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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
land_n	grant_n	grant_v	reversion_n	1,539	5	12.2834	5	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A50697	Observations on the acts of Parliament, made by King James the First, King James the Second, King James the Third, King James the Fourth, King James the Fifth, Queen Mary, King James the Sixth, King Charles the First, King Charles the Second wherein 1. It is observ'd if they be in desuetude, abrogated, limited, or enlarged, 2. The decisions relating to these acts are mention'd, 3. Some new doubts not yet decided are hinted at, 4. Parallel citations from the civil, canon, feudal and municipal laws, and the laws of other nations are adduc'd for clearing these statutes / by Sir George Mackenzie ...	Mackenzie, George, Sir, 1636-1691.	1686 (1686)	Wing M184; ESTC R32044	446,867	482

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 Gi●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 Lifere●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 annalȝie 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 Success●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 produ●'d and ma●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

Tacks-man should retaine the Tack-dutie for Reparations was not sustained in so far as concerned the Reparations though the Reparations were necessary nor is there any tacite Hypothetick in our Law for Reparations as in the Civil Law but if the Singular Successor had known of such a Clause in the Tack the Lords inclined to think that the same had been obligator against him and yet a Singular Successor is not obliged to consider a prior Seasine except it be Registrated or a prior Disposition nor any Assigney a prior Assignation 5. February 1680. Rae contra Finlason By the Civil Law Tacks were not valid against Singular Successors l. 9. C. de locato but the Law of Holland agrees with this Statute Neolstad decis 30. THis Act was thought to have been in Desuetude till it revived by a Decision Feb. 1666. Lord Lee contra Mark Porthouse but it is yet so to be understood as that the Land set in Tack must be valued according to what it was worth when the Land was Wodset for if the Land be improved by the Wodsetter it were unjust that the Wodsetter should lose thereby and therefore a Wodsetter improving Land will not lose his Tack though the Land become worth more than twice the Tack-dutie and though it would seem that there is a contradiction in this Act because it sayes in the first Part That if any man has Wodset Lands and syne takes them for long time after the Land be quit out for half Mail or near thereby that these Tacks shall not be keeped but if they beset for the very Mail or near thereby yet the answer is that this Law was so worded to show that the Parliament designed that Tacks after Wodset should not be keeped after Wodsets are Redeemed except they be set for a Tack-dutie somewhat proportionable to the worth of Land and because this could not precisely be determined therefore by comparing these two expressions It is clear that such Tacks after Wodsets are to be sustained if they be set for more than the half of the Real-dutie though they be not for the full Dutie This Act is in effect but an exception from the former Act which having appointed all Tacks to be valid against singular Successors This Act begins But if Lands be Wodset and the Here●or Granter of the Wodset be obliged to grant long Tacks for an unconsiderable Duty after the Lands are Redeemed these Tacks shall not be kept and therefore it may be argued that this Act should only defend against the Setter but not against singular Successors because the preceeding Act from which it is an exception was only conceiv'd to secure against singular Successors But to this it is answer'd that the former Act needed not secure against the Granters for they were ever and still are Sufficient against them and this Act runs not against singular Successors but in general declares such Tacks null as Exorbitant and Usurary and so should be null against all but if there be a valuable consideration to clear that they are not Forc'd and Exorbitant they will be sustain'd as in the case Polwart contra Hume January 21. 1662. where it was found that a Tack for a Dewty far within the worth to be granted after Redemption was valid because it was by one Brother to another who might have given it for a Patrimony and the Brother who got the Wodset was excluded by a Liferenter thirty six years Thir Tacks who are to begin after the Redemption of Lands Wodset are valid against singular Successors though they be not cloathed with Possession prior to the singular Successors Right because they are a part of the Reversion and not because they could not begin till the Lands were Redeem'd for if that were a good reason then a Tack whereof the Entry is deferr'd for several years should be valid against the singular Successor who had got a Disposition of the Lands long after the setting of the Tack though before the Tack was cloathed with Possession which is not true and if it were true since Tacks are not to be registrated no man should know with what Tacks Lands are burdened for this can be known no otherwise but by Possession These Tacks which are to follow Redemption are valid though they be not contained in the Wodset if they be of the same Date with the Wodset and Reversion as Hadingtoun Observes but in this case it may be doubted whether these Tacks ought not to be Registrated since all eeks to Reversion are to be Registrated or else how can a singular Successor know them and yet it is otherwise in Tacks which are to follow Redemption of Annualrents for as an Annualrent is different from the Land it being but a Servitude upon the Land so the Possession of the one cannot in Law be constructed to be the Possession of the other VId. Stat. 2 d Rob. 1. c. 12. But now Spuilȝies are pursu'd before the Lords or Sheriffs as other Civil Actions There are many severe Acts in this Kings Parliaments against Spuilȝies because there were many then committed by the Douglasses and others FEinȝied Fools and Bards and Sornars and such like Runners are by this Act to be Imprison'd and have their Ears nailed to the Trone for the first Fault and to be Hang'd for the next and such as feinȝie themselves to be Dumb are punishable by the general words of this Act or others such like Runners But it may be doubted if such punishments infer'd argumento legis can be extended beyond an arbitrary punishment and yet the feinzing ones self Dumb thereby to draw Money from the people is species falsi THe buying and keeping of Victual to a Dearth is a Crime in all Nations and is punish'd with us as Regrating by this Act it is punish'd as Usury and by Escheating the Victual and yet this punishment has never been practis'd but the ordinary course to prevent this Crime is that either the secret Council sets prices in cases of foreseen Dearth or else the Magistrates use in their respective Towns to cause break open the Doors where such Victual is kept and sell it at convenient prices which is Warranted by the 29 Act 4 Parl. Ja. 5. Vid. crim pract tit Forestallers THe escheating of old Corn-stacks that are kept longer than Ȝuil was found to be in Desuetude at the Justice-air in Jedburgh 1669. and the first part of the Act ordaining all Victual bought by private persons more than will entertain their Families for that Cropt to be therefore Escheat is also in Desuetude this was punish'd in the Civil Law per. l. Jul. de annonâ and is punish'd tanquam crimen extraordinarium l. 6. ff de extraor crim and such as are guilty of it were called Dardanarij or revenditores Tholos cap 135. num 10. NOt only such as keep out their Houses upon publick accounts are punishable as Traitors but even these who keep out their Houses for

to a boll of victual and the price of the boll to have been valued to 18. shilling Scots yearly and this was by and attour the Sheriffie for which the like proportion of Lands was appryzed as the several appryzings bears and for the better making of the proportion they also bear that the Sheriff and Inquest came to the ground of the Lands and measured off the aikers and set a constant price on the victual but by one of the Decisions cited by Balfour later than these It 's like that five per cent has been theirby appointed to have been the Rule in time coming as he sayes When Annualrents out of Lands were appryzed the Inquest did never exceed 5 per cent without a Dispensation from the Lords of Session or else they were pr●judg●d sayes Craig pag. 332. And the Compryzings were reduceable but Dispensations were easily granted and Craig saye● they were sought to free the Inquest from hazard of perjury but upon what ground it was that the Inquest scrupled more in Compryzing of Annualrents than in Compryzing of Lands where they allowed a Rent answerable to 5 per cent I cannot conjecture except for one or two Reasons 1. That annualrent is a thing odious and unlawful by the opinion of many Divines and therefore not to be stretched 2. Annualrents were free of publick Burdens to which Lands were subject and therefore a greater allowance might have been given of Land-rent than annualrent When Life-rent Rights such as Conjunct-fee Simple-liferent Terces or Curialitie were comprized the estimation was made according to the age of the Life-renter or Life-rentrix when within 40. years the estimation was 5 years purchase that is as much as the Fruits and Rents had yeelded for 5. years preceeding or might yeeld in 5. years thereafter and when the Life-renter exceeded 40. years of age and was not of the age of 50. compleat four years purchase was the estimation and if 50 years of age was exceeded and the sixtieth not attained the estimation was three years purchase and if the Life-renter was weak or sicklie or that there was any other cause that might interrupt the Liferent-right the Inquest did value as the Circumstances determined Craig pag. 331. in fine dict pag. 332. in princ And when any Servitude was apprized the Inquest did also value as they thought the Servitude profitable Craig loco citato This was the way of Procedor in old Comprizings in making a proportion betwixt the Debt and the thing Appryzed The form and stile of Decreets of Compryzings of old was shortly thus the Clerk of the Compryzing who was ordinarily the Sheriffs Clerk did extend a writing upon Parchment containing all the particulars of the procedor to wit that the Creditor having obtained a Sentence before the Sheriff decerning his Debitor to pay a certain sum and there being no Moveables to pay it the Sheriff came to the ground of the Land with an Inquest of most knowing Persons within the Shire selected for that effect and there measured off some aikers for the Money and Sheriffie corresponding each aiker paying so much victual and the victual being valued to a suitable Rate redeemable always by the Debitor within the time contained in the Act of Parliament and which Writing is Seal'd with the Seals of the Judge and of the Inquest 2 o. Though this Statute appoints the Sheriff to sell yet upon deliverence of the Lords of the Session they will appoint the Compryzing to be led before Messengers or Macers whom they will make Sheriffs in that part It being debated whether a Compryzers Marriage fell to the King where the Comprizer was payed within the Legal though he was not payed when the Marriage fell but was payed thereafter and before the Legal expired it was urged that it did fall because the Compryzer was Vassal and so as all Casualties due by other Vassals should fall and that the King should rather have this casualty from Comprizers than from any Vassals because a Compryzer could by a special Statute be entred by the King though a singular Successor 2 o. If the King were seeking this casualty by the Debitors Death the Comprizer would exclude him by alledging that the Debitor was Denuded and it were unjust that by this means the King should want his casualty from both 3 o. The King falls all other casualties by the Compryzer such as Recognition Liferent Escheat and the Compryzer by being entred can do all Deeds that other Proprietars can do and therefore should be lyable in all other casualties as they are 4 o. If this were not allow'd the King might be still defrauded of this casualty for the Comprizer might still secure the Debitor and if his own Marriage fell he might thereafter cause redeem himself And whereas it was pretended that a comprising is but a pignus praetorium in pignori●us non transfertur dominium and so the Debitor being still Proprietar remain'd still Vassal To this it was replyed That though a Comprysing resemble pignus praetorium yet it is truely an alienation and this Statute appoints the Land to be sold to the Creditor and by the whole Tenor of Comprisings it is clear that it is a judicial Vendition made under Reversion and so resembles more a legal Wodset and therefore as in Wodsets the Wodsetters Marriage would fall so ought the Comprizers and its being a legal Vendition and Alienation appears from this also that it falls under Recognition and Recognition presupposes still alienationem dominij The Lords upon this Debate which clears much the nature of Comprisings prefer'd the King for they found that the Compriser being Vassal the Marriage fell by his Death he having died before the Comprysing was redeem'd and therefore it may be doubted whether the Compriser will have his relief for the damnage incur'd by this casualty from his Debitor before the Lands can be redeem'd from him since it fell by his fault in not paying him nor is the Debitor much prejudg'd for if the Lands had not been Compris'd this casualty might have fallen by his own Death and the inconveniency urg'd from the multitude of Marriages that would fall by the great number of Comprizers is of no w●ight since if a man had sold his Land and divided it amongst his Creditors all their Marriages had as well fallen in that case as in this 3 o. Whereas by this Act the legal is to extend to seven years only so that if there be one shilling resting after seven years the Comprysing expires yet by the 62 Act 1 Par. Ch. 2. Anno 1661. This legal is extended to ten years but both the seven and ten are to be compted from the Date of the Decreet of Apprising and not from the Date of the allowance by our practick 4 o. Though Superiours be not oblig'd to receive singular Successors yet they are bound to receive Comprizers upon payment of a years Dewty of the Lands Comprised and this singularity is introduc'd in

Delegat some of their number not only in some particular cases but with a general power to represent them in all things which seems hard for that were to make and create a new Parliament but here their power was Delegated only as to Debatable cases for these Lords were then in place of the Session and I have heard it Debated if the Council could Delegat their Power to any of their number as to all things for that were to make a new Council and since the King impower'd only nine to be a Quorum they might not impower a fewer number nor were it fit for the People to have the Supream Power committed to so few nec potest delegatus delegare Nor can the Justices nor Commissioners for Teinds make such Committees though they are as Supream as the Council vid. Observ. on the last Act 10 Par. Ja. 3. BY this Act it seems that the Council may reduce the Verdicts of Inquests and Sentences of the Justices though the regular way of questioning Assizers who assoilȝe be by a Summons of Error before the Justices and a new Inquest of fourty five persons and de facto the Council do cancel such Verdicts and Sentences before themselves as they did in George Grahames Case and ordinarly they mitigat the Sentences of the Justices Nota The Books of Regiam Majestatem are by this Act called His Majesties Laws and the place here related to is lib. 1. R.M. cap. 14. BEcause the Riches of this Realm consists chiefly in our Fishing therefore Bushes are ordain'd to be made since these are able to ride out in Storms which lesser Vessels cannot do and it is best fishing when the Waters are troubled this is renew'd by the 49 Act Parliament 4 Ja. 4. THough by this Act he who tines his Action is to pay fourty shilling of expences yet the modification is left arbitrary to the respective Judges conform to the Civil Law which appoints condemnationem in expensas litium damna contra temere litigantes Inst. hic depen temerè litigantium § 1. And by the 43 Act Par. 11 Ja. 6. The Defender pays twelve pennies out of every pound to the Lords and the Defenders expences at the Lords modification King IAMES the third Parliament 7. BY the Civil Law he who is to succeed as Heir is still to be Tutor of Law but because this could not well be where the immediat Heir was himself under twenty five yea●s and therefore by this it is appointed that the age of a Tutor of Law or Tutor legitimus shall be the age of twenty five years though the age of majority be twenty one because it requires greater experience to Govern other mens Affairs than our own and if the immediat Heir be not of that age the next Heir who has attain'd to that age is to be Tutor And by the Civil Law no man could be a Tutor even by a Testament till he attain'd to that age Inst. qui testament tutor § 2. By this Act also the nearest Agnat that is to say the nearest of the Fathers side is to be Tutor which was conform to the old Civil Law but Justinian by the Nov. 118. did take away this difference betwixt Agnats and Cognats both as to Succession and Tutories and we in both follow the old Law and not this Novel BY this Act the Laws called leges burgorum bound in with Reg. Maj. are declard a part of our Law and the Chapter particularly related to is cap. 125. Though this Act appoints only the Heirs of Barons Gentlemen and Free-holders to have Heirship-moveables Yet by our Law all Prelats Barons and Burgesses may have Heirs and these Heirs have right to the best of every thing that belong'd to their Predecessor as their heirship-moveable conform to a Roll expressing what is heirship-moveable a copy of which Roll may be had from the Clerk of Edinburgh the reason why moveable-heirship was allowed only to Prelats Barons and Burgesses seems to be either because these being the only three States of Parliament they only ought to be allow'd such considerable Plenishing as heirship-moveables or else because in those dayes none but persons of these qualities could have such moveables under the word Prelats are comprehended all benefic'd persons By Burgesses are understood all Trades-men and others Traffecking or working within Burghs but not honorary Burgesses By Barons are understood all who are Infest in Lands though not erected in a Barony and that maxime semel baro semper baro is to be interpreted presumptive so that he who is Infest in Lands is presum'd to die Infest But if he was devested before his death either by Comprysing Resignation or otherwise he cannot be counted a Baron and have an heir January 27. 1636. Straton contra Chirnside These words of the best of ilk thing must be interpreted de corporibus but not de quantitatibus rebus ●ungibilibus quae pondere numero vel mensurâ constant as Money Cloath c. and so the Stool of a Salt-pan which was out of use was accounted but Iron and fell not under moveable-heirship Had. 1497. Reid contra Thomson Item where there are a dozen of Spoons or moe the Heir shall have a dozen if they be fewer he gets but one Spoon Dict. cap. 125. l. burg which Custom hath extended not only to other things that go by dozens but likewise so as these things that go by pairs and are of one use must belong to the Heir and thus the heirship of Oxen was found to be a yoke July 20. 1610. Black contra Kincaid Dubitatur 1 o. If the appearand heir of a man who has only a Disposition but is not Infest may have moveable heirship Dubitatur 2 o. If the appearand heir of him who has an Assignation to a reversion of Lands may have moveable heirship since Assignations to Reversions are real Rights BY this Act it is declar'd that the Act ordaining personal Obligations to prescrive in fourty years was to be interpreted so as to extend to all Obligations prior to that Act which seems hard for these who had these Obligations were in bona fide not to do diligence and therefore some time should have been allow'd to do Diligence as thirteen years were allow'd in the Act of Prescription 1617. and therefore it would seem that the Act 29 Par. 5 Ja. 3. Ordaining personal Obligations to expire in fourty years rather declares what was Law before and that such Prescriptions have been formerly allow'd hereupon the common Law or some old Act for this Statute likewise says the time of the making of the said Acts so that it appears there have been other Acts besides that one to which this relates REtours to this day express the old and new extent by the old extent is meant that to which the whole Lands of Scotland were valu'd by the first general Valuation And by the new extent is understood the second Valuation which was long

King may discharge any man to Print without his Licence vide Fritch de Typographiae abusu where he makes the regulation of the Press to depend upon every Magistrat by the Law of Nations and Printing may do as much mischief to the Government as Arms and so the Magistrate should have the command of the one as well as of the other though I know it is most unjustly pretended by some Republicans that Printing being a Trade no man can be debarr'd from the free use of it except by Parliament in which their own consent is imply'd We see also that the King allows his own Printer only to Print Bibles and other School Books c. vide Act 25 Par. 11 Ja. 6. against the Sellers of erroneous Books Queen MARY Parliament 6. IT is observable that this Revocation of Q. M. was under the Privy Seal whereas other Revocations are only under the King's Hand it differs in nothing else from the other Revocations IN the first part of this Act Reversions which were formerly as all other Writs sufficient if sealed by the granters Seal are declared null if they be not Sealed and Subscrived and though it is here declared that if the Party cannot Subscrive a Notar may Subscrive for him yet by the 80 Act Par. 6 Ja. 6. it is requisite that there be two Notars and four Witnesses in matters of importance or Heretage where the Party cannot write By the second part it is declared that all Reversions are null if they be not Registrated except Reversions of Land within Burgh which need no Registration and this is again enacted Act 16. Par. 22. Ja. 6. By this Act Reversions taken by way of Instrument in the hands of the Notar that gave the Seasine are as valid as Reversions subscrived by the Party himself and Registrat for according to the Law then standing Reversions were sufficient if subscrived by one Notar though the Party did not subscrive and Instruments taken in the hand of the Notar that gave the Seasine were as sufficient as a Reversion under a Notars hand but since that Act all Reversions both without and within Burgh should be Signed by the Party himself or by two Notars and no Reversion within Burgh needs to be Registrated 11 Feb. 1681. Irwine contra Corsen which being found inconvenient was thereafter first corrected by an Act of Sederunt Feb. 22 1681. and now by the 11 Act 3 Par Ch. 2. By which they are ordain'd to be Registrated in the Town Clerks Books within 60 dayes after the date thereof except they be incorporated in the Body of Rights THough this Act runs only against Committers of Slaughter yet it holds in all Criminal Causes IF any man be out of the Countrey he must be cited upon 60 days but if he was in the Countrey the time of the first citation it is sufficient by this Act that he be cited upon 15 days and though this Act says that if he was eight days cited before his departure he may be cited upon 15 days to the second dyet yet it holds if he was in the Countrey at the first Citation though he went immediatly out of the same VId. Crim. obs Tit. 21. of Libels Part 2. VId. Notes upon Act 77. Par. 6. Ja. 5. THe form of citing the nearest of Kin is now introduced in the choosing of Tutors Dative by the Exchequer and is establish'd most iustly by the 2 Act Sess. 3. Par. 2. Ch. 2. though formerly the King might have granted Tutories Dative without any citation of the nearest Kins-men Nota By this Act it is clear that a Curator cannot by a privat Renunciation of his Office free himself but he can only be freed by the Judge for though by the Civil Law Tutors and Curators were forced to accept yet by our Law they are not but if they once accept or administrat though without a formal acceptance they are still lyable from the date of their administration and not from the date of their nomination and that which was at first voluntary becomes necessary THough this Statute anent Lentron be renewed Act 221. Par. 14. Ja. 6. and that the Council used lately to grant Dispensations yet these Penal Statutes concerning Lentron are now in Desuetude VId. observ on Act 36 Par. 8. Ja. 2. and on Acts 68 and 69. Par. 8. Ja. 3. THese Instruments of Resignations are not only to be Sealed by this Act but to be Registrated by the 3. Act Sess. 1. Par. 2. Ch. 2. ALL Warnings are by this Act to be made only upon 40 days which holds though the Party be out of the Countrey because the Act is general though in other cases a Party out of the Countrey must be cited on 60 days 20 Feb. 1666. M cbrair contra Crighton and yet though this Act be general there needs no formal Warning conform to this Act from a Tower or Fortalice turris pinnata even though the Possessor had a Tack Nor in Lands Liferented for in these the Heretor will get upon a Bill Letters from the Lords charging the present Possessor to remove upon 6 days because Towers and such Houses belong not to Labouring nor are useful for it and this Act was made in favours of Labourers and it were unreasonable that the Heretor after a Life-rentrix is dead should be put to all these delays for removing those who possess by a right that is ipso jure expired These words of this Act appointing Warnings to be made either Personally or at their dwelling Houses and at the Ground of the Lands are so to be interpreted as that there must be still a Copy left upon the Ground of the Land or at his dwelling House and upon the Ground of the Land which citation upon the Ground of the Land was as it seems made necessary because in all real Executions quae praedia tangunt Copies must still be left upon the Ground and to the end that all who pretend to have real Rights and even Sub-tennents may be thereby certiorated 25 Feb. 1680. Craw contra Craw. Because this Act ordains all Warnings to be made 40 days before Whitsunday and speaks not of another Term therefore the Warning must be made before Whitsunday though the person warned be not oblig'd to remove by his Tack till the Martinmass but Execution must be superceeded till then vid. 8 July 1626. and 16 December 1628. Fowles contra Tennents and Inglis contra Tennents 15 June 1631. Ramsay centra Weir Though this Act appoints these Warnings to be made at the Kirk doors of the Paroch within which the Land lyes yet the Lords have sustain'd Warnings to be made at that Kirk which was reputed the Paroch and where Warnings were used to be made though it was not truly the Paroch Kirk 24 January 1667. Earl of Argyle contra Campbel and though by this Act such Warnings should be read in time of Divine Service that is to say

may be urg'd that He may since the Session is his own Court wherein He does Justice to His People by His Judges and therefore as any of His Majesties Vassals may hold their Courts when they please much more may His Majesty hold His. Likeas His Majesty has oft-times by His Council order'd the Session to sit when and where He pleas'd And whereas it is pretended that if this were true Acts of Parliament in ●his case were unnecessary and that such alterations have never been made without the Parliament To this it is answered That at first the Session was a Committee of Parliament and so the Diets of Session behov'd to be appointed by Parliament and now likewise it is fit that the Inclinations of the Subjects be gratifi'd by such Acts taking along their consent in a Case of so general a concern but it does not necessarly follow that all things that have been Establ●shed by an Act of Parliament at some times can at no other time be order'd by His Majesty alone for we see that there are several Acts of Parliament Regulating Trade and Coynage and yet it cannot be deny'd but that Trade and Coynage are inter Regalia ALbeit by the fourteenth Act 1 Par. Ch. 2. The Excise is to be taken up by the Commissioners of the Excise or Collectors appointed by them and for whom the Commissioners are answerab●● and may be quartered upon for their Deficiency By this Act the grant of the Excise which is to Commense from the Kings Death gives His Royal Successors only a Right to what the Drink Exciseable it self can yield and so the Shires will not be oblig'd to burden their Land with Cess for Deficiency of the Excise as now they do THis Act is formerly Explain'd in the Observations on the 47 Act Par. 11 Ja. 6. BY our former Law it was generally believ'd that all Widows had Right to a third of their Husbands Estates call'd with us a Terce except the Wife had been expresly secluded by her Contract of Marriage and that she had Right to her Joynture and to a third of the superplus of any Land wherein her Husband died Infeft But in a Case betwixt Prestongrange and the Lady Craigleith Debated in the Session immediatly before this Parliament It was alleadg'd that the said Lady being competently provided by her Contract of Marriage to a great Joynture she could not likewise have Right to a Terce because primo provisio hominis tollit provisionem legis and therefore where a Wife is provided by express agreement and the Provision acquiesced in by the Wife and her Friends it is in the construction of Law reputed to be in full satisfaction of all she can crave if the same amount to a third of all the Lands which the Defunct had at his Decease 2. This is Declar'd to be our Law by the 16. cap. lib. 2. Reg. Maj. N. 6 10. And by Balfour in his Title of the Wises Dowry and Terce And by Craig lib. 2. Cap. 22. 3. By the Laws of other Nations it is clear that where a Wife is secured by a Conventional Provision she can have no Right to any legal Provision This the French expresly determine when they say that a Wife having dotarium praesixum cannot claim dotarium ex lege consuetudinarium 4. This Terce is the same in the Analogy of Law that a Legi●tim or an Aliment is to Children but so it is that neither of these are due when the Children are provided and therefore the most that can be due in either Case is supplementum legittimae the Law having only designed the rationabilis tertia And there is no more due to our Queens by the 2 Act 1 Par. Ja. 3. Albeit these Reasons were thought very pungent and tending much to the support of old Families and to secure Men against the importunity of their Wives yet because some positive Decisions had run in favours of the Wives though abundantly provided therefore the case was referr'd by the Session to the Parliament and they by this Act ordain'd that in time coming if the Wife be provided tho her Provision were never so small she shall be excluded from a Terce unless her Right to a Terce be secur'd to her by and attour her particular Provision But because this Act was not thought a Declaratory Statute but a Regulation therefore the Case depending was remitted back to the Session THis is fully Explain'd in the Observ. upon the 16 Act 22 Par. Ja. 6. HIs Majesty having by vertue of His Prerogative Royal Declar'd by the 27 Act 3 Sess. Par. 1 Ch. 2. The Sole ordering and disposing of Trade with Forraigners He did by Act of Council Anno 1681. Regulate the matter of Trade and Manufactories which Proclamations are here Ratifi'd for a security to such as shall undertake Manufactories and therefore it may be doubted if His Majesty can dispense with any thing relating to Manufactory since in this third Parties have followed the Faith of his Majesties Acts and Proclamations so that His Majesty seems to be bound to them ex quasi contractu It is declared by the last Clause of this Act That no persons contraveening this Act shall be lyable to the Penalties unless they be found guilty within three Moneths after the delation Upon which Clause it was found that the Offenders were free though they had confess'd their Contravention by their Oath within the three Moneths because there was not a formal Sentence against them albeit it was alleadg'd that in confitentem nullae sunt partes judicis and the King had done sufficient diligence and the reason of the Act did only militat in favours of those who where not oblig'd to Depone after so long a time and the King could not be prejudg'd where his Officers had done sufficient Diligence for this in effect was a Prescription which runs only against the negligent Likeas in this Case the want of a Decreet could not be oppon'd since it was occasioned by a Petition given by the Defenders craving a delay with which the King gratifi'd them But yet the Council thought the words of the Act so positive that they would not go over them especially since the Clause did resolve in an Indemnity to People who might have and did ordinarly contraveen by mistake or through necessity and all such Indemnifying Clauses should be favourably Interpreted BY the 212 Act 14 Par. Ja. 6. The Lords of Session can only be declined to Vote or Judge in Causes belonging to their Fathers Brothers or Sons But because the prohibition of that Act was too narrow and that the reason thereof did equally militat against all Judges Therefore by this Act the Prohibition of the former Act is extended to degrees of Affinity as well as Consanguinity As also to Uncles and Nephews so that now no Lord of Session or other Judge whatsomever is Capable to Vote where either the Pursuer or Defender is Father Brother