Selected quad for the lemma: authority_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
authority_n	act_n	parliament_n	year_n	2,273	5	5.2206	4	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A52358	Some doubts & questions, in the law, especially of Scotland as also, some decisions of the lords of Council and Sessions / collected & observed by Sir John Nisbet of Dirleton ... ; to which is added, an index, for finding the principal matters in the said decisions.	Nisbet, John, Sir, 1609?-1687.; Scotland. Court of Session.	1698 (1698)	Wing N1170; ESTC R16027	472,476	492

I. Immobilia QVAE res inter Immobilia computentur Thes Bes litera L. p. 597. ad finem Poenae mulctae non exactae immobilibus accensentur Ibid. Item servi ascriptitii Ibidem Munitiones cum castro consideratae tormenta arma bellica si testator res pretiosas in Familia servari jussit Ibidem p. 597. Immobilia per applicationem aliis modis IMmobilibus accrescunt accedunt mobilia variis modis quod enim applicatione perpetua corporibus alterius naturae affixum infossum aut inaedificatum est Immobile fit nam mobile Immobili cohaerens Immobile censetur Hering de mol quaest 8. N. 18. 19. Per immutationem res mobiles sortiuntur naturam Immobilium ex quinque causis 1. Facto hominis ut Affixione Infossione Adjectione 2. Legis potestate fictione ut cum colonus ascriptitius aut mancipium rusticum glebae serviens pro re Immobili censetur 3. Attributione seu destinatione ut lignum ad aedificium destinatum inter Immobilia computatur 4. Subrogatione ut quibusdam casibus pecunia 5. Subjecto v. g. quando Jura nomina actiones ad Immobilia competentes aut mobilia pro talibus habentur Hering de molend Ibidem n. 20. sequen Imposition upon the Pint of Ale QVaeritur If the Gift of the Town of Edinburgh and other Burghs of Two Pennies upon the Pint of Ale or Two Merks upon the Boll of Malt may be questioned by any concerned upon that ground that being a burden upon the People it could not be laid upon them without consent of Parliament Answer It is thought it may be questioned 1. For the reason foresaid being the fundamental of the Liberty of the People 2. The whole Countrey is concerned and has prejudice thereby In respect that they who dwell within the Lothians will suffer as to the price of their Bear which will be less in consideration of the said burden of Two Merks upon each Boll and consequently the whole Countrey will be prejudged The price of the Bear in Lothian being the standart almost of the whole Countrey Edinburgh being Communis Patria And the Drink upon that occasion being both worse and dearer And the Shires of Lothian having concurred they came in end to a condescendence that the Town should be obliged never to desire the like And it is thought that the Gift both in passing at the Exchequer and ratification thereof in Parliament was so qualified 4. A Bond was given by the Town to that purpose to the Colledge of Justice and also to the Shires and both were trusted to one of the Commissioners for the Shires to be keeped and it 's informed was given back by him viis modis 5. The pretence of Debts and alteration of the way of living of the Magistrates is frivolous Seing the Town ought not to Contract Debts the Magistrates being only in effect Curatores And the King could not lay a Burden upon the Countrey for payment of his own Debts and the Debt of the Town is no less than it was formerly before the first Gift and the Magistrates should not live upon what is given to the Town 6. As to the pretence of his Majesties Prerogative it is against Law and the common stile of the Chancery which should not be altered and His Majesty doth make use of his Prerogative to remitt the rigour of Law but not to give Illegal Grants rei alienae to prejudge and Burden others And therefore such Grants are ever understood Salvo Jure and to be periculo petentis 7. The dispensing with the former Bond is of dangerous consequence His Majesties Prerogative being never against Justice and for taking away the Bonds and Rights granted to the People without their own consent otherways there should be no security for Liberty and Property Impositions of Burdens upon Shires SEing Shires are not Incorporations Quaeritur If upon any Pretext whatsomever The Major part may lay any Burden upon the Shire or any part of it without their Consent Impositions voluntary upon Shires WHen any Charges for Banner Trumpet or Coat c. for the Heretors are to be payed Quaeritur Whether the same are to be payed viritim per capita or proportionally according to the Valuation Answer They are Personal and not Patrimonial and are to be payed with respect to the persons and not their Estates Improbations IF Pursuers of Improbations should consign Of late some are of Opinion That Consignation is to be made only when Improbation is proponed by way of Exception But the Act of Parliament anent Caution in Improbations in place of which Consignation is come is clear as to all Improbations by way of Action or Exception It appears there should be a difference betwixt a general Improbation at the instance of Heretors and Buyers which is a Tentative used to try the condition of the Lands if they be affected with any latent pretences And the case of special Improbations and Improbations of certain Writes and that in this case there should be Consignation but not in the other unless upon Production a particular Right be taken to be Improven When in Improbation Writes are produced and certification craved contra non producta and it is alledged that the Defender has produced sufficiently to exclude the Pursuer Quaeritur If notwithstanding certification should be granted Answer By the late Practique the Lords are in use to hear the parties debate upon the Right which is thought hard seing if the Defender be confident of the Right he has no prejudice by granting the Certification and having gotten long termes he ought to produce all Writes called for Seing Improbation est processus tentativus and in order to try the Defenders pretence and not to debate a Right Impugning the Authority of Parliament BY an express Act of Parliament The Impugning the Authority of the Parliament consisting of three Estates is Treason Quaeritur If the misconstrueing or Impugning the proceedings of the Parliament if they amount to Treason Answer There is a difference betwixt Impugning Authority and Proceedings of Judicatories seing Judges may have an unquestionable Authority and yet their proceeding may be questioned And Papists and Hereticks cannot controvert the Authority of Parliament and yet may be dissatisfied with and misconstrue the proceedings of the same Which practice though Criminal doth not amount to Treason Traquair Item The Earl of Argyle Incendiarium INcendiarii vide in Thes Bes Lit. M. 72. p. 647. Incorporations JF a Colledge or Corporation being in Law a Body may Forefault the Rights of the Corporation and in what case Ratio Dubitandi Magistrates are only Curators loco Curatorum and the University never Dieth and Bishops and such other sole Corporations though they commit Barratry do not Forefault in prejudice of their Successors When a Town or Incorporation that has Power to Contract Debts do grant Bond obliging the Magistrates and their Successors and bearing Horning and other Executorials Quaeritur If

pactum non intervenerit praevia tamen denunciatione ut debita solvat licet pignus alienare cessante debitore in solutionem per biennium post denunciationem Perez Lib. 2. Tit. 8. Plenishing If a Wife be provided to a part of it BY Contract of Marriage a Wife is provided in satisfaction of Terce Third or other part of Movables except the half of the Plenishing of the House the time of the Husbands Decease Whereto it is provided she shall have Right Quaeritur If there be no Free Gear will the Heir be obliged to free the half of the Plenishing Ratio Dubitandi The Contract bears she should have Right and she is in the same case as if her Husband had disponed for an Onerous Cause the Plenishing he should have the time of his Decease And on the other part it seems this Provision should be understood Conditionaliter if there be free Goods And the Clause being an Exception from a Renunciation both the Renunciation and Exception from it ought to be of the Regula and of that which would belong to her if she were not excluded which could only be the free Gear If the clauses do not bear besides the Heirship Quaeritur If she will have Right to the plenishing without Deduction of the Heirship Eadem Ratio Dubitandi Possessor PRocessum ligitiosae possessionis Hispani Interim Galli Recredentiam Belgi Provisionale remedium alii processum informativum appellare solent Budaeus litem vindiciariam Thes Bes in Litera I. 29. verbo interim mittel Possessor bonae fidei fructus consumptos suos facit absolute extantes vero Dominocedunt Possessor vero malae fidei nec consumptos nec extantes suos facit sed Dominus extantes vindicat consumptos vero condicit condictione sine causa Perez lib. 2 Tit. 5. Poinding of the Ground A Lord of Erection having Disponed Teinds and the Reddendo bearing a Sum to be payed for a proportional relief of the blensh duty payable by the Lord of Erection and certain Bolls of Victual to be payed also for his relief to the Minister Quaeritur Will the Minister have action for poinding the ground 2do What will the Superiors poinding the Ground import A Decreet of Poinding the Ground being got against the Heretor for the time and the Tennants Quaeritur If after the Death of the Heretor the Lands may be comprysed for the Bygones from the Appearand Heir without a Decreet of transferring or a new Decreet Answer It is thought there is no need of any other Decreet the Decreet being Really founded which may be recovered against an Appearand Heir and put in Execution by Comprysing or poinding against him Prerogative IF the Question betwixt Roxburgh and Lothian should be determined with respect to his Majesties Prerogative being the Fountain of Honour It is thought that His Majesties Concessions whatever the Subject be should be judged Jure communi And that Jus quaesitum whether as to Honour and precedency or any thing else cannot be taken away upon any such pretence The Prerogative is instar littoris which is defined quo fluctus Hybernus exaestuat So that as the Sea does not go beyond the Shoar when the Sea is most full so the Prerogative and Plenitudo Potestatis does never go beyond Law which is a great Littus and Boundary of just Power The Royal Prerogative is acknowledged and asserted by diverse Laws and Acts of Parliament of this Kingdom But how far the Extent of the same may reach is a point of State and Policy of the highest nature and importance and not to be defined by the Opinions of Lawyers but by the Highest and Legislative Authority The Royal Prerogative is not only asserted in the general by the Laws of the Kingdom but diverse and great Powers Rights and Priviledges belonging thereto are in special declared by diverse Acts of Parliament both in Relation to the Government and in Relation to His Majesties Interest and Questions and Causes betwixt Him and His Subjects As the Power of Calling and Dissolving Parliaments The Choising and Appointing Officers of State and Commissioners and Judges To make War and Peace And that there can be no Meetings to Treat or determine in Matters of State without His Majesties Authority and Warrand And that upon no pretence there can be any Rising in Arms without His Warrand And His Right to Custums And Power to grant Remissions for the Highest Crimes And that the Negligence of His Officers cannot prejudge Him And albeit by the Common Law the Eldest Superior is preferable yet when Lands are holden of diverse Superiors Ward the Marriage of the Vassal which otherwayes would belong to the Eldest Superior doth pertain to the King tho as to the Vassal his latest Superior And by custom albeit the going to a Miln for never so long a time being facultatis doth not import Servitude without a special Astriction yet the repairing to His Majesties Milns by the space of Fourty Years doth induce a Servitude without any other constitution As to which and other points of the Prerogative explained by Law and Custom Lawyers may and ought to give their Opinions in Law But as to Lawyers and Juris-consults it is said Turpe est sine lege loqui ubi leges silent they cannot but be silent And the Laws of Scotland which ought to warrand the Resolutions and the Opinions of Lawyers in Questions concerning the State and Government are only the Statutory Law and Acts of Parliament and the common Law and custom and undenyable practique of the Kingdom As to the Civil Law of the Romans it was only the Municipal Law of that People And by reason of the great Equity of it in Questions de Jure privato tho it has not the force of Law with us yet it is of great Authority and use in cases not determined either by statute or custom But as to Questions of State and Government the Civil Law is of no use with us in respect the Laws of all Nations concerning their State and Government are only Municipal and the Constitution of the Respective States doth varie both from that of the Romans and for the most part each from another So that any Questions concerning the same cannot be solidely or warrantably Answered upon Principles or Reasons brought from any Law but the constitution of the Government and Laws and Customs of the Nation and Kingdom concerned It is conceaved That when the Opinion of Lawyers is asked Res should be integra and they should be at liberty to give their Opinion freely and without prejudice which they cannot doe after His Majesty has any way predetermined them by declaring his own Royal Will and Pleasure As to that Question What can be said in Law in defence of these who have acted contrary to Law in Obedience to His Majesty or upon his Royal Dispensation if they should be questioned in the time of Succeeding Kings It is Answered That upon the Grounds foresaid

Jus indivisibile possessio partis maketh it publick in Totum And it cannot be ex parte publick and ex parte non A Tack being set to a Tacks-woman during life and after to her Heirs until payment of certain Sums for Ten shillings yearly Quaeritur Will the Tack be void as without Ish Answer It appears that the Tack being set for security of Payment of the Money the Ish is not altogether uncertain Certum est enim quod fieri potest c●rtum per relationem ad aliud and the Rent being One Thousand Pounds it may be considered in what time that Rent may satisfy the Sum mentioned in the Tack and upon the matter there is a Reversion to the setter and his Successors and they may determine the Ish of the Tack by payment of the Debt Lady Braid and her Son assigned the Tack whereof a Reduction was raised by Gorgymiln having bought the Lands Neither Servitudes nor Tacks do affect Lands in prejudice of singular Successors unless they be real by Possession Quaeritur If such Rights may be registrate in the Register of Reversions albeit the Act of Parliament doth not mention the same And if they be registrate if they will be real as Reversions Locatio conductio albeit they are not in Law inter Contractus qui re fiunt and by our Custom they are not effectual unless they be Re and cled with possession before which they are personal as to the Contracters and their Heirs but after that they become real Rights and bind singular Successors Quaeritur therefore if a Tack of Lands be set to a Person to enter at Whitsunday thereafter And thereafter another Tack be set to another Person before that Term so that neither can have Possession What way the second Tacksman may perfect his Right so that he may be preferred Answer It is thought he may make intimation of his Right to the present Tennent and require him to remove at the Term and protest for remeed of Law Quaeritur Why Tacks without Possession do not prejudge singular Successors and yet Tacks do prejudge beneficed Persons Answer Beneficed Persons are not singular Successors which properly are such as do acquire and purchase Whereas Prelats or Beneficed Persons are Successores Titulo Vniversali and are considered as singular Incorporations whose Deeds do bind their Successors When any Person is infeft in Teinds Quaeritur If he may set Tacks longer than during his Right in prejudice of the Buyers or other singular Successors A Tack being set to a Person for fifteen Years without mention of his Heirs or Executors Quaeritur Whether it be meerly personal Or at least the Heir if the Tacksman decease before expireing of the Tack should have Right during the time foresaid Answer It is thought that Tacks should be stricti Juris and there being no mention of Heirs the said limitation of time imports only that the Tacksman should have right if he should live all the said time and not after And in Tacks industria conditio Personae is to be considered if the Tennent be a substantious and vertuous Person whereas Heirs may be Infants and not succeed in the Conditions foresaid If a Tack be set by a Church-man to a Feuer and his Heirs succeeding to him in the right of the Feu if the Teinds of the feued Lands may be assigned there being no mention of Assigneys 2. If it may be Comprysed 3. If it cannot be assigned Will the Tack fall by the Assignation Tack of the Teinds of Paikie Back-Tacks and Prorogations WHat is the Reason that in Wadsets Back-tacks are valid without a definite Ish viz. During not Redemption Item In Prorogations Tacks of Teinds to begin after the Ish of the former though the Titular be denuded in the interim Answer In Wadsets the Back-tack is in corpore Juris and the Wadset is with the burden thereof the Wadset and Backtack being correspective Rights So that who succeeds in the Right of the Wadset can have it no otherwise than cum causa As to Prorogations they are granted in rem and by the authority of the Judge Tack of Teinds A Tack of Teinds being set to a Person and his Heirs and Assigneys for his Lifetime and four nineteen Years after Quaeritur If he be year and day at the Horn will the same fall under his Liferent Escheat only as to His Liferent or entirely If after his decease it would fall under the Liferent or under the single Escheat of his Heir If it be for many nineteen years exceeding the longest Life of any man Will it fall notwithstanding under a single Escheat seing there is not a formal Liferent constitute If a Tack for many nineteen years should be assigned will the same fall under the single escheat of the assigney seing there is no liferent as to him and the liferenters may all die in his lifetime Will not the Assigney have Right for the lifetimes of the Heirs though they be not served Heirs The Tack being for three Lifetimes and certain nineteen Years after Quid Juris Where the Tacksman has no Heirs so that there is place to a Gift of Bastardy or ultimus haeres Tacks of Lands being real by the Act of Parliament in favours of Tennents Quaeritur Quid Juris As to Tacks of Teinds Tailȝies WHen a person having acquired Lands provides the same to his Heirs Male Quaeritur Whether the Maxime viz. Haereditas descendit Conquestus ascendit has place in Tailȝies If a Tutor Intrometting with the Duties of Lands Entailed to the Heirs Male may not employ the same upon security to the Pupil and his Heirs Male upon pretence that it should be presumed that it was in the Parents intention as appears by the Entail Answer It is affirmed that it was so decided in the case of the Heirs of Cockburns-path which we have not seen But it is thought that a Tailȝie being Institutio Haeredis as a Tutor could not make a Testament for his Pupil nor name an Heir and Executor for his Pupil so he could not make a Tailȝie either in Land or Money There being a Tailȝie in these terms that it should not be lawful to break the same and the Fee having descended to a Woman by vertue thereof who did notwithstanding resign the Fee in favours of the Husband and the Heirs of the Marriage which Failȝieing to the other Heirs of the former Tailȝie and thereafter the said Heir of Tailȝie having obtained a Decreet of Reduction of the said Right Ex capite Minoritatis for eviteing the hazard of the Clause irritant in the first Tailȝie albeit the Right granted to her Husband was ratified in Parliament with the clause that the Ratification should not be Lyable to the Act Salvo Jure Quaeritur If the Husband be Forefaulted and his Posterity disabled if the Heirs of Tailȝie having Right to succeed after the Wife and her Children may be prejudged by that Forefaulture Answer It is thought not