dwelling therein and yet I think they should not be Sanctuaries if they dwell not there except that allowance be granted them either by express Concession or Prescription but these gave not Protection to such as were notorious Criminals Novel Justin. 17. cap. 5. verb. Neque homicidis neque adulteris neque Virginum Raptoribus delinquentibus terminorum custodies cautelam sed etiam inde extrahes supplicium iis inferes non enim talia delinquentibus parcere convenit c. And now I find not that any of the Kings Palaces are Sanctuaries as to Cryms with us and in no case should they be a Sanctuary against searching for and apprehending Malefactors as is clear l. 3. ff de fugitiv Div. Marcus facultatem dedit ingrediendi tam Caesaris quam Senatorum praedia volentibus fugitivos inquerere The ConÈie-house pretends also to be a Sanctuary with us This priviledge of a Sanctuary was only granted to Holy and Consecrated Places and amongst Protestants no Consecrations are in use but yet according to the Canon-Law Churches even before Consecration are generally thought by Lawyers to have that immunitie vid. Covar variar resolut cap. 20. num 4. And albeit this Priviledge be properly a Canonical Priviledge yet it cannot be denyed but that the very Churches of the Gentiles had this Priviledge as is clear by Tâ—â—ucid lib. 7. and was approved of by Councils and Fathers who are cited cap. 17. Quest. 4. Praesertim cap. Miror cap. pen. fin de Immunitate Ecclesiâ—st vid num cap. 35. Iâ—sua cap. 20. Deuter. cap. 19. Exod. cap. 21. But though by the Canon Law 40. Paces about the Mother-Church and 30 about other Churches had the same Priviledge of Immunitie albeit Skeen speaks only of the 30. paces in his Annotations ad cap. 6. Statut. Alex. 2 d. Yet I read of no such Priviledge to either the 30. or the 40. paces nor to the Palaces of Bishops nor to Hospitals vid. Covar ibid. BEfore this Act the Tennent might have been Poynded by the Brief of Distres for all the personal Debt owing by his Master but by the first part of this Act it is appointed that the Tennents shall be poynded only for as much as they owe their Master which did hold only in poynding for moveable Debts for in Decreets of poynding the Ground the Creditor might have poynded all he found upon the Ground and all invecta illata though the Tennent owed not so much to the Master yea though he owed him nothing as was found 11. July 1628. And though the Tennents Term of payment were not come if the Term of payment of the Annualrent were by-past and they who were so poynded had their relief of the Heretor for whose Debt they were poynded but now the Lords extends this Act so as to defend Tennents against poynding upon Infertments of Annualrent granted by the Master so that execution cannot passe against them for more than they owe their Master as to which only they can be personally lyable and their Goods or invecta illata can bâ— only poynded but yet this was not properly an Extension for debita fundi are the Heretors or Lords Debt since the Heretor is personally and the Land is really lyable therefore This Act extends only to Tennents of Lands but not to Tennents of Teinds who cannot be poynded for their Masters Debt 14. January 1556. The second part of this Statute prescribes the way of Appryzing Lands from Debitors and it is the Original Statute whereupon Apprysings are founded in our Law and it seems strange that so material a part of our Law should not have an entire Statute but should have been brought in at the close of another and less important case The form prescribed to Compryzings by this Statute is that if the Creditor cannot recover payment by poynding the Moveables the Sheriff shall cause sell the Land to the avail of the Debt and from this Act it is that to this day the Moveables must first be fought and though the Appryzing will be null for want of this Solemnitie yet the offering to prove that there were as many Moveables upon the Lands as might pay the Debt will not reduce the Compryzing except these Moveables were offered to the Messenger when he was executing the appryzing and when the Scheduls of appryzing were laid on upon the ground of the Lands tantum creditur nuncio referenti se fecisse executionem in stabilibus quia non â—â—tâ—bant bona mobilia debitoris quod non auditur volens probare contrarium ad annullandam executionem Surd. Concil num 1. lib. 1. This Solemnitie descends from l. 15. § 2. de re Jud. by which Moveables were first to be poynded and then Immoveables failÈing of these and was formerly introduc'd into this Nation by the cap. 9. Stat. 2 d. Rob. 1. By this Act it is appointed that the Lands be appryzed to the avail of the Debt this proportion was long observed and much was referred to the arbitriment of the Judge and Inquest Balfour who collects the oldest Decisions and such as were about the time of the Institution of the Colledge of Justice in his title of Comprizings chap. 3. gives this for a Rule that ilk twenty shilling Land of old extent was comprized to twenty Merks 4 July 1533. James Heren contra Henrie Livel and ilk Mark Land of yearly profit was to be Comprized to twenty Merks of Stock which answered to five for the hundred penult May 1589. Adam Dickson contra John Carhattel penult March 1539. But I have seen diverse old Comprizing led about this time at the instance of George Lord Seaton and Lady Jean Hepburn his Mother against some Vassals and Wodsetters in the Barony of West-niddery in Linlithgow Shire where more then five of the hundred was allowed as will appear by computation one of these Comprizings dated 18. March 1523. bears 21. Aikers with 12. shilling Scots per aiker to have been appryzed in payment of two hundred and fourty pounds of principal due to the said Lord George and a second Comprizing also led at his instance dated 17. December 1541. bears 25 Aikers and two parts of an Aiker of infield land to have been appryzed in payment of two hundred and fourty pounds of principal due to the said Lord George and a 〈◊〉 Compryzing also led at his instance dated 17. December 1541. bears 25. Aikers and two parts of an aiker of infield to have been apprized for payment of three hundred and fourty two pounds of principle each aiker being valued to a merk of yearly Rent a third Appryzing at his instance dated 6. Feb. 1544. bears 20. Aikers and a half to have been appryzed for 244. lib of principal ilk aiker being valued to 15. shilâ—ing of yearly Rent and a fourth Comprizing dated 5 th May 1547. bears 18. Aikers to have been apprized in payment of two hundred and twenty merks principal and the Rent of an aiker to be valued
quod ejus est auferri ab eà nequit sine consensu suo 5 o. Tochers are oft times augmented in consideration of the Coniunct-fie and therefore its most unreasonable and illegal that what was given her for an onerous cause should be taken from her and applyed to the behove of one who represents the Contracter who was bound to warrand her Life-rent and who got good deed upon that account And it is unjust that the Husband by spending his Estate should burden her or that his Heir should not rather want than she 6 o. Whatever may be said to oblidge a Mother jure naturae to entertain her own Children and I think this Aliment has been at first founded on that Principle of Justice whereby Donatores Patroni Parentes were only lyable in quantum facere potuerunt called by Lawyers Exceptio competentiae yet there is no reason that a Life-rentrix should be oblidged to entertain an appearand Heir who is a meer stranger and this jus naturae oblidges the Mother not only to entertain the appearand Heir but all her Children as was found in the case of the Countess of Buchan And albeit the Act of Parliament speaks only of Heirs yet by our Law even appearand Heirs will get an Aliment allow'd them though thereafter they renounce but it is less clear if it will be allow'd them after they have renounced July 16. 1667. Hamilton contra Symington And yet in this case they are but meer strangers and can no more be called Heirs or appearand Heirs after Renunciation as also though this Act mentions only Ward Lands yet it is ex praxi extended to others who have no Ward Lands the 22 Feb. 1673. Finnay contra Oliphant And though both the Rubrick and the words of the Act provide only Aliment for Minors yet it is extended to appearand Heirs who are Majors as in the case of Rig contra the Lady Carberrie nor will it be sufficient that the Life-rentrix offer to entertain the appearand Heir in the Family with her as Durie observes the 14. Feb. 1627. Noble contra his Mother nor is this only extended where the Mother Liferents all but it is even extended to the case where all the Minors Estate beside what is Life-rented is not sufficient to pay the debt and is affected by legal diligences as was found 13 Feb. 1662. Antonia Brown contra her Mother but it may be very well doubted whether this last Decision may be extended where the debt is only personal and I find the Lords did refuse to decide this point in a case debated 1667. betwixt the Lady Staniehill and her Son though the Son there alleadg'd that he sold his Land to hinder Comprising and if it had been Comprized she would have been lyable And this Action for Alimenting the Heirs was still sustained against both the Grand-Fathers Relict and the Fathers Relict pro rata of their Life-rents which they had of the appearand Heir albeit it was alleadg'd that the Mother having a nearer relation and being the Wise of him who spent the Estate should be only lyable or at least first lyable 12. Decemb. 1677. Laird Airdrie contra the two Ladies but yet I find the Grand-Father was found lyable in no proportion with the Mother where he had only reserv'd a mean proportion to himself when he did Infest the appearand Heirs Father 7. July 1629. It may be doubted whether a Husband marrying the Life-rentrix having given her a provision in contemplation of this Joynture will be lyable to Aliment since he is a meer stranger to which all that can be answer'd is that he was oblidg'd to know it was lyable to this burden and if he will be found lyable it may be doubted if he will not be free from the provision given in contemplation thereof tanquam causa data causa non sequuta As also it may be doubted whether the pursuing such an Action as this will infer a Passive Title seing the appearand Heir is thus lucratus but yet I think it will not since he reaps thereby no advantage which would have accresced to the Creditors to whom no part of his Aliment would have belong'd and even appearand Heirs renuncing will have right to an Aliment as is observed before The Civilians think that a Mother is oblig'd to Aliment her Child till it be past three years of age l. 3. C. de Patr. Pot. ibid. gloss and even after three years of age if the Father be not able to Aliment the Child the Mother is because the Child is oblig'd to Aliment and reverence the Mother vid. Surd. de Aliment quaest 14 tit 1. But they make no mention of such an alimentary action as this which we allow THough buyers of Land be obliged to keep the Tacks set by their Predecessors yet the Superior is not obliged to keep them when the Land falls to him in Ward during which time he is Proprietar nor are Life-renters nor Conjunct-fiars oblig'd to keep them during their temporary Rights but when these Rights expire the Tacks revive and yet by this Act the Superior or Life-renter cannot remove them till the next Whitsunday after the Ward or Life-rents fall the Tennents paying the Maills and Duties to the Superiors or Life-renters but it may be doubted whether this will hold when the Duty is only a simulate Duty and not near the Rent of the Land for this was design'd to secure the Tennents reasonably but not to prejudge the Superior or Life-renter but certainly this Act will not defend these Tennents who have payed their Duties to their Masters before hand THough particular pains be set down as to Law-burrows in Civil cases by former Acts yet in Criminal cases because of the importance and danger it is left Arbitrary to the Judges to cause the Parties find Caution under what sums they please and before the Council likewise the sum under which Caution is to be found is de praxi Arbitrary Since this Act sayes that the Party complainand shall be harmless it would seem by this Act the Council can oblige no party to keep another harmless except where the party himself complains in which case he must give his Oath he dreads bodily harm conform to the 129 Act Par. 9. Ja. 1. vid. observ on that Act. But yet the Council is in use to cause men find Caution to keep others skaithless even where the parties do not crave it but this is only in cases where there have been previous breaches of the peace amongst them so that either a party does complain and then he must give his Oath and if he complain not there must be a previous breach of the peace and in that case there is no need of an Oath or a Complaint that he does fear bodily harm Though the Council or Justices may by this Act exact Law-burrows yet by this Act it is only ordain'd where Complaints are rais'd before them and by Complaints here is not to be
were not null though not Confirm'd and January 20. 1666. Rentoun contra Feuers of Coldinghame The Lords found that Gifts of an Office of Forrestry granted by Kirkmen needed not be Confirmed these not being properly Feus of Kirk-lands ibid. THis Act Appoints that all Money and Victual assign'd to the Captains of the Kings Castles and whereof they have been in possession for five years shall remain with them unquestionably and this is like the Quinquennial Possession given to the King in cases of Forefalture Nota That the King has a Duty paid to him in Exchequer called The Castle Wards so call'd because they are paid in forwarding or keeping His Castles and he has no Right to them but constant payment conform to the Exchequer Rolls and therefore yearly the Sheriffs are charg'd with them and they get Letters of Relief and it was found in a case betwixt the Sheriff of Haddingtoun and Sir John Nisbet January 11. 1678. That the said Sir John had not prescriv'd an exemption as to these Castle Wards neither against the King nor Sheriff though he had paid none for fourty years since there were Letters of Relief yearly granted 2 o. It was alleadg'd that his Lands of Dirletoun having come once in the Kings hands by Forefalture and His Majesty having of new given them out that Servitude was thereby extinguish'd since res sua nemini servit but was repell'd because the King did of new only Dispone the said Lands as when they fall in his hands by the Forefalture King IAMES sixth Parliament 10. MR. Nicol Dalgleish and some other Presbyterian Ministers having reproached the King and His Government this Act declaring slanderous Speeches and Writs punishable by Death as Sedition was made and is more fully explain'd in the Act 134 Par. 8 Ja. 6. and in my crim pract tit Injuries Observ. 1 o. Sedition is a Name that receives different punishments according to its different Degrees of guilt and therefore where it is destructive of the Kings Authority immediatly and designedly it is punishable by Death as here though l. 3. C. de seditiosis the punishment of these qui ejusmodi voces emiserunt is more moderat and as that Law well observes words spoke in civitatibus tumultuosis clamoribus are more punishable than the same expressions would be if spoken in private places or without tumult but yet by this Act such seditious Speeches whether spoken privately or publickly are punishable by Death Observ. 2 o That when His Majesties Advocat designs not to pursue the Authors of such Speeches to the Death he Libels only that the Pannel did speak or write what tends to Reproach or Slander His Majesties Person or to misconstruct his Proceedings but not that they actually did so and in that case the guilt infers only an arbitrary punishment according to the circumstances that attend the same Observ. 3 o. That though by this Act the Depraving His Majesties Laws and Acts of Parliament is declared punishable by Death as Sedition yet all misconstructing Acts of Parliament is not so punishable and thus though a Sheriff or other Judge would misinterpret a Law so as to make it infer a higher mulct or penalty than the Law design'd that could not infer Sedition or Death though it be likewise punishable but the design of this Act is to declare the depraving and misconstructing of Laws so as thereby to reproach the King or Government to be Sedition and Spotswood tells us pag. 243. That this Act was made for punishing these Ministers who had declaim'd against the Acts of the former immediat Parliament as destructive to their Discipline Upon this Act the Lord Balmerino was found guilty in December 1634. for having dispersed a Petition that reflected upon the Government in which Process it being fully Debated that dolus malus should be found in such cases where the design of defaming makes only the Crime this was repelled because where the words may of their own nature move dislike of and Sedition against the Government the design needs not be proved for if the people be irritate the Author ought to be punished and this Law considers the effect and not the design and he ought to blame himself who meddles in matters of Government without his Sphere It was likewise alledged in this Process that a Petition to the King Himself could not be interpret a misconstructing but this was also repell'd because both by the Common Law and ours it has been found that great affronts have been put upon the Government by way of Supplication Upon this Act also Francis Tennent was found guilty in anno 1680. and Mr. Thomas Ross in anno 1618. and the Earl of Argile both in the Year 1662. and 1681. Observ. 4 o. That in this Act mention is made of raising dislike betwixt His Highness His Nobility and loving Subjects which word Nobility was expresly put in by the Lord Hamilton and other Noblemen who then turned out Captain James Steuart against whom this Act was partly designed whereas in the Act 134 Par. 8 Ja. 6. made the year before by the said Captain James's influence against slanderers there is no mention made of the Nobility as is observed by Mr. Robert Macgil in Balmerino's Process THis Act discharging all Dilapidations of Benefices runs only in the words of the Act against such as dilapidat Benefices that are at His Majesties presentation but yet de praxi no Benefices that are even at the presentation of Laick Patrons or Ecclesiastick Subjects can be dilapidated Dilapidations of Benefices were formerly discharg'd by the 101 Act Par. 7 Ja. 6. but to elude that Act Benefic'd persons us'd not to give down any of the Bolls payable to the Benefice but to convert these Bolls in Money and to make these who were lyable in payment only lyable in very small prices and therefore such Conversions are discharg'd by this Act But it may be alleadg'd that where the Conversion is for less than the present price as Victual now gives it is unlawful since that Conversion was unnecessary and the Benefic'd person is prejudg'd because if no such Conversion had been made he had got the Bolls presently which could have maintained him better than the small prices which these Bolls were worth the time of the Conversion and yet by our Decisions the price that the Bolls gave the time of the Conversion are only considered because both parties took their hazard and the price mentioned in the Conversion is presum'd to be the full price except it could be proven that the Victual gave then greater prices for in antiquis there can be no other probation Vid. observ upon the said 101 Act 7 Par. Ja. 6. BY this Act all Leagues and Bonds made amongst His Majesties Subjects without his consent are discharg'd Observ. 1 o. That though the Rubrick bears that all such Bonds and Leagues are null yet they are not expresly annulled in the body of this Act but they
perceperit Ecclesiae non reddiderit Christiana Sepultura privetur But yet before that time Laical Infeudations were Discharg'd per Concilium Turon 1096. Though we in this Nation consider only the Discharge in the Lateran Council It remains clear from these Informations that our decimae inclusae are in effect the same with the decimae infeudatae in the Canon Law and these are call'd decimae inclusae where the Stock and Teinds were never separated but were feu'd joyntly before the Lateran Council but yet it seems that all decimae infeudatae are not esteem'd inclusae with us for in a Case betwixt Monimusk and Pitfoddels Teinds were found not to have the priviledge of decimae inclusae though Transmitted by Infestments and call'd decimae inclusae because there was separat a Reddendo paid for the Teind and Stock and so it could be known to be different from the Stock albeit it was contended that decimae inclusae and infeudatae were pares termini and a different Reddendo did not evince that the Teinds had ever been separated from the Stock but only that there was a different Duty as is in Lands of the same holding oftimes and it may in general seem strange why we should add since the Lateran Council for that Council did find that Laicks before that time were incapable of any Right to Teinds and therefore all Feus of Teinds whether before the Lateran Council or after should be null and this Error it seems has been occasion'd by our concluding that because Laicks were declar'd uncapable of them by that Act therefore they were capable of them before it and yet with us a Laick cannot prescrive Teinds because he is not capable of them and Balsour tells us a Decision wherein not only alienations of Teinds but even Tacks of Teinds for three nineteen years were accounted alienations and so null for else Discharging alienations might have been eluded by setting long Tacks But now Teinds pass by Infestments as the Stocks does since the Surrender and His Majesties Decreet thereupon wherein every man may buy his own Teinds and so may set as long Tacks of them as he pleases or Feu them out cum decimis inclusis But it may be alledg'd this tenth part payable to the Ecclesiastick person for Teinds may be made liable to Ministers Stipends since this tenth part must be constructed as Teinds and so should be lyable to all the burdens of Teinds but to this it is answer'd that these decimae inclusae are consider'd as a part of the Stock and so no more liable to Ministers Stipends than the Stock is this division of the Feu-Duty doth not alter the nature of the decimae inclusae but is only insert to regulate the way of payment of the Feu-Duty even as if after a Feu granted of Stock and Teind promiscuously for a Feu-Duty the Church-man should dispone nine parts of the Feu-Duty and reserve only the tenth to himself that tenth part could not be liable to Ministers Stipends 2. Since this Act by the death of the Titular both Temporality and Spirituality came in his Majesties hands and so were dispon'd to the Lords of Erection and return'd to them without this distinction of nine or tenth parts Though by this Act Teinds are declared the Spirituality of Benefices yet they may be sold and are appointed now to be sold by the Parliament 1633. and the Heretors are to be infest in them as in their other Lands which seems inconsistent with their being the Spirituality of Benefices and the Patrimony of the Church but it may be answer'd that they are even in that case burden'd with payment of Ministers Stipends till they be competently provided Observ. 8. By this Act all Lands and others mortified to Colledges are excepted from the Annexation and the reason is because Kirk-Lands remain still to be such albeit they be mortifi'd to Colledges 12 Feb. 2635. Tock contra the Parochiners of Achtergoven and therefore it was necessary to except them Maisons Dieu or Hospitals are also excepted and Maisons Dieu are Hospitals dedicated to the honour of GOD it is a French word signifying the House of God the Canon Law calls them Domus Dei and makes them Hospitals Observ. 9. Pensions likewise out of Church-Benefices are excepted if they be authorized either by Decreets or Possession but possession of a part is repute possession of the whole and by the 137 Act 12 Par. Ja. 6. this Act is ratified and it is declared that all Pensions out of the Spirituality or Temporality neither clad with Decreet nor Possession in the Prelats lifetime who dispon'd the same before this Act of Annnexation shall be null but if they be clad with possession in manner foresaid they are valid against singular Successors though Pensions granted by Laicks are not valid albeit they be clad with possession prior to the singular Successors right as was found the 11 of December 1662. Clappertoun con the Lady Ednem but by the Act 140 Par. 12 Ja. 6. Pensions granted by Church-men should contain the particular names of Tennents and Duties vid. observ on the 62 Act of this Parl. Observ. 10. By this Act it is declared that the Bailie or Steward of the Regality shall have the same power he had before to repledge from the Sheriff or Justice-general in case he hath prevented the Justice-general by apprehending or citing the person before he be apprehended or cited by the Justices but if the Justices have prevented as said is then the Bailie of the Regality or Steward shall not have power to repledge but he may sit with the Justice-general if he pleases so that in effect by this Act there is this difference betwixt the Ecclesiastick and Laick Regalities that there is a right of repledging competent to the Laick Regalities whereas Ecclesiastick Regalities have not this priviledge except they prevent the Justices but otherwise the Bailie of Regality may only sit with them the reason of which difference is that the Regalities having been only granted in favours of the Religious Houses which were supprest the Regalities became extinguish'd with them and his Majesty having ex gratia only reserved their Offices to the Lords of Erection he thought that they were abundantly gratified by this new Concession without allowing them the power to exclude his own Justices in case of prevention and this was also a favour to the Lieges in not troubling them with two Courts nor were the Lords of Regality much prejudg'd for by this same Act they retain the whole right to the Escheats and Fines even of these who are condemned by the Justices Observ. 11. That the Parliament has been so careful of the Vassals and Feuers of kirk-Kirk-Lands that because the King who is declared Superior by this Act of all these Lands was a more powerful opposite Therefore by a Clause in this Act it is provided that the King shall not quarrel their Rights to these Kirk-lands save by Improbation or by
the insufficiency of the Victual of these Countreys and so the greatness of the Measure does only equal the intrinsick value This Act having fallen in Desuetude as to the Linlithgow Measure is again renewed by the 16 Act Par. 23 Ja. 6. And many wish that Corn were now sold by the weight and not by measure weight being the only sure rule of the intrinsick worth of Corn but this being propon'd in the Par. 1681. the overture was rejected by a Vote Vide observ on Act 96 Par. 6. K. Ja. 4. supra King James the sixth Parliament 12. FOr understanding this Act it is fit to know that upon the 22 of May 1592. The Presbyterian party taking advantage of the Kings being engag'd against Bothwel and in other difficulties they held a General Assembly at Edinburgh wherein they drew up several Articles to be presented to the King and Parliament whereof Spotswood names only four 1. That the Acts 1584. against the Discipline of the Church should be abrogated and the present Discipline establish'd 2. That the Act of Annexation should be abrogated and the Patrimony of the Church restor'd 3. That Abbots and Priors c. nor none having Commission from them should Vote in Parliament as Representing the Church 4. That the Land should be purg'd of Blood The King rejected the second and third but in complyance with the first Article he did because of his present difficulties as Spotswood observes allow the present Church Discipline by General Assemblies Synods and Presbyteries but yet he does not here expresly abrogat Episcopacy only the Presentations are not ordain'd to be directed to them but to Presbyteries which Presentations are again restor'd to Arch-bishops and Bishops by the 1 Act Par. 21 Ja. 6. And Spotswood tells us that severals of the Bishops possest even then by their Titulars Episcopacy war again restor'd so that the Bishops did sit in Parliament by the 231 Act Par. 15 Ja. 6. but they were not fully restor'd to their Spiritual Jurisdiction till the 2 Act 18 Par. Ja. 6. but in that Act this Act is not abrogated as it would certainly have been if this Act had abrogated Episcopacy but this Act is abrogated by the Act 1 Par. 21 Ja. 6. By this Act the Collation and Deprivation of Ministers is declared to belong to the Church jure divino but these words or any siklike essential Censures having warrand from the Word of God are too general and may be abused This Act is now abrogated totally in all its Heads Clauses and Articles by the 1 Act 2 Sess. Par. 1 Ch. 2. which seems too general for though this Act establishes Presbytery yet there are many Clauses in it in favours of the Protestant Religion and to which no answer can be made but that what this Act has establish'd in favours of the Protestant Religion was formerly establish'd by other Acts but the truth is these Acts are not so full as this PEttie in his History tells us that by the seventh Article of the foresaid Assembly it was desired that Tacks set by the Depos'd Ministers should not stand But by this Act it is only declar'd that when Ministers are depriv'd their deprivation excludes them tam ab officio quam beneficio which has been doubted because Suspensions are only ab officio By this Act though the persons be depriv'd yet it is declar'd that their deprivation shall not be prejudicial to Tacks lawfully set by them before their deprivation and the Lords do expone the word lawfully so as to extend to the Setter himself so that his Successors can only quarrel these Rights upon such reasons as the Setter himself could have quarrelled them Vid. Hopes Major Pract. Tit. Kirk THis Act is explain'd by the 48 Act 3 Par. Ja. 6. BY this Act the Woman Divorc'd for the Crime of Adultery committed by her cannot Dispone her Estate to her Adulterer if she Marry him or to the Children procreat of that pretended Marriage which has been introduc'd not only as a punishment of the Adultery when committed but to discourage any from committing Adultery upon hopes that their Children might succeed to their Estates with whom they committed Adultery which is conform to the Canon Law by which non licet eam ducere in uxorem quam quis polluit adulterio and by the Civil Law that woman could not Institute that Servant her Heir with whom she had committed Adultery Inst. de haered instit in princip These Marriages are likewise declar'd null by the 20. Act 16 Par. Ja. 6. Vid. crim pract Tit. Adultery pag. 1â—2 THough regularly Liferent-Escheats do not fall while after year and day yet such as commit Slaughter within Kirks or Kirk-yards and the Resetters of them lose their Liferent-escheat immediatly after Declarator and this Liferent falls to the King though in other cases Liferents fall to the Superiour of whom the respective Lands hold IT was usual to mortifie to Abbacies formal and established Patronages of Kirks which were formally erected in Parsonages and to these the Monks presented Parsons and were only in place of Patrons at other times Tiends were Mortified and given to them and after the Reformation though Tiends were declared the Patrimony of the Church by the Act of Annexation yet thereafter the Lords of Erection did prevail by their importunity with the King to erect these Tiends in Rectories or Parsonages whereof the Patronage was given to the Lord of Erection but there can be nothing so unjust or illegal as these Patronages were and therefore by this Act the Parliament finding this abuse was growing did declare that all Erections of Kirk-lands and Teinds in Temporal Lordships and Livings to the prejudice of the Kirk and hurt of His Majesties Estate and priviledge of his Crown were null which is founded upon excellent Reason for such Erections of Tiends were extreamly to the prejudice of the Church Tiends being clearly by former Laws declared to be the Spirituality and so the Patrimony of the Church 2. Laicks having power to present whom they pleased such Erections did much hurt the Church since it gave to Laicks the power of presenting 3. It is too well known that such as are presented by these Patrons do ordinarly grant Tacks in favours of the Patron and to his behove which has been always lookt upon as not only Simony but as most prejudicial to the interest of the Church making the Ministry despicable and tempting them to ill shifts and discouraging worthy and honest men from seeking such slavish Benefices and therefore the Church has been always an enemy to such Impropriations even when made in favours of Religious Monasteries for Pope Alexander anno 1170 cap. Avaritiae extra de Praebendis says Intelleximus quod in Ecclesiis vestris pensiones percipere consuevistis antiquos reditus Minorastis ideo mandamus ut antiquos reditus cum consensu Archiepiscopi ad integritatem pristinam revocetis and therefore the same
did write such a hand and for proving of this must produce the Hand-writs of all these Servants at that time February 7. 1672. Kirk-hill contra Ketlestoun IT was Debated upon this Act whether the Lands of Duncow though here annexed by a publick Law were sufficiently annexed so as to exclude the Earl of Nithisdale who pretended that a year before this Act he had a valid Right under the Great-Seal from the King and so could not be prejudg'd by a posterior annexation which behov'd to be salvo jure quoad him To which it was Reply'd that this annexation being by a publick Law was not of the nature of Ratifications which were salvo jure and such Acts of annexation were in effect the Kings Charter and being granted by a publick Act of Parliament in favours both of King and People they could not be taken away but by another Act of Parliament sibi imputet he who had the prior Right and compeared not at the time of this publick Law and objected it but now after so many years the King had at least prescrived a Right by vertue of this Act this case was not decided but the Lords inclined to think that there was a great difference betwixt original annexations where special Lands were annexed as falling in the Kings Hands by a special Forefalture or other cause which they thought could not be quarrelled by the Session or other Inferiour Judicatory and general Acts where Lands formerly annext are only repeated such as this is in which Lands belonging to privat parties may be by mistake repeated Nota The Lands of Duncow annexed by this Act came to the King upon Forefalture of Robert Lord Boyd anno 1477. BEfore this Act Decreets pronunced by Magistrates within Towns could not be the ground of a Charge of Horning till a Decreet conform had been first obtained before the Lords but by this Act Letters of Horning are summarly appointed to be granted upon such Decreets It is observable that though this Act says That Letters of Horning shall be granted upon the Decreets of Burrows in the same way as upon the Commissars Precepts yet it would seem that Commissars had no such priviledge at the time of granting this Act for that priviledge is only granted them by the 7 Act 21 Par. Ja. 6. To which nothing can be answered but that Commissars had that priviledge even at the time of this Act de praxi though de jure it was only granted them by that Act for their further Security VId. Act 155. 12 Par. Ja. 6. THis Act giving the King twenty shilling of Custom of every Tunn of imported Beer is Explained in the Observations upon the 2 Act 4 Sess. Par. 2 Ch. 2. IT is observable that by this Act the Dean of Gild is founded in the power of judging all Cases betwixt Merchant and Merchant and is here declar'd to be the most competent Judge because the most knowing Judge in such cases and declar'd to have the same power that the like Judges have in France and Flanders and in France such Cases are Judg'd by these who are call'd les consuls des marchants The Lords have found that according to this Act the Dean of Gilds Court is a Soveraign Court in suo genere and not subordinat to the Towns Court July 21. 1631. and they use to Advocat Causes from the Admiral to the Dean of Gild's Court upon this Act it being declar'd that he is Judge to all actions betwixt Merchant and Mariner though it be alleadg'd by the Admiral that these general words should be restricted by the nature of the respective Jurisdictions and so the Dean of Gild should be only Judge competent betwixt Merchant and Mariner in cases which fall out at Land but not at Sea THe Act related to here is the 36 Act 3 Parl. Ja. 4. IT is observable from this Act that it is there declar'd in geneneral that Acts of Parliament should only in reason and equity extend ad futura for regulating future cases for though Declaratory Acts may oft-times extend ad praeterita yet Statutory Acts should only extend ad futura THis Act differs not one word from the 170 Act of this same Parliament and has been only repeated here by mistake BEfore this Act such as were at seid with one another us'd ordinarly to fight together upon the Street of Edinburgh and us'd to beat the Magistrates or their Officers when they came to red them and that truly gave rise to this Act though the Narrative here bears only that several persons used to Deforce the Magistrates in their Execution of their own or the Councils Decreets By the Act it is declar'd That whosoever disobeys or opposes the Command of the Provost and Baillies of Edinburgh when they are Executing the Kings Commands or Letters from the Secret Council or Session or the Ordinances of their own Burgh shall be punished as Committers of Deforcement as Seditious and Perturbers of the Common well It has been found that naked assistance at such Tumults without Arms is not punishable by Death though a person be killed in the Tumult December 1666. But Convocation at all such Tumults with Arms is punishable by Death if a person be Murdered as was found September 11. 1678. And the acting any thing either by word or deed was found to infer Death Observ. That the using Fire-weapons within Town is discharged by this Act and long weapons that is to say Halbards Picks c. are only allow'd lest innocent persons passing on the Street might be kill'd but yet if Souldiers shoot in defence of their Prisoners on the Streets they are not punishable and this Act was found not to militat against the Kings granting Commissions to the Magistrates of Edinburgh to raise a Company with Fire-locks within Town for the Act discharges only Fire-locks without the Kings consent and a Commission implys his consent THe Act here related to is the 159 Act 12 Par. Ja. 6. THis Act is Explain'd in the 7 Act 9 Par. Ja. 6. VId. Obs. on the 29 Act Par. 11 Ja. 6. THe Abbacy of Dumsermling was Dispon'd by Ja. 6. in a morning Gift to Queen Ann. This Lawyers call Morganeticum and King Charles the First was Infeft in these Lands as heir to His Mother Observ. That this Confirmation was under the Great Seal and under the Seals and Subscriptions of the States King IAMES the sixth Parl. 14. THis Act seems very ill conceived for it appears that wilful hearers of Mass shall be executed to the death how soon they shall be found guilty or declared Fugitive since no man by our Law dies upon his being Denunced Fugitive except in the case of Treason and wilful hearing of Mass is not Treason even by this Act. Observ. 2. That as this Act is conceiv'd the wilful hearing or concealing is punishable by death either by Conviction or being denunced Fugitive before
this Act they should have been Restored but they are not Restored expresly to these but it is alleadged that they have Right to them by the 14 Act Par. 1 Ch. 1. But yet in that Act it is only said that what is Statute anent the Kings being Superior to Vassals of Erections shall be but prejudice to Bishops and their Chapters of their Rights to their Superiorities which is only a Reservation but is no express Restitution of them to these Superiorities THis Act anent the Dilapidation of Bishopricks is formerly Explained in the general nature of Dilapidations in the Act 101 Par. 7 Ja. 6. and Act 11 Par. 10 Ja. 6. and as to what concerns Chapters it shall be Explained in the Act 2 Parliament 22 Ja. 6. WHen a person is Forefaulted he may be in Law Restored two wayes viz. either by way of Justice when the Sentence of Forefaulture is found to be unjust or by way of Grace when the Sentence is just but the person Forefaulted or his posterity is restored which distinction we have from the Civil Law that allows a distinction inter restitutionem per modum justitiae per modum gratiae The difference betwixt these Restitutions by this Act of Parliament is that the person that is restored by way of Grace has not by his Restitution Right to any part of the Forefaulted Lands and others Disponed in favours of third parties but such as are Restored by way of Justice will thereby have Right to their own Lands though Dispon'd to third parties for onerous Causes as was found in the Disposition of the Lands of Mugdock formerly belonging to the Marquess of Montrose and Disponed by the Parliament for onerous Causes to Argile as also these who are restored by way of Justice will have Right even to repeat the sums of Money which formerly belonged to them though assigned to third parties for onerous Causes and albeit those sums were first ordained to be pay'd in to the Thesaurie and precepts only drawn upon the Thesaurie in favours of these third parties as was found in the Earl of Branfords case against the Earl of Callender and others though this Restitution of Money seems much harder than that of Lands since Money is res sungibilis and singular Successors are not oblig'd to know to whom the same belonged A Process having also been intented against the Earl of Argile in the Parliament 1681. for reducing his Heretable Offices as granted since the 44 Act Par. 11 Ja. 2. It was answered that these Heretable Offices were Dispon'd to the Family before that Act and it being Reply'd that the first Right was extinguished by the Forefaulture and the Restitution being only by way of Grace was to take effect only from the date nor was it more sufficient against the King than if the King had granted them originally at that time in which case they would have been quarrallable on that Act and yet de praxi the King restores to Titles of Honour as of the first date By the 2 Act Par. 9. Ja. 6. The King succeeding to Lands by Forefaulture has right to whatever the Forefaulted person was five years in possession of before the Forefaulture because it is presumed that the Forefaulted person will abstract the Evidents and therefore upon the same presumption it is likewise appointed by this Act that the production of Extracts out of the Register shall satisfie the production in Improbations against the King in Forefaulted Lands Whereas other singular Successors Rights will be improven if the Originals be not produced vide notata upon the said Act 2. The excellent Narrative of this Act is Copied out of l. 1. § 1. ff de justitia jure THis Act is Explained in the 11 Act Par. 16 Ja. 6. Which is that Act that is here Rescinded though it be not here cited BY this Act it is appointed that where there is no arrable Ground in the Paroch the Minister shall have sixteen Soums Grass in place of the four Aikers which are allow'd to him for his Gleib and by the 21 Act Par. 1 Sess. 3 Ch. 2. It is ordain'd That the Minister shall have Grass for one Horse and two Kine over and above his Gleib and therefore it was doubted if where the former Gleib did extend to more than would be Grass for two Kine and an Horse above the four Aikers the Ministers might seek that Grass and the Lords found they might albeit it seems that if this were just the Minister might also seek Grass for a Horse and two Kine even where he had sixteen soums Grass by this Act February 16. 1675. Parochioners of Banchry contra their Minister THis Act is but Temporary THis Act appointing Letters of Horning to pass upon Sheriff Stewart and Baillies Decreet without a Decreet conform before the Lords is Explain'd in the 177 Act. Par. 13 Ja. 6. and because these Acts gave only warrand for Raising Letters of Horning upon such Decreets Therefore warrand is likewise given for raising Letters of poynding upon all such Decreets by the 29 Act Par. 1 Ch. 2. which shews that express Acts are us'd even where there is paritas rationis and they are useful ob majorem evidentiam BY this Act all persons are Discharg'd from receiving any Colziars Salters or Coal-bearers without sufficient Testimonials from their Masters but though this Act appoints the CoalÈiars Coal-bearers and Salters to be punished as Thieves yet none ever Died upon this Act but the ordinary Action both against them and their Resetters is before the Privy Council and the Act only says They shall be repute as Thieves and punished in their bodies This Act is extended to Drawers of Water in Coal-heughs and the Fees of CoalÈiars are Discharged to exceed twenty Merks by the 56 Act 1 Sess. Par. 1 Ch. 2. though this Act only Discharges all persons within the Kingdom to hire other mens CoalÈiars c. yet it was justly thought that the prohibition of it extended to all such as had Right to Coal or Salt here by Tack or otherwise though themselves dwell not within the Kingdom and it seems that the Council might hinder Forraigners to carry away our CoalÈiars and Salters though they cannot punish them for so doing By this Act likewise a Power and Commission is given to all Masters and Owners of Coal-heughs and Panns to apprehend all Vagabonds and sturdie Beggars and put them to Labour and it has been resolved that Tacks-men of Coal-heughs and Pans has the same priviledge though they cannot properly be call'd Masters and Owners except the words be allow'd to be extended to Temporary Rights but since this priviledge is chiefly real and not personal in rem scriptum therefore it seemâ— reasonable that whoever have the power of the Coal-heughs should likewise have this priviledge which is granted upon their account The Council thought argumento hujus legis that Masters of one Manufactory could not have
November 1682. Sir William Ker contra Grubet and others Interruption being thus made by the King does last for fourty years so that no Prescription can run against the King till fourty years after the date of this Act and that though the Executions and publication required by this Act of Parliament cannot be found for every particular Shire It may be likewise doubted whether Prescription should run against the King whilst he was out of the Countrey For which vid. observ on the Act of Prescription 1617. BY this Act the Parliament Rescinds all Rights of Regality made by King Charles King James or Queen Mary belonging to Abbots Priors or any Benefic'd person reserving alwise to the Heretable Baillies and Stewarts of the saids Regalities and Stewartries their Rights granted to them prior to the saids Erections for ordinarly even when these Regalities were in Benefic'd persons own hands they made Heretable Baillies but I confess I understand not what is mean'd by the Stewart of a Regality for Stewartries and Regalities are distinct and inconsistent Jurisdictions a Stewart being a Judge in the Kings Property only having the same power that a Lord of Regality has of the Lands Erected in the Regality holding of himself and the Lands holding of him But this Act has in this follow'd the words of the Act of Annexation 1587. By the Act of Annexation 1587. Act 29. All Regalities belonging to Arch-bishops and Bishops were thereby Annex'd because their whole Lands and Temporalities were then Annex'd but being restor'd in anno 1606. their Regalities are hereby reserv'd to them UPon the Submission and Surrender made by the Lords of Erection and other Titulars it is condescended to by this Act That His Majesty shall remain not only Superiour to the Lords of Erection but even to all the Vassals who held formerly of any Abbacy Priory or other Benefice Erected and therefore by vertue of this Act they may hold of the King if they please but according to an express condition in the surrender it self there is by this Act reserv'd to the Lords and Titulars of Erection who subscrived this Surrender the Feu-mails and Feu-ferms due by their Vassals ay and till the King pay to the saids Lords and Titulars of Erection a thousand merks for ilk Chalder or an hundreth merks of Feu-duty payable to them for there is nothing allow'd to them for the Service of Tennents Though the Lords of Erection did not expresly reserve to themselves the Casualities that might fall to them by their Vassals during the not Redemption for they reserv'd only their Feu-mails and Feu-ferms since inclusio unâ—us seems to be exclusio alterius and the Superiority being by this Act declar'd to belong to the King the Casuality should follow the Superiority yet by a Decision the 24 of July 1632. The Lords found that the Lords and Titulars of Erection had Right to the Casualities of these Superiorities ay and till they be Redeem'd but by the 30 Act Par. 1 Ch. 2. It is declared That the Feuars shall be bound to make payment of their Feu-ferms and Duties contained in their Infestments to the Lords of Erection ay and till they be Redeemed but it is not clear whether Escheat and Non-entry will belong to the King or Feuars except it be comprehended under the general word Duties Though the Feu-mails and Feu-ferms be reserv'd to such Lords and Titulars of Erection as subscriv'd the Surrender so that it may seem necessary to prove that these who seek Feu-duties did subscrive or else that these should belong to the King yet because the Surrender cannot be found the Lords found it sufficient that the Titular acknowledg'd the Kings Right conform to this Act But they found that they had not Right to the Arrages and Carrages of these Kirk-lands because by this Act all the Rents and Duties are Declar'd to belong to the King and the Reservation in favours of the Superiour is only of Feu-duties if they found no abatement of the Feu-duty in respect of Vastations since the Feu-duties were small and the Feuar might have gain'd by prior and subsequent years June 27. 1662. Watson contra Elleis Because the Superiorities of these Kirk-lands is by Act declar'd to belong to the King therefore the Lords of Erection cannot pursue a Reduction of these Feus nor is the concourse of His Majesties Advocat sufficient except there be an express Warrand under the Kings Hand for that effect Albeit it be uncontroverted by this Act that the King has no right to the Feu-mails and Feu-ferms due by the Vassals of Erection until he redeem the same as said is yet it may be doubted whether the King has Right to the Feu-mails and Feu-ferms of the Lands which pertain'd in property to the Lords of Erection before the said Surrender and which were mentioned in the old Infestments before the date of the Erection and that without paying for the saids Feu-ferms and redeeming them as said is as he is oblig'd to do in the case of the Feu-ferms due by the Vassals of Erection and it may be urg'd for the Lords of Erection that the King has not right to the Feu-ferms of their proper Lands except he Redeem them And that because 1. The Act of Parliament is relative to the Submission made by the Lords of Erection whereupon the Act proceeds but so it is that by the Submission they resign the Superiorities reserving only to themselves the Feu-duties till they receive satisfaction but it is expresly provided that under this Resignation their proper Lands should not be comprehended but that they should hold the same of His Majesty as the same was holden before the date of the Erection and so the meaning is that though they should hold the same in Feu yet they should not be oblig'd to pay the Feu-duties till they receive satisfaction 2. It were absurd that the Lords of Erection should not quite the Feu-duties of their Vassals till they receiv'd satisfaction and yet they should be oblig'd to quite the Feu-duties of their own proportion in which they had far more interest than in the Lands of their Vassals without any satisfaction 3. Custom is the best Interpreter of Law and by the general Custom of the Nation the Lords of Erection have never counted for the Feu-duties of their proper Lands 4. There being a Reservation made in the first part of the Act of the Feu-duties only in case of payment The Reservation in the second part of the Act must in Annalogie of Law be constructed to be burden'd with the same quality except the contrary were expresly declar'd in the Act. but on the other side it may be more strongly urg'd for the King that he has Right to the Feu-ferms of these their proper Lands immediatly without any satisfaction and that for these reasons 1. Because by the Act of Parliament they are expresly to hold their proper Lands of the King and to pay him the Feu-duties mentioned in
the old Infestments without any Clause obliging the King to make satisfaction Ergo The King is not oblig'd 2. The Parliament having had that Reservation of making satisfaction under their view in the case of the Vassals they had certainly renew'd it in the immediat subsequent case of the property if they had not expresly design'd the contrary 3. By the Charters granted under the Great Seal to the saids Lords of Erection since the Surrender and this Act of Parliament they are expresly by different reddendo's made lyable both to the general blench Duty due for the whole Lands of the Erection both Property and Superiority and for the Feu-dutie of their own proper Lands Ergo This Feu-duty of their proper Lands is due by their Charter which is a Feudal Contract and that without any Reservation of payment 4. The blench-duty of the Erection and this Feu-duty is due upon different accounts Ergo The payment of the Blench-duty is not sufficient for the Blench-duty is due by the Lords of Erection for the interest that they have in the Vassals Lands and for the Tiends and for the property that was Feu'd the time of the Erection Whereas this Feu-duty is due only for their own proper Lands Feu'd out before the Erection And to the contrary Objections it may be answered That Acts of Parliament are not to be extended de casu in casum especially in such favourable Cases as this which tends most ungrately to take from the King a part of that which himself gave freely 2. There was very good Reason why they should be lyable to pay the Feu-duties of their proper Lands without any satisfaction because the King having rais'd a Reduction of all the saids Erections The Lords of Erection did Redeem themselves from the hazard of this Plea by this surrender and the reason why the quality of satisfaction was adjected as to the Vassals and not as to the property was because the Lords of Erection had no interest in their Vassals Lands but the Feu-duties and so it was fit they should get a satisfaction for these though the satisfaction was made easie for the King But as to their proper Lands it was just because of the great advantage they had by them and that they were by this Act secur'd in the property of them It was just that the King should get the Feu-duties without any acknowledgement and without this the King had got nothing for securing them when he might have with Success quarrell'd their Rights And the pretence of the Vassals not having pay'd these Feu-duties for their proper Lands formerly is of no import since the negligence of the Kings Officers cannot prejudge him and the Times were Rebellious since the year 1633. Nor is this true though it were Relevant for the Earls of Roxburgh and others have pay'd Because these Arguments and Difficulties gave some Colour to the Lords of Erection to think that they were not lyable therefore they us'd to get ease as to bygones but they are made lyable still for the future in the payment of these Feu-duties The Superiorities belonging to Bishops and their Chapters is reserv'd to secure them against the Annexation 1597. and their Superiorities are likewise reserv'd from the Annexation mention'd in the tenth Act of this Parliament Some think it fit for His Majesties Interest that these Superiorities should be Redeem'd for he might thereby have a great and sure Revenue and a great dependence of Vassals and it seems also fit for the interest of the poor Vassals HIs Majesty having oblig'd so far the Heretors as to get them the leading of their own Teinds It was thought fit by this Act to give him some small interest in the Teinds viz. Out of every Teind-boll of the best Wheat ten shilling of the best Tiend-bear eight shilling of the Teind-meal Oats Pease and Ry six shilling and where the Oats will not render half Meal three shilling Where the Victual was of inferiour goodness power is granted to the Commissioners to modifie accordingly and in order thereto they did proportion the price on the several Shires which stands as a rule in the payment of Annuity to this day Though it be said in this Act that the Annuities shall be pay'd out of all Teinds except the Teinds pay'd to Bishops Ministers Colledges Hospitals and other pious uses yet it was thought January 3 1632. Renton contra Ker. Though there was no formal Decision that decimae inclusae are lyable in payment of no Annuity for they did not belong to the Titular nor needed the Heretor buy them in contemplation of which Liberty this Annuity is granted and in effect they are likewise lookt upon as incorporat with the Stock and participating of its Nature This Annuity was found to be made debitum fundi by this Act of Parliament and so to oblige all singular Successors because the Act says generally that the King shall have Right to all the Annuity bypast and to come though it be not expresly declared that singular Successors shall be obliged as our Law ordinarly uses to do when it resolves to make any thing debitum fundi It is Declar'd by this Act That Annuity shall not be annex'd to the Crown whereby the Crown got a great prejudice since thereby the King would have oblig'd every man to a Dependance upon him whereas Commissions having been granted to sell to every man his own Annuity the King made no advantage thereby THis Act is formerly Explain'd in Act 71 Par. 14 Ja. 2. BY this Act it is Declar'd That every man shall have the leading of his own Teind the Teinds being first valued and all Teinds in Scotland may be valu'd except 1. Where the Lands are Feu'd cumdecimis inclusis and Confirm'd before the year 1589. as was found January 21. 1631 2. Teinds belonging to Ecclesiastick Persons and whereof they were in possession the time of the Submission as is clear by the foresaid Determination upon their Submission conform to which by the 9 Act 2 Sess. 1 Par. Ch. 2. All Valuations led against the Bishops or Benefic'd Persons being Ministers since the year 1637. of any Teinds Parsonage and Viccarage wherein they were in possession by Leading or drawing of Rental-bolls are declar'd null but by a Letter the 13. of May 1634. It is declar'd that where such Teinds are set by Bishops or Benefic'd persons to Tacks-men that eo casu the Heretors shall have the buying of their own Teinds but prejudice to the Bishop c. to enjoy the same after expiration of the Tacks as they were accustomed the benefic'd persons always having the prerogative of buying if he pleas'd and this to be extended to the Heretors and Tacks-man of the Teinds of Laick-patrons And conform to this the Lords of the Commission decided February 1679. Hamilton contra Earl of Roxburgh though it was there alleadg'd that this would prejudge Church-men since it would discourage Laicks to take Tacks from them
made Work and yet to encourage our own Work-men there is double Custom laid upon all Forraign made Work by the Book of Rates and ten per cent by a late Proclamation which being joyn'd with the Sea-risk that those run who bring home made Work and the Exchange pay'd for the price of it is a sufficient encouragement to our own Trades-men who because they may live cheaper may likewise work cheaper than those abroad even beside these other Encouragements THis Act in favours of Sope-work seems needless because it was comprehended under the general Act concerning Manufactories being the 40 Act of this Parliament but probably it has been thought necessary for clearing the time for which the priviledge of Manufactories was to endure as has been observ'd upon that Act. THough by this Act it be Declar'd that upon the bringing down the annualrent to six of the hundred that six is declar'd to be free of all Retention or other publick Burdens Yet subsequent Parliaments have Burdened even the annualrents with Retention and otherwise expresly contrary to this Act upon pretext that the Impositions were voluntar offers and not formally Impositions Nota. It may be doubted if the Kings Officers may not lawfully ingage for more than six per cent to get Money for publick use BY this Act it is Declar'd that all sums whereupon no Infeftments have follow'd may be arrested though they be Heretable otherwise of their own Nature and because regulariter Heretable sums are not arrestable therefore this Dispensation was necessary Albeit this Act bear only that sums whereupon no Infeftments have follow'd be arrestable and determines not if arrestments may be us'd at his instance to whom such sums are due Yet a paritate rationis this may follow THis Act is formerly Explain'd in the Act 7 Par. 1 Ja. 6. THis Act is only a Ratification of the 10 Act of the 1 Par. of Ch. 1. Save only that it is here declar'd That notwithstanding of this Act any who have gotten or shall get any new Infeftment of Superiority of Kirk-lands the same shall stand good as to such Vassals who have given their consent to the said Right of Superiority In regard that such a consent as to His Majesty is of the Nature of a Resignation of their property in favours of the said Superiour to be holden of the King But prejudice nevertheless to His Majesty of His Highness Right of Reversion of the Feu-ferm-duties and Casualities conform to the foresaid Act of Parliament 1633. The design of which Clause was to secure such Lords of Erection as had got Bonds from their Vassals holding Kirk-lands of them to continue their Vassals and not to hold of the King notwithstanding of the Act of Parliament 1633. Declaring the King to be the Superiour of all Kirk-lands and albeit the Lords did not think that the single taking of an Infeftment from a Lord of Erection did infer the consent mentioned in this Act after giving of which consent the Vassal could not return to be the Kings Vassal Yet upon the 28. of July 1669. in a case betwixt the Duke of Hamilton and Weir of Blackwood The Lords found that such a consent as this might be infer'd by presumptions shewing that the Vassal design'd to oblige himself to hold of the Lord of Erection and not of the King and in that case they found that Blackwoods Father having granted a Bond that so soon as the Duke should obtain the Superiority his Son should become his Vassal and though the Duke had not then obtain'd it yet he has since the Lands being lately dissolv'd from the Crown and though the Father was but a Tutor yet he was the person who was instrumental to settle his Son in the Right and the rest of the Vassals of that Abbacy did take their Lands expresly holden of the Duke only But in my Opinion no consent can be founded upon by this Clause of the Act of Parliament except it be a clear and express consent to hold only of the Lords of Erection and not of the King it being so much the Interest both of King and People that the Subjects should hold of the King and the Parliament 1633. having so clearly introduc'd in the favours of Vassals of Erected Church-lands that they may hold of the King it were hard to take that benefit from them without their express consent FOr understanding this Act it is fit to know that because Tiâ—â—lars of Prebendaries Chaplanries and Alterages cannot be Infest and that there is nothing standing in any Register to shew who is Titular therefore singular Successors who are Vassals could not know by whom to enter to supply which this Act provides that the Vassals of the saids Provestries Chaplanries and Alterages and others of that nature may be Infeft by the Laick Patrons holding immediatly of the King because it is easie to discover by the Registers who is Laick Patron of the Benefice since it passes by Infeftment but yet the Laick Patron is to have no advantage and so the Liferent-escheat will not fall to him as Superiour but will belong to the Titular who is true Superiour nor can the Laick Patron pursue Reduction But yet it seems that since the Vassal did Enter by him that therefore he is bound both to produce to him and that he will have right to the Emoluments of the Superiority except the Vassal can show who is the true Superiour Nota. That when the Patron presents in such Cases he needs not the consent of the Chapter or Convent of the saids Prebendaries and the Provost and Baillies are Declar'd the only undoubted Superiours where such Benefices ly within their Towns they having formerly been Patrons of these Chaplanries which ablativi absolute positi seem to import a condition and so they must prove that they were formerly Patrons ALbeit by this Act it be appointed that there shall be a Cocquet for every Ship and that there shall be fourty shilling pay'd for it Yet it was alleadg'd that a general Cocquet for a Ship was not sufficient but that every Merchant should have a special Cocquet containing specially his Goods and enumerating particularly all the kinds of these Goods Because First The design of Cocquets was to know whether the Goods belonged to Free-Traders which could not be done if the Goods and Merchants Names were not condescended on particularly Nor could it be known if His Majesties Dues were pay'd for the Goods for which the Cocquets were granted 2. It were unjust that a great Ship with Rich Wares should pay no more than a small one with courser Goods 3. By the Customs of England and other Countreys there were for these Reasons special Cocquets given for proportional Dues 4. By the 255 256 257 Acts of the 15 Par Ja. 6. The Cocquets are to contain the particular quantities of the Goods vid. observ on these Acts. THis Act is Explain'd in the 11 Act Par. 18 Ja. 6.
are doom'd to have lost their Estates and Goods after much debate are notwithstanding quoad their Persons only warded during the Kings pleasure And His Majesty by His gracious Letter Nov. 1679 allowed such as were absent from the Host at Bothwel-Bridge to be only fined at most in two years valued Rent This Act was also the foundation of all our old Proclamations whereby all the Heretors betwixt sixty and sixteen were charged to come to the Kings Host when our Kings were either engaged against their Enemies at Home or Abroad at which occasions Heretors and Liferenters whether Men or Women holding immediatly of the King were cited and they cited and brought out their Vassals and therefore it was a good defence that they held not of the King as is to be seen in the Journal Books Feb 19 1600. But now the Council commands all Heretors by Proclamation to go to the Host under the command of such Captains as are named in the Proclamation This Obligation and Statute is not now taken away by the late Act giving His Majesty the Militia as was found by the Privy Council October 1677 and by the Justices in March 1680. so that Heretors must attend either but not both in the same Countries so the last Act abrogates not the first and that being given as a favour were none if it took off the first which is greater and arises from a feudal obligation or at least is due to the King as King and without which the peace of the Country could not be maintained and by the Act 25 Sess 3 Par 1 Car 2 after the Militia is granted the Parliament in the same Act makes a further tender of all their Lives and Fortunes betwixâ— sixty and sixteen when they shall be called for Secundo It was found that this Crime was not punishable now only by the punishment exprest in Chap 15 Stat Alexander 2 whereby a Thane was only punishable in six Cows and a young Cow an Ochiern in fifteen Ewes or six Shillings and a Labouring Man in one Cow and one Sheep for that Statute is justly abrogated by this Act that is posterior the Remedies in that Statute having been probably found ineffectual because of their meanness This Ochiern is by Skeen called a Freeholder but I find by many old evidents that an Ochiern is a Chief of the Branch of a great Family who has a considerable command and it is the corruption of the Irish Wochteran which signifies still in the Highlands a Master or Superior Tertio It was found that though such as were above sixty or below sixteen were not obliged to go to the Host themselves because of the 23. Stat K. Will and this is sustained Feb 21 1600 yet their Age did not excuse them from sending which clears why David Lawson was convict for byding from the Raid of Dumfries in Regent Mortons time though he was alleaged to be past sixty five Quarto That such Burgesses as had Lands in the Countrey were obliged to send one for these Lands though it was alleaged that Burgesses did not usually keep Horses except they had been commanded by the Town where they lived to serve there Quinto That the Captains under whom they were commanded to go to the Host could not warrand them to stay at home because this Feudal obligation could not be dispensed with by Captains who were only impowered to command but if they came once out and were listed it was found that the Captains might allow them to return home upon occasion of sickness or for other excuses of which he was a competent Judge Sexto That the King needed not prove that the Pannels came not to the Host that being a Negative but that it was necessary for the Pannel to prove that he was at the Host. Septimo That the King was not obliged to prove the Pannels to be Heretors but that they were obliged to renunce any Heretage they had in favours of the King if they denied they were Heretors even as in other cases the King is not obliged to prove that any were his Vassals but they behoved to disclaim upon their hazard and of old the notoriety of their being Heretors was refer'd to the Assize without any further probation as June 12. 1557. and some times to the Pannels oath as in the case of William Wallace July 2. 1600 Octavo That not only such as were Heretors by being actually Infeft were to send to the Host but that appearand Heirs and such as possessed the Lands were to send it being unreasonable that the appearand Heir's lying out and not entering should prejudge the King more in this case than it does as to the casuality of Escheat c. Nono It was found that such as possess'd by the courtesie of Scotland were obliged to go to the Host by an express Decision at this time though the curiality be but a Liferent and other Liferenters were not obliged to go since Heretors in our Law are exponed in opposition to Liferenters These words in this Act without a reasonable excuse seem to insinuate that not only relevant or legal Defences but even reasonable or equitable Defences ought to be received to defend such as stayed from the Kings Host And thus Inquests favour such as were known to be of so infirm a Constitution as that they could not without great danger to their life undergo the fatigue of an Army though they were not labouring under any present form'd Disease or Morbus Sonticus and for the same reason mean Heretors were excused though of old I find that this was found to be no Defence in the case of John Ross of Drumgranich July 2. 1600. but the reason that inclined the Judges in this year 1680. not to fine small Heretors was because the Proclamation commanded none to come out but such as were to come upon Horseback and so such only could be fined as could keep Horses and though the Decisions at this time did only oblige such as had 100 l of valued Rent to go yet by the 120 Act Par 9 Jac 1 such as can spend twenty pounds of Land-rent yearly are obliged to keep a Horse which by the 267 Act Par 15 Jac 6 is to be computed 200 l of yearly constant Rent I find by the Feudal Law that the Vassal qui Dominum in bello non adjuvavit aut periclitantem deseruit feudum amiâ—â—ebat Rosenthal Conclus 16 num 1 but yet the words of the Text in the Feudal Law feudorum lib 2 tit 24 Par 2. are only Item qui dominum suum cum quo ad praelium iverit in acie periclitantem dimiserit beneficio indignum se Judicavit and yet even by this Text it is implyed that he is obliged to go and the expressing of that Obligation seems omitted because it was unnecessar being implyed in the very nature of the Few Craâ—g expresses it thus Alia est etiam feudi si non anâ—iâ—tendi saltem Vassalli ob quasi delictum
caducitatis comminatione legali certus terminus statui si â—â—tra eum instrumenta non edat This Commination is our Certifiâ—ation and this Terminus is our Term in Improbations Rosenthal cap. 8. concl 33. num 13. and 14. In these Actions the King needs produce nothing to prove that he is Superior for the King is presum'd to be general Superior and is Infeft Jure Coronae in all the Lands of Scotlaâ—d but though other Superiors must produce a Seasing of the Lands yet they need produce nothing to prove that the Dâ—fender is Vassal who is oblidg'd to produce upon his hazard or else to disclaim and yet if the Superior Libel only that he is Infeft in such an Earldom and that the Defenders Lands are part and pertinent of the Earldom without producing any thing to instruct that he stands expresly Infeft in these Lands as a part of his Earldom the Lords would not put the Defender in that case to produce Simpliciter but allowed the same day to the Pursuer to prove that they were Part and Pertinent of the Lands wherein the Pursuer stands Infeft and to the Defender to produce if that were proved for the Lords thought it hard to force Heretors to propale and lay open the secrets of their Coveyances where it was not certain if the Pursuer had any Interest albeit it was alleadged that this would occasion two Litiâ—-contestations in one Cause viz. One whither the Pursuer had Right and another whether the Defender had sufficient Interest to seclude the Pursuite for the Lords thought that this being an Act before answer did solve this difficulty and the ordinar Maxime that the Vassal must disclaim upon his hazard and the Argument that either the Pursuer was Superior and would be found to be so and then there was no wrong done or else he was not and in that case the Defender was in no danger by disclaiming were both found only to take place where the Pursuer produc'd a special Right to the Lands Libell'd but not where he pretended only that the Land possest by the Vassal was part and pertinent of his Land which any Pursuer might alledge The third and old way of forcing the Vassal to exhibit his Evidents was by a Feudal Tryal per pares curiae that is to say before an Inquest for of old the King summoned his Vassals to appear before an Inquest to bring with them any Right they pretended to such or such Lands and that way is exprest in this Act as well as the other and in Statut. 36. Rob. 3. num 3. but is now in Desuetude The Lords of Session being come in place of the Inquest The Earl of Rothes as Donator to the Ward of the Countess of Buâ—cleugh having pursued the Tutors for inspection of the Charter-Chist that he might know what Lands held Ward The Lords ordained one of their own number to take inspection and to shew to the Donator what Papers could prove the Ward-holding because it is presumed that all Lands hold Ward Decem. 20. 1661. FRom this and the subsequent Acts It s observable that the Parliament may without citing parties discharge priviledges contained in private mens Rights though they cannot without citation casâ—e and annul privat Rights FOR understanding this Act It is fit to know that the distance betwixt the Hecks of Cruivs should be 3. inches wide which is renew'd by the 74. Act Parl. 10. Jac. 3. and should not be 5. inches conform to the 15. Act. Parl. 2. Jac. 4. which the Lords found 29 July 1665. to be ane error in the Printing They there also found that the Mid-stream was in Desuetude notwithstanding that it was reviv'd in all these Statutes but that the Saturndays Slop was to be observ'd in all Cruivs which was to continue by pulling up all the Hecks to the breadth of an ell in every Cruive from Saturnday at six a clock till Sunday at Sun-rising THough Mines of Gold and Silver be by this Act declar'd to belong to the King yet by the 27 Act. Parl. 4. Sess. 2. Car. 1. they were declared to belong to the Heretor he paying to the King the tenth Penny which was the Canon Metallious that was only due out of Mines found in private Fields l. 2. C. de Metal But that Act is resâ—inded in the general Act Rescissory and this Act is conform to the Feudal Law Feud lib. 2. tit quae sunt Regalia 56. It has been doubted whether Lead Copper or Tin belong to the King or the Heretor but the King is in possession of disponing upon these also and when He dispones them in a novo damus even to the Heretor He reserves a tenth part to be payed in to His Exchequer and His Majesty has granted general Gifts of all Copper-Mines and Craig tells us lib. 1. dieg 14. that omnium gentium omniumque aetatum consensu â—odinâ—s omnes auri argenti stanni aris similium in patrimonio principis numerari but yet they are not enumerate in the foresaid Text of the Feudal Law otherwise than by being comprehended under the word argentaria frequens est in jure sub majoribus minora comprehendi and yet I think that if His Majesty dispon'd Land with all the Silver-Mines this would not comprehend Copper Tin c. So that this Rule holds not in all Cases nor doth it hold in any Case where things require special Dispositions as omnia regalia do Nota From this Act to the 23. the Acts are either in desuetude of no import or explained in the Observations upon other Acts. BY this Act it is ordain'd that our Coyn be of the weight and fynness of England which was formerly ordain'd by the Ch. 38. Stat. Dav. 2. and though by the 17. Act. Parl. 1. Ja. 6. It is declar'd that Our Soveraign Lord cause Print and ConÈie Gold and Silver of sick fynness as other Countries doe yet after King James succeeded to the Crown of England He past a Contract betwixt the Mints of both Nations wherein they oblige themselves to keep the same Standart and though the denominations be different now yet the Standart is now the same For the English Denomination is 11. vnces 2. deniers fine which is call'd Sterling fyne ours is 11. deniers and 2. graine and albeit upon a very subtile inquirie It is alleadg'd that the Denominations cannot be adjusted without some difference yet it is so small a fraction as is not to be regarded and there are four indented Pieces two of Gold and two of Silver made of the same fynness and out of the same Essay-pot two whereof are sent to Scotland the one of which is kept by the Thesaurer and the other in the Mint and two are retain'd in England the Denominations are Printed upon these Pieces and in the Lord Hattons case it was found that this common Standart was to be the Rule Vid. Observation on the 249. Act 15. Parl. Ja. 6.
The last Act of this first Parliament in the Black Impression is an Inhibition made by King James the First to the Bishop of St. Andrews delegated by the Pope to proceed upon the Dismembration of a Benefice purchased at Rome Nota There are many Acts omitted out of Skeens Impression which were in that Impression because Skeen judg'd them Temporary as this Act and a Taxation impos'd for the Kings Ransome by this Parliament wherein so much was put not only upon every Boll of Victual but upon every Beast of Cattel Some Acts are also to be found in Skeen which are not in that Black Impression as the 80. Act. Parl. 10. Ja. 3. in the old Impression it is Act 79. concerning Purprision As also some Acts which were there only temporary are made by Skeen constant and perpetual Laws as the 29. Act of the 2. Parl. of this King â—uns thus in Skeen It is statute and ordain'd that the breakers of the Acts of Parliament be punish'd after the form and ordinance thereof whereas that Act runs thus in the Black Impression Item that it be enquired by the Kings Ministers gif the Statutes made in his first Parliament be kept and if they be broken in any of their pâ—nctilio's that the breakers of them be punisht after the form and ordinance of the said Parliament The Rubricks also of the Acts of that Black Impression differ almost every where and very much from this Impression which proves that Argumentum à rubro ad nigrum is of no great weight with us the Rubrick being an Inscription made by the Clerk Register and no part of the Act of Parliament King JAMES the First Parl. 2 IN the Inscription of this Parliament it is said and of his Kinrick the 19. year by which word Kinrick is meant his Reign for Kinrick in the Saxon Tongue signifies Reign and sometime Kinrick signifies Kingdome with us as in the 145. Act Parl. 13. Ja. 1. In the Inscription of this Parliament according to the Black Impression it is said that to the three Estates of the Realm there gatherit were propon'd sundry Articles to which was answer'd in manner as after-follows by the Inscription of the first Parliament according to that Impression it is said Electae fuerunt certae personae ad Articulos datos per Dominum Regem determinandos data caeteris licentia recedendi By which it appears that the Lords of Articles being nam'd the Parliament Adjourn'd and the custome was that they never mett again till the last day of the Parliament when the resolution of the Articles was voted 2. The resolution of the Articles is said to be Per Dominum Regem because he is only Law-giver and the Parliament only consents It is said in the Inscription of the third Parliament that these Articles were put to certain persons chosen by the three Estates which insinuats that the Lords of Articles were chosen by the three Estates whereas now the way of choosing the Articles is prescrib'd by the 1. Act 1. Parl Sess 3 Ch 2. BY this Act it is ordain'd that if any Lands or Possessions of Haly Kirk be wrongously annaly'd they should be restor'd by Process of Law For understanding whereof It is fit to know that Regularly the Lands and Goods of the Church are not Annaliable and Church-men are not Proprieters of them but Administrators and Liâ—renters praecarij possessores quibus tanquam commendatis non tanquam proprijs uti debent Salv. lib. 1. And this is clear by the Canon Law Canon sine exceptione 12. Quest. 2. can ult Quest. 1. and the Civil Law l. Jubemus 14. C. de sacro-sanctis Ecclesijs But yet there are three cases excepted in which it is permitted to alienat them exprest in Gloss. causae 12. Quest. 2. viz. 1. In causa necessitatis if the Churches Debts require the same as for maintainig its Fabrick or to maintain the Christian Religion against Infidels or Hereticks 2 do Causa pietatis as to maintain the Poor when starving or to redeem Prisoners from Infidels 3 tio Causa damni vitandi when the Lands are not otherwise improvable for which last there is an Act in the Lateran Council under Alexander the 3 d. Cap. ad aures Extr. de Reb. Eccles non alienand By our Law all Ecclesiastical Persons are discharg'd to lessen the Rental of their Benefices by setting Feues Tacks conversion of Victual for Money or any other Disposition By the 5 th Act. Parl. 22. Jac. 6. Bishops are discharg'd to set in Tacks their Quots and Casualities and though this last Act seems unnecessary because of the former yet it was made least it might have been debaitable whether Casualities fell under the former Prohibition since Tutors may transact for these as we see in Francies Montgomeries case against the Earl of Liven where it was found that Tutors who cannot alienat may transact for Casualities as to give a Liferent to the Husband of the Heretrix in place of the Courtesie and though Prelats aswel as Barrons were allowed to Feu their Ward Lands for the better improvement of them Act. 71. I. c. 2. Parl. 14. Act. 91. Jac. 4. Parl. 6. Yet these Acts are only to be understood of Lands to be Feu'd out for the equivalent Rent when at first they were Barren but they are no warrand to Bishops to Tax their Wards for a certain Dutie for this is contrarie to the Interest of the Church and is so far from being warranted by any Law that there is an express Act. viz. 9. Parl 23. Ja. 6. allowing them only to few out their Ward Lands by a Temporary Statute to endure for three years allanerly which shews that Regularly it was not lawful and this did prejudge the King also who might have right to the Ward and Marriage sede vacante from which he would be debarr'd by Taxing these Casualities And therefore Sharp Arch-bishop of St. Andrews having Taxt the Ward-holdings of the Lands of Blebo that Right was reduced by his Successor 12. March 1684 Though it was alleadg'd that though Church-men cannot alienat Teynds which are the Spiritualities of the Church yet they are domini and not administratores tantum as to the Temporalitie which was said to be also Craigs opinion and Taxing was a more constant Rent to the Church and as a Bishop might Gift a Ward which could not be quarelled by his Successors even for years after his Death or Removal so might he Tax Nota Though by the 41. Act Parl. 10 Ja. 2. The King may resume the annext Property unlawfully Dispon'd but any Process of Law yet in this Act Kirk-men are not to resume the Lands wrongfully annalÈied by them otherwayes than by lawful Process of Law BY this Act Hospitals founded by the King are to be visited by the Chancellor but Hospitals founded by Bishops or other Subjects are to be visited by the Bishop and ordinary which Act is renew'd by the 63. Act Parl. 5. Ja. 6. But by the
removetur ab officio sed hoc non tenet in judice perpetuo Farin Q. 3. num 423. says that Majores Officiales non removentur sed minores facile removentur by thâ— cap. 14. Stat. Rob. 2. A negligent Judge viz. a Baillie of Regality is to be punish'd by escheating his Moveables and their life is to be in the Kings will A faulty Judge is also punishable by this Act in the same way as a negligent Judge which must not be mean'd of the meanest fault seing the punishment is so great but whereas by this Act the punishment is the loss of Office for ever if it be not Heretable yet by the 26 Act Parl. 5. Ja. 3. The Heretable Officer loseâ— his Office for three years whereas this Act bears this being lawfully prov'd and notorly kend we must not conclude that a Judge may be convict upon this notoriety without probation for these two are only exegetick of one another and the sense is they being convict upon notor probation Vid. supra observ on Act 16 Parl. 6 Ja. 2. THe Form now to be follow'd in case any man should masterfully possess another mans Lands is that if violence was us'd at the entering then the Council upon a Complaint will restore the party dispossess'd but if the Intrant entred in vacuam possessionem though without any Right he behov'd to be pursu'd before the Session by an action of Intrusion K. JAMES III. Parliament I. BY this Act the third of the KING'S Rents of Assyse that is to say the third of His Lands and Customes belong to the Queen as her Dowrie or Terce allenarly which is conform to the Common Law of this Kingdom by which the Wife has right to a Third of all the Lands in which a man dies Infest and that though she be otherwise provided if she be not expresly secluded from it by her Contract of Marriage so that it seems the Queen would have had right to a Terce of proper Lands belonging to the King though this Act had not been made But now by the 10 Act Parl. 3 Ch. 2. If a Wife be provided to a particular Provision though never so small either in her Contract of Marriage or in any other Write she will be secluded from a Terce except her Terce be expresly reserv'd to her by and attour the particular Provision Nota The Rents of Assize comprehends the Kings Customes and Lands as was found Decemb. 9. 1466. and March 11. 1500. Ogilvie contra Gray It may be doubted whether this Act was Temporary relating only to this Queen or if any Queen of Great-britain will have right as Queen of Scotland to a third of the Property conform to this Act since the Act seems to be reasonable in it self and that the Queen is founded in this right by the Common Law and if this had been only a Temporary Right relating only to this Queen it would not have been inserted amongst the general Laws or at least it would not have been generally conceiv'd as this Act is in these Terms The Dowrie of the Queen for terminus indefinitus aequiâ—ollet universali I find that in the 191 Act Parl. 13 Ja. 6. Queen Ann is provided to the third of the Property but not to the third of the Customes but that being by express paction derogats not from this Law SOmetimes Benefices Ecclesiastick were bestow'd upon secular persons who were call'd Commendators because the Benefice was commended and intrusted to their oversight and they were Procuratores in râ—m sâ—am habebant tantum detentionem possâ—ssionem but were not Proprietars and so could not Dispone Roman Concil 350. And because Commendators were but Trusties or Tutors Therefore Rights made by them though with consent of the Chapter are no longer binding in our Law than during the Commendators own Right And by this Act these Commendams are discharg'd and yet the Deeds done by them are not annull'd and therefore many Rights made by Commendators since this Act are sustain'd as valid though they were not Proprietars By the Canon Law only the Pope could grant commendam perpetuam and the Bishops could only grant Commends for six Moneths c. Nemo Elect. l. 6. THe pain of Lawburrows here exprest is hightned by the Act 166. Par. 13 Ja. 6. by which every Earl or Lords Penalty is made two thousand pounds every great Baron a thousand pounds every Free-holder a thousand merks every Fewar five hundred merks the un-landed Gentleman two hundred merks and the Yeoman one hundred merks which last Act is now observ'd and though Penalties be exprest here against breakers of Lawburrows found to Church-men and that there be no mention made of them in the last Act yet an Arch-bishop or Bishop can pursue now for the same penalty that is due to an Earl and Bishops and their Wives are allow'd the same Solemnities at their Funerals that are allow'd to Noblemen and their Wives by the 14 Act 3 Par. Ch. 2. And though there be no mention made here of Dukes and Marquesses yet the priviledge granted to Earls is extended to them 2 o By this Act the Penalty is to be apply'd to the King and is due by and attour the Reparation due to the person les'd but by the last Act and the present Custom the Penalty is to be divided betwixt the King and the Party and though by this Act the Master is free if he present his Servant who breaks the Law-burrows Less than the Law-burrows that is to say he who found the Lawburrows bring the Trespassors to the King or Sheriff within fourty days Dominus noxali judicio servi sui nomine conventus servum actori noxae dedendo liberatur yet by our present Custom the Master finds Caution that the Raiser of Law-burrows shall be skaithless from him against whom it is rais'd and his Men-Tennents and Servants and therefore the Master seems now lyable though he should present his Servants Albeit these be the ordinary Penalties allow'd where there is no other proof of the Danger then the Oath of the Complainer yet if the Complainer prove Threatnings the Council or Criminal Court may ordain surety of Law-burrows to be found upon such sums as they think proportional to the danger Vid. Not. on Act 129 Par. 9 Ja. 1. Supra THough by this Act all Summons are to be on twenty one days Warning yet all Summons that are priviledg'd by their own Nature or the Lords Deliverance come in upon six days vid. Hope Form of Process and by an Act of Sederunt July 21. 1672. It is declar'd that no Actions can be priviledg'd except Removings recent SpuilÈies recent Ejections Intrusions succeeding in the Vice Exhibitions Causes alimentary Summons for making forthcoming Transferrings Poyndings of the Ground Walkennings special Declarators Suspensions Prevento's and Transumpts all which and all second Summons in all Actions are to come in upon six days warnings except recent SpuilÈies because by the 65 Act Par.
aestimatio rei creditae creverit aut decreverit yet in Money perpetua est aestimatio l. 1. ff de contra hend Empt. For clearing of which Question Vid. Vin. Quest. Select lib. 1. cap. 39. and so this Act is in Desuetude Vid. Act 19 Ja. 3 Par. 3. But though Debts upon privat Obligations were to be paid with Money at the same avail that the Money was at the time of the Contract and not the time of the payment Yet the Kings Taxations and publick Dues were by the Kings own Concession to be paid according to the value of the Money at the time of the payment and are not to be exacted in Money according as the Money was worth before it was cry'd up Vid. last Act Par. 3 Ja. 3. It has been much doubted whether it was true Policie to cry up Money for though this seems to be an encouragement to forraigners to Export our Commodity of which we have too much and to Import Money of which we have too little Yet it is urg'd on the other hand that in crying up Money we do but undervalue our own Commoditie and our own Land and raise the value of Money which is the Commodity of a forraign Countrey such as Spain and other places who have Mines as for instance if we have use for carrying our Money abroad Forraigners will only give us Commodities conform to the intrinsick value for they will not consider our raising of it and so he who got the Money which was so rais'â— is cheated in as much as the Money is rais'd above the intrinsick value 2 o. As to our own Commodities at home either they are rais'd to the same proportion with the Money and then forraign Merchants will not bring in Money for our Commoditie because they can gain nothing by bringing it in and so we lose the design of raising our Money or else the Commodities are not rais'd in value to the Money and so the forraign Merchant does only cheat us as for instance if our Money be rais'd a tenth part the forraign Merchant gives us only nine Pieces for ten 3 o. This raises the Exchange to our great loss for he who draws the Bills upon London or Paris considering that our ten Pieces are but nine there he will add the value of a tenth Piece to the Exchange 4 o. If forraign Princes find we have advantage by this raising of our Money they will either raise their own to the same proportion and then we shall have no gain or to a higher and then we shall have loss and at best diâ—ferent raisings of Money will occasion but great variation and uncertainty in Coyns COurts of Guerra here forbidden seem to have been Courts holden upon Neighbour-feid and Riots and Skeen founds them upon § ult tit 17. de pac tenend lib. 2. de feud Si ministeriales alicujus domini inter se Guerram habuerint comes sive judex in cujus regimine eam fecerint per leges judicia ex ratione prosequatur King IAMES the third Parliament 9. THis Act is Ratifi'd by the Act 30 Par. 11 Ja. 6. Vid. Observ. on that Act. King JAMES the third Parl. 10. THough all men be allow'd to bring in Victual from forraign Countries by this Act yet the Importation of Victual from Ireland is Prohibited by Act 3 Sess. 3 Par. 2. Ch. 2. THe Act concerning Cruives is explain'd in the Act 11 Par. 1 Ja. 1. Which is the Act here related to THis Act appointed the taking more than just â—raught to be a point of Dittay because it was oppression and irregular exaction and this is still taken up as dittay in Circuit Courts yet the Council does also punish it and I think the Master of the Ground where the Ferry is may punish such irregular Exactions THe unlaw of such as burn Muires is by this Act five pounds which is renew'd Act 71 Par. 6 Ja. 4. but by the 11 Act Par. 4 Ja. 5. The punishment is five pounds for the first time ten for the second and twenty for the third time and these penalties are Ratifi'd Act 84 Par. 6 Ja. 6. THe using other Barrels than the Hamburg Measure is made point of Dittay because other Barrels were lookt on as false Measure but our Barrel now is ten gallons for Salmond and eight and an half for Herring THe Act here related to is Act 7 Par. 1 Ja. 1. Where this Act is Explain'd PVrprusion is the usurping and appropriating our Superiours Lands or High-wayes and Purpresture is much now in Desuetude The ordinary Remedy now being actions of Molestation or Declarators of Property but Purprâ—sion is not absolutely in Desuetude For by the 5 Act 16 Par Ja. 6. It is ordain'd that such as Till the Kings Parks or Commonties shall be lyable in Purprusion and punish'd according to the old â—aws the same being Try'd either by way of Molestation or before the Lords of Session and the old Punishment was an arbitrary Punishment and the loss of his Lands which he held of the King and the reason why that Act did appoint the Tryal to be by Molestation before the Lords was because of old it was only Try'd by an Assize before the Justices Vid. lib. 1. cap. 5. num 4. lib. 2. cap. 74. R. M. It is doubted whether Vassals of Regalities Building upon the Streets of Burghs of Regalitie may be punish'd for Purpresture or whether the Building a Foot or two furder than formerly even in Burghs Royal would infer that punishment From these words of the Act That nae Vassal nor Sub-vassal or other Tennent under the Baron has Power or Jurisdiction to hold a Court. It is fit to observe that this holds not only in Purprusion though that be the case mention'd in this Act but generally Vassals nor Sub-vassals cannot hold Courts except they be Infest cum curiis and even then they have only power to hold Courts for payment of their own Rents or such other things as necessarly follow the labouring of Land except the Vassal be a Baron in which case he has power to jâ—dge ryots and unlaw for Bloodwits as Sheriffs do This Act is not â—o be found in the black Impression There is an Act omitted by Skeen which is the last in the black Impression whereby the Parliament delegats their full Parliamentary power to some of their Number for hearing some Ambaciâ—itors and deciding some Causes licet delegatus non potest delegare and such Delegations of the Supream Power may be dangerous King JAMES the third Parliament 11. THough this Act appoints Barons and Lords who led their own Men or Vassals at that time to the Host to be lyable for the skaith they do in coming to the KINGS Host Yet this Act is now upon the parity of Reason extended to all Officers who are now come in place of these It may be alleadg'd from this Act that it is not lawful for such
of Sums than in possessing of Lands because Creditors might alter their Sums and take new Assignations or retire old Rights whereas no man could quite his principal Lands 26 June 1677. Cramond contra the Tennents of East-barns But a Fathers possession as Life-renter was not sufficient to prefer a base Infeftment given to the Son to a posterior publick Infeftment granted to a second Wife or to any Creditor the like in a base Infeftment granted by a Good-sir to his Oye by the Daughter which was not found sufficient being cloathed with the foresaid Civil possession of the Good-sirs reservation of Life-rent to exclude a posterior publick Infeftment 17 of July 1635. And this possession by the Husband or Father or Disponer is called possessio per constitutum and is not favourable in a competition with other Creditors and therefore a Factory granted by the Father to the Son to uplift the Mails and Duties of Lands dispon'd to be holden base by the Son of the Father was not found sufficient to cloath the Sons Infeftment though there were several Processes intented upon the Factory 10 July 1669. This Act requires natural possession by labouring the Land or Civil by uplifting the Mails and Duties and before Registers were invented that kind of possession was only able to put their Creditors in mala fide but though Civil possession hath been found sufficient such as obtaining of Decreets and payment of Annualrents albeit the same had no relation to the Infeftment of Annualrent but was only relative to the Bond whereupon the Infeftment followed yet the setting of a Back-Tack by the accepter of a Wodset hath not been found sufficient to maintain a base Infeftment except payment of the Back-Tack-Duty had likewise followed so that it appears that possessio Naturalis vel Civilis sufficit sed non illa quae a doctoribus dicitur civilissima as is a Back-Tack By this Act also such as make double Dispositions to defraud their Creditors shall be declared infamous and shall be punished in their persons and Goods at the Kings pleasure and this punishment is extended against such as make double Assignations and the 140 Act Par. 12 Ja. 6. bears That no Dewty shall be Dispon'd to two sundry persons which is Crimen stellionatus by the Law and though this Act does not make double Dispositions to be crimen Stellionatus yet it is so in effect but the Civil Law distinguisheth thus l. Quin. duobus ff ad l. Corn. de falso Qui rem unant duobus vendidit dicens rem esse suam tenetur falsi at si non dicat esse suam tenetur Stellionatus Though by this Act Superiours receiving double Resignations are guilty and punishable as said is and seing to receive such Resignations is a great prejudice because it puts the Parties to great expences and that the Superior is presum'd to get and may get advantage by accepting such double Resignations or contributing to the making of such double Rights therefore they ought likewise to be lyable in Damnage and Interest to the Party injured BY this Act it is Statuted that a Charge to enter Heir may be directed against the Successors of the Defuncts they being of perfect age to enter to their Lands within fourty days Year and Day being first past after the Decease of the Predecessor and a Comprizing being led upon their failÈing to enter the same shall be as valid as if they were Infeft Nota Though this Act bears the being of perfect age yet Minors may be validly charged to enter Heir de practica but seing this Act is only made against such as may enter but wilfully ly out It might have been doubted whether Minors in Ward-Lands may be Charged to enter Heir for these cannot enter till they be twenty one years compleat but by our constant Practique they may be Charged since this is necessary for compleating the Creditors Diligence Nota That this Act does not appoint that generally such Execution should pass against the appearand Heir as if he were entred but only that his Land may be apprized and therefore quaeritur what execution may be gotten against his moveable Heirship and it may be urg'd that the same may be affected as the Defuncts other moveables for though they be Heirship respectu haeredis yet they are but moveables respectu Creditoris for they become only Heirship after they are drawn and yet it hath been found that the moveable-heirship may be adjudg'd and by that Decision it would appear that they can only be affected by apprising but there is a Warrand wanting in this Act for apprising them there is an Act of Sederunt anno 1613. allowing Charges to enter Heir to be rais'd within the Year and Day but the Summons thereupon must be execute after the Year and Day expire but not till the fourty days expire after the execution of the Charge but this annus deliberandi being introduced in favours of the appearand Heir he may omit the same and Renunce within the year if he pleaseth Neither can an Adjudication following within the Year be challeng'd ex eo capite July 14. 1631. albeit that the said Act appoints that a Charge to enter Heir may be rais'd after Year and Day expire after the Defuncts Death Yet the Year and Day must only be computed from the appearand Heirs birth if he was posthume Spots tit Heirs Livingstoun contra Houlerton de jure civili posthumus non habetur pro nato cum de incommodo ejus agitur l. etiam § Ille ff de minor THough the meaning of this Act seems to be that where Tradesmen who are Free-men either desert their work or delays the same the Owner of the Work may choose other Free-men or complain to the Deacon Yet it was found in July 1675. by the Council in the case of Borlands against the Masons of Edinburgh that where a Free man either deserted or delay'd the Owner of the work might imploy any even Unfree-men though it was alleadg'd it was not just to punish all the Free-men for the fault of one Nor was it convenient for the Common-wealth that Unfree-men should be admitted for whose work none can be answerable THis Act is Verbatim formerly set down Act 90 Par. 6. Ja. 4. BY the Civil Law Testaments and all Writs of importance were to be Seal'd and with us the appending of the Seal without the Subscription of the Party was sufficient R. M. lib. 3. cap. 8. num 3 4. and Papers were then Tri'd by comparison of Seals as now by comparison of Subscriptions but by this Act the Subscription of the Party and Witnesses is likewise to be added with the Seal and thereafter K. Ja. 6 Par. 6. Act 80. all Papers of importance are to be both Seal'd and Subscrived but now they need only be Subscrived without being Seal'd and though by this Act the Subscription of the Notar is sufficient Yet by that Act two Notars
be extreamly vex'd ordinarly the same day is appointed by the Judge for the proponer of the Falshood to consign and for the producer of the Writ to bide by the same like to these Consignations were the Sponsions mentioned in the Civil Law whereby Litigators sponsionem faciebant certae pecuniae quae ejus lucro cederet qui judicio vicisset l. paen ff de alcae toribus l. 17. § ult ff de praescript verb. Nota By this Act where Improbation is propon'd at the Kings instance the informer is to find Caution but if the Kings Advocat insist ad vindictam publicam I conceive he is oblig'd to find no Caution because he is never presum'd to pursue Calumniously WHen any thing is to be proven by Writ if the Writ be not produc'd this Act appoints that Protestation shall be given against the probation of that part of the exception but now the form is to call upon the Act and crave Circumduction of the Term which circumduction is here call'd Protestation but if the Writ be produc'd this Act appoints that the other party shall be heard against the same after Renunciation of probation and the form is that when any Writ is produc'd in modum probationis the other party protests to be heard against the same at the advising of the Cause and the producer puts up an Act renuncing further probation THis Act appoints the expences of Plea to be Tax'd and insert in Decreets which is conform to the Ch. 68 and 69. Quon Attach and though by the Civil Law expences of Plea ought not to exceed the principal sum pursu'd for Bart. in l. 8. Cod. de indiction Yet I have seen more expences allow'd than the sum pursu'd for extended to and it were very unjust that if a person of quality were pursu'd unjustly by a mean Rogue for a small matter that his expences should not be determined according to what he was really forc'd to expend for the necessity of expending is the only just rule in such cases Queen MARY Parliament 8. THis Act of Parliament doth enable French-men to bruik Lands and Estate in Scotland and Naturalizes them so as that they may enjoy all the priviledges here as any Scots-man may do but though quoad the point of Succession strangers have by many Nations been debarr'd and that by the Roman Law cum peregrinis Testamenti factio non erat l. 1. C. de hared instituend l. 1. § 2. ff de ◠yet Craig pag. 96. observes that strangers were not debarr'd from Succession in Scotland and I find it so decided 13 January 1575. in the case of one Richardson These priviledges granted by this Act are likewise confirmed to the Frenches by an Act of Sederunt the 11 of June 1595. From these first words in this Act appointing Letters of Naturality or Naturalization to be given to such of the French Subjects as shall happen to be in the Kingdom of Scotland It may be doubted that French-men cannot pretend to this right except they live here but this is expresly contrary to the French priviledges there granted to us It may be also urg'd that Dutch-men or others cannot pretend to it though they be Naturalized in France for to Naturalize them because they are Naturaliz'd in France were to allow the French King to Naturalize any he pleas'd in Scotland though enemies to us 2. Only French-men are Naturaliz'd which is to be interpreted only of such as are properly so 3. This were fictio fictionis which is reprobated by Law It seems also just that except this priviledge be continu'd to us in France French-men ought not to have it in Scotland Quaer If Merchants though not naturaliz'd will not have right to heretable Rights granted for security of their Money for without this there could be no Commerce THis Act contains the French priviledges to us communicated by the French whereby the Scots may succeed in France in the same way that the French-men themselves did and they are by this Act Naturaliz'd to that and all other effects and which was very necessary for us since by the Law of France the Fisk excludes the true Heirs of strangers except as to Goods brought in by them which priviledge is call'd by the French droict d' anbeine beside this right of Succession the Scots likewise are free to be preferr'd to all Ecclesiastical Dignities The Gentlemen are free from Taxes and the Scottish Ships free from Imposts albeit of late the French exact from us 50 Sols per Tun as from other Strangers As to which I drew this Memorial as Assessor to the Royal Burrows A Memorial concerning the Priviledges due to the Scots in France THe French Nation finding themselves oblig'd to have forraign Recruits for maintaining their Wars pitch'd upon Scotland as a Nation very sit to furnish them Levies and so old was their Alliance that a League offensive and defensive was enter'd into betwixt Charles the Great King of France and Achaius King of Scotland in Anno 787. at which time Charles the Great bestow'd upon the King of Scotland the Double Tressure garnish'd with Flower de Luces or as the French call it Fleurie Contre fleury born by them at this day as all the French Historians and Heraulds do acknowledge After this the French being ingaged in constant Wars with the English they imploy'd the Scots on all occasions in which their great succours and services are set down by Favin a learned French Author in his Theatre of Honour and to ingage that Nation the more as well as to reward their services the guarding of the King's Person was bestowed upon them by Charles the 5 th and they were holden as Naturalized French-men and were exempted from payment of all Customs and though many of these Contracts and Leagues be lost yet these following Papers are still extant A Treaty containing these priviledges betwixt Alexander the 2d and Lewis of France called St. Lewis Another betwixt King Robert le Bruce and King John An Act of Parliament 1558. relative to the like Act in France wherein Q. Mary who was then Married to Francis Dolphine of France doth with the consent of Parliament Naturalize all the French in Scotland and enable them to succeed to Estates moveable and immoveable here and free them from all Taxes payable by strangers In which Act of Parliament the Copy of the priviledges granted by the French to the Scots is verbatim ingrossed Item A Patent by Francis King of France dated May 1510. exeeming the Scots Nation from paying Custome in Normandie Item An Act of Exchequer approving thereof dated the said year Item An Act of the Thesaurers in France consenting to the same Item Letters Patent from the said King to his Great Council for expeding the former Patent dated the said year Item Act of the Great Council consenting thereto Item An Act of the Cour des aides at Paris approving the said Patent Item Charter by King Henry the
secured notwithstanding of the forefaulting of their Superiors yet therefore regulariter the Sub-vassals Right falls to the King by the forefaulture of his Superior or his own forefaulture and that not as Caduciary for then it would only fall to him with the burden of all Rights granted by the Vassal But it falls to the King qua superior so that he is not obliged to acknowledge any Rights except they be Confirmed by himself this was debated in the case of General DalÈel contra Lady Caldwall Nota The said 201 Act 14 Par. Ja. 6. appoints this Act to be delet out of the Records of Parliament and this has been design'd oft-times to prevent our taking abrogated Acts for Acts in force but yet they are still Printed and some think this necessary because men argue oft from abrogated Acts as from this Act in the said case of the Lady Caldwal ALL Monks with us were called Friers from the French word Frere which signifies a Brother The Religious Women were called Nunnes from the Latin word Nonna which signifies a sacred Virgin THe Lands holding of Friers or Nuns are by this Act declared to hold of the King and all the Lands of Monks and Nuns are by the 29 Act Par. 11 Ja. 6. annexed to the Crown quoad their Temporality and though thereafter many of these Benefices were erected in favours of Laick persons Yet by the 14 Act Par. 1 Ch. 1. The Superiority of all Lands belonging to Abbacies Priories and other Benefices belong to the King THis Act is Explain'd in the Act 36. and is drawn back to all Rights made even prior to this Act by the 65 Act 5 Par. Ja. 6. which is a singular Instance of drawing back Acts prior to the dates THese Acts are Explain'd in the Observations upon the third Parliament of Queen Mary King JAMES the sixth Parl. 3. THese Acts of this Parliament are Explain'd in my Criminal Treatise tit Heresie Nota That by the Act 45 Arch-bishops c. were to be punished being found negligent by the General Assembly of the Kirk the Bishops before the Year 1606. being but Titular Bishops and subject to the General Assembly and were to be deprived by them as is clear also by the 46 Act of this Parliament By the 46 Act it is also observable that all the Church-men were then only to give their Oath for acknowledging and recognoscing His Majesty and His Authority the Oath of Supremacy having come in only by the 1 Act Par. 18 Ja. 6. By this Act also non-residence is declared unlawful and is yet a cause of Deprivation except it be dispensed with the habilis modus whereof is by a Letter from the King BY the 72 Act Par. 9 Q. Mary the Minister was to have the Parson or Vicars Manse or so much thereof as should be sufficient for him and no Kirk mans Manse or Gleib could be feu'd yet an Heretor to whom a Vicars Gleib was feu'd a year before that Act was allow'd repetition Feb. 12. 1635. Nota. This Decision is otherwise related by mistake in the observ on the said Act. The Manse comes from the Latin Word Manere vid. Seldens History of Tithes pag. 52. By it we understand the Ministers Dwelling-house and if the Parson or Vicar had a Dwelling-house or Manse it belonged to the Minister but if there was none of these no other House could be design'd though it stood within the precincts of an Abbacy February 11 1631. Minister of Innerkeithing contra John Keir If there be no such Parson or Vicars Manse the Heretors must build one by the 31 Act of Parliament 1644. but thereafter by the 21 Act 3 Sess. Par. 1 Ch. 2. The value is declar'd to be from 500 merks to 1000 pounds so that the Minister may build a Manse to himself and he or his Executors will get repetition of what he bestows in building not exceeding 1000 pounds but if the Minister build only to the value of 500 merks he will not have action against the Parochioners for more though not exceeding 1000 pounds upon pretence that he might have built to that value January 8. 1670. Charters contra the Parochioners of Curry Where it was also found that the Reparation or Building of the Manse affects not singular Successors and is not debitum sundi By that Act likewise it was found that since Manses are ordained to be built by the Heretors that therefore Liferenters are not lyable which Decision may be very dangerous to Ministers since it may oftimes disappoint or at least for many Years suspend their Relief as for Instance if a Father should denude himself of his Estate in favours of his Son an Infant reserving only his own Liferent and it may be doubted whether such Liferenters per reservationem may not be lookt upon as Heretors in this as they are in some other cases and yet though Liferenters were not bound to build Manses yet they were found lyable to repair them these being but minores impensae which required to be presently done but neither Heretors nor Liferenters will be oblig'd to pay what is to be bestow'd upon Building or Repairing nor to stent themselves for that effect if they have materials of their own It has been also found that Manses are to be built and repaired where they were burnt or wasted casu fortuito A Gleib is that portion of Land that is to belong to the Minister Gleba terrae or a little piece Land and is by this Act to comprehend four Aikers of arable Land or 16 soums Grass where there is no arable Land Act 7 Par. 18 Ja. 6. These four Aikers are to be design'd out of Lands formerly belonging to the Parson or Vicar and if there be none such they are to be design'd out of Abbots Prioresses Bishop Friers or any other Kirk-land lying within the Bounds of the Paroch Act 161 Par. 13 Ja. 6. which order is exactly to be observed in the way set down by this Act as Dury observes July 13 1636. Halyburton contra Paterson yet I find that Bishops Lands were design'd before Abbots Lands because that Bishops have greater interest in the Cure and albeit it may seem that the designing the most ewest or nearest Lands to the Manse for a Gleib be in favours of the Minister and for his ease yet the Lordsfound a Designation null at the instance of the Heretor whose Lands were designed because there were other Lands nearer to the Manse for else any Heretors Lands within the Paroch might be designed for a Manse out of prejudice By the 116 Act 12 Par. Ja. 6. It is ordained that Ministers who are provided to Churchs where there was no Parson or Vicar formerly such as Cathedral Kirks or Abbacies shall have a sufficient Manse within the precinct of the Cathedral or Abbay except the Heretors of the precinct provide them to as good a Manse and as commodious These Designations are to be expede according to
by clearing that the granter was denuded and so the second Right was null There may be some pretext for granting such double Rights periculo petentis the Exchequer not being Judges competent to the competition of double Rights yet where the first can clearly and instantly exclude the second there is no reason for passing the second for by passing such double Rights the first is put to the necessity of a Reduction since no Right once passed under the Great Seal can be annulled by way of exception but only by way of reduction and since the second right though null may be the foundation of a Prescription and will establish a full right in the obtainer if he continue 40 years in possession THis Act prohibiting Flesh to be transported in Ships except in so far as is necessary for Victualing the Ships is now in Desuetude King IAMES the sixth Parliament 6. IT is observable that in this Act is said that Our Soveraign Lord has declared and granted Jurisdiction to the Kirk which consists in the Preaching of the Word the correction of Manners and the Administration of Sacraments which inferrs that Ecclesiasticks have no temporal Jurisdiction save from the King which the Canons have also acknowledged as shall be clear'd in the Act concerning the Supremacy But they are acknowledg'd to have had an Ecclesiastick Jurisdiction for the Act bears Has declared and this Ecclesiastick Jurisdiction is declar'd to consist in Preaching Correction of Manners and Administration of Sacraments THis Act discharges Gaming and Drinking in Ale-houses on the Sabbath and is considered in the Act 83. Par. 6. Ja. 4. THough such young Noblemen or Gentlemen as go abroad need not now Licences from the Council nor to make application to the Bishop or Superintendent within 40 dayes after their return yet if the Council suspect that they are like to change their Religion they use to cite the Parents and to force them to bring home their Children or else to Imprison or Fine them as they see cause This Act was renewed by a Proclamation of Council January 1679. BY this Act the Labourer is to require him who has right to the Teinds to come and Teind within 8 dayes after the Shearing by making premonition on three Sabbath dayes after the Shearing which is by the 48 Act Par. 11. Ja. 6. restricted to two Sabbaths and thereafter by the 5 Act Par. 21. Ja. 6. It is appointed that the Teinding beat three several times viz. the In-field at one time the Bear at another time and the Out-field Corn at a third time and that 8 dayes interveen after each compleat Shearing but all this is innovated by the form set down very fully 9 Act Par. 22. Ja. 6. Which last Act is now in observance and being fully consider'd needs no further explication VId. crim pract tit Idle Beggers and observ on the 16 Act 3 Sess 1 Par. Ch. 2. Where this Act is Ratifi'd and enlarg'd In this Act excellent Overtures are set down for punishment of Vagabounds and these who flee from their Masters Service who by this Act are appointed to be burnt in the Ear and Scourg'd for the first Fault and to suffer Death for the second so far can the repeating of a Crime highten its punishment even in mean Crimes analogical to this Act is the Tit. ff de Fugitivis where likewise many excellent Overtures are propos'd ALbeit by this Act all the Hornings are to be Registrated in the Sheriff-Books of the Shire where the Rebel lives Yet by the 265 Act 15 Par. Ja. 6. In case the Sheriff refuse to Registrat the same it is sufficient that they be Registrated in the general Register but if the Horning be for a Criminal Cause it must be Registrated in the Books of Adjournal Act 140 Par. 8 Ja. 6. Observ. 2 o. That Horning against Witnesses need not be Registrated at all nor can Witnesses Escheats fall upon such Denunciations because it were hard to put the pursuer to so much expenses or to make an Escheat fall for a negligent Contumacy Observ. 3 o. That Denunciations at the Mercat Cross of the Shire where the Rebel Dwells should only debar Rebels ab agendo and not Denunciations at the Mercat Cross of Edinburgh as was found January 24. 1674. Blair contra Blair and even these Defenders who are Denunced at the head Burgh of the Shire cannot be debarr'd from proponing that which requires their personal presence nor are their Creditors or Assigneys debar'd from pursuing Observ. 4 o. Though by this Act the Thesaurer has power to intromet with the Rebels Goods and may raise Letters for that effect which were call'd Letters of Intromission yet now Escheats must be Gifted and the Donatar must raise Summons of general Declarator thereupon wherein it must be try'd if the Rebel was lawfully Denunc'd and after general Declarator he must have a Decreet of special Declarator which is in effect only a Decreet for payment though it be abusively call'd a special Declarator and the former Letters of Intromission are justly found not to be legal now The affixing a Roll of the Rebels Names here mentioned is in Desuetude except as to Fanaticks and these who pay not the Kings publick Dues Some doubts concerning this Act are Explain'd in the Act 142 Par. 8 Ja. 6. THis Act is Explain'd Crim. pract tit Libels BY this Act the pains of breaking Law-burrows is to be divided equally betwixt the King and the Party injur'd and the reason of this is because the King is injur'd by the breaking of the Law-burrows The Charge of Law-burrows being in His Majesties Name and though ordinarly the Party Charged finds Caution of Law-burrows yet if after the Charge any prejudice be done the party Charged is lyable because the Charge is contemn'd July 8. 1628. Semple contra Cuninghame The civil Action whereby this breach of Law-burrows is pursu'd is call'd An Action of Contravention and must because of this Act of Parliament be rais'd at the Kings Advocat's instance as well as at the instance of the party injur'd and the pursuers Title is the Charge if no Caution be found or the Extract of the Bond of Cautionry if Caution be found the ordinary Deeds whereby Contravention is infer'd are beating or stricking the party to whom the Lawburrows is found or his Servants except the Servants or Tennents were beat upon a special account no ways relating to the Master which speciality must be proven or else it s presum'd to have been on the Masters account and for the same reason it is that though the stile of Letters of Law-burrows bear That the Complainer his Men Tennents and Servants c. shall be Skaithless in their persons Lands Heretages Goods and Gear Yet the taking of two Horse from the pursuers Tennents was not sustained to be a Contravention because that was not done on the Masters account nor was the Tennent himself pursuer January 28. 1632.
Grant contra Grant Nor was for the same cause the breaking up the Tennents House and taking some Goods out of his Chest found a Contravention February 9. 1633. Lindsay contra Denniston But since it was not a Contravention because the Master was not concerned in the Injury as these Decisions bear I see not how the Tennents concourse could have altered the case quoad the Contravention though in both cases the Tennent may pursue damnage and interest All Lawyers are clear that there must be clear grounds of Injury alleadg'd and therefore feeding bestial upon controverted Lands is not sufficient December 20. 1592. But in mutual Contraventions upon that head The Lords allow'd both parties to turn their Libel in a Molestation and granted Commission to Examine Witnesses hinc inde January 24. 1663. Rouchlay contra Wood. Nor would the Lords find that pasturing upon waste High-land-ground should infer contravention except it had been done by the Masters Command or frequent herding to his knowledge July 8. 1664. Earl of Airly contra M cintosh But yet if Deeds of Violence be done even upon debateable Lands that will infer Contravention such as the hoching of Oxen. This animus injuriandi is so necessary that Deeds done by drunken-men are by many Lawyers thought not to infer a Contravention Christin Tit. 4. Art 8. and the adulterating the pursuers Wife will not infer a Contravention because this is not done animo injuriandi but animo libidinoso Christin Art 7. He likewise thinks that threatning real injuries is sufficient and threatning is a great breach of the Peace especially when it is by a man who uses minas prosequi but verbal injuries per se are not thought sufficient by Lawyers nor have we any Decision sustaining a Contravention on that head Since by this Act the King and the Party have different interests therefore Imprisonment or paying of a Fine to the King by prior Sentence will not exclude a pursuit of Contravention at the parties instance March 20. 1623. Futhie contra Carmichael and January penult 1622. Johnston contra Laird of Westnisbit And certainly that Decision related by Hope tit contravention Forrest contra Turnbul Where it was found that the Kings Advocat could not insist alone in a Contravention if the party injur'd discharged the Deed though after the intenting of the Cause is an illegal Decision for seing the King is injur'd crimine fractae pacis and that by this Act the King has right to the half of the penalty and had formerly right to all by the 5 Act Par. 1 Ja. 3. The party cannot Discharge the Kings part Contravention is a penal action even at the privat parties instance and therefore titulus coloratus will defend against it and thus a Contravention being libelled as infer'd from the casting of a Ditch whereby the pursuers Land was overflow'd The Lords found that a consent from the pursuers Father though he was but Liferenter did defend against that action January last 1633. L. Weyms contra L. Gairntilly Without prejudice to pursue an Action of Damnage and Interest to which the Lords turned this Libel without necessity of a new Process And this action is likewise elided for the same reason by subsequent Dissimulation and therefore a pursuit of Contravention founded upon cutting of Trees in the pursuers Wood was elided by the same pursuers granting Licence thereafter to the same Defenders to cut in the same Wood which posterior Licence the Lords found did infer a presumptive Remission January 11. 1633. Denniston contra Lindsay Nor is this Contravention infer'd by Injuries done upon provocation or self-defence but though provocation seems to be good against the provocker yet it seems not to be good against the King and it may be doubted whether the penalties of the Acts of Parliament may be sought by and attour the damnage and interest or if the damnage is to be a part of the penalty HOpe observes from the Narrative of this Act that as only Landed men can be Judges in Perambulations so Landed men ought only to be received Witnesses in Heretable Debates but this Observation holds not in our Practique which allows any habile Witnesses in perambulations and all other Heretable Debates BY this Act all Heretable Obligations or Writs of importance are to be subscriv'd and seal'd before two famous Witnesses if the parties can Write or by two famous Notars before four famous Witnesses if they cannot write Observ. 1 o. That Sealing is not necessary but Subscription is sufficient in parties and is not necessary in witnesses by this Act though it be requisit by the 5 Act 3 Par. Ch. 2. even in Witnesses also and though the Sealing be only remitted in Papers to be Registrated by the 4 Act 9 Par. Ja. 6. Yet it is not necessary in any Writ by our present Custom Observ. 2 o. That in our practice all Writs exceeding an hundred pounds are Interpreted to be Writs of importance and so to need Witnesses January ult 1623. But if any sum be to be annually pay'd that Writ whereby it is to be pay'd requires Witnesses though never so small because yearly Prestations may arise to a considerable sum July 4. 1632. and though sums above 100 pounds require Writ Yet Intromission with Victual or any thing else probable by witnesses as all other things consisting in facto are as also intromission with uncoyn'd Money or Silver in mass is probable by Witnesses though exceeding 100 pounds But promises nuda emissio verborum though for less sums than 100 pounds are only probable by Writ because By standers may mistake the position and force of Words January 19. 1672. Douchar con Brown Observ. 3 o. This Act is only to be extended to such things as require Writ ex sua natura and to which Writ uses to be adhibit for Merchant-bargains made in Mercats do not require Wâ—â—t and so are probable by Witnesses for men use not nor cannot adhibit Writ in such cases nor are Witnesses requisit in Discharges granted to Tennents by the Masters because of their Rusticity and the smalness of the sums Nor are Witnesses requisit in Contracts of Marriage upon which marriage has followed nam notorietas facti habetur pro testibus July 1. 1662. Breidie contra Breidie But it may be doubted whether this holds in Strangers such as are third parties and I think they are not oblig'd to pay the Tocher though it certainly holds in the Man and Wife themselves who Contract and though it hold not in third parties who are meer Strangers yet it should hold in the Father when he obligeth himself to pay the Tocher where there is a tripartite Contract subscriv'd by many parties they are in place of Witnesses to one another all parties having subscriv'd July 19. 1676. Forret contra Veitch And a Writ having the Substantials filled up with the Granters own hand is equivalent to its being Subscriv'd by Witnesses January 23. 1675. Vans contra Malloch Observ. 4
Interdictions have been introduc'd amongst us for preservation of ancient Families for they extend not to secure Moveables or against personal Execution and it was found that many weak persons would consent to a voluntar restraint who would not compear Judicially to be restrained and the Letters of Publication passing upon a Bill by Deliverance of the Lords of Session seems to be a kind of interposing of the Authority of a Judge and so to make the voluntar Interdiction a Judicial Interdiction But the Narrative of this Act confesses that Interdictions upon consent are beyond the first design of the Law It is observable 1 o. That Interdictions need not be Intimated to the party Interdicted or execute against him December 11. 1622. Seaton contra Elleis Though Inhibitions must be execute against the person Inhibited The reason of which difference is because the person interdicted having consented there needs no intimation be made to him Obs. 2 o. The Stile in all such Letters is ordinarly the rule of all Decisions upon them and yet interdictions were found not to annul moveable Bonds though the Letters did discharge the granting such Bonds and that because Interdictions do naturally strick only against alienation of Heretage Our Law thinking Moveables of lesser importance or else because that would stop Commerce and straiten too much the person Interdicted July 11. 1634. Bruce contra Forbes June 20. 1671. Cranford contra Hamilton And though an inhibition did expresly discharge the granting of Renunciations Yet a Renunciation of a Wodset was not Reduc'd as granted after Inhibition since the Wodset was prior and so the Renunciation by the person Inhibited depended upon a prior Obligation July 16. 1667. Elleis contra Keith But by a late Act of Sederunt the 9 of February 1680. It is declar'd that if the User of an Inhibition shall intimat to the person who has Right to the Reversion that the Wodsetter or Annualrenter stands Inhibited at their instance and shall produce the said Inhibition duly Registrated at the time when he intimats that then the Renunciation or grant of Redemption though proceeding upon true payment shall not be sustained without Citing the Inhibiter There were no formal Inhibitions in the Civil Law but the Doctors speak of a prohibitio alienationis equivalent thereto Mâ—vius de Arrest c. 9. num 25. Arrestari possunt res moâ—iles immâ—bilium supervacanâ—um est arrestum cum loco moveri non possunt ejus tamen vice quoad illas obtinet prohibitio alienationis quae impetrari solet a judice quoties justus metus est ne alienando debitor deteriorem reddat petitoris causam essicitque ut non â—iat alienatio ipsius rei num 29. Judex ob aequitatem talem Inhibitionem decernere debet num 32. pro arresto habetur in immobilibus interdictio usus corum so that Interdictions and Inhibitions are a resemblance if not a species of Arrestments and I think with Maevius that the word comes from the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 placitum incorruptum vel inviolatum because by all these remedies the obtainers rights are preserv'd inviolable Inhibitions have their Origine from the Canon Law whereby if the Secular Judge did interpose in any thing that was Ecclesiastick the Ecclesiastick Judge did Inhibite him to proceed And Inhibitions are mentioned cap. causam Ext. qui sil sint legit cap. tuam Ext. de ord cognit and with us they were first used in the matter of Teinds in the same sense but now the word is extended to Letters whereby the Judge inhibits debitors to sell in prejudice of Creditors The publication of Interdictions comes not from the Canon Law but from the French where it is necessary that they be published in Paraeciâ Mercatu as with us Vid. Argent tit des Mineurs Art 492. where he likewise determines that if a third party knew of the Interdiction either by being a Witness or by a privat Intimation made to himself that any right made to him would be null with us also the raising of an Inhibition upon a Bond of Interdiction was found equivalent to a publication the design of the Letters of Publication being only to put the Lieges in malâ side 10 November 1676. Stewart contra Hay of Gourdie where it was likewiâ—e found that the person Interdicted might after Interdiction sell his Land notwithstanding thereof to a third party if the Bargain was profitable and that without the consent of the Interdicters but in that case the Bond of Interdiction was many years kept up and the Inhibition thereupon was never execute till about the very time the communing begun for sale of the Interdicted persons Lands Observ. 3. That albeit all Inhibitions and Interdictions are to be Registrated by this Act within 40 days yet Inhibitions for Teinds need not to be Registrat for an Inhibitions for Teinds is but in effect a Summonds or Warrand discharging the Party to lead but not discharging third Parties to buy and so needs not be Registrated Obs. 4. That though by this Act they are to be null if they be not Registrat in the Sheriffs Register yet by 264 Act Par. 15 Ja. 6. It is sufficient to Registrat them in the Registers of Stewards or Lords of Regalitie within which they dwell and now they may be Registrat in the general Register at Edinburgh which is not here mention'd because it was not extant the time of this Act and Registration in the general Register at Edinburgh is allow'd by the 13 Act Par. 16. Ja 6. Observ. 5. Whereas this Act appoints them to be Registrat within 40 days after the publication it is doubted whether the day whereupon the Letters were execute or Registrat is to be numbered amongst the 40 days But by the late Decisions it is found sufficient that either of these days be free Nota Inhibitions prescrive from the last Execution but not from the date of the Registration for Actions might have been intented upon them before Registration 19 February 1680. Lutesoot contra Glencorse THis Act appointing such as are absent from the Convention of Burrows to be fyn'd and that upon their Acts the Lords of Session grant Letters of Horning c. is in observance except in so far as these Letters are ordain'd to pass at the instance of the Burgh of Edinburgh for by an unprinted Act of Parliament 1607. Execution is allow'd to pass at the instance of the Agent of the Burrows and the Letters are now still raised in his name This Act ordains the Burrows to be cited to their General Convention by a Missive Bill but this is now done by a Missive Letter in which the chief Articles on which they are to treat are exprest to the end they may consult on them with their Constituents and these are call'd the Heads of the Missive but this excludes them not from consulting on new Emergents which could not have been foreseen THat part of this Act which
but to the end each distinct Estate might have a special Habit and yet Barons nor Burgesses have as yet no distinct Habit for Parliament FOr understanding this Act appointing the number of the Lords of Articles in every State to be equal and that the most shall not exceed ten nor the least be fewer nor six it is fit to know that by the 1 Act 3 Sess. Par. 1. Ch. 2. The Lords of the Articles are ordained to be elected and constitute in manner following viz. the Clergy choose 8 of the Nobility the Nobility 8 of the Clergy and these sixteen so elected or such of them as are present do choose 8 Barons and 8 Burgesses to whom are added the Officers of Estate and the Chancellor Presides And the Articles being so constitute do prepare Laws Acts and Overtures and orders all things remitted to them by the Parliament BY the 135 Act Par. 7. Ja. 6. no Advocat could plead in Reductions of Forfaulters without a licence which is abrogated by this Act but because this Act gave leave only to persons accused before the Parliament to have Advocats without licence therefore by the 90 Act of this Parliament Advocats are ordained to plead in all Criminal Cases and they do so upon Supplications This craving a Licence was founded upon 98 Act 14 Par. Ja. 3· vid. crim observ tit Advocats THis Act is fully cleared crim observ Tit. Jurisdiction of the Parliament IN this Act the King promises to do nothing that may prejudge the liberty of Voting and reasoning but yet if any person should offer to argue what is down-right Treason this Act would not defend him for by voting and reasoning jointly may be inferred that that reasoning is only allowed which relates to a stated case and to be put to the Vote and nothing that is treasonable will be allowed to be stated in order to a Vote THis Act discharging all contention for priority of place relates only to Parliament and the disturbance thereof but by a Decreet of Ranking in anno 1606. his Majesty having ranked the Nobility has commanded them to observe the Precedency there assigned in all places and that under the pain of being punishable as contemners of his Authority THough by this Act all actions of molestations are ordained to be pursued before inferiour Judges as being naturally but actions for cognoscing of Marches where the controversie being facti can best be understood upon the place yet now such actions are ordinarlie pursued before the Lords because there is a Declarator joyned with the molestation for the Pursuer Libels that though such Lands be his Property yet he is molested in the possession thereof and the reason of this Invasion is because Declarators of Property as all other actions concerning double Rights can only be pursued before the Lords of Session The form prescribed to molestations by this Act is that the Lords shall direct Letters to the inferiour Judges upon 15 dayes warning who shall continue their Courts from 8 dayes to 8 dayes and these inferiour Judges having discust the points of Law they shall choose an Assize the most part whereof shall have 4 Ploughs of Land or 300 Merks of yearly Rent in the same or Neighbouring Parochs if there be mutual pursuits the Judge shall discuss both together and choose an Assize out of the Assizes cited by either party equally and the Odd-man to be choos'd by Cavil if the Judge ordinar be suspect the Lords shall grant Commission by their own Act or by a Commission under the testimony of the Great Seal to unsuspect Judges This form is still almost in observance only the Lords in dubious cases grant Advocations to themselves where the Judge is suspect and after the Cause is debated the Lords ordain the Ground to be visited by some of their own number or grant Commissions to others if the Lands ly very remote but these Commissions under the testimony of the Great Seal are absolutely in Desuetude If the most part of the Inquest be not clear the Lords find that in that case the Cause should be Advocat to them as the Supream Court and they will judge according to the probation already taken or will grant warrand to cite new Witnesses as they did 21 July 1675. Walstoun contra Cheislie Though this Act appoints the Inquest to be chosen of Landed-men having 4 Ploughs or 300 Merks and that in or near the Paroch where the contraverted Land lies yet the verdict will be sustained though they have not so much and though they dwell not in that Paroch albeit there be such in the Paroch This was formerly appointed §· 14. c. 74. lib. 2. R. M. where such cognitions are appointed to be per fideles homines de viceneto And Skeen there observes that Perambulations differ from Molestations in that Perambulations are petitory Judgements and concern Property but Molestations are only possessory Judgements though both tend to the tryal of Marches Nota That by the last Clause of this Act the Members of the Colledge of Justice are exeemed from Tryal before Inferiour Courts which was formerly granted in Removings p. 6. c. 39. Queen M. and is here extended to all Causes according to old accustomed use and though it was alleadg'd that thir last words were restrictive and so the Members of the Colledge of Justice could not Advocat their Causes from Inferiour Courts except in such Cases only as they could prove old use and wont yet these words are found Exegetick and to be equivalent as if the Act had said because of old accustomed use granting them that priviledge and this was very reasonable for since they are oblig'd to attend the Lords and their Clients the Citing them before Inferiour Courts had been inconsistent with both The Action of Molestation is the same with us that finium regundorum was by the Civil Law and what can stop Perambulations in our Law are set down Statut. David 2. cap. 20. where amongst other things it is observ'd that a Minor is not oblig'd to Defend in Perambulations and this is the only place in our written Law where that old Maxime is to be found minor non tenetur placitare de hareditate paternâ and yet it seems that a Molestation being declar'd by this Act to be judicium possessorium a Minor should be oblig'd to Defend in this as he is in all other possessory Judgements but the reason of this Exception in Molestations seems to be because ordinarly Molestations resolve in Declarators of property or are joyn'd with them BY this Act the Defender is indefinitly to pay the Expence of the Obtainer of the Decreet at the modification of the Judge vid. Act 110 Par. 7. Ja. 5. But though this Act be general yet statutum quod disponit simpliciter ut victus victori in expensas sit condemnandus hunc sensum admittit si non habuerit justam litigandi causam hic quippe sensus juri communi est
Gentlemen within the said Western Shires be above all exception and be more eminent that there are so few of sound Principles there yet to speak modestly the generality of the Inhabitants of these Shires has not been so forward to desire or promote His Majesties Restitution and Interest that now after His Majesties happy Re-establishment they should obtain what they could never effectuate in any time and should be gratifi'd to the prejudice of other Shires of undoubted and constant Loyalty and the overturning the ancient Law and Way of the Kingdom 8. As to the pretence of inequality in the old Way it is to be considered that though an Arithmetical proportion and exactness is not to be expected in any Way Yet there is more reason to presume for the justice and equity of a legal way venerable for antiquity warranted by express Laws and immemorial Custom which for any thing known had its beginning in the time of Freedom and has been continued in the best most peaceable and pureest times notwithstanding any endeavours to the contrary than for a way contriv'd and hatch'd in the Heart and fury of Trouble and Distempers and brought forth and obtruded upon the Countrey with so much partiality and factiousness that it is well known that the Shires and persons who were in opposition to His Majesty had so great and prevalent interest for the time that the valuations both as to the Quota of Shires and proportions and Rents of private persons were carry'd on by the instruments and Commissioners most inequally to the advantage of their party and the evident prejudice and pressure of whole Shires and all persons who were sincere or had the least Affection for the Royal Interest 9. By the Common and Feudal Law and Law of the Kingdom where the Heir of the Vassal Dieth not Entered the Superiour during the None-entry has right to the Duties of the Land holden of him and when the Heir of Ward-lands doth Enter the Superiour hath Right to the Duties for a year under the notion of Relief which in both these Cases of Relief and Non-entry are payable according to Retoures and the New Extent if the old way of Retoures should be altered in relation to the payment of Taxations why not in order to None-entries and Relief so that they should be payed not according to Retour but Valuations there being no reason that the saids Casualities are not exacted in rigour but the ancient Law and Custom for Retoures How dangerous the preparative may be if the way of Retoures should be altered even to those who are for Novations and what Combustion and Disorder it may occasion in the contrary it is so apparent that it needs not to be represented 10. Whereas it is pretended that the Lords and others of the Clergy will have prejudice by the Old Way both as to their own proportion and the proportion of the Vassals and that they are in another condition than formerly by reason that their Rents are impaired by Valuations and Ministers Stipends it is humbly conceived with all tenderness and respect to the reverend Clergy that whatever others for their own interest do suggest under pretence of theirs The Lords of the Clergy and others will not decline to contribute and be Taxt for His Majesties Service as the other Estates and as to the pretended way of paying Taxation according to the Valuations in these late times they cannot be Taxed in that way because the Rents of the Bishops being for the most part in these times of Usurpation mortified to Universities and other pious uses they were not valued nor lyable to Cess and such like burdens it must then follow that either they must be Taxed in the old Way or else not at all as to the proportion of the Clergie it is designed by all the Laws concerning Taxations and it is not higher than it was at any time since Taxations were granted to His Majesties Predecessors and it is to be observ'd in all Acts of Parliament concerning Taxations The Lords of the Clergie do in the first place before the rest of the Estates make a chearful offer of the same proportion without any grudging and though there needs no reason to be given for clear Law and Practice yet that the said proportion is Defin'd and settled upon good Reason it is obvious seing the same is impos'd in order both to their Spirituality consisting in Tiths and their Temporality consisting in Lands and others and it is known that the Tiths are more than the fourth part of the Rent of Scotland and Temporalities and Church-lands will extend to a considerable part of Scotland at least to a fourth part The Clergie having their Benefices and Living not in Property as the other Estates but of His Majesties immediat favour and grant and for their lifetime so that it is not strange that upon the considerations foresaid they pay'd such a proportion of the Taxation the case is not altered upon the account of Valuations and Ministers Stipends that course for Valuation of Tiends and augmentation of Stipends being procured and taken at the earnest desire of the Reverend Bishops and Clergy so that it ought not to be represented as being to their prejudice and de facto the Reverend Bishops and Mâ—nisters have no prejudice by that course by reason the Bishops and Ministers and Benefic'd persons who ought only to be looked upon as Clergie are secur'd by divers provisions contained in the Acts of Parliament anent the Valuation of Tiths and in special that what they were in possession of actually and really the time of the Submission made by them should remain with them in quantitate qualitate unprâ—judged by any Valuation so that the Valuation and augmentation of Stipends being only in Relation to and affecting the Spirituality and Tiends the case neither is nor can be altered as to the Clergie they being secured by the saids Provisions and the burden of augmentation of Stipends and prejudice by Valuations doth only ly upon the Lords and Titulars of Erection and Tacks-men of Tiths as the case is not altered in relation to Benefic'd persons so Stipendiary Ministers cannot be prejudg'd by the good old Way seing by an Act of Parliament 162 Ja. 6 Par. 13. They are freed and exempted of all Taxations and Impositions the burden of the proportion of the Clergie doth not ly upon them but for the most part upon the Vassals and Tacks-men against which they have by the Law a present and summar way of Relief as to the Lands and Temporality of the Clergie they are the same and in the same case as in time of former Taxations and that the Vassals of Erection or of Church-men should be in better case than formerly as to the payment of Taxation It is contrary to Law and Reason seing res transit cum onere causa and that Lay-men acquiring Lands from Church-men should have more case of Taxation as to such Lands than
against Titulars except the Lands were Feued cum decimis inclusis but that they might prescrive Liberation for bygones preceeding fourty years as in Customs and Feu-duties which prescrive not quoad the Right though neglected fourty years February 7. 1666. Earl Panmuire contra the Parochioners of Inverness Vid. Observations upon Act 57 Par. 5 Ja. 4. Observ. 10. That Falshood never prescrives by our Law but whether this be in our Law peculiar to that Crime I have Debated crim pract tit Prescription Observe also from the Narrative of this Act that the Registration of a Paper in the publick Register is a great Adminicle of Approbation for the Paper must be left there Though Falshood prescrives not when the Paper is produced and the Pursuer offers to improve the same yet it may be doubted whether when Papers are only call'd for in an Improbation in order to a Certification and for trying of the Defenders Rights Prescription may not be receiv'd against that presumptive Falshood wherein the Writs are only Declar'd to be false fictione juris and the true intent of such Improbations is in effect but to try the Rights civily and so it resolves properly but in a Reduction though that dangerous Certification of presumptive Falshood is adjected ob terrorem BY the 57 Act Par. 5 Ja. 4. Summons of Error prescrive within three years in so far as concerns the punishment against these who have committed the Error who cannot be punished after three years But yet by this Act the Retour it self may be Reduced at any time within twenty years which Prescription of twenty years militats only in cases of Competition betwixt the several kinds of Heirs amongst themselves as whether the Heir of Line should be prefer'd to the Heir of TailÈie But it does not exclude the clear interest of Blood for jura sanguinis nullo jure civili dirimi pâ—ssunt l. 8. ss de Reg. Jur. and therefore an â—lder Brother was found to have good interest to Reduce a second Brothers Retour January 11. 1673. By this Act though such Retâ—ures may be Reduced in prejudice of persons so served yet if the person so served have Dispon'd their Right to singular Successors having bona fide acquired Rights as said is they cannot be prejudg'd And in our Law this is still introduced for the good of Commerce in favours of singular Successors for how should they know that the Retour was Reduceable Vid Act 18 Par. 23 Ja. 6. Where the like priviledge is granted to singular Successors of Bankrupts BY this Act we find that Executors Nominat had formerly by vertue of their Office the whole Dâ—functs part of the Executry that is to say the whole Executry if there was no Wife or Bairns the half where there was only a Wife and no Bairns Or only Bairns and no Wife and the third where there was a Wife and Bairns But by this just Act they are only ordain'd to have a third of the Defuncts part and there was good reason for abrogating the former Custom whereby the Executor was in effect universal Legatar where there was no other Legatars Albeit in reason the Executor should only have had some small acknowledgement for Executing the Defuncts Will. Observ. 1. That albeit the Narrative of this Act mention only the case of strangers who are Executors nominat yet where a Wife is nominat she has the same Interest viz. a third of Deâ—ds part to which she will have Right beside her own half or third of the Moveables as Relict so that all are understood to be strangers in this Act except the nearest of Kin who would fall to be Executors by Law But if one of moe nearest of Kin were nominat it might be doubted what share of the Moveables such an Executor would have whether he might claim a third of Deads part as Executors nominat and a separat Interest as one of the nearest of Kin It seems probable that if there were only two nearest of Kin whereby the Benefite as nearest of Kin would be greater than as Executors he would only have the half and nothing as Executor because by this Act if the Executors have a third of Deads part by any other Title he is not allow'd another third by vertue of the Act and albeit a Wife have both a half or third as Relict and a separat third as Executor yet the Relicts part is not by Succession but is her own proper Interest arising upon the Dissolution of the Marriage Whereas the question is here only as to Deads part But if there were moe in the same Degree to the Defunct than three Persons whereby the Executors Interest as nearest of Kin would be less than a third In that case he might claim the benefit of this Act Because though the main and ordinary Case considered is of Executor Strangers Yet the Statutory part of the Act is general and it were against Reason that the nearest of Kin should be in a worse condition than a Stranger Observ. 2. That this Act relates only to Executors nominat and therefore Executors Dative have no more for Executing the Office than their Expences which is very reasonable for otherwayes Sâ—â—angers would frequently ingire themselves to the prejudice of the nearest of Kin November 28. 1676. â— Ker contra Ker. Observ. 3. That notwithstanding of this Act where there is an universal Legatar the Executor gets no part of the Defuncts part January 15. 1674. Patoun contra Leishman November 29 1626. Forsyth contra Forsyth Observ. 4. That by the Confirmation of the Defuncts Testament the interest of the nearest of Kin is ipso jure Established so that albeit the nearest of Kin should immediatly Decease before Executing of the Testament the interest that was competent to him is Traâ—smitted to his Children or nearest of Kin as was found February 12. 1662. Bells contra Wilkie Where the three Sisters of Patrick â—ell being Confirm'd as Executors whereof one Deceasing before Executing the Testament her Son did 〈◊〉 in his Mothers Testament the third part that belonged to his Deceased Mother for which the two surviving Executors were found countable to him but where the nearest of Kin Died before the Testament of the Defunct was Confirm'd It was found that the Interest which would have been competent to that nearest of Kin Confirming was not Transmitted to his Executor but that there was place for the nearest of Kin of the first Defunct February 17. 1663. Forsyths contra Paton Where it was also found that a Child having survived his Mother did not Transmit her third to his Father as a legittim But that the Father was lyable for the third of his Moveables to his Wifes Brother who was her Executor and nearest of Kin. THere are two cases provided for in this Act First That Liferent Tacks of Lands and Tiends shall not fall under single Escheat but under the Liferent Escheat and yet if the Superiour to whom that Life-rent-escheat falls
go to the Horn that same Liferent-escheat of the Vassal will fall under the Superiours single Escheat for it is no Liferent in the Superiours person for he has only Right to it during his Vassals Lifetime but not during his own as also for the same reason if the King Giâ—t the Liferent Escheat to a Donatar it will fall under the Donatars single Escheat and if the Donatar assign the same it will fall under the Assigneys single Escheat not because Assignations makes that moveable which was Heretable for Assignations alter not the Nature of the thing assign'd but because the Assigney has not these Rights for his Lifetime The second part of this Statute provides that in case any Tacks of Lands or Tiends contain more Lifereâ—ts The First Liferent only shall fall under the Liferent Escheat by the first Liferenters Rebellon But the remnant Liferenters or Heirs shall not be prejudged It is fit here to observe that if a Tack be set for fifty or sixty years yet it falls under the single Escheat for all that falls not under Liferent-escheat falls under single-escheat and this nor no such number of years is a Liferent but quid juris if a Tack be set for a hundred years which is a Lifetime by express Law And since Tacks were the only habile way of Transmitting Tiends of old and are yet the ordinary way it is hard that all our Rights to Tiends shall fall under single-escheat BY this Act all Reversions Regresses or Bonds for making Reversions or Regresses or Assignations thereto and all Seasines are to be Registrated within sixty dayes after the date of the same and I find that Sand. decis Fris. lib. 3. tit 12. def 15. shews that they have the same Registration of Hypotheques in immobilibus Observ. 1. This necessity of Registration is only introduc'd in favours of singular Successors acquiring posterior Rights and therefore the nullity of not Registration was not sustain'd at the Instance of one who had no standing Right in his Person March 25. 1633. Nor is this Nullity sustain'd in favours of the Disponer or his Heirs for quoad them these Rights are valid without Registration nor was it sustained at the instance of the Son who got the Estate Dispon'd to him by his Father with power to the Father to burden it with a Sum since this Son was found to be no third party February 27. 1667. And for the same reason it was found that the Superiours Seasine was not quarrellable by the Vassal This necessity of Registration being only introduc'd in favours of such as have posteriour Heretable Rights June 12. 1673. Observ. 2. It is thought that the sixty dayes within which Seasins are to be Registrated are so to be counted only that either the day upon which the Writs are dated or the day on which they are Registrated must be free Observ. 3. That since the Act sayes That these Seasins and others shall be Registrated in the places designed in this Act That therefore it may be doubted whether when Lands ly within different Shires but are united if in that case they are to be Registrated in the Shire where the place lyes at which Seasine is to be taken by the Charter of Union or at all the places where the Lands ly Observ. 4. Though this Act appoints Renunciations and grants of Redemption to be Registrated Yet the Lords found that Orders of Redemption fall not under this Act and need not be Registrated July 29. 1623. But yet they found that an Infestment of Annualrent could not be taken away by Discharges granted by the Debitor nor by Compensation of his Debts in prejudice of a singular Successor who had Right to the said Annualrent and that because First The design of this Act appears by the Narrative to be made for security of Buyers and buyers could not be secured if such latent wayes of extinction were allowed 2. An Infeftment of Annualrent is Constituted by a Seasine which must be Registrated and therefore it cannot be taken away but by a Renunciation or some Paper which must be Registrated 3. By the 3 Act Par. 2. Ch. 2. Instruments of Resignation ad remanentiam whereby Rights are taken away are by the same Argument ordained to be Registrated in the same way that Seasins are 4. Though by this Act there be not express mention of Rights of Annualrents yet they are comprehended under the word Wodsets for an Infeftment of Annualrent is but in effect a Wodset of the Rents and though this Act is only urg'd against such as annalÈie their Lands and that it was urg'd that an Infeftment of Annualrent was not an alienation of Lands but rather a Servitude upon them yet this is a mistake for an Infeftment of Annualrent is an alienation else it could not infer Recognition as without doubt it does As also they found that Renunciations of Annualrents which were holden of the Disponer are sufficient without any Resignation ad remanentiam though it was alleadg'd that as a Charter without a Seasine cannot Constitute an Annualrent so neither can a personal Renunciation without an Instrument of Resignation extinguish it But because this Act ordains these Renunciations to be Registrated therefore they are valid against singular Successâ—rs else why should they be Registrated January 7. 1680. Mcclelland contra Mushat Since this Act of Parliament requires that all Seasines Renunciation of Wodsets c. shall be Registrated I think the Booking of them is necessary nor is it sufficient as some pretend that they are produâ—'d and maâ—ked by the Clerk because as they say the Lieges can do no more and they ought not to be punish'd for the Clerks negligence for if this were sufficient no singular Successor could be secure and the producer may pursue the Clerk if he book them not since the Act of Parliament requires actual Registration By this Act all grants of Redemption are to be Registrated for securing singular Successors but seing the using an Order of Redemption with a Declarator thereupon will evacuat the Wodset even as to a singular Successor and yet he cannot know whether there be such an Order used and Declarator obtain'd it not being requisite that either of these should be Registrated it seems that singular Successors are yet unsecure As also since if a person obtain a Decreet against him to whom he sold his Land decerning him to grant him a Reversion conform to his promise this will be valid against a singular Successor though the promise was not and yet the singular Successor cannot know this Decreet nor needs it be Registrated and therefore this Register seems yet no sufficient and adequat Remedy in Wodsets Observ. 5. That by this Act it is provided that Seasins and Reversions therein contained given by Provost and Baillies of Burgage Lands needs not be Registrated neither in Burgh nor Shire as was decided July 21. 1666. And that Seasins of Lands in Leith need not be Registrated though it
be lyable thereafter to do exact Diligence Observ. 3. By this Act it is Declar'd that upon payment of the principal Sum and Annualrent and the Expence bestow'd by the Compriser in passing and obtaining Infestment together with the Annualrent of the said sums and the necessary Expences bestow'd in leading the Comprising that then the Comprising shall expire ipso facto that is to say by way of exception without Declarator though ordinarly an order of Redemption be us'd and not only does payment or intromission with the Mails extinguish the Comprising and prove against singular Successors but even any acknowledgement of payment by the Leader of the Comprising will extinguish the Comprising against those singular Successors July 23 1662. Observ. 4. That the Comprizer is to get allowance of a years Duty as due to the Superiour by this Act and though he get himself entered for less by the Superiour than the years Duty yet he will get allowance of the full years Duty that was due to the Superiour whose gratuity will be of no advantage to the Debitor July 2. 1625. Observ. 5. That by this Act what is pay'd to the Superiour bears Annualrent as do the necessary Expences but it may be doubted if Annualrent be due for Sheriff-fees Observ. 6. That Comprisings are not to run against Minors but that it is lawful for the Minor at any time within the age of twenty five years to Redeem which priviledge was found not only to be due to Minors when the Comprising is led against themselves but even when a Minor has right to the legal Reversion he being himself a second Compriser for even in that case a Minor having led a Comprising may be prejudged as well as the Minor against whom the Comprising is led there being the same parity of reason in both and though this be not clear by the first words of the Exception Yet it is clear by these words And that notwithstanding of the preceeding Laws and Practiques of this Kingdom by the which the Legal Reversion of the Comprised Lands expired within seven years after the leading of the Comprising from the which His Majestie and Estates hath by this present Act and Statute excepted Minors in all time coming declaring the same no wayes to run against them Observ. 7. That because this Act appointed only the superplus of the Mails and Duties which exceeded the annualrent to be imputed in the payment of the principal sum during the seven years of the Legal but did not expresly extend this to the case of Minority Therefore it was found that Minors not Redeeming within the seven years the Compriser had from the expiring of the seven years the whole Rent of the Land for payment of his Annualrent without imputing the superplus in payment of the principal sum because the Act Corrected only that Custom quoad the Legal leges correctiâ—â—â— non extendi debent ultra verba directa expressa February 22 1639. and therefore by the 10 Act Par. 1 Sess. 3 Ch. 2. This Decision was Corrected and it was by that Act ordain'd that Comprisers should impute the superplus of the Rent beyond the Annualrent for payment of the Principal sum not only during the Legal but during the whole course of the Minority THis Act extends all the priviledges granted to Minors in Comprisings to Minors against whom Adjudications are led And from this it would seem to follow argumento hujus legis that whatsoever is competent in Adjudications is not Competent in Comprisings for else this Act had been needless and the Lords would not extend the priviledges of the one to the other in many other cases and so would not allow the Superiour to get a years Duty because the immediat preceeding Act did allow Comprisd Lands to be Redeemable upon the payment of the sums Compris'd for and a years Rent for their Entry But in this Act of Adjudication there is no mention of a years Duty and which therefore was thought to be of purpose omited and so needed a new Law notwithstanding of the parity of Reason whereupon a new Law was made viz. the Act 18 Par. 2 Ch. 2. Whereby not only the Superiour is ordain'd to have a years Duty but it s expresly Declar'd That in all Cases relating to Superiours Adjudications shall be in the same condition with Comprisings and consequentially to this last Act it was found that the Superiour might at his option either Enter the Adjudger or pay the Sums for which the Adjudication was led since the Act of Par. Ja. 3 Par. 5 and Act 37. Appoints this in Comprisings June 10. 1671. Scot of Thirlestoun contra the Lord Drumlanrig As also upon the same Reason the Lords found that the Superiour was bound to receive the Adjudger though he could not produce his Authors Rights Debitors abstracting their Writs because Comprisers are not bound to produce February 9. 1667. Ramsay contra Ker. Nota That Comprisers intrometting are lyable for their intromissions with the Victual according to the Sheriffs Fiars and not according to the Commissars not only because the Commissars Fiars are made only to Regulat Prices betwixt Tutors and Pupils and in other Consistorial Cases but because this Act sayes as the samine were commonly Sold between Yuil and Candlmas in the Sheriffdom where the Lands ly THough regularly Infeftments upon Comprisings and Adjudications ought to be perfected by appending the Great-Seal yet an Extract of the Debitors Infeftment under the Privy-seal is here Declar'd equivalent in so far as concerns the Debitors Heirs because it is presumable that the Debitor has destroy'd or Abstracted the Writs of the Lands Compris'd from him Quaritur Whether this Act should be extended to Adjudications since they are not mention'd here in the very next Act to the Act anent Adjudications THis Act allowing Bishops to Feu out their Ward-Lands is but Temporary for three years and so is expir'd because not renew'd and consequently Bishops have not leave to Feu out their Ward-lands now AS Ministers Gleibs were to be Tiend-free so ought the Soums Grass that is allow'd to Ministers in place of Gleibs be Tiend-free The Reason given by this Act is because the same is dedicated and appointed ad pios usus which is no adequat and sufficient Reason since Lands mortifi'd to Hospitals are destinat ad pios usus and yet are not Tiend-free that being a special priviledge only granted by the Pope to the Coelestines or Cistertians and some few other Orders but ordinarly Hospitals and others are free from Taxations as Act 1 and Act 15 Par. 1 Ch. 1. BY the 2 Act Par. 22 Ja. 6. Deans and Chapters were Restored but by this Act all the Offices and Dignities of the Chapter are likewise Restor'd and it is declar'd That all Deeds done since the date of that Act or to be done thereafter whereby any Member of a Cathedral Kirk being an Office or Dignitie hath or shall be supprest or any
compleating Dispositions and Rights made by the Party where the Granter refuses to compleat the Right himself in that case such Adjudications come not in pari passu upon this Clause July 16 1675. Campbel of Riddoch contra Stuart December 2. 1676. Lady Frazer contra Creditors of the Lord Frazer BY this Act also it is Declared That if the appearand Heir or any person to his behove shall buy in any expyred Comprysings the said Comprysings shall be Redeemable by posterior Comprisers from the appearand Heir or his Confident for payment of the true sums pay'd out by them and that within ten years after the said Right was acquired Observ. 1. That though this be a correctory Law and so ought not to be extended Yet it is so favourable that the Lords extended the same to Rights bought in by Eldest Sons whilst their Father lives though the eldest Son cannot be properly call'd in that case an appearand Heir since an appearand Heir is only he who can succeed in haereditatem jacenâ—em but the Lords would not extend it to the Right of an Apprising bought by the Husband where his Wife was appearand Heir For though the Lords found this reasonable yet they found the Act to be stricti juris and so would not extend it to this Case except it could be alleadged that the sums were truly pay'd for the Wifes behove and the Lands provided to her Heirs and some doubt whether Comprisings bought in by the Tutors and Curators of appearand Heirs be Redeemable upon this Act and since their Pupils may oblige them to Dispone the saids Rights to them though the Comprisings were bought in in the Tutors and Curators own name if they had as much of the Pupils means in their hands It seems that by the same Reason the Pupils Creditors who Comprise omne jus that was standing in their person should have the same priviledge Observ. 2. Though this Clause runs only in favours of Apprysers from which it may seem that they are only allow'd to Redeem Yet the Lords Decided January 9. 1677. Hay contra Gregory That a Creditor having an Infeftment of Annualrent might Redeem from a Compryser who excluded him and it seems by that Decision that any Creditor may have this Benefit as well as Comprisers since they may Comprise Nor are the strict words of the Act to be considered for else Adjudgers could not Redeem since they are not nam'd in the Act. By this Act also not only the Apprising is Redeemable but even Bonds granted for the Sum thereafter Comprised for are null if the Apprising be satisfi'd as said is so that appearand Heirs cannot make use of the Bond or Inhibition upon it and though a Disposition was bought in by the appearand Heir before the Act of Parliament yet if the Infeftment was taken after the Act the Comprising was found Redeemable by the Act for it is the Infestment and not the Disposition which gives the Right because if a third party had been first Infest he had been preferr'd to the appearand Heir notwithstanding of this Disposition July 21. 1671. Maxwel contra Maxwel In which case it was also found that thogh the Act bears that expired Comprisings bought in by the appearand Heir should be redeemable Yet if the appearand Heir buy in a Comprising in cursu the same will be Redeemable if it expire whilst he had Right to it so that upon the whole matter it is observable that even Correctory Laws with us are to be extended in favourable cases so far as to make them answer the Design of the Legislator which is to help the ill that was to be Corrected Observ. 3. That this Priviledge is allowed to the second Compriser not only by way of Order of Redemption but even by raising an ordinary Action so that if he raise that Action within ten years the Lords will find the same sufficient providing he has rais'd a Declarator concluding Compt and Reckoning within the ten years which the Lords will sustain by way of Reply being propon'd upon incidenter in the ordinary action for payment June 26. 1677. Kincaid contra Laird Abergeldie Observ. 4. That these ten years run from the Infeftment taken by the appearand Heir or some other publick Deed as Decreets c. Done upon the Right so bought in else the appearand Heir might keep his Rights latent for ten years and consequently the Creditors could not Redeem because they could not know them It is fit to know that by our Law Wodsets are either proper or improper A proper Wodset is where Lands being impignorated for a sum the Rents of the Land are accepted in satisfaction of the Annualrents of the Money and that without any Restriction upon either side and as to these Wodsets it is by this Act ordain'd that the Wodsetter shall be oblig'd upon offer of sufficient surety by the Lender either to quite his Possession or Restrict himself in his Possession to his Annualrent counting for the superplus But this Act innovating the privat Paction of Parties was found only to oblige the Wodsetter to be countable from the Date of the Offer of Surety and not from the Date of the Act of Parliament February 21. 1666 Lord Borthwick contra his Wodsetters But in this Computation the Wodsetter is to get Defalcation of what he hath depursed upon Reparations or hath lost by Quarterings or any other manner of way Improper Wodsets are these whereby it is expresly Declar'd That the Wodsetter shall not be lyable to any hazard of the Fruits Tennents Wars or Troubles so that the Wodsetter is to have Re-payment of these by and attour the Rents of the Lands which are Declared to be Usurary in time coming and the Wodsetter in all such Wodsets taken since the year 1649. is obliged to count for the superplus more than pays his Annualrent and to impute the same pro tanto in payment of his principal Sum. NOta This Act of Adjournment is the first that I find in all the present Impression of the Acts of Parliament For Parliaments were of old Dissolv'd but now they are ordinarly Adjourned and the Act of Adjournment is neither touched with the Scepter because it is an Act of the Kings and He needs not touch His own Acts nor is it Read in Parliament because by the very Adjournment the Parliament is dissolv'd and it being no more a Judicature nothing can be Read in it But by the 12 Par. Ja. 1. By the black Acts I find that de mandato domini Regis Parliamentum suit continuatum usque ad sestum beati Joannis Babtistae sub praemonitione 15. dierum Whereas though our Adjournments bear now no dayes upon which Premonition is to be made yet when the King Adjourns Parliaments by Proclamations beyond the days to which it was Adjourned by Act of Parliament He uses to Adjourn them upon the Premonition of fourty dayes and fifteen was too short It was doubted whether if the Day to which the
Act that the Militia is come in place of the old Weapon-showings and that there being 20000 Foot and 2000 Horse granted as a Militia by the 26 Act 3 Session of the first Parliament which does specifie the particular proportion of Horse and Foot to be given by every Shire It might have been thought that these proportions could not have been altered but by the Parliament and yet the King and Council having Converted the Foot of some Shires unto Horse seems to be founded upon the last Clause of the former Act whereby His Majesty is intreated to give Directions to His Privy Council for mannaging of that whole affair as His Majesty shall think fit which Acts of Council and the said alteration of the proportions are hereby Ratifi'd as having been Legal and in the last Clause of this Act His Majesties Subjects are Commanded to obey whatever Orders and Directions they shall receive from the Privy Council relating to the Militia and upon these Clauses was founded the overtures of the late Conversion of the said 22000 to 5000 augmenting the number of the days wherein the said 5000 are to serve according to what might have been exacted from the whole 22000 so that the 5000 are to meet the number of 176 dayes because the 22000 were oblig'd to meet fourty dayes though this last model was by some objected to be a standing Force and all Laws are stricti juris and to be fulfill'd in forma specisica but especially Taxations which are a Gratuity founded upon the free Offer of the people as this is to allow Conversions in such Cases would discourage the Subjects from future offers This Act likewise did Ratifie the Acts of Council which appointed the Shires to provide at their own Charge Colours Standarts Drums and Trumpets though that might seem an Imposition but these being necessars and the natural Consequents of the first Grant and the Parliament having granted to the Council the former power as said is these Acts of Council are therefore hereby approven as Legal Both this and the former Act doe ordain the Militia to be furnished with fourty Dayes Provision which was the old provision that was ordinarly to be made by such as came to the Host albeit sometimes twenty dayes provision be only appointed as in the 90 Act 13 Par. Ja. 3. And of late the Council has ordain'd this provision to be made in Money though it was contended that the Parliament having appointed only provision to be made it was in the power of the persons obliged to furnish their own men according to their conveniency But Money being thought fitter for expedite Marches the Council thought they were authorized by the former Clauses to make this Conversion and some have thought that by the same power the Council could ordain the Shires from whom no proportions of Militia was sought to advance free Quarter to such of the Militia as could not furnish themselves or at least might force them to be the first advancers in Cases of necessity This Act concerning the Militia is further clear'd by the first Act of the third Session of this Parliament appointing such as 〈…〉 serve either as Officers or Souldiers in the Militia to accept and to take the Oath of alleadgeance and that those who are set a-part for the Militia be not altered c. NOtwithstanding of all our former excellent Acts for securing singular Successors yet they were still un-secure because they could not know if the Vassal had Resigned his Feu ad remanentiam in his own Superiours hand for in that case there was no Seasin requisite which is the only Register whereby singular Successors know if Lands were formerly Dispon'd and therefore by this Act it is appointed that these Instruments of Resignation ad remanentiam which are equivalent to Seasins be Registrated in the Register of Seasins within sixty dayes which is the time appointed for Registrating of Seasins by the 16 Act Par. 22 Ja. 6. By this Act likewise as in that Act Instruments of Resignation of Lands holding Burgage are excepted but it seems that they must be Registrated within the Town-Court-Books within the same sixty dayes for the Act sayes only That such Instruments being Registrated there shall not fall within the Certification BY this Act it is Declared unlawful to poind Moveables upon Registrat Bonds or Decreets for personal debts till the parties be first Charged and the dayes of the Charge expire The reason of which Act was because Noblemen and persons of quality were oft-times poinded and so affronted and Merchants surprized and thereby Ruined before they knew that a Decreet was recovered against them or their Bond was Registrated But this Act was found not to extend to other Diligences ex paritate rationis this being an Act restrictive of former Laws and Customs From this Act are expresly excepted poindings used against Vassals for their Feu-duties But this Exception was very unnecessary and unproper for such poindings did not at all fall under the prohibition of the Statutory part of the Act which only prohibits the poinding Moveables for personal Debts Exception is likewise made of Decreets obtained by Heretors against their own Tennents in their own Courts only and therefore it has been doubted whether Tennents may be Remov'd and Ejected without a previous Charge and though upon Decreets before the Lords previous Charges are necessary Yet upon Decreets of Removing before inferiour Courts it is the Custom to eject immediatly and though this may seem hard yet it is necessary because the intrant Tennent must Remove immediatly and so must have a place to which he may remove sibi imputet the Tennent who being warned did not provide himself timeously IT is fit to observe from the Narrative of this Act that the Parliament thought the King and Council had power to emit Proclamations Commanding the Parochs to Protect and Defend their Ministers and to be lyable to such Fines as the Council should think fit besides the Ministers Reparation if the Offenders were not brought to condign punishment which shows what great power the King has in the like Cases and the Council are hereby authorized to proceed in taking such courses for the future which general power may go very far especially where these courses are otherwise satisfied by necessity This Act is more fully Explain'd in the observations upon the 27 Act Par. 11 Ja. 6. FRom this Act Discharging Suspensions against Bishops Ministers and other Benefic'd persons without Consignation It is observable from comparing the Narrative and Statutory part of the Act that Vniversities and Colledges are still accounted a part of the Clergy and have still the same priviledges with them SInce we find that the Parliament grants Acts for Naturalization of Strangers as is clear by this and by the 65 Act Par. 8 Q Mary It may be doubted if the King can Naturalize Strangers by a Deed of His for else those Acts were unnecessary and in
unsecure during a whole Minority yet the said Legal in Adjudications will not run against Minors for Adjudications having come in place of Apprisings are to be regulated by the same Rules except where it is otherwise provided by express Law and therefore Adjudications cannot be led upon Bonds bearing Requisition except Requisition be first used this being formerly necessary in Comprisingâ— February 11. 1680. Gordon contra Hunter albeit it was there alleadg'd that an Adjudication was a more solemn Action requiring previous Citation of Parties than a Comprising and so there needed no Requisition in Adjudications as in Apprisings Observ. 3. That where Land is Decern'd proportionally to the sum with a fifth part more the Creditor is to possess the Land in satisfaction of his annualrent during the not Redemption without being lyable to Restitution or Compt and Reckoning and therefore when the Act does thereafter say that he shall be pay'd of his principal sum and annualrent that must be understood in the Terms foresaid viz. that the Rent of the Land shall be allowed for his annualrent without Restriction Observ. 4. If the Creditor acquire once Possession he cannot thereafter use personal Execution which I think should be understood only where the Debitor compears both because this Clause is adjected to that part of the Act which presupposeth Compearance and before the Clause punishing his absence and because it were unjust that a Debitor should have advantage when he will not consent It may be also doubted whether though the Debitor compear he may be free of Personal Execution when the Land adjudged is not able to pay the sum according to the Terms of the Act for the reason of the Law ceaseth viz. That a man should not use Execution when he has attain'd payment and thus albeit of old in Comprisings the Compriser could not use personal Execution where he was in possession except he Renunced the same July 23. 1633. yet where he had not attained the possession albeit the Comprising was expir'd he might have us'd personal Execution by Horning and Caption though not by arrestment and poinding December 7. 1631. Observ. 5. That since this Act Declares that neither the Superiour nor Adjudger shall be prejudged by this Act it clearly follows that the Superiour may in this case as in Comprisings Redeem the Adjudger by payment of the sum it being unjust that a stranger Vassal should be forced upon him when he is content to pay what is due Quaritur Whether albeit by this Act no Comprisings can be led of Lands not already Comprised if yet Adjudications may not be led even where Lands are formerly Comprised for this is not expresly discharg'd and this seems to have been introduc'd in favours of the Creditors who may make their own Election and I think they may Whereas it is Declar'd That the Superiour and Adjudger shall be in the same case after Citation in the Process of Adjudication as if Apprising were led and a Charge given It may be doubted how a simple Summons can be equivalent to an Apprising and Charge for if that were sustained he who had rais'd the first Summons would be preferr'd to him who having rais'd a posterior Summons had got the first Decreet because the first Summons would be equivalent to an apprising and consequently to a Decreet of Adjudication But the Lords have very justly found that the meaning of this Clause is That the first step in an Adjudication shall be preferable to the second step in a Comprising and so forth But not that the first step in an Adjudication shall be equivalent to a compleat Comprising and yet it still remains that a Summons in an Adjudication is equal to a Denunciation in an Apprising for tho a Denunciation be the more solemn Act yet a Summons publickly call'd in the House does likewise make the Diligence very notour King CHARLES 2. Parliament 2. Sess. 4. THE King having Designed to improve Salt made in Scotland whereby poor people were maintained and the Money kept in the Countrey did buy the Salt made in Scotland and ordain it to be sold out at reasonable Rates which was called the pre-emption of Salt but the Servants and Officers imployed in venting the Salt having taken exorbitant prices as was alleadg'd and remote places such as Galloway and the Highlands being ill furnisht since it was difficult to keep Store-houses every where and many fearing that this might be a preparative for the pre-emption of Coal Corn c. His Majesty was therefore pleased for removing all such jealousies and prejudices to condescend by this Act to discharge the said pre-emption and all pre-emption of Salt in time coming but to give some advantage to our own Salt above forraign Salt our own Salt is declared free of all Excise and imported Salt is to pay fourty shilling upon every Boll THis Act is Explain'd in the Observations upon the 7 Act 3 Sess. Par. 1 Ch. 2. Nota That before this Act the King had right to twenty shilling of Custom for every Tunn of imported Beer by the 179 Act Par. 13 Ja. 6. MAny Noblemen and Gentlemen having been ingaged for Debts contracted by our late Rebellious Parliaments and Committees and not being able to shun these Debts because they had given their privat Security for the same the Parliament 1661. and posterior Parliaments suspended Execution upon them but could not in Justice take away the Debt Therefore for payment of this Debt an Imposition was granted upon Tobacco to be imployed for payment thereof as being the most unnecessary Commodity that was imported and yet this being complained of as a Monopoly or at least a great Imposition upon a Commodity which though at first useless was now by Custom necessary His Majesty did therefore Discharge the said Imposition and allow the importing of Tobacco in all time coming free of all Custom and Imposition except the ordinary Custom King CHARLES 2. Parliament 3. AFter many Draughts of an Act to secure the Protestant Religion wherein His Royal Highness allow'd all Liberty and Encouragement many of them were found great snares to the Subjects and thereupon it was remembred that in anno 1633. King Charles who was a very zealous Protestant and dyed a Martyr for our Church resolv'd to make new Laws for its Defence but it was found that the Laws made by King James Sixth were so full that nothing could be added and that was very probable for that King being a most Learned and Zealous Protestant and the dangers arising to the Protestant Religion being then so Recent and urgent it cannot be thought that any thing would have been omitted and therefore as that Parliament satisfied themselves with a general Ratification of all former Acts so did this Parliament but to shew their earnestness this Act appoints the old Laws against Popery and for securing the Protestant Religion to be put to Execution according to the Tenor and proport of these Acts which
Clause is here added to this Act and is not in the 4 Act 1 Par. Ch. 1. THis Act is Explained in the Observation on the 8 Act 1 Par. Ja. 6. but more fully in my Jus Regium Cap. The Right of Succession Defended and it is remarkable that it was past without a contrary Vote or the least Objection only most thought it so just that it was unnecessary and really it had been so if some in England had not controverted it THis Act Discharges â—ree-quarter and Localities but because some pretended that by this Act they were free from all necessity of carying Corn or Strae or Grass whereas if this were true the Souldiers Horses had been made unfit for Service by such Carriages and the Troopers and Dragoons might have been easily Murther'd whilest they went out singly to bring it in therefore by Act of Council this is fully regulated THere having been a full Debate before His Majesty how far Masters were answerable for their Tennents the Parliament to prevent the like for the future made this Act being fully convinc'd that Masters in Scotland could command their Tennents and Servants suitable whereto there are many old Statutes Commanding Masters to present them and finding that without this the Peace could not be secured and upon the event it is found that this has secur'd the Peace for Tennents and Servants knowing that their Masters would find out their Crimes which Sheriffs and others could not know and that they could not get Service or Land any where If they were disorderly they have conformed and this hath Restor'd Masters to the just Influence which our Predecessors had over their Tennents and Servants and which they lost by their Fanaticism by which they came to depend only on their Ministers and minding more Conventicles than their Work and in which extravagancy they were so far advanc'd that they would not see themselves till they were secur'd that they should be allow'd to go to these nor is the Master ty'd by this Act to any hard thing since by presenting them to Justice or by putting them out of his Land or out of his service he is free from all danger and this is in his power as also to secure him yet further it is Declar'd that he may break their Tacks and that if any Master take them who are put away he shall be lyable unto three years Duty It having been also Debated before the King that there could be no Deputs nam'd for putting the Laws against Ecclesiastick Disorders to execution within the bounds of Heretable Judges therefore His Majesties Power is Declar'd as to this Point by the Clause of this Act but this is now unnecessary because by the 18 Act of this Parliament His Majesties cumulative Power is Declar'd as to all points IT is very observable that the longer the World lasts Probation by Witnesses-lessens alwise in esteem because men grow alwise more Wicked In our Saviours time out of the mouth of two or three Witnesses every word was to be established Thereafter by our Law and by the Laws of other Nations nothing above an hundred pounds could be proven by Witnesses And albeit of old the affixing of a Seal was probative without a Subscription or Witnesses but as by former Acts the Subscriptions of Parties is Declar'd requisit So though formerly the Designing the Witnesses was sufficient although they did not Subscrive Yet by this Act no Writ is Declar'd Probative except the Witnesses Subscrive and without their Subscriving the Writ is Declared null But the Act of Parliament does not condescend whether this nullity shall be receivable by way of exception Or if it must require a Reduction But I conceive it must be null by way of exception since the Law hath Declar'd such Papers null and the want of Witnesses appears by production of the Paper it self The second thing Established by this Act is that no Witnesse shall sign as a Witness to any Parties Subscription except he know the Party and saw him subscrive or saw or heard him give warrand to the Nottar or touch the Pen The occasion of which part of the Act was among other remarkable Cases that a Gentlewoman pretending that she could not Write before so many Company desir'd to sign the Paper in her own Chamber whereupon she got the Paper with her and at her return brought it back subscriv'd and she thereafter rais'd a Reduction of the same Paper as not truly sign'd by her and though this should hardly have been sustainable at her own instance because she was heard to own it by the subscriving witnesses and the whole company yet this exception of dole could not have secluded her Heirs or Executors from reducing it as said is If witnesses without seeing a party subscrive or giving warrand to subscrive shal subscrive as witnesses they are declared to be punishable as accessory to Forgery which quality some think was added to seclude the punishment of Death it being as may be pretended too severe to punish by Death that which is the effect of meer negligence and unto which very many fall through negligence yet our Law knows no difference betwixt accessories and principals further than ex gratia accessories may sometimes find a mitigation of the punishment I conceive also that a party signing as Witness without seeing the Paper subscriv'd should be lyable to a third party who got assignation to that Paper in Damnage and Interest if it be Reduced ex eo capite since he was a loser by his negligence But quid juris 1. If the party himself to whom the Paper was granted were pursuing such an action for Damnage and Interest since he should have considered his own security and the Witnesses might have trusted to his exactness 2. Quid juris if the Witness heard Command given to one of the Nottars since the Act says That unless they heard him give Warrand to a Notar or Notars and touch the Notars Pen and yet even in that case the Paper may be null because there was not a Command given to both the Notars and a third party may thereby lose his Right 3. It may be doubted if upon a Notars asking if the party will warrand him to subscrive the party do give a Nod whether that Nod will be equivalent to a Warrand and free the Witness who thereupon subscrived as Witness And it seems it should for the Act says except he saw or heard him give Command and a man cannot see a Warrand otherways than by a Nod and nutus was sufficient by the Civil Law to infer a Mandat The third point in the Act is that albeit in all Forraign Nations the Subscription of a Notar proves in all Obligations for there the Notar keeps the Paper sign'd by the Party and gives only a Duplicat sign'd by him and albeit in our Law a Notars Subscription did prove in all Instruments such as Seasins Intimations c. If the Witnesses were
the Jurisdiction of the Wardens by this Act is prorogated to the cognition of all Crimes which were necessary to be judged by them for preservation of the peace betwixt the Kingdoms and so the first part of the Act specifying Treason was unnecessary for it was comprehended under the general but now the Commissioners of the Borders who are come in place of the Wardens have power directly and so not only incidenter to judge Thefts and many other points of Dittay TO add after these words The King may make any man a Lord of Parliament yet by the constant course of posterior Acts of Parliament concerning elections and representatives of Shires in Parliament and by the constant custome acknowledg'd both by King and Parliament none can represent Shires in Parliament but such as are actually chosen by the Shires whom they represent AFter these words That a Registrat Extract will not stop a Certification when a Horning and its Executions are called for but the Principal must be produced It is fit to add That though this hold against the User of the Horning yet the Kings Donator is not oblig'd to produce the Principal Horning for else by collusion betwixt the Debitor and the Creditor the Kings Donator might be easily prejudg'd WHereas it is said that decimae inclusae are to be burdened with no part of the Ministers Stipend for clearing whereof it may be added that this was so decided before the Commission in January 26. 1675. Heretors of Tulliallan contra Colvill but afterwards in March 1684. the same Case being heard in Praesentia before the Lords by a reference from the High Commission it was found that conform to this Clause in the Act of Annexation reserving the tenth penny to the Ecclesiastick person that therefore the Heretor having right to his Lands cum decimis inclusis should be lyable to the Minister for the tenth part of his Feu-duty with relief to him against the Titular pro tanto AFter these words The Earl Marshal contra Brae add this Decreet was in foro And Stairs asserts that competent and omitted before Baron-Courts is not considered THe answer to this doubt is that the Act of the Convention Anno 1665. doth not make either Stipendiary Ministers or Ministers having modified Stipends lyable to Impositions but only ordains Beneficed Persons to be Taxt And the Convention 1667. having ordained the Impositions then laid on to be Levied according to the Valuation led in Anno 1660. and not according to the retoured Duty which was the old way did ordain that Benefices should be valued and pay in so far as these Benefices exceeded the modified Stipend and so they are burdened in both these Acts as Beneficed persons and not as Stipendiary Ministers of whom this Act only speaks IN the second Observation upon the said Act it is said that the Lords will allow the user of a Writ to condescend who was the Writer albeit his name be not insert nor condescended on in the Writ But now by the 5 th Act Parl. 3. Ch. 2. all Writs not condescending upon the Writers in the Body are absolutely null and not suppliable by a condescendence ex post facto THis Observation should be thus worded The Act here related to is the 34. Act Par. 6. Q. Mary and the Acts dispensed with both in this and the said 34. Act is the 77. Act Par. 6. Ja. 5. WE have this custome of Morning-gift from the Germans which is called in their Language Morgengab and is learnedly treated by Milerus in his Gamologia personarum illustrium cap. 6. Where he defines Morgennatica to be donum matutinale quod olim apud Germanos Francos una cum doâ—e proprium patrimonium erat uxoris vid. pag. 160. WHereas it is said there that a Band wanting Witnesses is null if the same exceed an hundred pounds and is valid if restricted to 100 pounds It is fit to add that this seems to be somewhat dubious in respect of the 175 Act Par. 13. K. Ja. 6. and 5. Act Par. 3. Ch. 2. which declare all Writts without exception null that are not subscribed before Witnesses IT being asserted in the Observations upon this Act that the reservation of the Act extends as well to the Patronage of Mensal Kirks as those that are of the Bishops representation this Caution should be subjoyned that notwithstanding of the Decision there mentioned March 25. 1631. It may be contended that Mensal Kirks are not contained in the said exception and that because that exception mentions only Patronage of Kirks pertaining to Bishopricks whereas a Mensal Kirk is not Patronate being a part of the Benefice and the disponing a Mensal Kirk is a formal Dilapidation of the Benefice and so contrary to other Acts of Parliament NOtwithstanding of the decision I have there cited it seeâ—s that this Act of Parliament is designed to make all Retours even at the instance of the nearest of Kin irreduceable after 20 years and that even where competition is betwixt Heirs of the same kind as if a second Brother had served himself Heir to his Father during the life of the elder Brother or his Descendents in lineà recta and it seems this has been the opinion of the Lords in the case Younger contra Johnstoun 22. Novemb. 1665. Likeas the Act of Parliament makes no distinction but on the contrary having extended the Prescription of Retours from 3. yearâ— to 20. and that only in favours of the righteous Heir and nearest of Kin it declares generally that after the said 20 years no party shall be heard but yet it seems very hard that if a second Brother himself who knew he had an elder Brother or yet more if he were keeping daily correspondence with him whilst he wâ—re abroad should serve himself Heir to their Father that thereafter this Service might not be reduced notwithstanding of this Prescription of 20 years but it would likewise seem that there might be a speciality in this case because the Dole or it may be the knowledge of the second Brother without any Dole in some cases might hinder Prescription which requires in Law bona fides as one of its essential requisits and yet if a third party bought or comprised that Estate the Prescription might be valid because the impediment being personal could not prejudge him and it is fit to observe that what I said in general in my Observations upon that Act concerning singular Successors was only meanâ— of singular Successors acquiring Rights before that Act for they having bought bona fide before that Act a supervenient Law could not prejudge them FOr clearing the 4. Observation upon the said Act it is fit to take notice that albeit it be there insinuated that Lords of Erection pay only a Blench Duty for the Lands Feued out to them the time of the Erection yet it appears both by the Surrender and Decreet Arbitral following therâ—on
Rob. 1. They who take Lands to Champart are to be in the Kings will and lose their employment for all their life-time Champart is a â—rench word signifying a part of the Land controverted so that whosoever takes part of the thing controverted per pactum de quotâ litis falls under that Law By this Act whoever takes Rewards or Buds are punishable by tinsel of Honour Fame and Dignity and by the 93 Act 6 Par. Ja. 6. the taking by their Wives and Servants which was here omitted is punishable by Infamy Deprivation and Confiscation of all the Defenders Moveables By this Act giving of partial counsel that is to say consulting is declared a species of Bribing though nothing be taken at least it is punishable as bribing so that it seems a Judge may not consult albeit he abstain from judging in that cause These words That he shall take no further Rewards nor Buds than is permitted of the Law are set down to shew that Judges may lawfully take the Quota allowed by Law to Judges which we call Sentence-money and the Civil Law Sportulae The taking Bribes was in the Civil Law punish'd per l. Jul. repetundarum l. 1 3 6. d. t. And the punishment was death if Money was taken to pronounce a Capital Sentence or Confiscation of Goods and Banishment in other cases l. 7. § 3. eod tit but by the Doctors and in our Law this Crime is called Barratrie Such as defame Judges as Bribers are punished here as Bribers but besides the poena talionis which is inflicted upon all such as murmure against Judges there is likewise an Arbitrary punishment adjected and either the King or his Council are Judges competent to the cognition of this Crime by this Act. Nota That if a Spiritual Man murmure against any Judge he has the priviledge to be called before his own Judge ordinar by this Act but this revocatio sori is not now in use since the Reformation BAse Infeftments are these which are given to be holden of the Disponer which are valid Rights in themselves though they never attain possession for else they could not give good Interest to reduce the Rights that may hinder them to attain possession These base Infeftments are introduced with us contrary to the principles of the Feudal Law which allows no Feudal conveyance without the Superiors consent and were introduc'd rather by accident than upon design This Act upon which they are founded being introduc'd rather to suppress simulate Infeftments than to strengthen base Infeftments and the great priviledges arising to them now did insensibly grow from the favour which our Law shewed alwayes to lawful Creditors even as the priviledge of necessitating Superiors to receive Comprizers did Base Infeftments though yet wanting possession are preferable to posterior Arrestments but they are not preferred to posterior Life-rent Escheats except they attained possession in cursu rebellionis Feb 21. 1667. Miln contra Clerkson and before this Act of Parliament 1540. they were still preferr'd to posterior publick Infeftments But by this Act it is statuted that publick Infeftments cloathed with Possession for year and day shall be preferr'd to base Infeftments not cloathed with possession though prior which praesumptione juris de jure are by this declared to be simulate Rights But though this Act requires that the publick posterior Infeftment be granted for onerous Causes yet a publick posterior Infeftment though gratuitous will be preferr'd 3 March 1626. Law con Balgownie But this may be doubted because of this Act and in that Decision the publick Infeftment was preferr'd because Inhibition had follow'd thereupon for any Act that can take off the presumption of simulation and which will make the Infeftment any way to be known doth fortifie the Infeftment as well as if possession had follow'd and so an Inhibition following upon the debt for which the base Infeftment was granted will prefer that Infeftment to a posterior publick Infeftment without necessity to reduce ex capite Inhibitionis and an Infeftment following upon an Appryzing was without reduction ex capite Inhibitionis preferr'd to a prior base Infeftment though clad with possession because the Appryzing follow'd upon a debt whereupon Inhibition was serv'd before that base Infeftment the said 3 of March 1626. And likewise if other diligence was done or the time was so short that a years possession could not be attain'd then a Terms possession was sustain'd or though there followed no possession at all the base Infeftment will be preferr'd to a posterior publick Infeftment interveening before the possession could be acquir'd 13 Feb. 1624. Possession likewise of a part of the Land sustains the Infeftment for all but this should hold only in Lands erected in a Barony or such wherein one Seasing may serve 5 Feb. 1668. Ker contra Ker. Hope in his lesser Practiques is of opinion that in the concourse of two base Infeftments the prior will be preferr'd in petitorio though no possession follow'd thereupon which seems to be reasonable because before this Act of Parliament jus illud obtinebat and by this Act Nihil quoad hoc est innovatum yet de practicâ a base Infeftment is as null till it be cloathed with possession as an Infeftment à me is before it be confirmed If neither of the two base Infeftments be cloathed with possession prior in tempore est prior in jure The Husbands possession was alledg'd to be the Wifes possession as to her principal but not quoad her additional Joynture 7 Decemb. 1664. Lady Craig contra Lord Loure and in our Law the Husbands possession is accounted the Wifes possession whether the Husband possest by himself or by Wod-setters or Comprizers deriving right from him though it was alledg'd that this was not the Husbands possession they having possest proprio jure which priviledge is not only introduc'd ob savorem detis but because she could not possess for which reason likewise a base Infeftment for relief is preferr'd to a posterior publick Infeftment upon a Comprizing albeit the Cautioner was only charged to make payment which was found a sufficient distress 28 July 1625. As also after a solemn dispute the Lords did prefer a prior base Infeftment for warrandice though not cloathed with natural possession to a posterior publick Infeftment 9 January 1666. Brown contra Scot. But here the Infeftment of warrandice was given simul semel with the Infeftment of the principal Lands so that there remains still a doubt as to Infeftments of warrandice given ex intervallo but Infeftments for relief were not found sufficiently cloath'd with possession by payment of the Sums for which they were granted as Infeftments of warrandice are by possession of the principal Lands because it was alledg'd that it was more natural that the possession of one Land should cloath the Infeftment of another than that possession of Annualrents should cloath an Infeftment of Land and that there might be greater collusion in payment