof And ane
duobus 19. And last of all doomes pronunced in the justice Court was falsified in Parliament before the Lordes called Auditores querelarum in this maner conteined in the register 7. October 1476. Datum fuit judicium infra-scriptum per os Alexandri Dempster judiciarij Parliamenti in praesentia Serenissimi Principis Iacobi tertii S. D. N. Regis cum corona in capite suo sceptro in manu sedent in Cathedra Iusticiae Parliamenti sub hac forma The Lords chosen be the three Estaites of this present Parliament upon discussing of the doomes deliveris and declaris that the doome given in the justice aire of Edinburgh the xij of Iulij last by-past be the mouth of Andrew Blackfurd soytour for the Lands of N. for Iohn N. and Ionet N. his spouse and againe called be David Balfoure of Caraldstoun fore-speaker for Archebald N. was evill given and weill againe said For diverse reasones schawen and understand to the saidis Lordes And therefore ilk soytour of the saide doome and their lordes ilk man be him-selfe is in ane ammerciament of the courte of Parliamente sik as effeiris to be taken in the justice aire and in ane unlaw of the said justice aire for them And in ane unlaw of Parliament amangst them all sik as effeiris of Lawe and this I give for doome Swa it is manifest that in all courtes inferiour to the Parliament the soytoures pronunced the doome And gif the doome given be them in ane Barronne courte was falsified in the Schireffe courte All the soytoures payed bot ane unlaw Bot gif the doome given be them in the Schireffe courte was falsified in the justice courte ilk soytour payed ane unlaw of ten poundes of the quhilk diversitie the reason is conteined in Quoniam attach c. quilibet 7. SOKMANRIA Or Socage Is ane kind of halding of Landes quhen ony man is infest freelie without ony service warde relieve or marriage and payis to his Maister sik dewtie as is called petit seriantie Or quhen ane haldis his Landes in name of Burgage or in Libera Eleemosyna de Maritag Cap. 1. Soccomannus is called ane vassall or Freehalder Soccomannus quha haldis his Landes in maner fore-saide or in blench-ferme sive nomine albae firmae Et opponitur militi qui tenet per servitium militare That is be service of warde and relieve Lib. 2. Cap. Si quis plures 30. Cap. Et haeredes 41. And in Magna Carta of England Anno. 51. Henr. 3. cap. 27. Mention is maid of sindrie formes of halding Soccage Viêª Free-ferme burgage soccage and Knicht-service Read the statute maid be Edward the First King of England the xviij Èeire of his reigne Utheris alleagis that Socagium cummis fra Socco sive Aratro affirming that Socage is properlie quhen the tennent is bound and oblished to cum with his pleuch to teill and labour ane part of the Lordis landes Concerning tenures and divers halding of lands reade the treatise written be Littleton STALLANGIATORES A stallo Creamers or Forraine merchandes quha within Burgh in the time of Faire or mercat payis certaine dewtie for their stall or stande in the quhilk place they sell their merchandice For it is ordained that ilk stranger sall either agree with the Provest of the Burgh in the best form as he may or else ilk mercat daye sall paye to him ane halfe-pennie Leg. Burg. cap. Quilibet 39. And in the auld forme of customes It is called the stallange of the mercate And Leg. Burg. Mercenarius 40. It is called Stallum or Botha in Foro. STINGISDINT Leg. Burg. c. Sciendum est 9. Ane dint or straike with ane sting or Batton In Latine Fustigatio STERLINGUS Est genus ponderis ane kinde of weicht conteining threttie twa cornes or graines of Quheate Vt in Assisa Reg. Da. de ponderibus mensuris And in the Cannon law mention is maid of five shillinges sterling and of ane marke sterling c. 3. de Arbitris c. Constituit 12 de procuratoribus And the sterling pennie is swa called because it weyis sa mony graines as I have sindrie times proven be experience And be the Law of England the pennie quhilk is called the sterling round and without clipping weyis threttie twa graines of Quheat without tailles quhairof twentie makis ane ounce and twelve ounces makis ane pund and aucht pound makis ane galloune of wine and aucht gallounes makis ane buschell of London quhilk is the aucht part of ane quarter Anno 17. Edward 2. c. 10. The quhilk cunÈie was meikle used within this realme as is maniefest be auld Charters and evidentes For the sexteenth daye of August Ane charter conteining an reversion and sterling money the Èeire of God 1395. Walterus Senesculli Dominus de Ralston Vicecomes de Perth impignoravit Necnon nomine pignoris dedit concessit Nobili potenti Du. Dom. Roberto Comiti de Fife Menteith totam et integram Baroniam suam de N. próducentis marcis sterlingorum monete Scotiae ipsi pereundem Comitem mutuatis prae manibus plenariè persolutis Tenent habent ipsi Comiti haeredibus suis de Domino Rege c. Quousq dictus Walterus Senescalli aut haeredes sui praefato Domino Comiti vel suis haeredibus ducentas mercas sterlingorum monetae Scotiae vno die inter solis ortum occasum in Ecclesia Parochiali de N. persolverit vel persolverint Et praeterea dictus Valterus omnes firmas reditus coÌ„moditates proficua de dicta Baronia medio tempore provenient dedit concessit prose haeredibus suis praedicto domino Comiti haeredibus suis prosuo consilio bono ipsi impenso impendendo Faciendo inde annuatim praedictus Comes haeredes sui Domino Regi servitia debita consueta The quhilk Charter conteinis the reversion and also ane donation of the profites of the lands quhilkis were wad-set conforme to the practicque used and observed unto the time of King Iames the Third of gude memorie vid. Regres SUBVASSORES Subvaluassores base halders or inferioure halders speciallie they quha haldis their Landes of Knichtes leg Malc Mak c. 4. Quoniam attachiamenta cap. Si aliquis 49. As Reg. David c. Statuit 8. Quhair it is ordained that ilk person quha is accused criminallie sall bee judged be his Peere or Superioure in estate and dignitie T. TAYNT vide Attaynt TENEMENTUM Is commonlie taken for the propertie of onie landes Or immoveable gudes within Burgh or without the samin Lib. 2. cap. Dos duobus 19 capit Fieri autem 67. Liberum tenementum And the superiour sulde not have the Warde of the tenement perteining to his vassal being Minor Nor can crave na service nor relieve fra him being Minor or Major except he first receive his homage Lib. 2. cap. Praedictis 60. In the quhilk signification it is commounlie used in