infeftmente or uther richt to the landes quhilk perteined to his wife heritablie Bot onelie the benefite and priviledge of the curtesie quhilk is valiable and sufficient to him induring his life-time for bruiking and possessing of the landes and for remooving out-putting and inputting of tennentes in sik maner as gif he were proprietare lyfe-rentar tackes-man or rentaller And maire-over the Lawe of the curtesie is extended in favour of the Second hus-band And theirefore gif ane man maries ane heretrix and after his decease shee marie ane Second hus-band and beare to him ane sonne or ane daughter and thereafter shee deceases hir second hus-band aucht and sulde bruike and jois the priviledge of the curtesie in sik manner as gif the first hus-band micht have done incase his wife had deceassed before him lib. 2. dic cap. 58. de Iudic. Cap. 127. As concerning the estaite and qualitie of the woman that is maried it is necessar that she be heretablie infest and saised in the landes as aire to hir father or uther hir predicessoures Bot it is nocht necessarlie required that she be ane virgine and maiden Because the curtesie perteines to the second hus-band quha maries ane widdow as saide is Alwaies quhidder the wife be widdow the time of hir second mariage or virgine and maiden the time of hir first marriage necessarlie shee suld be ane heretrix aire or universall successour to hir Father Mother or to sum uther of hir predecessours For gif the wife hes onlie richt and titill to the landes and heretage as singular successour be vertue of onie contract veluti titulo emptionis Hir husband after hir decease can never clame richt to the landis induring his life-time be the curtesie of Scotland Twenty aucht Januar an thousand five hundred nintie five Robert Lundie of Balgony contrair Robert Balfoure of Dovane The curtesie hes nocht place quhen na bairne is borne in lauchfull marriage for it is necessar that ane bairne be borne maill or femaill quick and liveand And for probation theirof he mon be heard cryand for the curtesie hes place in puero clamante or as it is written in sum buikes brayand squeiland or loudlie cryand For in Frenche brayer in the latin vagire is to crie or greite with ane loud voice Quhilk word in our language is alswa attributted to Hose Hartes and uther beastes And gif contraversie arise annent the life or crying of the bairne it is leisum to the Father to pruise the samin be twa lauchfull men or wemen quha heard the bairne clamare plorare vagire seu brayare leg burg d. cap. 44. The husband or Father suld bruike the curtesie after the death of his wife albeit the bairne being borne quick happen to decease immediatelie or shortlie after his nativitie Or albeit the bairne and the Mother baith departe this life for suppose the bairne happen to decease before his Mother and shee decease thereafter or albeit baith the bairne and the Mother decease at ane time or Èit gif the bairne levis and the Mother before the hus-band depart forth of this life the hus-band survivand after her death sall bruike the priviledge of the curtesie of all Landes quhairin his wife was heretablie infest ninth of Iulij ane thousand five hundreth nintie seaven Martha and Eupheme MackalÈeanes contrar Maister Iames Ward-law advocate swa the substantiall heades of the curtesie are thir following quhairof gif onie ane failÈie the curtesie ceasis First is required ane lauchfull marriage betuixt man and wife Secondlie the wife suld be ane heretrix haveand ius vniversale quhairbe she succeids to her Father Mother or some uther her forbeare Thirdlie She suld be heretablie infest and saised in the Landes For gif she decease nocht beand entered and saised hir hus-band suld have na curtesie Fourthlie She suld decease before her hus-band for sa lang as shee and the husband livis he hes ius mariti And after hir decease he hes ius curialitatis Fiftlie Bairnes suld be lauchfullie gotten borne at the least ane bairne maill or femaill quick and livand Last of all the curtesie is al 's effectuall to the husband tuiching wairde-landes perteining to his wife as the Kingis confirmation For landes halden of the King in chiefe and confirmed be him fallis nocht in wairde induring the life-time of the person to quhome the confirmation is granted He being theirby immediat tennent to the King And like-wise gif onie man maries ane heritrix of waird landes and after her decease her aire is Minor and of lesse aige Neverthelesse the landes fallis nocht in the superiours handes be reasoun of warde Bot the husband sulde bruike and posses the samin induring his lifetime be reason of the curtesie of this Realme Because the richt of the waird Perteining to the superiour ceasis quhair the curtesie belanged to the hus-band hes place Penvlt Februar ane thousand five hundreth fiftie three George Gorthie contrair the Lord Methven And Èit the hus-bande being onlie life-rentare may nocht sell or annaillie heretablie the saide Landes or onie pairte theirof in hurte and prejudice of the richteous aire leg burg c. 44. D DISCLAMATION is used in the law and practick of this realme Clamare Clamare idem est quod dicere affirmare As clamare aliquod tenementum aut aliquam terram esse suam to claime and affirme onie heritage or lands to be his awin Clamare aliquem dominum to clame avow and affirme onie man to be his maister or superior to quhom he aucht service of quhoÌ„ he haldis his landes in chiefe Disclamare Disclamare is to disclame disavow or denie as to denie ane uther to be his superiour as quhen the superiour affirmis the lands to be halden of him and the vassall denies the samin In the quhilk case gif the contrar be fund of veritie the vassal tines and amittis all the landes quhilk he haldes of that superiour the propertie theirof returnis to the superiour de maritag c 18. Stat. Ro. 3. c. primo 20. Quhair the auld forme and manner of disclamation is declared Mairover disclamation is quhen the persewer claimes landes perteinand to him and haldin of an superiour and the defendour affirmis the samin to be haldin of ane uther over-lord lib. 1. c. solet 26. lib. 3. c. tali 18. To the decision of the quhilk controversie baith the saids alleadged over-lordes suld be called And he quha failÈies to proove himselfe superiour sall never be heard to claime the samin afterward and the vassall being convict tynis the land and propertie theirof quhilk is adjudged to him quha was wrangouslie denied be the superiour is found to have richt theirto lib. 1. c. siverò 28. Last the vassall tynis forefaultis his landes gif he wrangouslie denies his few or the condition theirof that is the service aucht theirfore conforme to the French proverbe qui fief
and returnis to the awin perpetuall nature and swa remainis untill ane new dissolution be maid The King may set his propertie in few-ferme allanerlie The King after ane dissolution may set his landes in few-ferme allanerlie and not in blench or nomine albae firmae nor be service of warde reliefe or utherwaies bot in few-ferme as said is Iam 6. par 15. ca. 234. The King may not set his landes in few-ferme except the samin bee done with expresse augmentation of his rentall That is his gressumes customes burrow-mailles fermes martes mutton pultrie avarage cariage The Kings rental of the propertie baith unannexed and annexed suld be augmented or ony uther dewties service Quhilk is not only manifest in the alienation of the annexed propertie Bot likewise suld be observed and keiped in the disposition of the un-annexed propertie For it is certaine that the Kingis of this realme the time of their Coronation makis faith solemnelie that they sall not annalie transfer nor dispone the richt and rents of the crown As it is statute be David 2.6 No. 13 57. sa as the K. may not sell the richt of the crowne na mair may he annalie the rentes theirof quhairof the un-annexed propertie is ane parte Mair-over albeit an dissolution is not necessar in the allienation of the unannexed propertie because that quhilk is not bound requiris na lowsing Èit in al dislutions maid be kingis of this realm expres mention is maid baith of the annexed unannexed propertie to be set in fewferm for augmentatioÌ„ of the K. reÌ„tal quhairby it is certaine that the an alsweil as the uther being set in fewferm caÌ„not be disponed in diminution of the rental And coÌ„cerning that qualitie condition expreemed in the form of all dssolutiones the un-annexed annexed propertie ar of like nature Et in hoc casu pari jure censentur Sa that neither the ane nor the uther may be disponed with diminution of the rental utherwise the mention of the unannexed propertie in the acts maid annent dissolution were superfluous Thir ar the substantiall conditiones expreemed in the dissolutiones of the propertie The annexed propertie may be annalied be the three Estaites maid be the Kings of this realme quhairof gif ony ane be not observed the alienation disposition maid after the dissolution is null of nane availe l 6. p. 15. c. 236. By attour the forme of dissolution aboue expreemed it is leasum to the King with advise deliverance decreet of the haill parliament and for great seand and reasonable causes concerning the weil-fare of the realme first advised and digestlie considdered be the three estaites To sell annalie and dispone the kings annexed propertie Ia 2. par 11. cap. 41. Ia 5. p. 6. c. 84. DOS hes twa significationes First it signifies that quhilk is given to the husband Maritagium with the wife be reason and in contemplation of mariage In the civill law is called Dos in our municipall law Maritagium Tocher gud Lib. 2. c. Dos autem 19. Secondly Dos is taken fot that gift disposition of lands tenements quhilk ane man givis to his wife quhen he maries her at the Kirk dure or in the face of the halie kirk Quhilk aucht suld be ane reasonable third part of all and haill the tenement of land quhilk the man or husband hes the time of the desponsation or mariage lib. 2. c. Dosautem 19. c. 20. lib. 4. cap. quatuor 49. Sta. Alex. c. 8. de Iudic. 163. And is given in recompensation of the tocher payed be her or in her name Antidos to her husband And therefore is called antidos Cornel. Tacit callis dos that quhilk the husband givis to the wife and not that quhilk the wife gives to the husband Livius lib. 3. callis it munus nuptiale In France it is called DotalitiuÌ„ Dotalitium Doarium Vitalitia Morganaticum or doarium It is given to the woman to the effect that after the decease of her husband she may susteine nurish hir selfe induring all the daies of her life-time Therefore it is called Vitalitia Morganaticum for the Dutch word Morgengab morning gift is ane kinde of dowry in the second signification signifies the gift of guds moveable or immoveable quhilk the husband givis to his wife the day or morning after the mariage and commonly is used in the Dutch lawes in speculo Saxonico Landrecht in Greek hypobolon in latine matutinale donum Cuiacius li. 4 de fewd DUELLUM duorum bellum vel plurium singular battell or combat vide Campiones Noble persones or landed men may fight in proper person or be uthers in their name quha ar called Campiones in Latine duellatores Speciallie sik as ar their awin bondmen or tennentes quha in bodie guds ar under their maisters protection maintenance And therefore suld hazard and employ the samin in the defense of their maisters honour and actiones Bot husband-men ignoble and unlanded men suld fight personallie and nocht be Campiones Ass reg Cap Statutum fuit per regem 32. Bot all men that are decreeped lamed mutilat or passed the age of threescore Èeires ar excused from singular battell Lib. 4. c. 4. leg Burg. c. Si burgensis 24. And siklike religious persones clerks weemen may not be compelled to fight Lib. 4. c. 3. stat Alex. c. 5. Ass reg Dav. cap. statuit dominus 38. It is in free will and election of the defender to fight or to passe to the knawledge of ane Assise Lib. 4. Cap. 2. Quia defendens debet primo eligere deinde vadiare postea jurare lib. 4. ca. Iexstatuit 46. The appealer or prover suld sweare that his quarrell is just the defender sweare the contrair avowand the equitie of his cause Iter. camer c. Comparentibus 29. It is not leesum to ony person to provok ane uther to battel or being provoked to feght without licence of the King utherwaies baith the appealer the defender tinis forefaltis al their guds moveable immoveable de Iudic. c. 87. Because na Barrone hes power of singular battell or of probation be water or Irone except the Kingis Schireff or his deputes be present to see justice done stat Alex. c. praetered 32. Mairover gif ony man havand the Kings licence happenis to be convict be battell or of breaking of the Kings peace he sall pay to the King xxij Kye tres cathorios vel pro quolibet cathorio novem vaccas Stat. Alex c. apud 28. Quhilk paine unlaw appearis to be ordained to stay sik ungodlie strife dabate for the law of singular combat is ungodlie suld not be used amang Christianes albeit the same was permitted used be the Longobardes in civil and criminal causes Alciat de sing-certam Cuiac in Lib. feudorum Quhilk is conforme to the Canon law cap. 1. 2.
observed be the practicque of this realme Be the quhilk the eldest sonne succeedis to his father ex asse that is to all and haill his fathers heretage and landes Albeit sindrie uther Nationes hes diverse lawes hereanent Like as be the law of God in the auld testament amangst the Jewes the first borne sonne after the decease of his father receivis double portion Deu. 21.17 That is as some interpretis as meikle as twa of his brether Iosephus de Antiq. Iud. li. 4. c. 8. writtis that the eldest sonne be reason of his birth-richt suld have duplicem facultatum paternarum partem the double parte of his fathers gudes De filiis diversarum uxorum Gif ane man had diverse wives quhairof ane is ane heretrix havand lands perteinand to her heretablie and hes procreat upon ilk ane of them bairnes maillor femail the sonne gotten upon her succeedis to her heritage lib. 2. c. Si autem 31. For as generallie the sonne succeedis to the father Swa in this case the sonne suld succeed to his mother Leg. Forest c. Si quis habuerit 26. de Iudic. c. 24. Conforme to the commoun rule of the law Paterna paternis materna maternis Quhen ony man deceasis leavand ane son and dauchters ane or maa The son allanerlie succeedis to all his fathers heretage Li. 2. c. Maritus 32. As gifane man hes procreat with his first wife De filio filia vel filiabus dauchter ane or maa and after her decease begettis ane sonne upon ane uther wife the sonne onelie succeedis to him Leg. Forest c. Si quis habuerit 26. Because the Son borne of the first second or last wife succeedis as universall aire to his father and excludis all his sisters De judic c. Item nota 115. As it is written in some buikes foemina non succedit cum masculo FailÈieing sonnes and bairnes lauchfullie gotten of their bodies the dauchter succeedis De filia For gif the defunct hes ane dauchter allanerlie shee suld succeede to all her Fathers heritage in the forme and manner as the sonne succeedis to his Father De judic Cap. Item nota 115. Lib. 2. cap. Haeredum 28. ITEM Gif ane man deceasis leavand behind him maa dauchters nor ane De filiabus gotten upon ane mother his heritage suld be divided equallie amangst them in al 's mony partes or portiones as there is dauchters to succeede Quhilk forme of succession is called successio in capita cum scilicet haereditas adeunda dividitur in tot partes quot sunt capita vel personae succedentes Successio in capita Bot the eldest dauchter suld bave the principall messuage without division be reason of her dignitie and birth-richt and satisfaction therefore suld be maid to the remanent dauchters Lib. 2. cap. Si autem 31. De Iudic. c. Item Nota. 115 Togidder with the superioritie of the portiones perteining to all her Èounger sisters to quhome their husbandes suld make homage acknawledgeing her to be their superiour and their aires suld give the relieve of their landes quhen it sall happen Lib. 2. c. Maritus 32. De filiabus diversarum uxorum Gif ane man have sindrie wives and of ilk wife ane or maa dauchters All his dauchters succeedis to him in his heritage equallie Per capita as gif they were all gotten upon ane mother Libr. 2. c. porrò contingit 33. ITEM Gif maa dochters nor ane ar procreat upon sindrie wives of the quhilk wives ane is ane heretrix Swa that the heretage cummis be her and not be her husband The dauchter or dauchters gotten upon her succeedis to her heritage and excludes all the rest of the dauchters theirfra Leg. Forest c. Si quis habuerit 26. De Iud. ca. 24. De liberis burgensium ex diversis uxoribus Be the Lawes of the Burrowes gif an Burgesse have maa wives nor ane and bairnes procreat of ilk ane of them All the lands perteining to him be reason of heretage or conquest in the time of his first wife suld perteine to the bairne gotten with her in the first marriage And all the landes conquest be him the time of his second wife fall perteine to the bairne gotten with her in the second mariage Leg. burg c. Si Burgensis 26. De secundo gradu nepotum vel neptium FailÈieing sonnes and dauchters quhilk is are nearest and lauchfull aires the richt of succession perteinis to the Nepuoy or Neipce gotten upon the Sonne or the dauchter Quia deficientibus proximioribus haeredibus nempe filio vel filia vocantur haeredes remotiores ut Nepos vel Neptis ex filio vel filia recta linea descendens l. 2. c. Haeredum 28. De nepote uno vel pluribus ex filio Gif ony man deceasis leavand behind him ane Nepuoy or Nepuoyes ane or maa procreat be his sonne alreadie deceased Ex filio praemortuo they suld succeede to him in the samin manner as is aboue said of the succession of sonnes That is gif there be ane Nepuoy allanerlie he is onelie universall successour And gif there be maa Nepuoyes the eldest allanerlie succeedis to all De nepote filio l. 2. c. Porro 33. Gif ony man deceasis leavand behind him ane Nepuoy begotten be his eldest Sonne alreadie deceased And ane second sonne quha is father brother to the said Nepuoy The second sonne is excluded from all richt and commoditie of succession to his father Because the Nepuoy lauchfully begotten be the eldest sonne representis the persone of his father and therefore Jure repraesentationis succeedis in his fathers richt and consequentlie is onelie aire to his Gud-schir like as his father wauld have been gif he had not deceased before him Lib. 2. c. Porro 33. The like is to be understood of ane Neipce or Neipces ane or maa De nepte filio begotten be the eldest sonne alreadie deceased quha suld be preferred to their father brother anent the succession of their Gud-schirs heritage Except speciall provision of tailÈie be maid in favoures of the aires maill Quo casu haeredes masculi succedunt non dispositione juris sed ex provisione hominis ITEM Ane Neipce or maa of ane sonne or dauchter succeedis to their Gud-schir or Guddame in the samin manner as their father or mother suld have done gif they were Èit living Lib. 2. c. Porro 33. And in this case it is to be observed that quhen maa Nepces nor ane borne of sindrie mothers succeedis that the heritage suld be divided ratione stirpis in as mony partes as there is stockes of quhom the saidis Neipces descendis and proceedis As for example gif there be ane Neipce begotten upon ane dauchter and twa Neipces begotten upon ane uther dauchter they all three suld succeede to their Gud-schir bot the heritage suld
is deceased untill her dowrie be payed to her Vid. Quarentena viduarum EVE Et Treve dicuntur nativi de ave triavo quorum majores servitutem servierunt That is sik slaves or servandes quhais father gudschir grand-schir and for-bears hes been servandes to ony man and his predecessoures Quoniam atttach ca. de brevibus 31. vid. Bondagium EXITUS Terrae The rentes fruites and profites of the land Lib. 2. Cap. Si quis liberum 24. lib 3 c cum autem 6. quoniam attach cap. secus 28. leg Forest c Probata 87. Exitus justitiariae The profite or commodities of the justice aire Iter justic c. 3 4. Exitus curiae the commoditie and profite of the court sik as unlawes and summes of money payed be them quha are amerciat or convict of ony crime or comes in will therefore as is manifest be the forme of the precept direct be the Chalmerlane to the Schireffe to take up and intromet with exitus camerariae or the profites of the Chalmerlane aire Exitus haereditatis de actorn cap. 1. is called the fruites rentes profites and emoluments of the heretage quhilk in the English law is called the issues of the heritage Mag Cart Anno 51. Hen 3 cap 17. And siklike Exitus tenementi signifies the mailles and dewties thereof Quoniam attach c Secus 29 Mod ten cur c 30. EXTENT of landes signifies the rents profites and issues of the samin quhairof there is twa kindes The auld extent and the new extent For it appearis that the rentall and valour of landes hes been taxed and liquidat to ane certaine summe of silver conforme to the profites and dewties quhilk the landes payed at that time Quhilk is called the auld and first extent tempore pacis Bot because the revenues and dewties of landes be progresse of time did incresse and grow mair and mair ane uther taxation and extent was maid in the time of peace as the former extent conforme to the profites augmented as said is quhilk therefore is called the new or second extent And properlie is the verie availe that the land is worth and givis the daye of serving of the brieve Ja. 3. p. 7. cap. 55. To the quhilk the worde Nunc conteined in the brieve and retour suld be referred For tempore belli or in time of weire there is na ordinar or certain extent of landes prescrived be ony law for in sik time either the lands are wast and are not laboured or the lands-lordes servis in proper persone And it is na reason that they suld baith make personal service and also pay extent or taxation The lordes of the Session esteemis ane marke land of auld extent to four marke land of new extent 21. Mart. 1541. Quhilk commounlie is called the fourth maill and suld be generallie used in retouring of landes to the Kingis Chancellarie and uthers Chappelles Albeit the samin is nocht perpetuallie observed This distinction of the auld extent and new extent is necessar For taxation of landes are raised conforme to the auld extent and the relief of lands is the retoured maill according to the new extent And sik-like quhen landes are fallen in the superioures handes be reason of none-entres he suld have allanerlie the retoured maill thereof conforme to the new extent vide None-entres F FALSING of doomes Reduction of decreets vide Sok FARANDMAN De Judic c. 47. Ane stranger or Pilgrimer to quhome justice suld be done with all expedition That his peregrination be not stayed or stopped Peregrini mercatores dicuntur Farandman lib. 4. c. 30. in lib. Sconensi FELONIA signifies nocht onelie the falsed or the contumacie of the vassall toward his over-lord or of the over-lord toward his vassall Bot also all and quhatsumever capitall crime in Latine scelus in Dutch Schelmerie or ony uther fault or trespasse Iter Camer c. Si quis captus 25. Stat Alex ca. 2 lib 2 cap ultim 54. As to hurt or assailÈie ony man with sword either edge or ure Ja 1 par 6 c 97. Or ony lesse or private crime as suspition of theift or quhatsumever fraud deceate commonlie used in contractes pactiones and uther conventiones Lib. 3. cap. ex causa 8. in fine Cuia lib. 1. de feud Writtis that fellonie is not onelie rebellion bot also perfidie fraud or ony kinde of fault perfidia fraus culpa improbitas FEODUM Feudum signifies nocht as some affirmis life-rent in Latine usus fructus For he that is saised in the life-rent of landes is nocht understand to be saised in feodo or in the fee thereof For the ane is different from the uther 7. Mart 1561. The Countesse of Crawfurd contrair the Earle of Crawfurd And sik-like Feodum signifies nocht the superioritie of landes For gif ony maried man happenis to decease vest and saised in the superioritie of landes his wife suld not have ane terce or third thereof Bot Feodum commonlie signifies the heretable fee and propertie of ony thing and speciallie of lands as is commonlie conteined in brieves and retoures Cum aliquis dicitur obiisse sasitus vestitus in terris ut de feodo Lib 3 Cap. Cum verò 28. c. sequens 33. Stat Rob 3 cap 1 Of the quhilk landes the just thrid and reasonable terce will perteine to the wife fra the time of her husbandes decease induring her lifetime vid. Quarentena viduar Dom feodi or feudi Is called the Lord of the ground or land li 2 c. Usurarii 53. Quhair feodum haereditas ar baith ane haereditas damnati propter crimen dicitur pertinere ad dominum feodi tanquam escheta Item si quis condemnatus fuerit de furto res ejus mobiles catalla solent vicecomiti remanere Terram autem si quam habuerit dominus feudi habebit Lib 2 ca Forisfactum 55. He is called utherwise Dominus fundi Lib. 2. c. Defuncto 69. Et fendum idem est quod fundus lib. 2. cap. Mutua 68. And Actio feudi is ane action or pley of landes or heretage Lib. 1 cap. 2. Feodum militare signifies landes halden be service of warde and relief Lib 2 cap Maritagium 56. Feudum laicale Is landes perteining to Laicks and Temporall men lib 2. cap 59. As feodum Ecclesiasticum signifies landes perteining to the Kirk or Kirk-men Lib 3 cap sequitur 31. Cum seqq Swa be the lawes of this Realme all gudes and geare ar moveable and called Catalla Or immoveable and ar called feodum haereditas terra fundus tenementum Fee or propertie in latin dominium cannot pertein to maa persons nor ane Quia dominum unius rei uno eodemque tempore non potest esse in solidum penes plures And therefore gif twa or maa persons happenis to be infeft conjunctlie in ony landes the propertie perteinis to him in quhais aires and successours the infeftment resolvis As for example The husband and the wife ar infest in certeine landes
COLLISTRIDIUM Collistrigium quod collum stringat Quhilk maie be called the Joggs and is ordaned for punishment of baxters leg Burg. c. si aliquis 21. quhair it is called an pillorie or stocks or onie band quhairwith the craig or hals is bund as an halse-sang in the laws of England anno 51. Henr. 3. in latin Numellae Numelia CONQUESTUS quhairof frequent mention is made in the lawes and practik of this Realme is different from heretage Because heretage signifies lands and immoveabil gudes quhilk perteinis to onie person as aire and universal successour to his father or onie uther predecessour and be the civill lawes hareditas nihil aliud est quam successio in universum jus Heretage quod defunctus habuit l. hereditas 62. de regul jur l. nihil 24. de verb. signif and be the municipall law of this realme the eldest sonne succedis jure universali in universam hereditatem patris sui lib. 2. c. cum quis 29. Conquestus signifies landes quhilk onie person acquiris and possessis privato jure vel singulari titulo veluti donatione vel singulari aliquo contractu lib. 3. c. cum verò 28. Quhilk is conforme to the civill law ubi quastus dicitur lucrum quod exemptione Venditione locatione conductione vel generaliter ex opera cujus descendit l. coiri 7. cum seq ff pro Socio Et de jure hujus regui conquestus cujuslibet liberi hominis legitimi qui moritur de ipso sasitus haereditariè sine haerede de corpore suo gradatim ascendit haereditas verò gradatim descendit Stat. Wilh c. notandum 24. leg Burg. c. sciendum 155. Stat. Rob. 3. c. 3. vid. post-natus And it is to be observed that gif conquest landes after the decease of the conquerour do is anis ascend to ony person quha theirafter happenis to decease the samin landes sall descend as heretage to his hearest aire because conquest do is allanerlie anis ascend and thereafter perpetuallie descendis to the righteous aire gif onie be quia conquestus dicitur ratione primi conquestoris cum transmittitur ad ejus haeredem exuit naturam conquestus induit naturam haereditatis CORONER Crouner inquirs be ane inquest anent murther and slaughter done and committed quietlie The quhilk inquisition suld be taken in the hie streites or in open places in corona popuit for the quhilk cause he is called coronator or Èit because the violent death of the subjectes perteins to the Kingis Crown and power Quhair anent the crouner takis inquisition as said is D. Thomas Staith lib. 2. c. 23. of the common weill of England Reade the English lawes anno 4. Edward 1. c. 2. CREFFERA or hara porcorum ane cruife or ane swines cruif leg burg c. Nonlites 87. quhilk in sum auld buikes is called ane Stye CRO Croy in the actes of Parliament Ja. 1. p. 6. c. 93. is ane satisfaction or assithment for stauchter of ony man The quhilk the judge suld pale to the narrest of his kin in case he minister nocht the Law as he suld doe Ja. 1. p. 6. c. 89. CULRACH sumtimes is called an furth comand borgh but mair properly it may be called an backborgh or cautioner for quhen ony havand power or jurisdiction replegis ony man fra an uther mans court to his awin court he suld leif behind him in the court fra the quhilk the replegiation is maid an pledge or cautioner quha salbe bundin and oblished that he quha usis the replegiation fall do justice within Èeire and daie in his awin court to the partie complainand upon the person quha is repleged Quhilk cautioner left in the court be him and behind him quha usis the replegiation is called Culrach lib. 4. c. si qu is in alterius 20. quo attach c. 3. mod ten cur c. 12. de Judic c. 28. And gif the partie complainand gettis na reason in that conit to the quhilk the defender is borrowed and repleged he sall have regres againe to the first court fra the quhilk the replegiation was maid and their sall the mute and pley be ended and the Cultach salbe in ane unlaw gif the partie persewed compeirs nocht and he quha used the replegiation and did nocht Justice sall tine his court for Èeire and daie CURIA Ane courte quhairof sum are superiour and sum inferiour leg Malc Mak. c. 4. vide Amerciamentum The supreme court is the Parliament quhilk hes jurisdiction of all maters Ecclesiasticall civill and criminall All courtes by and attour the ordinar persones of the judge the persewer and the defender suld have certaine uther persones and members quhilkis are called claves curiae the keyes of the court that is ane lauchiull officiar or serjand quha suld summond Claves curia attache and arreist the parties Ane lauchfull Clerke quha suld informe the assise and the dempster and hes the cure and keiping of the proces Ane sutour quha wardis and pronunces the waird and interlocutour of the Court. Ane dempster or doomester quha gives the doome or sentence definitive conforme to the information of the Clerke or Judge CURIA christianitatis lib. 2. c. debet autem 37. lib. 1. c. platitum 17. Is called the ecclesiasticall jurisdiction or court uther waies forum ecclesiasticum lib. 1. c. 5. Curia Christianitatis opponitur laicali seu saeculati lib. 2. c. cum aliquis 59. lib. 3. c. preterea 23. For unto the ane perteinis the ecclesiasticall and to the uther the temporall or secular jurisdiction CURIALITAS curialitie curtesie from the French Curtoise civilitie gentlenesse humanitie for the law of curtesie is an gentill and favorable ordinance or constitution granted and observed in this Realme and nocht universallie keiped or used in uther cuntries And therefore it is called Curialitas Scotia the curtesie of Scotland And in the laws of England lex Anglia or the curtesie of England within the quhilk twa realmes and nane uther this law is in use That is quhen onie man maries lauchfullie ane wife and receivis lande and heritage with her And it happen that he beget with her ane bairne quha being borne is heard cryand betuixt four walles of ane house And therafter his wise deceasis before him he sall bruik and possesse all the landes quhilks perteined to her in-during his life-time albeit the bairne live or decease Lib. 2 c. cum itaque 58. The bairne borne being sonne or daughter maill or femaill de Iudic. c. Maritagium 127 Quhilk law hes place in landes and heretage lyand without burgh halden of the King or ony uther superiour And also in landes and tenementes lyand within burgh and halden in free burgage Leg. Burg. c. si aliquis 44. This Law is nocht introduced in favoures of the wife or bairnes bot is maid in favoures of the husband allanerlie And therefore it is nocht necessar that he have onie saising
the langest liver of them twa and the aires gotten or to be gotten betuixt them quhilk sailÈieing to his aires In this case the husband is proprietar and the wife is conjunct fear or liferentar Bot gif it be said quhilks failÈieing to her aires In that case the wife is proprietar and the husband is conjunct feare or liferentar Feodum is taken for the see wage or stipend given to ane servand for his service as in the Laws of K. Mal Mak c 4 de feod offic dom reg quhilk utherwaies is called liberatio ane livery vid. Liberatio Quhair anent the L. of secreit Councel and checker made thir ordinances as followes At Edinburgh the third of June 1597. FOr-sameikle as the Lords of his Majesties secreit Councel and checker according to the speciall power and commission given to them be his hienesse and his estaites quhilks conveened at Dundie in the moneth of Maij last by-past Hes thocht meete and convenient to set down the prices of his Majesties signet privie and great sealles of all infestments Prices of the seales and uther signatures quhilks ordinarlie suld passe throw them And of the chalmer fees quhilkis sall be received hereafter fra his hienesse lieges in manner following That is to say That the signet according to the auncient custome salbe the rule to the privie and greate seales in all infeftments and uther signatures quhilks ordinarlie suld passe throw the hail three And that the privie seale sall receive na mair nor the double of the price set downe hereafter for the signet nor the greate seale mair nor the quadruple of the said signettis price under the paine of deprivation of the contraveeners fra the office and seale quhilk he possessis Prices set downe to the signet for letters and uthers writtes quhilkis passis throw na uther seale FIrst for all sorts of summondes of quhat-sum-ever qualitie vj shillinges viij pennies For letters conteining baith inhibition and arreistment xj shilling viij d. For letters of law-borrowes and uther criminal letters how mony persones soever be insert vj shilling viij pen. For ministers letters Èeirlie raised vj shilling viij pen. For all letters of horning of quhatsumever qualitie except letters of law-borrowes and criminall letters xxj shilling viij d. For an relaxation vj shillinges viij d. And gif maa nor ane be insert the like price of everie persone to bee relaxed or compositione for them at the discretion of the keiper of the signet Prices set downe to the signet for signatoures passing the privie and great seales For ane Legitimation vj shillinges viij pen. For signatoures of infestmentes of landes within five marke lande of auld extent vj shilling viij pen. For ane remission to ane person onelie vj shilling viij pen. And gif it be to maa nor ane al 's mony halfe markes as they ar persones or composition therefore at the discretion of the keiper of the signet For ane infestment of ane five marke land of auld extent xiij shil iiij d. And for sa mony maa marke landes as the signatoure conteinis proportionallie Providing that quhat ever be the extent of the landes the samin not being stiled ane barronnie in the infestment the heichest price for the signet sall not exceed l. shillings For ane or maa barronnies of land conteined in the signatour quhilks are nocht unite in ane Earle-dome nor Lord-schip for the haile signatour iij poundes For halfe ane baronnie swa styled in the signatour xxx shillings For ane Earl-dome or ane Lord-schip of dignitie having vote in parliament including never sa monie baronnies vj pounds For ane comprising quhilke exceedis nocht ane thousand markes vj shillings viij pennies And if the same exceed that sum to paye proportionally providing that the heichest price exceed nocht l. shillings For ane bischoprick abbacie or priorie exceeding an thousand pounds of Èeirly rent to the posseissour vj poundes Being within ane thousand poundes l. shillings Reservations Nathing to be tane for reservations of life-rentes conteined in the signatoures In respect the reservation is na newe benefite to the receaver except quhair the resigner is a bastarde In the quhilk caise respecting his Majesties prejudice be the resignation quha utherwise micht succeed to the landes resigned be the present possessours decease without lauchfull aires sik reservations sall pay according to the price before set downe for the landes resigned comptand alwayes the man and wife to be ane person TailÈies Nathing to be tane hereafter for onie tailÈies except the foresaid price according to the quantitie of the lande resigned in respect the Fear may alter his tailÈie at his pleasure except quhair the Fear that resignis the lands is bastarde In quhilke caise the like price may be tane for every persone conteined in the tailÈie as it is set downe for the quantitie of the land resigned Benefices For infestmentes conteining patronages of benefices never before disponed nor annexed to thay landes or newe infestmentes of heritable offices The land is to paye according to the quantitie and rate before set down and the patronage gif it be of ane onelie benefice the ane halfe of the duetie of the landes Gif their be maa to pay the said haill price of the landes for the saides patronages Quhilk price the keeper of the signet sall not exceed Offices Sik-like for new and heritable offices Prices set downe to his Hieness Privie seale to be tane hereafter of sik giftes and uther signatours quhilk passis the said seale allanerly FOr escheits of Èeemen men and uther mean persons xx shillings For escheits of landed gentlemen and substantious burgesses xxx shil For escheits of Baronnes xl shillings For escheits of Earles and Lordes iij pounds For their life-rents respectivè dowble price For presentations to Vicarages xx shillings For presentations to Parsonages l. shillings For respettes to Èeamen men and uther meane persones xxx shillings For respets to landed gentlemen and substantious burgesses xl shil For respettes to Baronnes iij poundes For respettes to Earles and Lordes v. poundes And gif there be ma persons conteined in the signature to pay per capita according to their rankes For the wardes and marriages non-entresses and relieves of landed men under Baronnes included in ane signatour iij poundes For the wardes mariages non-entresses and relieves of Barons vj pun For the like of Earles and Lordes x. poundes For the warde allane of gentlemen xxx shillings Of Baronnes iij poundes Of Earles and Lordes v. poundes For the mariage allane of simple gentlemen xxx shillings Of Barrones iij poundes Of Earles and Lordes v. poundes For the non-entresses allane of meane landed men xx shillings Of Baronnes xl shillings Of Earles and Lordes iij poundes For giftes of prebendaries or chaplanaries xxx shillings For tutories xxx shillings For the multitude of denuntiations included in ane signatour of escheitte or life-rent na payment but for the gift only In respect they can import but
ane gift of escheit allanerly For presentations to prelacies legitimations signators of infestments of Baronnies and uther landes remissions and sik uther writtes as passis first the signet The keeper of the privie seale sall take for them allanerlie the double of the price quhilk ilk ane of them payed to the signet In tailÈies reservations patronages heritable offices erections in free Burrowes and siklike to take payment according to the order and proportion of the signet Anent the Chalmer-sees IT is ordained That na signatoures hereafter sall pay Chalmer-fee except resignations and confirmations irredemable allanerly and of sik landes as are neither of his Majesties property nor temporality annexed quhilks are declared to be free of all sik fees in time cumming Prices set downe to the great seale THat the keeper of the great seale exceede not the quadruple of the signet or double of the privie seale under the foresaid paine That to this effect the keiper of the-signet sall upon the back-side of the prent of the signet set downe the price quhilk he receives for everie precept and for all uthers letters after his name Likewaies the keiper of the prievie seale his price for precepts and uther letters after per signaturam that theirby the keiper of the greate seale pretend na occasion of ignorance Sik-like that the said keiper of the greate seale set down his price in the fore-face of everie tag quhairunto the said seale salbe appended And that theirafter their be na drink silver exacted fra the partie uther nor he will be contente to give at his pleasure and discretion And ordains ane herauld maisser or uther officiar of armes to passe to the mercat Croce of the said burgh of Edinburgh and their be open proclamation mak publication and intimation of the premisses to all and sindrie his Hienes lieges quhairthrow nane pretend ignorance theirof As alswa to command and charge the keipers of the signet privie and greate seales Ischers of his Hienes chalmer and all uthers quhome it effeiris to conforme themselves to the will and direction of the saides commissioners signified to them in manner foresaid and on nawaies tak upon hand to alter or contravene the same in onie point hereafter as they and ilke ane of them will answer to his majestie upon their obedience at their uttermost charge and perrel and under the pain of deprivation of them fra their offices certificing them and they sailÈie that they salbe deprived fra their saides offices and utherwaies punished in their persones as efseiris Apud Edinburgh quarto Junij Anno 1597. THe Lords of secreit Councell and Checker following the commission given to them be his Hienes and his Estaites laitlie conveened at Dundie anent the ordour taking with the exorbitant prices of all sorts of writes and letters usuall amang the lieges and likewaies of the seales registers and chalmer fie quhilk a greate number of the same mon passe procuring daylie baith private grudges and publick exclamations against the tolerance and with gang given to sik shamefull extorsion abuse highlie to his Majesties dishonour and offense and to the manifest undoing of the puire anis of this Realme constrayned to have adoe with the saides writes Have for remeid of that abuse decerned and ordaned in time comming and quhill a mair particular and solide ordour may be taken theirin That all and quhatsoever Clerkes of session Justice secret Councell and checker Clerkes to quhatsoever Commissar Admiralles Schireffis Stewartes Baillies of regalitie and royaltie Provestes and Baillies of quhar-sum-ever his Hienes burrowes and of all uther courtes or Judgementes within this Realme all writers to the signet privie great seales all keipers of quhatsoever rolles Registers and recordes all publick notares and uthers writers quhatsoever quha sall hereafter register and inroll forme extract writ or give out for payment to ony of his Hienes leiges ony signatour contract obligation decreet act or ordinance of ane courte or judgement chartour saising or uther evident billes letters or uther writtes quhatsum-ever of any importance to the receiver Sall subscrive with their handes the said writ and subjoyne to their names the just and ordinar price quhilk they receive fra the partie for their paines To be a testimonie of their discretion in valueing of their travelles taken in the saidis writtes and to give further licht to the saids Lords quhat constant prices they may set upon the like in time to come under the paine of deprivation from their offices and punishment of their persones at his Hienes further pleasure incaise of failÈie And ordainis letters to be directe To make publication of the premisses to all and sindrie his Hienes lieges quhairthrowe nane pretende ignorance thereof FERCOSTA ane Italian worde Ane kinde of schippe or little Boate. In ane priviledge granted to the Burgh of Dundie for reparation and bigging of their Porte and Haven be King James the second in the Èeir of God an thousand four hundred fifty aucht Èeires and of his reign the twentie twa Èeire Mention is maid of ane Fercost quhilk is inferiour in birth and quantitie to an schip because the imposte and taxation laid upon ilke schip is ten schillings and upon the Fercost twelve pennies and of everie Crear busch barge and ballinger five schilling and ilke great boat six pennies FERDINGMANNUS ane Dutch word ane penni-maister or Thesaurar Stat. gild c. 5. FIDELITIE maid to superiours and over-lords vid. Homagium FINIS finance or composition maid with theeves Statut. 2. Robert Bruyse Item 9. In the quhilk place it is called rachetum or thift boat Finis curiae ane composition quhilk onie man gives in ane court sik as the justice aire to the King In registro 28. December ane thousande five hundred fourty ane Èeirs the Thesaurar contrar the burgh of Perth Finem facere cum rege to fine with the King Or to make ane finance and satisfie him for ony trespasse committed against him or his lawes Ass reg Da. cap. 2. lib. 4. cap. 3. c. sivir 16. or finem reddere regi to pay an fine or composition to the King for ane crime sik as thift-boat St. 2. Ro. Br. c. item ordinat 9. Finem facere cum molendinario de multura To agree and compone with the millar for the multer Statu Wilh cap. item statuit quod detentor 11. FIRMARIUS ane mail-payer ane mailer or mail-man leg burg c. si firmarius 56. quo attach c. nullus 26. Firma signifies the dutie quhilk the tennent paies to the landis-lord quhidder it be silver-maill victuall or uther duetie In statutis gild c. 48. In the quhilk signification it is commonly used in the French lawes FORENSIS from the French word Foraine In the burrow-lawes of this realme signifies ane un-free-man quha dwellis not within burgh or out-dwelland man And therefore is called rure manens quha dwelland aland-ward hes na priviledge or
persew or follow as quhen ane gives up kindnes to ane uther he sayes Harr harr Ich wol euch suchen swa hame-suchen or hame-sucken is quhen onie person violentlie without licence and contrair the Kinges peace enters within an mans hous or seiks him at the same or assailÈies his hous as is written in the best buikes quhilk crime is punished as ravishing of wemen quo attach c. si quis aliquem 50 Stat. Wilh c. Item stat 10. quhilk is esteemed an greate crime contrair the common weill quietnes and peace of the cuntrie quia unicuique domus sua est tutissimum refugium Ideoque de domo sua nemo debet extrabi l. sed si 21. ff si quis in jus vocat quod verum esse in causa civili non autem in criminali notatur in gl ibidem quid sit domus vid. l. 1. ff de agnoscend liber HAWBERT there is foure maners of halding of landes outwith Burgh Sum landes are halden be the Kirk nomine pure eleemosynae paies nothing bot devota animarum suffragia as was used in the time of blindnes and papistrie De quatuor modis tenendi terras uther are halden in few or few-ferme of the King Kirk Barrones or uthers quhilkis payes ane certaine dewtie called feudifirma few-ferme uther are halden blenche be payment of ane pennie an rose ane paire of guilt spurres or sum uther dewtie quhen it is asked in name of blenche or nomine albaefirmae uther landes are halden be service of warde and relieve and the aire heirof beand minor is in the gairde that is wairde custodie and keiping of his superiour with all his saides landes untill he be major and of perfite age And siklike his marriage beand Major or minor and nocht maried before the decease of his predecessour perteinis to his superiour vid. Varda Landes halden in this last forme and maner are called feodum de Hauberk or Haubert or feodum militare de maritag c. diversa 7. ass reg Da c. statutum fuit 32. Or feodum Hauberticum or feodum loricatum Because it is given upon condition that the vassall possessour theirof fall cum to the hoist and armie with Iak Lorica and armes for lorica a loro signifies ane abulÈement maid of cordes and Haubert signifies ane kind of armour maid of mailÈies or circles like ringes called an Haubergion conform to the common proverb Haubergion manie mailÈies makis an Haubergion monie littles makis an meikle Of the maner of tenures in the English lawes read Litleton and in the Normand lawe lib. 5. c. 3. cum seqq HAIMHALDARE vindicare actione reali repetere to repeit seeke restitution of proper gudes and geare and bring the samin hame againe quo attach c. 4. as lauchfull and haimhald cattell mod ten cur c. 13. and haimhald lint or haimhald hemp is that quhilk growis at haime within this realme is opponed to lint and hempe quhilk is inbrocht furth of uther cuntries hamhaldatio catallorum is quhen onie man seikis restitution to be maid to him of his awin guds and geare wrangously taken fra him quhair of frequent mention is maid in the auld lawes of this Realme And he quha seikis the said restitution suld sweare in this maner ane buike beand put within the hornes or upon the fore-head of the beast that is clamed before twa lauchfull witnes that the said cattell acclaimed be him did wander away from him and that the samin was nocht given sauld or onie maner of way annalied be him to onie kind of person vid. Catalla HARA porcorum vid. Creffera HERREÈœELDA is the bestaucht ox kow or uther beast quhilk ane husband man possessour of the aucht pairt of ane dauach of land foure oxen gang dwelland and deceasand theirupon hes in his possession the time of his decease quhilk aucht and suld be given to his Landislord or maister of the said land lib. 4. c. si quis 22. ass reg Da. c. si quis 41. for Herr in dutch in latine herus dominus signifies ane lord or maister and Èeild is called ane gift Here. Èœelde tribute or taxation as in the auld actes of parliament maid be King James the first it is written that ane Èeilde was gaddered for the reliefe of him out of England And ane uther Èeilde was collected for resisting the rebelles in the North. Swa HerreÈelda is ane gift given be onie man to his maister and Lord quhilk suld be his best aucht 17. October 1470. Quhilk is conforme to the aulde lawes li. 2. c. tenentur 35. quhair ilk person makand his testament suld recognosce and acknawledge his maister with the best thing he hes Swa it is manifest that the HerreÈelde is given be reason of the tennents deceis to his maister as ane gift for acknawledging and honouring of him and therefore in the civill law is called laudemium a laudando domino Item in the auld Saxon Laudemium and Dutch language Herr is ane hoist armie or weirfare Swa as sum thinkis HerreÈelda signifies that quhilk is given to the Lord or maister passing to the hoist Here. or be reason of weirfaire For sik small husbandmen having onely foure Oxen-gang of land and thereby be reason of their povertie nocht able to passe to weirfare in proper person suld help their master Herischulda passand fordward theirunto like as Herischulda is the paine of him quha obeyis not the proclamation maid for weirfare for schuld is debitum or debt and heribannum is ane charge or proclamation maid for weirfare Heribannum Curia lib. 1. de feud HILDA terrae Hida terrae an pleuch of land vid. Carrucata HOMAGIUM dicitur quando aliquis promittit se esse hominem alicujus domini stare habitare ubi voluerit dominus Et super hoc facit homagium id est promissionem ut sit suus homo Vel homagium dicitur fidelitas hominis pro rebus temporalibus facta domino Chessan in consuetud Burgund rubric 3. § 1. verb. des fieds in § 3. nu 3. It is a band of man-rent quhen onie person promisis to serve ane uther in sik sort that he sall be friend to all his friends and foe to all his foes against all deadlie Lib. 2. c. praedictis 60. le Forest c. quando 60. It is therefore called hominium and suld be maid be the vassall being minor or major to his over-lorde Lib. 2. d. Cap. 60. And the samin being maide generally with-out exception of any man is called homagium cum ligeantia factum vid. Ligeantia homage differrs from fidelitie first be reason of the persones makeris theirof for weemen makis na homage bot onelie fidelitie lib. 2. c praedictis 60. Because homage concernis service specially in weirfaire to the quhilk weemen are nocht subject And likewaies consecrat bishops makis onelie fidelitie for their landes and barronies lib.
2. c. fieri 61. In this forme I sall be leill and trew to Èow my liege Lord and schir N. King of Scotland and sall nocht heare Èour skaith nor see it Forme of fidelitie but I sall let it at my power and warne Èow theirof Èour Councell conceill and heill that Èe schaw me The best counsell that I can to give Èow when Èe charge me in verbo Dei and as help me God and the halie Evangell The second difference is be reason of the forme and maner for he that makes fealtie kneilis nocht on his kneis Bot he that makes homage kneilis down utherwaies the forme of homage maid be barrones to the King and the forme of fidelitie maid be them to the King are nocht far different for the forme of homage maid be them is this Forme of Homage I become Èour man my liege King in land lith life and lim warldlie honour homage fealtie and lawtie against all that live and die Èœour counsell conceiland that Èeschaw me The best counsell schawand gif Èe charge me Èour skaith and dishonour not to hear or see bot I sail let it at all my gudlie power and warne Èow theirof Swa help me God The forme of fidelitie maid be the barrones to the King is this I sall be leill and trew to Èow my liege lord Sir N. King of Scotland I sall never see Èour skaith nor hear it bot I fall let it at my power and warne Èow theirof Èœour counsell schawin to me I sall conceill the best counsell I can I sall give Èow quhen Èe charge me theirwith sa help me God Fiunt autem Homagia de terris tenement is liberis tantummodo servitiis For quhat thinges homage suld beÌ„ maid de redditibus assignatis in denariis aliis rebus Fro solo vero dominio non solet fieri homagium excepto domino principi lib. 2. c. fiunt 66. Ita hic locus corruptus difficilis legi debet Concerning the exposition of the quhilk it is to wit that all homage is maid to the over-lord and maister quhairof sum are maist chiefe and principall sik as the King to quhom without onie exception suprema fides quae nullam exceptionem patitur jure optimo debetur Uther over-lords are inferiour and subalterne to quhom their vassalles are bund and oblished and suld make their homage And swa their is twa kindes of homage aut enim est ligium aut non ligium vid. Ligeantia Baith the ane and the uther may be maid pro terris tenementis Homagium ligium non ligium annuis redditibus Because ane free halder of landes tenements and annuell-rentes maie make homage to his immediat superiour for his landes or tenementes exceptand the King and his elder over-lord quhilk is Homagium non ligium lib. 2. c. fieri 61. leg forest c. quando 60. Or he may make homage to his over-lord simpliciter without exception of ony person or uther over-lord quhilk is homagium ligium Pro solo dominio na homage can be maid bot onelie domino Principi quhilk is Homagium ligium Because it is upon condition and covenant that he to quhome it is maid falbe maister Lorde and maintener allanerlie to the maker thereof And he quha makis the samin sall acknawledge him and nane uther to be his Lord and maister for his maintenance protection and defence quhairanent he makis exception of na person and swa this kinde of homage is maid to the King allanerlie pro folo ipsius dominio quem solum nullum alium omnes debent agnoscere pro solo domino Hic locus admodum difficilis me diu multumque torsit neque aliter me hinc extricare possum sed in hac re suum unicuique liberum esto judicium HUESIUM Hoyesium ane French word Oyez in latine audite ane hoyes or crie used in proclamationes quhairby ane officiar of armes or messenger dois conveen the people and foirwarns them to hear him de maritag c. sciendum 17. de judic c. 57. It is called alswa an out-hoy or crie leg forest c. si quis 91. And ane thiefe suld be taken with the blast of ane horne with clamour or hues and presented to the Kingis Baillie And gif thereafter he flies away he maie be slaine leisumly hanged up in the next gallous lib. 4. c. si quis latronem 33. Quhilk in an paine is conforme to the Acte of Parliament Ja. 6. p. 1. c 21. And in the lawes of England ann 4. Edward 1. he quha followis not the hue raised for apprehending of malefactoures salbe accused therefore HUSBANDLAND conteines commonlie 6. aikers of sok and syith land That is of sik land as may be tilled with ane pleuch or may he mawed with ane syith For as sum auld writers testifies the Earle of March for the time caused his servand Simon or Sim Salmond to divide the hail land in the Mers into husband landes Ilk husband land conteining 6. aikers quhair pleuch and syith may gang Quhat Earle of March this was Forefaultour of Alexander Earl of March c. I am nocht certaine bot I find that ane called Simon Salmound is foresalted with Alexander Duke of Albanie Earle of March Mar and Garrioch Lord of Annanddale and of Man brother to King James the third 8. Julij 1483. Bot the Lords of Councell esteemis the Èeirlie mailes fermes and dewties of ane husband land to five markes in Registro 1. Decemb. 1545. And ane uther husband land lyand beside Dumbar they esteeme it to 14. bolles bear and 3. bolles quheit in Registro 14. Feb. 1544. And ane uther husband land to 3. pounde Swa I finde na certaine rule prescrived anent the quantie and valour of ane husband land I INFANGTHEFE lib. 1. c. 3. ane Dutch word quhairof I find divers interpretationes for in the auld lawes of the Brittones maid be King Edward infangthiefe is ane liberty or power perteining to him quha is infest theirwith to cognosce upon thieft committed be his awin man taken within his awin dominion lands like as in sindry auld buikis conteinand the lawis of this realm Infangthese dicitur latro captus de hominibus suis proprijs saisitus de latrocinio outsaÌ„gthiefe is an for aÌ„ thief quha cums fra an uther mans land or jurisdictioÌ„ is taken apprehended within the lands pertenand to him quha is infeft with the like liberty In sindry uther buiks it is written that insangthiefe is an liberty to sit deceid upon theft committed within the jurisdiction of him quha is infeft theirwith be his awin man or ony uther man quhatsuÌ„ever taken therewith within his awin jurisdiction And Out-fang-theife is power or libertie to reduce replege and bring-hame to his awin court all thieves being his awin men and committand thieft within his awin boundes quha ar fugitive and taken within ane uther mannis
quhen onie wrangeous occupation is maid to the hurt and skaith of the Kingis tenement the Kingis street or common way Or of the Kingis Burgh The quhilk kinde of Purpresture suld be decided before the Kings justice and his deputes be ane condigne assise And he quha is convict thereof salbe in the kingis mercie and punished conform to his will in his bodie and in all his lands quhilk he halds of him and mair-over sall restore that quhilk he injustly bigged and occupied The second kinde is quhen onie vassall occupies and usurps any lands against his over-lord uther then the King Quhilk controversie may be decided be the over lord in his awin court and gif the vassall is convict to have done wrang he tynis perpetuallie all the landes quhilk he haldis of that superiour The quhilk jurisdiction and power of halding of courtes of Purprision perteinis to ane Barron and to uthers quha are abone him in power and dignity sik as Earls and Lords For na vassall subject nor uther tennent under ane Barron hes power to hald sik courts Ia. 3. p. 30. c. 79. The third kind of purprestura is against ony uther except the King and the superiour As betuixt nichtbor and nichtbor subject and subject quhen ane wrangeouslie occupies the lande perteining to ane uther or troublis him in his meithis and marches quhilk molestation perteins to the Schireff to be tried before him be ane brieve de nova dissasina or de rationabilibus divisis Be the law of England an 4. Edward 1. de bigamis c. 4. gif onie usurpis and occupies within the Kingis liberâ—â— or ony uther place contrair the King Incontinent 〈◊〉 proces or ordour of law the King tuik the land in his awin hand and thereafter it was leisum to ony person havand entres to compleine thereanent The like sonne is permitted be the lawes of this realme anent the Kingis customes Ja. 1. p. 1. c. 8. And his annexed propertie Ja. 2. p. 11. c. 41. PUTAGIUM ane French word huiredome or fornication lib. 〈◊〉 in custodiis 50. c. ult 53. Quhair it is manifest that ane 〈◊〉 femaill being within warde and of les aige and committand fornication tynis and forefaults her pairt of the heritage and the samin accrescis and perteinis to the rest of the co-heirs or comportioners gif onie be And gif their be an heretrix allanerly quha commitis the said fault all and haill her heritage perteinis to the superiour But gif an heretrix of lands hes bairnes lauchfully gotten in marriage and after the decease of her husband in the time of her viduitie committis fornication neither sche nor her bairnes tynis the heretage Quia putagium matris non adimit haereditatem The huiredome committed be the mother dois nocht disherish the lauchfull bairnes Q QUARENTENA viduarum in the statutes Rob. 3. c. deviduis 22. from the French la quaresme des vefues signifies the priviledge of fourtie daies granted to widdowes after the decease of their husbandes conforme to the Lawes of England anno 20. Henr. 3. c. 1. Quhair it a statute anent widdowes quha after the death of their husbands may nocht have the dowrie without pley That quha-soever deforcis them of their said dowries of the landes quhairin their husbandes died vest and saised and it sall happen the said widdowes to recover the samin theirafter be pley or proces They quha troubled and molested them being convict of sik wrangeous deforcement sall Èeild and pay the damnages and skaith to the samin widdowes That is to say the valour of the haill dowrie belanging to them from the time of the death of their husbandes unto the day that the saides widdowes obteinis decreit in judgmente And the said deforceres nevertheles salbe amerciat at the Kingis pleasure In the quhilk place it is plaine that Quarentena viduarum conteines the space of fourtie daies during the quhilk space ane widdowe may tarie and remaine in the chiefe dwelling place of her husband untill her dowrie be assigned to her and in the meane time suld be susteined upon the proffites of the heritage As it is likewaies written in magna carta anno 9. Henr. 3 c. 7. quhilk is conform to the laws of France as writis Ioan. Papon in his arreistes lib. 15 Tit. des dots c. 7. lib. 10. tit substitutiones c. 30. per authenticam praeterea C. unde vir uxor and in the Burrow lawes of this Realme the second or third wife of ony Burges after the decease of hir husband may nocht remaine in the hous perteining to his aire gotten of ane uther wife bot onelie fourtie dayes leg burg c. si burgensis duas 25. QUHATECUS ane kinde or forme of bread quhilk wee call ane fage or phage from the greeke word phago comedo to eate R RACHETUM ane French word Rachapt ane ranson in sum buikes it is called Rechatum transpositis literis Stat. 1. Rob. Br. c. 1. Stat. 2. Rob. Br. c. 7. quhair it is called thieft-bote and in sum auld buikes Rachatum is called thieft-bote or redemtion taken for thievis robbers or uther malefactours RAPTUS rape ravishing or deforceing of weemen quhilk is ane of the four points or pleyes perteining to the Kings Crown to nane uthers vid. placitum vid. murthrum Ravishing is an crime quhairof ane woman accusis ane man alledgand she is oppressed or defiled be him against the Kinges peace lib. 4. c. raptus 9. The quhilk complaint sulde be maid the same day and night in the quhilk the crime is committed quia lapsu diei hoc crimen praescribitur Quo. attach Cap. De caetero 48. Statut. Wilh c. Item Statuit 9. In the lawes of England Westm 11. c. 34. Rape is quhair ane man ravishis or takis ane uther mans wife widdow or maiden violentlie and hes a doe with her against her will And albeit she afterward consent Èit it is fellonie quhilk is confirmed be Chess in consuetud Burgund Rubric 1. verb. Es droicts d'icellis Nu. 43. REIF or robberie is likewaies ane of the foure pointes of the Crown lib. 4. c. die lunae 13. leg Malc Mack c. 4. ass reg Da. c. 1. Robberie is quhen an man lyis by the Kings hie way passing to mercat Townes in woodes ditches or onie uther secreit place quhair people cummis furth by and robbis spuilÈies them albeit he take away bot the valour of ane pennie or lesse it is felonie for the mala-pertnes of the deed breaking of the Kings peace and the danger in the quhilk ane man is of his life causis the offence to be the greater then gif the gear swa robbed or spuilÈied had bin thiefteouslie stollen as it is written in the lawes of England an 23. Hen. 8. c. 1. In the law of Normandie li. 3. c. 1. Robbery is the taking of uther mens gear be force and violence And the committers theirof in latine are
and persew and defend all actiones competent to him Bot he may nocht destroy nor annalie ony part of the landes Lib. 2. cap. Plenam 42. c. Restituerit 44. vid. Relevium vid. Hawbert The keiping of the bairnes perteinis to the mother Touching the custodie and keiping of the person of the air ofward lands or of ony uther landes or quhatsumever maill or femaill gotten or borne in lauchfull mariage the samin perteinis to the mother after the decease of the father untill the bairne be of the age of seven Èeires compleit conforme to the commoun practicque of this realme and the civill law L. 1. Tot. Tit. ff ubi Pupil educar debeat For be the Law of this realme grounded upon the Climacterick Èeires of Septenarius Ternarius That is of seven and three Èeires Three kindes of age there is three kindes of age The first is of seven Èeires during the quhilk time the bairnes ar in custodie of their parentes The second is of fourteene Èeires within the quhilk it is not leasum to marie The third is of twentie ane Èeires after the quhilk time ane aire may enter to his landes annalie and dispone the samin as he pleasis And before the quhilk time na person may be indited to the justice aire or accused of life and lim Leg. Forest cap. Nota quod 15. The keiping of the aire being Minor haldand Landes of the King The keiping of the aire perteinis to the King perteinis to him allanerlie albeit the said aire have uther superioures of uther warde landes elder and prior in time to the King Quia rex nullum potest habere parem multó minus superiorem in suo regno Bor gif ane aire haldis landes nomine Burgagij of the King And uther lands nomine wardae relevij of aneuther superiour prior or posterior to the King the custodie and keiping of the said aire perteinis not to the King bot to the said superiour Quia ratione Burgagii Dominus Rex non praesertur alijs Dominis capitalibus in custodia Lib. 2. c. Notandum 45. After the outrunning of the seaven Èeires The keiping of the aire perteinis to his superiour and the aire beand of that age haldand landes of warde of ane superiour and having na landes be reason of warde of the King The superiour suld be preferred anent the keeping of the person of the aire to the mother gud-schir tutour Èea to the King himselfe and all uther persones The saxteenth of Julij Ane thowsand five hundreth threttie twa Penult Julij ane thowsand five hundreth threttie twa Èeirs The Abbot of Abirbrothok contrair Marioun Forbes Twentie aucht of Julij Ane thousand five hundreth twentie nine Èeirs James Sandielandes of Calder contrair Edward Sinelar The custodie and keeping of the person of ane aire The eldest superiour is preferred to all uthers haveand landes halden of diverse superioures bee warde and relieve perteinis to the eldest superiour to quhome the first homage was made Or of quhome hee hes the eldest and first infestment or forme of halding For al-be-it ilke ane of the superioures hes the warde of the Landes halden of himselfe Èœit concerning the keiping of the person of the aire the principall and eldest superiour is preferred to all utheris Lib. 2. c. Restituere 44. The keiping of the aire havand lands blenche or in few-ferme and also ward lands perteinis to the superiour be reason of the ward and not to the tutour havand intromission with his blenche or fewlands The superiour is preferred to the tutor 28. Ianuar Patrick Hepburne contrair Elizabeth Ker. Gif the superiour havand the richt and title to the warde and mariage of ane aire disponis the warde to ane donatar and the marriage to ant uther The donatar to the mariage allanerlie The keiping of the aire followis the richt of the mariage suld be preferred in keiping of the persone of the said Minor to the uther donatar of the ward and all uthers Quia jus maritagij est personale sequitur personam The keiping of the air suld never be committed to him quha may claime or claimis ony richt of his landes and heretage Or may immediatly succeede after him thereto The keiping of the aire suld not be given to hi appearand aire The end of the warde Lib. 2. c. haeredes 47. Hac enim ratione illi posset praeberi occasio captandae mortis ipsius haeredis quod est periculosum impium Be the Lawes of this realm the aire mail and all his lands halden ward ar within ward and keiping of his superiour until he be of the age of xxj Èeiris And the airefemall untill she be of the age of xiiij Èeirs M. p. 3. c. 5. lib. 2. c. 39. de iudic c. 64. c. 121. Because the landes perteining to the aire mail ar subject to the King or uther superiour be service quhilk the Minor be reason of his les age and Èouth-head cannot do And therefore the King or superiour wantand the service hes recours to the land that he may be served be the profites thereof takin up to his awin use or be ony person to quhome he pleasis to dispone the samin untill his vassall be of perfite age and able to serve And the aire femail is in the warde and keiping of hir superiour untill sche be fourteene Èeires of age as said is for suppose ane woman of twelve Èeiris of age be the civill Lawe may marie ane husband Èit be the Lawe of this realme she may nocht marie until she be fourteene Èeires compleit At the quhilk time sche may lauchfully marie with consent of her superiour Lib. 2. cap. Mulier 48. cap. in Custodiis 90. And therefore sche being subject to her husband It is not reason sche suld be also subject to the warde of her superiour and consequentlie under twa wardes and twa sindrie severall powers Mair-over sche being maried with consent of her Over-lord her husband may doe sik service as suld be done to him be the possessour of the landes quhilk is conforme to that quhilk is written be Doct. Thomas Smith of the commoun weil of England Lib. 3. c. 5. c. 8. VARDA Curiae quoniam attach c. ubi aliqua 10. c. in omni 18. c. nullus 20. The interloquutor or decreet of the court Curia dicitur vardare considerare pronunciare in this forme The Court counselled and advised And I. N. Soytour of it be their informationes sayeth that this Court counselles and I. award that N. is in ane default for his absence this day The like form is used in the daily practicque quhen the judge or clerk be the mouth of the officiar or dempster decernis and adjudgis onie person to be in ane unlaw for absence or any uther cause and. lib. 2. c. that quhilk is called veredictum assisae Veredictum in the samin place in libro