22. Anent the exceptions proponed anent Widowes, in hindring of them of their teirces. ITEM, It is statute and ordained, anent the exceptions proponed against Widowes, persewand and followand their brieves of teirce, or the profite of their teirce, quhilk is ofttimes proponed against thay widowes, that they were not lauchful wives to the persones their husbandes, be quhome they follow their said teirce : That therefore, quhair the matrimonie was not accused in their life-times, and that the woman askand this teirce, beand repute and halden, as his lauchful wife in his life time, sall be teirced, and bruik her teirce, but ony impediment or exceptions to be proponed against her, ay and quhil it be clearely decerned, & sentence given, that scho was not his lauchful wife, and that scho suld not have ane lauchful teirce therefore.47 24. That all our Soveraine Lordis lieges be ruled be his lawes. ITEM, It is statute and ordained, that all our Soveraine Lordis lieges beand under his obeysance, and in special the Iles, be ruled be our Soveraine Lordis awn Lawes, and the commoun lawes of the Realme, and be nane uther Lawes. 37. That it sall be laifful to everic man, baith Spiritual and Temporal, to set their landes in few. ITEM, It is statute and ordained, because the Kingis Hienesse is of will and minde, for policie of his Realme, to set his proper landes, baith annexed, and unannexed, in few-ferme: Therefore, he hes granted to all his Estaites, with their advise, that ever-ilk Lord, Barronne, Free-halder quhat-sum-ever, Spiritual or Temporal, sall have power induring the daies of his life, to set all their landes in few-ferme, or annual rente, to ony person or persones: Swa that it be not in diminution of their rental, swa that the alienation swa maid of the maist part of all their lands, sall be na cause of fore-faltour, nouther to the setter, nor to the taker notwithstanding, ony statute or lawes maid in the contrair.48 39. That the inhabitants of annexed and unite landes to uther Barronages sall answere to the Justice aires, Schireffe courtes, quhair the landes lyis. ITEM, Because it hes bene ane defrauding in execution of Justice, that quhair lands hes bene annexed & unite in ane Barronnie, quhilks lands lyis in sindrie Schireffedoms, throw the quhilk the inhabitants of the saidis lands sa annexed, hes never answered in Schireffe court, nor Justice aire, in the Schireffedome, in the quhilk they lye, because the Lordship, that they were annexed to, lyis in ane uther Schireffedome: Therefore it is statute and ordained in time to cum, that ever-ilk Barronnie, and the inhabitantes thereof, sall answere in Schireffe courte, and Justice aire, quhair the said Barronnie lyis, and there be halden to compeir, baith be arreist of his Schireffe Officiar and Crowner, notwithstanding the said annexations: And the annexation sall suffice allanerly for the Lord, that hes the said landes annexed, to give their presence, and service in the place, quhair they ar ordained be the said annexation. 47 In reference to this act, see Erskine, b. ii. tit. ix. § 50. 48 This act, although a temporary one, introduced the power of fubfeuing land, which now exists without limitation, unless expressly prohibited by the proprietor's title-deeds. 40. Of exceptions to be proponed against the brieve of inquest: Summoundes of assisors: Proclamation of brieves. ITEM, It is statute and ordained, that because there hes bene in time by-gane, great abusion in the proponing of exceptions frivol, against the brieve of inquest, and perverted the ordoure and nature of it, as it were ane brieve of pley: There fore for the eschewing of sik frivol exceptions in time to-cum: It is statute and ordained, that na exception availe against the said brieve of inquest, it beand cryed openly upon fifteene daies, with the indorsing of the Officiar that cryed it, conteinand twa witnesses, and his seale or signet, bot the exceptions followand allanerly: That is to say, against the judge, against the inquest, and the exceptions of bastardrie, and that to be proponed in the forme of the auld Law: And as anent the exception maid anent the summounding of inquest, upon fifteene daies before, after the forme of the statute of King Robert, quhilks maks mention, that the inquest suld be summound upon fifteene daies before: It sall be leifful notwithstanding the said statute to the Schireffe, or ony uther Officiar, that is Judge to the brieve of inquest, to summound the said inquest upon quhat daies he pleasis, or upon schort time, notwithstanding the saide statute: And gif they be present in the Tol-buith un-summounded, sa that there be nane uther lauchful exception against them, it sall be leifful to the Schireffe or Officiares, to compel them to passe upon the said inquest. And attour, because there hes bene ane abusion in the crying of the Kingis brieves in Stewartries and Baillieries, quhair they were cryed at ane Hil, na confluence of people being there, throw the quhilk na knawledge their of micht cum to the partie: Herefore it is statute and ordained, that all maner of brieves of inquest, sall be cryed at the mercat croce of the burgh openly in plaine mercat, quhen maist confluence of people is gaddered. Swa that the crying thereof, may cum to the knawledge of the partie defender, quhair it suld be served, and quhat day. And that the said brieve be thrise cryed plainely togidder, and betuixt ilk crying the space of all the three cryinges. And that all Officiares of the Towne be warned to compeir at the said proclamation to beare witnes: And gif it sall happen, that the Antecessor of ony clamand richt, decease sa neare the terme of Whitsunday and Martin-mes, that the persewer may not get it upon ane mercat day, for nearenes of the terme of Whit-sunday or Martin-mes, in that case, it sall bə leifful to him to gar cry his brieve upon ony oulke day: Swa that he have the Officiares of the Towne, and part of the honest persones to the number of sex persones, saifand to our Soveraine Lord, his warning upon fourtie daies, after auld use and consuetude.49 45. That na Schireffe nor Officiar distreinzie, or poynd ony thing belangand to the pleuch, in time of teilling. ITEM, It is statute and ordained, that in time to-cum, na maner of Schireffe nor Officiar poynd nor distreinzie, the oxen, horse, nor uther gudes perteining to the pleuch, and that labouris the ground, the time of the labouring of the samin, quhair ony uther gudes or lande ar to be apprised or poynded, according to the commoun law,50 49 In reference to this act, see Erskine b. iii. tit. viii. § 59, et seq., and Juridical Styles, vol. i. p. 374, et seq. 50 By modern practice piough-goods may be poinded where the debtor has no other moveables. See Turner v. Scott, 7th December 1692, Fount. vol. i. p. 528, et M. 10,523. In further elucidation, see Erskine b. iii. tit. vi. § 22. ACTA PARLIAMENTORUM REGIS JACOBI QUINTI. APUD EDINBURGH, XIII DIE MAII, A.D. M,D,XXXII. 2. The institution of the College of Justice. ITEM, Anent the second artickle, concerning the ordour of Justice, Because our Soveraine Lord is maist desirous to have ane permanent ordour of Justice, for the universal weill of all his Lieges: And therefore tendis to institute ane College of cunning and wise men, baith of Spiritual and Temporal Estate, for doing & administration of justice in all civil actions: And therefore thinkis to be chosen certaine persones maist convenient, and qualified therefore, to the number of fourteene persones, halfe Spiritual, halfe Temporal, with ane President: The quhilkis persons sall be authorized in this present Parliament to sit and decide upon all actions civil, and nane uthers to have vote with them, unto the time the said College may be institute at mair leasure. The place quhair to sit in, and of the feriat times. AND Thir persones to beginne and sit in Edinburgh, on the morne after Trinitie Sunday, quhill Lamb mes: And thereafter to have vacance, quhill the nineteene day of October nixt after, and then to begin and sit quhill Saint Thomas Even afore Zule, and thereafter to begin on the morne after Epiphanie day, and sit quhill Palme-Sunday Even, and thereafter to beginne upon the morne after Dominica in Albis, and sit quhill Lamb-mes. The Lordis to be sworne. AND thir persones to be sworne to minister justice equallie to all persones, in sik causes as sall happen to cum before them, with sik uther Rules and statutes, as sall please the Kingis Grace to make, and give to them, for ordouring of the samin. The authorizing in Parliament. THE Three Estaites of this present Parliament, thinkis this artickle weill conceived: And therefore the Kingis Grace, with advise and consent of the saidis three Estaites, ordainis the samin to have effect in all poyntes, and now ratifies and confirmis the same, and hes chosen thir persones underwritten, to the effect foresaid, quhais processe, sentences and decreetes, sall have the samin strength, force and effect, as the decreete of the Lordes of Session had, in all times by-gane. The authoritie of the Chancellar and Lordes. Providing alwaies, that the Lorde Chancellar being present in this Towne, or ony uther place, he sall have vote, & be principal of the said Councel. And sik-like uther Lordes, as sall please the Kingis grace to injoyne to them of his greate Councel, to have vote sik-like, to the number of three or foure. The names of the Lordes. THAT Is to say, the Abbot of Cambuskenneth President, Maister Richard Both-well, Schir John Ding-well, Maister Henrie Quhite, Maister Robert Schanwel, Vicar of Kirkcaldie, Maister William Gibsone, Maister Thomas Hay, Maister Arthure Boyce, The Lairde of Balwerie, Schir John Campe-bel, Maister Adame Otterburne, James Colvil, of East Weemes, the Justice Clerke, Maister Frances Bothwel, Maister James Lawson. And thir Lordes to subscrive all deliverances, and nane uthers, after they begin to sit, and minister Justice.51 APUD EDINBURGH, VII DIE JUNII, A.D. M,D,XXXV. 11. For breakers of dowcattes, cunningaires, parkes and stanckes. ITEM, It is statute and ordained, that all they that breakis dowcattes, Cunningaires, Parkes, stanckes, and takis or stealis foorth of the samin, Daes, Raes, Cun-. ninges, Dowes, Pykes, fish, Hives and Bees, without special licence of the awner thereof, sall be called and punished therefore, as for thieft at particular diettes: And this acte to extend to them that ar airt, part, or gives assistance to sik misdoers.52 14. The life-renters, and the Wardaters, suld finde caution to the proprietares and minors. ITEM, Because it is un-profitable and inutile, to make lawes and statutes for policie to be had, without the same be keiped: And because sik ordour and provision, as is devised for policie, may failzie be falling of landes in warde, or giving of the samin in conjunct-fee or life-rente: Therefore the Kingis Grace, with advise of his three Estaites, ordainis the acte maid thereupon, be the maist excellent Prince, King James the Fourth, his Father of maist noble mind, to be observed and keiped in all poyntes, ratifies and apprievis the samin. And that all Schireffes, Stewardes, Baillies, and uther officiares, baith in Regalitie and Royaltie, and siklike Spiritual men within their landes, & to Burgh, put the samin to execution in all poyntes: That is to say, All Officiares within the Royaltie, and Lordes of Regalities, under the paine, of refounding to the heritoures of sik landes fallen in warde, at their perfite age, of all damnage and skaith, that they sall happen to susteine throw their negligence (they being required thereto be the persones, that is in warde or his friends.) And if the wardatours, Ladies of conjunctfee, or life renter of sik landes, refusis to finde sovertie conforme to the said act (they being required thereto) be the Schireffe, Baillie, Stewart, Provest, or Alder 51 The present Court of Session was instituted by this act. man in Burgh, That the said Schireffe and Officiares, ilk man within his awin boundes, charge them to finde the said sovertie, conforme to the said acte personally, or be open proclamation at the head burgh of the Schire, quhair the saids landes lyes, within twentie ane daies, nixt after they be charged thereto, under the paine of wanting of the profite of all sik warde landes, conjunct-fee, and life-rentes, to be in brocht to the Kingis use, ay and quhill the said caution be sufficientlie foundin. And that the Lordes Auditoures of the Checker, and Thesaurer for the time, inquire diligently in everie Checker, that all Schireffes and uthers Officiares foresaid, at the making of their compts, gif the said caution be sufficientlie foundin, and get certification thereof.53 38. The life-rent of all vassales, being zeir and day at the horne, perteinis to the immediate Superiour. THE quhilk day in the mater referred be Lordes of Session to the Lordes three Estaites of Parliament, for interpretation of certaine Lawes of the Realme, schawin and produced before the saidis Lordes of Session, in ane action mooved before them, and zit dependand be James Kennedie of Blairquhan, against Thomas Makclellane of Gylestoun, for the mailles and dewties of the landes of Castel-cruik and Killimanoch, with the pertinents, lyand within the Schireffedome of Wigtoun, perteinand to the said Thomas in heritage, halden of the said James immediatlie in chiefe, and throw his being at the horne attour zeir and day: The mailles and dewties of the saids lands, be the Lawes of the Realme, perteinis, and suld perteine to the said James, for the said Thomas life-time. And because the saidis Lawes were variant in their selves, and therefore were referred to the interpretation of the Estaites of Parliament, gif the samin concernis simple slauchter or not, and suld have place in that mater or not, as at mair length is conteined in the acte maid hereupon, of the dait at Edinburgh, the fourth day of March, the zeir of God, ane thousand, five hundreth, threttie foure zeires: Baith the saidis parties being personallie present with their Procuratoures & Fore-speakers, the saidis Lawes and uthers their reasones and allegations being heard, seene, & understandin the Lords of artickles being ripelie advised therewith: finds that the use in times by-gane, hes bene, that the mailles and dewties of the landes of them that hes bene zeir and day at the horne, halden of uther Superiours then the Kingis Grace, zeir and day being by-paste, returned againe to the superioures of the saidis landes, for the lifetime of them that susteined sik proces of horning zeir and day, as said is: except crimes of treason, and lese-majestie. And findis that the saidis Lawes suld be sa interpreted and used in times cumming.54 53 The act here ratified is 1491, ch. 6, which see and note annexed thereto. 54 By the 20th of Geo. II. c. 50, escheat upon denunciation for civil causes is entirely abolished; but this act is still in force to the effect of creating a liferent escheat in favour of the superior in the following cases, viz. 1. In the case of sentence of death followed by escape, the judgment terminating the vassal's capacity to hold the feu, and the existence of the vassal excluding his natural heir. 2. In the case of a vassal being denounced a rebel for a criminal cause, and remaining unrelaxed for a year subsequent to the denunciation. In reference to this subject, see Erskine, b. ii. t. v. §. 66. In criminal cases denunciations may be used against persons cited to the Court of Justiciary, either first, if they appear there with a greater number of followers than is permitted by statute; or, secondly, if, by failing to appear, they are declared fugitives from the law See Erskine, b. ii. t. v. § 57. |