APUD EDINBURGH, III DIE DECEMBRIS, A D. M.D.XL. 10. The ordour of summounding of all persones in Civil actiones. ITEM, For eschewing of greate inconvenientes and fraude, done to OUR SOVERAINE LORDIS Lieges, be summounding of them at their dwelling places, and ofttimes falslie, and gettis never knawledge thereof: IT IS statute and ordained, that in times cumming, quhair ony Officiar or Schireffe in that parte, passis at commande of the Kingis letters, or the Schireffes, Stewardes, Barronnes, or Baillies precept, to summounde onie partie, gif they cannot apprehende them personallie, they sall passe to the zett or dure of the principal dwelling place, quhair the person to be summounde dwellis, and hes their actual residence for the time, and there sall desire to have entresse, quhilk gif it be granted, they sall first schaw the cause of their cumming: And gif they cannot get the partie personallie, they sall schaw their letters or precept before the servandes of the house, or uther famous witnesse, and sall execute their offices and charge, and thereafter sall offer the copie of the saidis letters or precept to ony of the servands, quhilk gif they refuse to do, that they affix the samin upon the zett or dure, of the persones summound: And sik-like gif they get na entresse, they first knockand at the dure sex knockes, they sall execute their office before famous witnesse, at the said house and dwelling place, and affixe the copy upon the zett or dure thereof, as said is, quhilk sall be leifful and sufficient summounding and delivering of the copie, and the partie, nor Officiar sall not be halden to give ony uther copie, but at their awin pleaAnd everie officiar in his indorsation, sall make mention of his awin execution, in maner foresaid. And the partie at quhais instance, the letter or precept is direct, sall pay to the Officiar executour the expenses of the copie affixed, as said is: And sall be taxed and given againe to him, at the giving of the decreet or sentence, gif he happenis to obteine: And gif the Officiar beis foundin culpable in the execution of his office, he sall be put in our Soveraine Lordis prison, and punished in his person and gudes, at the Kingis Grace will.55 sure. 12. Saisinges upon precepts of the Chancellarie, suld be given be the Schireffe Clerke, and all uthers be honest Notars. ITEM, It is statute and ordained, for eschewing of inconvenients of giving of saisinges be private Notars, quhais names ar oft-times un-knawin, and their protocolles cannot be gotten, in-case the principal instrument be tinte, destroyed, substracted, and halden awaie. For eschewing hereof: THAT All saisinges be given in times cumming, be the Schireffe Clerke, or his deputes, whom-fore he sall answere, and be nane uthers, upon all precepts that passis be the Chancellarie: And all uthers saisinges to be given be famous Notars admitted thereto, and be nane uthers.56 15. Of false Notars and witnesse, Counsellers, and users of falsed. ITEM, For punishment of false Notares, and them that bearis false witnesse, or that inducis ony man to beare false witnesse: And sik-like of them that makis 55 In reference to this act, see Mr Tait's Treatise on the Law of Evidence, p. 11, et seq. and authorities there referred to. 56 This act was explained by 1606, ch. 14, which see. See also Erskine, b. ii. t. iii. § 37. : false instrumentes, or causis make ony false instrumentes, or usis the samin wittinglie That all sik persones in times cumming, be punished in their persones and gudes with all rigour, sik-like as it is provided be the disposition of the commoun Law, baith, Canon, Civil, and statutes of the Realme.57 APUD EDINBURGH, XIV DIE MARTII, A.D. M,D,XL. 10. Ratification of the institution of the College of Justice. THE Kingis Grace, with advise of his three Estaites of Parliament, understand ing that the institution of his College of Justice, and acts maid thereupon, ar richt profitable to his Grace, and all the haill Realme: And therefore now after his perfite age of twentie five zeires, hes ratified and apprieved, ratifies and apprievis, for him and his Successoures, the institution of the saide College of Justice, and actes maid for administration of Justice therein: And likewise ratifies and apprievis the confirmation, ratification, approbation of the Paipe, of the erection of the said College, and of the gift of all benefices, rentes, given and to be given, assigned, and to be assigned, to the honest sustentation of the said College of Justice: And all priviledges, quhat-sum-ever, graunted, and to bee graunted thereto, bee the Paipe, and his hienesse: And wils, and ordainis for the causes foresaid, that the said College and institution thereof, remaine perpetuallic, for the administration of Justice, to all the lieges of this Realme, and to be honoured sik-like, as ony uther College of Justice in uther Realmes. And attour, gives and grantis to the President, Vicepresident, and Senatoures power to make sik actes, statutes, and ordinances, as they sall thinke expedient, for ordouring of proces, and haistie expedition of Justice: And in absence of President and Vice-president, wils, that the eldest in ordour of the saidis Senatoures, be President for the time, to the effecte, that there may be na stop of Justice ony time, throw absence of the said President, and Vice-president.58 22. The paines of Judges that dois wrang: And of them quha slanders them wrangeously. SWA It is statute and ordained, that for-sa-meikle as it hes bene heavilie murmured to our Soveraine Lorde, that his Lieges hes bene greatlie hurte in times bygane be judges, baith Spiritual and Temporal, quha hes not beene allanerlie judges, bot plaine sollistares, partial Counselloures, assisters and partakers with sum of the parties, and hes tane great geare and profite. Therefore it is statute and ordained in times cumming, that all Justice. Schireffes, Lordes of Session, Baillies of Regalities, Provest and Baillies of Burrowes, and uther deputes, and all uther judges, Spiritual and Temporal, alsweill within Regalities as Royaltie, sal do trew and equal Justice to all our Soveraine Lordis Lieges, without ony partial Counsel, rewardes, or buddes taking, further then is 57 In reference to this act, see Hume, vol. i. p. 158, et seq. 58 This act is most important, as it not only ratifies the institution of the College of Justice, but also confers on the Judges the power of making those rules of Court or Acts of Sederunt which thence derive their authority as law. The privileges belonging to the College of Justice, and which are confirmed in this act, are specified in A. S. 23d February 1687. permitted of the Law, under the paine of tinsel of their honour, fame, and dignitie, gif they be tainted and convicted of the samin: And gif ony maner of person murmuris ony judge, Temporal or Spiritual, alsweill Lordes of Session, as uthers, and proovis not the samin sufficientlie, hee sall be punished in semblable maner and sorte, as the saide judge or person quhom he murmuris, and sall pay ane paine arbitral, at the will of the Kings Grace, or his Councel, for the infaming of sik persones: Providing alwaies, gif ony Spiritual man failzies, that he be called before his judge Ordinar.59 23. Provision and paines of them committand fraude in alienation or uther waies. ITEM, For eschewing of inconvenientes, that oft and diverse times happenis in this Realme, of the new invented crafte and falsed committed and done dailie be them that sellis their landes, or disponis the samin, ex titulo oneroso, that puttis their Bairnes or uther friend, and person in the state of the samin, before the daite of the selling or giving thereof to uthers, as said is: Herefore it is statute and ordained, that quha sellis and disponis ony landes or annualrentes to ony maner of person, for ony cause, quhair warrandice may fall and puttis uthers in private state thereof, not be resignation in the Kingis Grace handes, nor be confirmation with precept, past furth of the Chancellarie, nor be plaine resignation in the Over-lordes handes, or confirmation of the Over-lord, and the person that happenis to get thir landes, and bruikes the samin peaceablie, zeir and daye, be labouring, manuring, and uptaking of the mailles, profites, & dewties, & swa kenned heretable possessour thereof, zeir and daye: The person or persones havand private state and saising of the saidis landes, sall never be heard, to claime the samin, against the seconde heretable possessour, for ony cause, bot to persew his interest against the principal giver, and his aires: And the person seller or giver, to be called and declared infamous, at the Kingis Grace instance, & to be punished in his person and gudes, at the Kingis Grace will and pleasure. And gif the Over-lordes receivis double resignationes wittandlie, to the effect abone written, they too bee punished sik-like: And this Acte to be extended to them, that makis double assedationes, and double assignationes.60 24. The creditour may persew him quha is charged to enter within fourtie daies, and enters nocht. AND Anent the remeid to be put to the fraude daillie committed be heretoures of them that ar dead, and ar awand great summes of money, to sindrie persones their creditoures, and the saidis aires fraudfullie lyis foorth, and will not enter to their landes, swa that they may be distreinzied for the saidis debtes, in case they be not distreinzieable in uthers moveable gudes: Therefore it is statute and ordained, that letters sall be direct be deliverance of the Lordes of Councel, and at the instance of ony compleiner, to commande and charge the saidis heretoures (they beand of perfite age) to enter to their landes, zeir and daye being paste, after the decease of their Father, or predecessoures, quhom to they succeede, to enter to the samin, within fourtie daies, nixt after their charge: And failzieing thereof, 59 This act may be considered still substantially in force. 60 The priority and preference of heritable rights are now regulated by subsequent statutes, but it may be doubted whether this statute might not be founded on as a warrant for awarding punishment against the granters of double rights, and any superiors accessory thereto. See Ross's Lectures, vol. ii. p. 284. letters sall be direct to the Schireffe of the Schire and his deputes, to apprise the saidis landes to the saidis creditoures, for the saidis debtes (gif they be liquide.) The quhilk processe of apprising, sall have als greate strength, force, and effect, as the saidis aires were entred thereto, and the saidis apprised landes to be halden of the immediate superiour thereof: Providing alwaies, that it sall be leasum to the saidis heritoures, and their successoures, to redeeme the saidis landes, within seven zeires, conforme to the acte of Parliament maid there-upon of before, and after the tenoure thereof in all poyntes.61 30. Anentis conduction of Craftes-men. ITEM, Because it is heavelie murmured, that all Craftes-men of this Realme, and specially within Burrowes, usis sik extorsion upon uthers our Soveraine Lordis Lieges, be reason of their craftes and privie actes and constitutiones, maid amangest themselves, contrair the commoun weill, and in great hurte, prejudice, damnage and skaith to all the Lieges of this Realme: Therefore it is statute and ordained, that in all times cumming, it sall be leasum to all our Soveraine Lordis lieges, that hes ony bigginges or reparationes to be maid, for the making of policie in this Realme, outher to Burgh or to Lande, to chuse gude Craftes-men, free-men, or uthers, as he thinkis maist expedient, for ordouring, bigging, and ending of all sik warkes. And gif ony Craftes-men beginnis the said warke, and delay is to end the samin, that the person that causis to big the said warke, or reparation foresaide may chuse and take uthers in their places, als oft as neede beis, to furnish and ende foorth the saide warke, for policie of the Realme: And that na impediment be maid to sik Craftes-men, usand their craft, as saide is, be ony uther of the saide craft within this Realme, under the paine of tinsel of their freedome, and breaking of the actes of Parliament: And that the Provest and Baillies of all Burrowes, take inquisition hereupon, and put this acte to execution in all poyntes.62 37. That na faith be given to evidentes sealed, without subscription of the principal or Notar. ALSWA It is statute and ordained, that because mennis seales may of adventure be tint, quhair-throw great hurt may be genered to them that awe the samin: And that mennis seales may be feinzied, or put to writinges, after their decease, in hurte and prejudice of our Soverain Lords lieges: That therefore na faith be given in time cumming, to ony obligation, band, or uther writing under ane seale, without 61 By modern practice charges may be directed against heirs before they arrive at perfect age, provided their tutors and curators be cited edictally, and the process of adjudication has superseded the old diligence of apprising. For a commentary on this act, which is partially explained by 54th Geo. III. c. 137, § 8, see Erskine, b. ii. tit. xii. § 11, et seq. It is extended to the debts of the heirs themselves by 1621, c. 27. See also Juridical Styles, vol. iii. p. 328. 6 62 In reference to this act, which is ratified and confirmed by 1607, c. 8, Sir George Mackenzie in his Observations (p. 146) remarks, Though the meaning of this act seems to be, that where tradesmen, who are freemen, either desert their work, or delay the same, the owner of the work may choose other freemen, or complain to the deacon: yet it was found in July 1675, by the Council, in the case of Borlands against the Masons of Edinburgh, that where a freeman either deserted or delayed, the owner of the work might employ any, even unfreemen, though it was alleged, it was not just to punish all the freemen for the fault of one. Nor was it convenient for the commonwealth that unfreemen should be admitted, for whose work none can be answerable." the subscription of him that awe the samin, and witnesse: or else gif the partie cannot write, with the subscription of ane Notar thereto.68 38. Anentis burning of Cornes, raising of fire, and ravishing of weemen. ITEM, It is statute and ordained, that the committers of the crimes of fireraising, & ravishing of weemen, be put under sovertie to the Law, like as the crimes of slauchter and mutilation: And in-case of none-finding of sovertie, to denunce them rebelles, like as men slayers. And als because the burning of Cornes in barne zairdes, is sa greate offense against the commoun weill: That therefore there be never respect nor remission given in time to-cum, to ony persones that burnis cornes in stacks or barnes, bot the committers thereof, to be justified to the death, or else banished the Realme for ever.64 40. The nearest of the Kin, to have the gudes of minors, that dies intestat, without prejudice of the Quote. ITEM, Anent the artickle proponed: For-sameikle as oft-times zoung persones dies, that may not make testamentes, the Ordinares usis to give their executoures Datives to their gudes, quhilkis intromettis therewith, and withdrawis the gudes fra the Kin and friendes, that suld have the samin be the Law: It is statute and ordained, bee the three Estaites of this present Parliament, that quhair ony sik per, sons dies within age, that may not make their testamentes, the nearest of their Kin to succeede to them, sall have their gudes, without prejudice to the Ordinaresanent the Quote of their testamentes.65 45. Of them that counterfaictis the Kingis money. ITEM, For-sameikle as diverse wicked, evil advised persones, feinzies and counterfaictis our Soveraine Lordis money, quhilk may returne to the greate damnage of this Realme, without remeid bee provided therefore in time: Therefore it is statute and ordained, that all Provestes, Aldermen, Baillies, and Officiares of Burrowes, search and seeke upon all mercat daies, & uther times necessar, all persones that can be apprehended, havand false money, or counterfaictis the Kingis irons for cuinzie: And bring or send them to our Soveraine Lordis Justice, to be justified for their demerites, after the forme of the Lawes of the Realme, maid upon false cuinzieoures. 63 This is the first statute relating to the subscription of Deeds, a matter which is now regulated by 1681, c. 5, which see, and note thereon. See also Erskine b. iii. tit. ii. § 7. By 1579, c. 18, where the party cannot write, two Notaries are required to subscribe for him before four famous witnesses. 64 Mr Hume, vol. i. p. 125, 126, refers to this act, to shew certain cases of fire-raising which subject the offenders to capital punishment. 65 The quot was abolished by 1700, c. 15, and also by 4th Geo. IV. c. 97, § 1. |