Realme be the quhilk Law na man lauchfullie or unlauchfullie gotten or borne Bastardus legitimatus potest testari legitimē may make onie disposition in his testament bot of his moveable gudes allanerlie For na man upon his death-bed or in his latter-will without consent of his aire may dispone ony part of his heretage Lib. 2. cap. Potest 21. cap. Cum quis 36. Seventhlie gif ane bastard legitimat and rehabled in his life-time makis ane testament lauchfullie The King thereby is excluded fra all richt and intromission with his moveable gudes Bot gif he makes ane testament quhilk is null and unlawfull Or gif he makis na testament Testamentum illegitimi factum non excludis fiscum The King be reason of bastardrie succeedis to him in all his moveables and unmoveables For in this case the effect and power of the legitimation ceasis and hes na operation Auchtlie quhen ane Bastard deceasis without ony lauchfull testament maid be him or not havand aires lauchfullie gotten of his bodie Bona mobilia Bastardi fisco deferuntur The King be his Thesaurer or ony uther havand gift and power fra him may intromet with all the moveable gudes quhatsumever perteining to the Bastard the time of his decease and not disponed be him in his life-time as escheit perteining to his Hienesse be reason of his crown and Kinglie power Ninthlie Sick-like all landes and tenements pertaining to the said Bastard the time of his decease Bona immobilia D.N. tenta fisco inferuntur and halden immediatlie of our Soveraine Lord in chiefe after his decease perteinis to the King and the propertie thereof be decease of the Bastard and be reason of escheit of Bastardrie belangand to the Crown is consolidat with the superiority in the Kingis person in sik forme and maner as gif the Bastard in his life-time had maid resignation thereof in the Kingis handes Tenthlie Concerning landes and heretage perteining to ane Bastard In aliis bonis immobilibus Rex habet jus presentationis not halden of the King bot of ane uther superiour Spiritual or Temporal the King hes richt of presentation Be the quhilk after the decease of the Bastard he may present ony person quhom he pleases as heretable tennent to the Bastardes immediat superiour be his letter under the quarter seale bearand That for-sa-meikle as N. borne Bastard and deceaseand Bastard without ony aires lauchfullie gotten of his bodie and na lauchful disposition maid be him in his life-time had the landes called B. perteining to him in heritage halden immediatlie of the said superiour And his Hienesse being willing not to prejudge the superiour anent his superioritie Therefore presentis to him sik ane man charging the superiour to receive him and give him sik infeftment of the landes as the umquhile Bastard had of him of before BERTHINSEK Or Birdinsek Be the Law of Birdinsek na man suld die or be hanged for the thieft of ane scheepe ane veale Or for sa-meikle meate as he may beare upon his back in ane seck Bot all sik thieves suld pay ane scheepe or ane cow to him in quhais lande hee is taken And mair-over suld be scurged Lib. 4. c. De Y burpanan seca 14. quoniam attach c. per constitutionem 44. Ass Reg. Da. c. 1. In fine Stat. Alex c. de Berthinsek 19. Quhilk is conforme to the Civil and Cannon law Nam omnia delicta maleficia aestimantur voluntate proposito delinquentis L. qui injuriae 53. In prin ff de furtis L. 1. ff de Var extr Crim. Ideoque si quis necessitate famis sedandae egestate aut paupertate coactus rem alienam contrectat quia non adest animus furandi cupidus excusari potest e. si quis Extr. de Furt. non enim factum sed causa faciendi inspicitur l. Verum 39 ff de furti Et vuglo dici solet necessitatem non habere legem L. Non solum § Vlt de excusationib Tutor BLUDUEIT UYTE In English is called Injuria vel misericordia Ane un-law for wrang or injurie sik as bloud For they quha ar infest with Bludueit hes free libertie to take up all vnlawes or amerciamentes of Court for effusion of bloud And to hald Courtes thereupon and to apply the samin to their awin utilitie and profite BONA PATRIA Lib. 1. c. si verò 29. Ane assise of cuntrie-men or of good nichtboures Some-times it is called Assisa bonae patriae quhen twelve or maa men ar chosen furth of ony part of the Cuntrie to passe upon Assise quha ar called Juratores Juratores because they suld sweare judiciallie in presence of the partie ane solemne aith Lib. 1. c. Post hoc 14. Iam 1. P. 13. c 138 The aith of the assisors In this manner following We sall leill suith say and na suith conceale for na-thing be may sa far as we are charged upon this Assise be God himself and be our part of Paradise and as we will answere to God upon the dreadfull day of judgement BONDAGIUM or Villenagium slaverie or servitude For bondi nativi Bondi Nativi and Villani signifies ane thing Lib. 2. c. Consequenter 13. cum seqq Bondi be reason of their band and obligation as bound and oblished men Nativi be reason of their nativitie and birth as borne men within the land Quasi ascriptitij glebae That is depute destinate or ordained be their master to dwel and remaine upon the land for keiping and labouring thereof Lib. 2. c. Pluribus 14 And therefore utherwaies ar called Villani Villanis be reason of their office in sa far as they have the cure of Villages and landwart husbandrie committed to them Bondagium per anteriores crines capitis Bondagium per anteriores crines quoniam attach c. de brevibus 31.15 quhen ony free man renuncis his libertie and makis himselfe ane bond or slave to ane greate man in his Courte and makis tradition delivering of him-selfe be giving ane grip of the haire of his forehead to the effect he may be mainteined and defended be him thereafter The Quhilk bond-men gif they reclaime to their libertie or happen to be fugitive fra their maister may be drawen back againe be the Nose to servitude Fra the quhilk the Scottish saying cummis quhen ane boastis and menacis to tak ane uther be the Nose And it is leasum to ony man to sell his libertie bot gis hee dois he may never recover the samin Assis Reg. Da. c. Quilibet 12. quoniam attach c. quilibet 56. To this the Civil Law is conforme Nam his qui ad precium particidandum sevaenundari passi sunt ad libertatem proclamare non licet L. 1. ff quib ad lib. Petrus Pithaeus li. 1. Adversariorum makis mention of ane kind of adoption per comam sive capillos quhen ony person tuike ane grip of ane uther
the indorsation thereof in all poyntes and the witnesses insert there-in-till sall also make faith that they heard saw and bystude quhen the said officiar did execute and proclaime the Brieve in sik manner as is contained in the indorsation thereof The brieve and indorsation being swa verified Defender gif ony person havand entresse compeiris to defend and object against the brieve he sulde have inspection thereof gif he desiris the samin And gif he proponis ony relevant exception declinatour dilatour or peremptour Hee thereby castis and annullis the Brieve either until ane new brieve be raised againe or simpliciter in all times cumming utherwaies gif he hes na reasonable exception or defence to stop the brieve the samin sall passe to the knawledge of ane assise Quoniam attach c. de brevibus 13. An assise is chosen THEN Certaine lauchfull menne maiste worthie and quha beste knawis the veritie to the number of Thretteene or fifteene ar chosen in judgemente in presence of the persewer and defender Or in presence of the persewer and in absence of the defender knawin to have enteresse and being lauchfullie summoned and nocht compeirand to the said election to object against sa mony persones as he may leasumlie stop be the law to passe upon the assise For like as it is necessar that he be anis summoned Swa gif he compeires nocht being lauchfullie summoned the brieve suld receive processe and passe to the knawledge of ane inquest at the desire of the persewer in absence of the defender Lib. 3. c. Generalia 35. ass Reg. Da. c. sciendum est 44. lib. 4. c. Si petens 57. Continuation of the brieve Quhilkis persones na lauchful objection maid against them suld be received sworne and admitted And therefore ar called Juratores vid. Bona Patria And gif they or onie ane of them be sworne and received the judge may continue the brieve to ane uther daye gif he pleasis and as necessitie requiris utherwaies the continuation thereof is nocht leasum without the consent of the partie after the claime is given in And inquisition taken in the cause gif the persones of inquest being weill counselled The claime Service negative and advised deliveris and servis Negative in favoures of the defender and findes the persewer na waies nearest and lauchfull aire to him quha died last Veste and saised in the Landes acclaimed In that case the defender dois bruik and joyis the possession of the said lands and the persewer is debarred and secluded therefra Bot gif the assise deliveris and servis negative as said is or affirmative Service affirmative in favours of the persewer against the defender conforme to the claime in all poyntes This their answere to all and sundrie the pointes of the brieve sealed with all their seales or of the maist part of them togidder with the seale of the Schireffe or uther judge closed and the brieve inclosed therein to the effect the same may be conferred with the answer is sent back and retoured to the chancellarie conforme to the Kingis command Retour conteined in the end of the brieve Stat. Ro. 3. c. 1. Quhilk therefore is called ane retoure Twa kinds of retours And it is to wit that there is twa kindes of retoures or answeres maid be the persons of inquest to this brieve and retoured to the Chancellarie The ane is generall and the uther speciall The generall is Generall retoure and aire quhair na landes or tenements ar speciallie acclamed or soucht be the persewer of the brieve Bot onelie it is desired that hee may be served and retoured generalie nearest and lauchfull aire to his Predecessour To the quhilk generall claime ane generall retour is maid be vertue quhairof the said generall aire hes gude richt and title to all contractes obligationes and reversiones and to the moveable aire-schip guds quhilkis perteined to his predecessour and were not discharged or disponed before his decease in his liege poustie And sik-like he may persew and defend quhat sumeever action competent to him be decease of his saide predecessour to quhom he is served air generall 8. March 1540. Iames Scot contrair 〈…〉 Blair The speciall answere and retour is Speciall retour quhen the persewer of the brieve claimis speciall landes and the persones of inquest givis ane particular and speciall answer to ilk special poynt of the brieve l. 16. 4 c. statuit Dominus 45. The quhilk is direct and send to the directour of the Chancellarie to be tryed be him gif the samin be conforme to the direction and ordour of the brieve in all poyntes Here is to be understand that the landes conteined in the retour ar halden immediatlie of our Soveraine Lord the King or of ony uther superiour Gif the lands be halden of the King in chief the directour of the Chancellarie commandis his Clerkes to direct ane precept under the testimoniall of the great seale called the quarter seale in quhite Walx to the Schireffe of the Schire quhair-in the landes lyis commanding him to give saising to the person retoured or his Actournay of the landes conteined in the retour And to take securitie of the mailles and dewties of the landes sa lang as they ar retoured to have bene in the handes of the King or his Predecessoures be reason of warde or none-enteresse quhairof ane memoriall is made in ane buike called Responde vid. Responde Of lands retoured halden of an uther superiour Gif the lands retoured be halden of ane uther immediate superiour then the King The directour of the Chancellarie directis ane precept chargeing the superiour to give saising to the person retoured of all and sindrie the landes conteined in the retour He doand to him therefore all quhilk he is obished to do be the Law Quhilk precept gif the superiour dissobeyis beand required personallie or at his dwelling place to obey the samin And for verifying thereof The second precept ane authentick instrument reported to the Chancellarie Then the second precept called Meminimus is direct to the saide superiour bearand in effect that the King remembrand that of before he gave command to him to give saising quhilk command as Èit is nocht obeyed quhairof he mervailis And therefore Èit as of before chargis and commandis the said superiour to give saising to the person retoured of the landes conteined in the retoure The third precept And gif ane uther authentick instrument be reported to the chancellary for verification of the superiouris disobedience the second time The third precept called Furchae is direct commanding him to give the said saising or utherwaies gif he disobey the king certifies him that he will direct his uther precept to his schireffe to give the samin In the execution of al thir three precepts it is not necessare that the superiour sall be personally apprehended The fourth
precept of the schireff But it is sufficient gif he be sa charged in the execution of any ane of them The third precept and charge being likewayes disobeied and the samin disobedience lawfully verified as said is ane precept is direct furth of the chancellarie to the schireff and his deputes of the schire within the quhilk the landes retoured lyes Mak and mention that the King hes given command be his uther letters to N. Barron and his deputes that he without delay suld give saising to the person retoured or his attornay of the landes conteined in the retour quhilk gif he dois not he commands and chargis the schireff to give saising of the saids lands with the pertinents without delay saisand ilk mans richt Quhilk precept being obeyed be the schireff and saising given conform theirto the superiour who was three times charged of before and refused be reason of his disobedience tynis and forefaults the superiority of the lands quhairof he refused to give saising induring his lyfe-time Quhilk superioritie sall pertein to his immediat superiour quhidder that be the King or ony uther And after his deceas his aire being served and retoured to the superioritie of the samin lands recoveris the said superioritie quhilk his father did tine throw his disobedience Twa maners of tinsell of superioritie And sa be the law and practicque of this realme ane superiour may tyne and forefault his superioritie First quhen he is entered and saised in the superioritie and being charged be precepts of the Chancellarie refusis to receave his vassall tennent served and retoured to the property In the quhilk caise be reason of his contempt and disobedience of the Kings precepts and command he tynis the superiority induring his lyfetime without any declaratour or decreit of ane judge Secondly quhen the superiour is not entred nor saised in the superioritie and is charged be the Lords letters raised be his vassall to enter within fourtie dayis thereto to th' effect he may enter to the propertie The quhilk fourty daies being by-past at the instance of the vassall he may be decerned be decreit of the Lords of the Session to have tynt his superiority and to satisfie the partie grieved Ia 3. p 7 C 57 And in baith the caises foresaid the vassal or tennent salbe entred and hald of the King or the uther immediate over-lord to him quha contempnandly disobeyed Precepts of saising given conforme to retoures be commission Last of all concerning the giving of saising conforme to brieves served and retoured before the judges commissioners the forme and ordour of the Chancellary above written suld be keeped and observed and gif the landes retoured be halden immediatly of the King the precept of saising suld be direct to the Schireff and his deputes For the Lords auditors of the Checker statute and ordained 8. Aug. 1528. that in time comming the clerke of the Chancellarie upon the brieve served be an commission sall direct the precept of saising to the principal schireff of the schire and make the responsion upon the schireffs head notwithstanding the said commission quhilk is ordained allanerly to have effect anent the serving of the brieve and not anent the giving of the saising And true it is that all saisings past upon precepts of the chancellary suld be given be the schireff clerk or his deputes for the quhilk the schireff sall answer Ia. 5. p. 6. c. 77. Mar. p. 6. c. 34. BROCCARII In statutis gildae signifies lockers brockers mediatours or intercessours in onie transaction paction or contract As in buying and selling or in contracting of mariage In the civil law they are called Proxenetae Lib 1 tot tit de Proxenetis BULLION ane French word Bilon signifies uncunÈied silver or gold quhairof silver or gold is or may be cunÈied or striken sik as Balluca in greek Chrysamenos h e. aurea arena quae ex terra effoditur lib 1. c. de metallar l. 11. In the English lawes it is called Plate In the acts of parliament of this realme it is statute and ordained That merchands sall bring hame Bullion quhair-anent the Lordes of checker maid this ordinance At Edinburgh the 10. day of Janua 1597. In presence of the Lordes of checker compeired personally the Provest Baillies and Thesaurer of Edinburgh with certaine merchands their nichtbors and gave in their supplication desiring the A. B. C. of Bullion to be explained and an solide order to be taken with the expres quantitie of Bullion quhilk they salbe astricted to pay presently in all time heirefter After consideratioÌ„ quhairof conference had at length with them upon the particularities concerning the said matter of Bullion The saids Lords of checker with consent of the saids Provest and Baillies for themselves and their remanent nichtbors and merchands of this realm hes statute and ordained that all merchands sall in bring and pay in all time comming for ilk last of hydes sex ounces Bullion For ilk last of Salmond four ounce bullion For ilk 4. hundreth claith four ounce bullion Forilk serplaith of woolle four ounce bullion And for all uther waires and merchandice transported be them furth of this realme for ilk serplaith of gudes or sa-meikle as payis ane serplaith of fraucht The said Merchand sall pay four ounces of bullion And untill mair perfite knawledge be had of the just quantitie of the serplaith ordainis twa tun fraucht to be compted to the sek And twa sek fraucht to the serplaith And the said bullion to be in-brocht to the CuinÈie-house be the merchandes And payment to be maid to them for the samin conforme to the act of parliament maid there-anent upon the nineteenth day of December last by-past Ane A. B. C. of the Bullion set downe be the Lords of Checker for gudes transported furth of the Cuntrie And declared be them to be conforme to the actes of Parliament And the acte of Checker above specified 13. Febru 1597. The last of drinking beare ij ounce burnt silver The last of Quheate iiij ounce The last of Beare iij. ounce The last of Malt iij. ounce The last of Rye and Rye meale ij ounce The last of Killing Codlinge and Ling ij ounce The last of Olie ij ounce The last of Orkney butter ij ounce The last of Herring ij ounce The last of Salmond iiij ounce The last of Saipe ij ounce The last of Asse ii ounce The last of Pick and Tarre ij ounce The last of Lint and Hemp ij ounce The last of Irne ij ounce The last of Copper conteining 14. schip pund ij ounce The last of Hart hides dry hides and salt hides vj. ounce The tun of wine i. ounce Ilk four hundreth of claith iiij ounce Ilk seck of scheip-skinnes conteining 500. ij ounce The serplaith of lamb-skins conteining 8000. iiij ounce The serplaith of cunning-skins conteining 16000. iiij ounce Ilk serplaith of futfelles conteining
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
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-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
cled with their richt to marie ony agreeable partie without disparage offered to him refusis to do the same and maries ony uther person without the licence and consent of the superiour or his donatar He aucht and suld be reason of his contempt and dissobedience pay not only the single availe of his mariage bot also the double thereof That is al 's meikle againe as the single be the modification of the judge after the Èeirlie rental availe and quantitie of the landes and living perteining to the aire And mair-over in this case be the auld law of this Realme it is leasum to the superiour to hald and reteine the landes albeit the aire be of twentie ane Èeires of age untill he be compleitlie satisfied of the saide dowble availe Leg. Forest c. de haeredibus 64. And it is to wit that the saide requisition suld be maid in this manner The superiour his donatar The forme how ane aire suld be required to marie or the assignay maid and constitute be the Donatar or ony uther person havand richt thereto aucht and suld be himself or be his lauchful procuratour havand speciall power in writ to that effect offer to the aire personallie apprehended then being of lauchfull age for mariage ane agreeable partie expreemand the said personis name and sur-name without disparage to him Sick-like beand of lauchfull age and convenient for mariage and require the said aire to solemnizat compleit the band of matrimonie in face of halie Kirk with the person that is offerred And for compleiting thereof assigne and affixe ane lauchfull daye To wit the space of threttie daies at the least to him to compleit the samin within ony Kirk appoynted be the maker of the offer to that effect And in the meane time of the said requisition or before or after the samin the donatar or ony uther assignay havand richt and title of him or of the superiour for the superiour himselfe needis nocht to mak ony intimation of his richt title he beand notourlie knawin to be superiour suld make be himselfe or be his procuratour intimation of the richt and disposition maid to him and schaw the same and mak the samin patent in presence of the said aire and cause the samin to be read before him or give or offer him ane copie thereof To the effect that he thereafter may not pretend nor alleage ignorance there-anent And thereafter the said person viêª The superiour or ony uther cled with his richt bee quhom or in quhais name the said requisition and intimation was maid aucht and suld personallie or be his procuratour compeir at the day and kirk appoynted of before Bringand with him the said partie offered in proper person reddie and willing to marie quha was offered in mariage And there in lauchfull time before twelve houres of the day offer him reddie to accomplish and fulfill that quhilk he offered and required to be done of before And to that effect there remaine quhill the Sermone or divine service be done or quhill ane houre after noone And gif the aire compeiris nocht or compeiris and refusis to marie he suld take instrumentes thereupon in the hands of ane sufficient Notar of the refuse maid be the aire or of his none-compearance and the offer of the agreeable partie togidder with the intimation foresaid quhilk cannot be proven be witnesse bot be writ Pen. Feb. 1567. The Laird of Drumlangrig contrair Marion Carrutheris 21. Iunij 1575. The Laird of Glenberuie contrair the Laird of Vdny MARITAGIUM Tocher gude Lib. 2. c. dos autem 19. in fine c. potest 21. cum seqq Vid. Dos MARUS ane officiar or executour of summondes I. 1. p. 9. c. 111. p. 13. c. 140 Vide Recordum He is utherwaies called Praeco Regis Praeco regis Lib. 1. cap. cum autem 8. Quhair it is said Quod die dominico vox praeconis cessare debet becauss na summonds suld be execute upon ane Sunday The Kings Maire is of ane greater power and authoritie nor the messengers or officiares of armes and speciallie in justice aires and punishing of espassoures Bot now the said office is given in fee and heritage to Maires of fee quha knawis nocht their office Bot are idle persones and onely dois diligence in taking up of their fees from them to quhome they doe na gude nor service to the King MATERTERA properlie is the Mother sister Quasi Mater altera Bot sum-times improperlie it is taken for the Father sister in Latine Amita For Lib. 2. c. Deficientibus 34. Post Avunculum h. e. patruum eiusque liberos Matertera eiusque liberi habent jus successionis And be the Law of this Realme the bairnes descendand of the mother sister hes na richt of succession Quhilk in the awin place and degree is competent to the bairnes borne of the Father sister quhilk is manifest De judicib c. haeredum 113. c. Item Nota. 115. Vbi expresse Matertera dicitur esse Amita vid. Avunculus MELLETUM Medletum lib. 1. c. 2. Ane French word Melle dissention strife debate as we saye that ane hes melled or tuilÈied wth ane uther And in the actes of Parliament and practicque of this realme Chaudmella is ane faulte or trespasse quhilk is committed be ane hoate suddaintie and nocht of set purpose or praecogitata malitia Iam. 1.11 Mar. c. 51. And in Libro M. Willielmi Skene fratris mei Commissarii Sancti Andreae Fol. 121. It is written that Flycht-vvt is libertie to hald courts and take up the un-lawe pro melletis Because Flycht is called flyting In French melle quhilk some times is conjoyned with hand-straikes And in summe buikes Placitum de melletis is called the Mute or pley of beating or stricking Lib. 1. c. 2. MENETUM Leg. Forest c. 2. Ane stock horne In the quhilk place it is wrangeouslie written Cornare minutim pro Cornare menetum to blaw ane stock horne quhilk commounlie is made of Timmer wood or tree with circles and girds of the same quhilk is Èet used in the Hie-landes and Iles of this realme quhairof I have seene the like in the Cuntrie of Helvetia in the Èeir of God ane thousand five hundreth sextie aucht amangst the Zuitzers MEREMIUM muremium The timmer of ane house Lib. 4. c. Si quis 55. In the English Lawes Carla de Foresta It is called maremium And ane charter given be Jacobus Senescallus Scotiae king Iames the first before his Fathers decease To Thomas Browster of the landes of Sacerland beside Paslay now perteining heretablie to Matthew Steward of Barscube conteinis potestatem incidendi merentium That is licence and power to cutte sa meikle greene woodde in the Kingis Forest of Raise as suld be necessar to the said Thomas to big houses to his awne use MESE Of Herring conteinis five hundreth for the commoun use of numeration and telling of Herring be reason of their
creame upon his bak quha are called beirares of the puddill be the Scottes-men in the realme of Polonia quhairof I saw ane great multitude in the town of Cracovia anno Dom. 1569. PENSION ane dewtie sik as ane annuel-rent for that quhilk in the act of Parliament Ia. 2. p. 11. c. 41. Is called the pension of CadÈow In the Checker rolles is called the annuel-rent of CadÈow Pension of CadÈow Pension of Kirk patrik And siklik in the samin place mention is mad of the pensioÌ„ of the ferme meil of Kirk patrik quhilk conteinis five chalder of air-meill quhilk the Abbot and convent of Pajslay payis Èeirlie furth of the kirk of Kirk-patrik to the K. as an pairt of his annexed propertie as is manifest in the Schireffe rolles of the Checker of K. Ia. 3. 1487. In libris seudorum Soldata is an Èeirly frie gift donation induring the lifetime of the giver is swa called a solido Soldata quia plaerumque in solidorum donatione consistit § 1. quis dicatur marchio lib. 1. de feud PLACITUM From the French word Plaider pley contention strife or debate Placitare significat litigare causas agere Pleyes of the Crown Molinaeus in stil suprem cur par Part. 1. c. 6. part 2. c. 3. Et D. Smith lib. 2. c. 10. Of the commoun weil of England Vid Mote Placita coronae pleyes or criminall actiones perteining to the Kingis Crowne and jurisdiction allanerlie or to his justice generall quhilkis ar foure in number robberie or riefe ravishing or deforcing of weemen murther and wilfull fire sik as burning of houses wilfullie and maliciouslie vid. Murthrum Quhairof or of ony ane of them gif ony happenis to bee convict all his gudes perteinis to the King allanerly in the samin manner as is statute of the gudes of traitoures Leg. Mal Mak. cap. 3. PLEGIUS ane pledge borgh or cautioner dimittere terras ad plegium To let landes to borgh is quhen ony controversie being for the possession of landes the samin after inquisition and tryall taken there anent given and committed to the last lauchfull possessour of the samin lands under borgh and caution that he sall restore the samin to him quha sall be found to have richt thereto Ia. 2. p. 14 c. 26. Or quhen twa persones contendis be way of deede and 〈◊〉 for the possession of ony landes The superiour thereof may recognosce or take to himselfe the possession of the lands until it be tryed quha was last lauchfull possessour thereof And then let the lands to him to borgh and under caution as said is Stat. Rob. 3. c. Nota. 21 Item the 12. No. 1500. Certaine corns grow and upon debatable lands betuixt the L. Ruthven and the Laird of Copemalindie be decreit of the lordes are lett in to borgh to the said laird he findand caution that the samin salbe furth cummand to them quha recoveris the samin be law without prejudice of the richt of onie of the parties theiranent in time cumming And likeas the over-lord or judge for the causes foresaid Ietere terras ad plegium lettis landes to borgh to the possessour thereof the tennent or possessour petit terras demitti ad plegium desires the lands to be letten to him to borgh or under caution Stat. Rob. 3. c. 4. PORTEOUS portuis Ia. 1. p. 13. c. 139. Ia. 3. p. 14. c. 99. Ia. 5. p. 3. c. 5. a portando quhilk signifies to carie or beire in French portes vous and signifies ane catalogue contenand the names of the persones indited to the justice air quhilk is given and delivered be the justice Clerk to the Crowner to be attached and arreisted be him to compeire and answere to sik accusationes and crimes as salbe impute unto them and the porteous conteins the names of them quha ar of new indited and the names of them quha were indited of auld and of before and compeired not And quhen onie justice aire is cried or proclaimed command is given be the justice to warne all persones alsweill indited of auld as of new to compeire in the said aire to underlie the law The Crowner receivis the porteous as said is and caries the samin with him untill the attachements and arreistments be maid conforme thereto and reportes the samin againe to the Justice court That theirby he may be controlled in execution of his office sa far as concernes the making of attachements and arreistments or probation thireof POST-NATUS filius ane second sonne narrest to the first begotten conforme to the French word lepuis aisné lib. 2. c. si ergo 23. c. praeterea 25. c. maritus 32. l'aisné is the first borne sonne and therefore le puis aisné is post primo-genitum the second sonne PRISAE ane French word prinses in latine captiones sik as ane poynd distres or moveable gudes taken for execution of ane decreit for be the lawes of France prisae sunt rerum mobilium sasina verò immobilium quia bona immobilia non capiuntur sed saisiuntur Rebuffus in constitut Reg. in tract de liter obli art 5. gl 2. de praeconum licitationibus ar 1. gl 2. Quhairanent I find ane ordinance maid de modo capiendi prisas be King David 2. 18. Februar 1369. the 40. Èeire of his reigne Prisae seu captiones domini regis persolventur capientur secundum consuetudines antiquitus approbatas de terris illis de quibus prisae regis servitia debent sumi quod in iis faciendis non fiet taxatio juxta numerum davatarum sed secendùm verum valorem bonorum PROPORCITAS proportatio assisae the proport report declaration or deliverance of ane assise Stat. Alexand. c. statuit dominus 5. quon attach c. si quis appellet 53. assisa reg D. c. 9. c. statuit 30. c. statuit dominus 38. Veredictum Utherwise it is called veredictum assisae the verdict or suithsaying of ane assise Because the assisours are sworne to declare the trueth and veritie Juratores Jurata Jurie and therefore are called Juratores Like as the assise is called Jurata or Jurata patriae sive vicineti lib. 2. c. dicitur 74. And in the English lawes ane Jurie PURPRESTURE Purprision ane French word for ane wrangeous usurpation taking or occupation of ane uther mans landes quhairof there is three kindes Three kinds of purprision Lib. 2 c. dicitur 74. de judicib c. purprestura c. 138. The first is quhen any man occupies unjustly ony pairt of the Kingis domaine and proper landes Or quhen ony stoppis or closis up the Kingis common way passage or streete Or returnis or divertis rinnand waters fra their richt course Or within the Kingis towne and burgh occupies the Kingis calsay or commoun gaite biggand upon onie pairt thereof Or removeand onie thing there-fra Or converting onie pairt thereof to his awin use And generally
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-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
called raptores in French voleurs or Robeures Difference betwixt riefe and thieft is different from theft quhilk is committed quietlie and privilie without violence Mair-over reife is ane greater crime then thieft because reife is committed baith in the gudes and in the person of the possessour theirof and thieft is of the gudes and gear allanerlie Ches in consuet Burgund rab 1. § 5. Be the law of this Realme the complaint of reife or robberie suld be maid be him quha is robbed and damnified within the like time as is foresaid of the ravishing of weemen quo attach c. de caetero 48. lib. 4. c. raptus 9. RECOGNITION of landes is commonly used in the law and practicque of this realme Sicut feudum dicitur aperiri domino ita terrae dicuntur cadere in commissum sicuti fit in hoc casu ob culpam vassalli in Emphyteusi or fewe landes ob non solutum canonem seu pensionem lib. 3. c. ex locato 11. For the vassall tynes landes halden be him be service of warde be reason of his awin fault as salbe hereafter exponed and the proprietar of few-landes may tyne and for-fault the samin for non-payment of the Èeirly dutie Cognoscere is to knaw and understand recognoscere is to knaw again or at the 2. time to understand For generally all superiors of quhom lands ar halden in chief first hes bin proprietars of the samin lands quhilk lands being annalied and sauld be them heritably to be halden of themselves and their aires ceasis to be propertie to them and becomes tennendrie immediatly halding of them and their aires And gif it happens the vassall or possessour to quhom the landes are sauld to commit ane fault or crime quhairby he tynis and fore-faultis the landes the superiour hes entresse and regresse to the propertie of the landes and may recognosce the samin and as it were the second time vindicate to himselfe the propertie thereof Swa the samin landes quhilk were first propertie to him and thereafter tennendrie be reason of the alienation nowe becomes againe propertie and returnis to their first nature and condition Iure acerescendi seu potius consolidatione proprietatis cum superioritate ob culpam vassali Recognition properly in the practicque of this realme is quhen ony vassall or free tennent haldand his lanies be service of warde and relieve sellis and annalies all and haill his landes with their pertinents or the maist pairt thereof without licnce consent or confirmation of his over-lorde In the quhilk caise all and haill his landes alsweill nocht annalied as annalied and halden as said is may be recognosced and resaised in the superioures handâ—s and baith the propertie and possession theirof perteinis to to him to be bruiked or disponed be him at his pleasure quhairof divers and sindrie practicques are extant in the Register in the daies o King Iames the Fourt of gud memorie The superiour understanding the landes to be wrangouslie annalied as said is incontinent theirafter may use the recognition theirof without proces or ordour of law may take saising of the samin conforme to the auld practik of this realme Because the samin alienation is done to his dishonour and contempt be his vassal quha suld do reverence and service to him therefore without his consent suld nocht do onie thing to dissolve the league and band The causes of recognition quhilk is betuixt them Mairover the vassall may nocht make the said alienation because theirby he may becum puir annd unable to do to his superiour sik service as he suld do of the law Cuiac lib. 1. De feud And nocht withstanding that the saising is taken be the superiour Èit the vassall or possessour tinis nor forfaultis na waies the propertie of the saides landes untill Èeire and daie be out-run Swa that he doe diligence within fourtie daies after the said recognition and taking of the saising to crave and aske fra his superiour the saides landes to him to borgh that is to repledge them findand pledge and caution that he sall be reddie to do to his superiour anent the saides landes all that equitie and lawe requiris Stat. Rob. 3. c. 2. This kinde of recognition is conforme to the laws of the fewes Libellarius contractus quia feudum amittitur si fidelis libellario nomine amplius medietate in feudum dederit aut pro pignore plus medietate obligaverit § 1. quib mod feudum amittatur § 1. de alienatione feudi Et in jure Canonico c. 2. ibi gl extr de feud Porro libellarius contractus dicitur venditio quae fit scriptura interveniente certo pretio certa pensione constituta in annos singulos ut post Feudistas scribit Cuiac in d § 1. Recognition of landes is sum times generallie taken monie waies Stat. Rob. 3. c. nota quod iste 21. Sindrie formes of recognition First gif the vassall deceasis the superiour may recognosce and reteine all the landes halden of him untill they be recovered fra him be the entresse of the righteous aire and that be reason of none-entres 2 After that the aire hes recovered the landes furth of the handes of his superiour Nevertheles the superiour may recognosce and reteine the samin until securitie be maid to him for payment of the relieve 3 Gif the vassall is fugitive for slauchter and nocht law bidand the superiour may recognosce the land halden of himselfe sa lang as the felon or manslayer happenis to live Conforme to the quhilk be the actes of Parliament the liferent of the vassal being Èeir daie at the horn perteins to the immediat superiour except he be rebell for treason in the quhilk case his life-rent all his lands gudes and geare moveable immoveable perteinis to the King allanerlie Quia poena debet eidem applicari adversus quem committitur culpa 4. Gif the vassall annalies his landes or the maist pairt thereof without licence consente or confirmation of his over-Over-lord The Overlord may recognosce the same as said is Bot in this case he is oblished to let the landes to borgh to his vassall askand and cravand the samin within the lauchfull space of fourtie daies after the recognition and saising taken untill it be tryed be the judge Ordinar quhidder the cause of recognition be lauchfull or nocht quhilk being founde lauchfull the judge suld counsell the King and decern ony uther superiour to hald his handes fra the landes and let them to borgh to his vassall And gif the cause be found just and reasonable The judge suld decerne the propertie and possession of all and haill the landes to perteine and remain with the superiour 5. Quhen twa or mair parties contendis be way of deede and armes for the possession of landes the superiour thereof may recognosce and sequestrat the samin untill it be tryed quhilk of them is lauchfull possessour
39. The schireff is judge to the brieve of inquest quhair be ane desiris to be served and retoured narrest and lauchfull aire to his predicessour lib. 3. c. Generalia 25. quo attach c. De brevibus 31. Ia. 1. p. 9. c. 127. Brieve of inqueist Quhilk brieve suld be served in plaine court be the maist worthie of the schireffdome summound and called upon the premonition of 15. dayes Stat. Rob. 3. c. 1. Vid. breve de morte antecessoris And na commission for serving of the said brieve or uthers suld be granted to onie person Commissions in prejudice of the schireff Stewart or baillie untill he be first warned to hear and see the samin given or else to alleadge ane reasonable cause quhy the samin suld nocht be granted Iames. 5. par 6. Cap. 82. And incase ony sik brieve sal happen to be served and retoured before onie judge commissionar the precept of saising suld be direct furth of the Chancellarie to the Schireffe as is before said verbo breve de morte antecessoris For generallie all preceptes of saising furth of the Chancellarie upon retoures suld be direct to the Schireffe Saisinges upon precepts of the Chancellarie and uther judges ordinar with the clause Capiendo securitatem Iam. 6. p. 12. c. 124. And all saisings passing upon sik precepts suld be given be them their deputes and Clerkes Mar. p. 6. c. 34. Quhairof they suld write the day and Èeir of the giving of ilk saising and bring the samin togidder with all uther saisinges given be private Noatars Èeirly to the checker Ia. 4. p. 6. c. 89. Ma. p. 6. c. 47. I. 6. p. 11. c. 65. Ejectiones and spuilÈie Sik-like actiones of ejection and spuilÈe perteinis to the Schireffe and his jurisdiction And therefore gif ony man is wrangouslie ejected furth of his land or violentlie spuilÈied of his guds and geare The Schireffe suld take cognition there-anent And the ejection or spuiliÈie beand proven sall cause him quha is ejected or spuilÈied to bee restored to his awin landes gudes and geare with the profites thereof and damnage and skaith susteined be the partie Ass Reg. Da. c. stat 31 Speciallie gif the persones quha ar ejected and spuilÈied be religious men clerks widdowes aged persones or sik uthers quha be the law ar excused fra singular battell Ass Reg. Da. c. Stat. Alex. c. 5. stat Ro. Br. 3. c. 6. 〈…〉 Ejectiones And in ejectiâ—â—â—â—â—â—en ony man is ejected furth of his landes fee or heretaâ—◠〈◊〉 Schireffe at command of the Lordes of Session sall f … 〈◊〉 gar restore the ground without prejudice of ony partie and â—â—â—ognosce the landes in the Kings handes untill they be lowsed be the King And in the mean time inquisition is taken be the Schireffe quha was lauchfull possessour of the landes And the samin beand retoured to the King the landes ar letten to borghe to the said person I. 2. p. 14. c. 62 And generallie the Schireffe suld arreist and put in the Kingis ward all maisterfull and wrangeous occupiers or uther mennis landes and sall cause the ground to be maid voyde of them and their gudes Ia. 2. p. 14. c. 78. SpuilÈie Concerning spuilÈie the Schireffe suld compell spuilÈiers and their receipters the spuilÈie being proven to restore their gudes spuilÈied and charge them to answer therefore as law will And in-case they disobey he suld denunce them rebelles and put them to the Kingis horne Quhairin gif he be negligent or partiall he salbe punished as the principall spuilÈier Iam. 2. parlia 5. cap. 10. The like restitution suld be maid be the Lordes of regalities quhilk gif they doe not the Schireffe suld cause the samin be done within the regalitie Jam. 2. p. 5. c. 11. Last of all actiones of recent spuilÈie may be persewed before the Lordes or the Schireffe within xv daies nixt after the committing of the spuilÈie Iam. 4. p. 6. c. 65. Execution of decreetes Execution not onely of decreetes of ejection and spuilÈie as said is bot also of all uther decreetes perteinis to the Schireffe be reason of his office and jurisdiction For ane decreet beand given against ony man letters are direct to the Schireff of the Schire steward or Baillies to burgh or to land chargeing them to put the said decreete to execution quhilk suld be done be ilk ane of them within their awin jurisdiction and suld receive for their office and fee xij d. for ilk li. recovered or conteined in the decreet to be taken of him against quhom the decreit is given And gif the Schireffe or uther officiar failÈies to do the same he sal tine his office for iij. Èeirs gif it be heretable and perpetually gif he hes it in life-rent or for ane certaine time sal pay the principal sume recovered to the partie with the coasts and expenses sustained be him I. 4 p. 3. c. 30. Ia. 4. p. 6. c. 67. Likewaies all sentences and decreetes given be the Lords of the session suld be execute be the Schireffe of the Schire or his deputes quhair the party dwellis against quhom the decreete is given Or els be Herauldes pursevantes or Maisers And for execution thereof nane sall take mair nor is prescribed be the act of Parliament foresaid except be liberalitie of the partie under the paine of deprivation of their office Ia. 5. p. 5. c. 58. For the better and mair reddie execution of decreetes It is leasum to the schireff Foynding to poynd the gudes and geare perteining to the debtour be the brieve of distres quhilk brieve perteinis to the Schireffs jurisdiction lib. 1. c. Placitum 7. Quha suld cause execute the forme of poynding taking of distres Quoniam attach c. de brevibus 31. Bot the Schireff or uther judge may not poynd ony man or take ane distres bot within his awin jurisdiction allanerly And gif he dois in the contrair it is plaine riefe or spuilÈie stat Rob. 3. c. Item stat 13. And it is not leasum to the Schireffe or ony uther judge within his awin jurisdiction to poynd oxen horse or uther guds perteining to the pleuch or that labouris the ground the time of the labouring thereof gif there be uther streinÈieable gudes quhilk may be poynded And gif ony man wil take ane poynd within the Schireffdom he sall cum to the Schireffe or his deputes and desire him to concurr and assist with him thereintill And thereafter the Schireffe or his deputes sall passe with him to the house of the debtour fra quhome the poynd suld be taken And gif the debtour confessis the debt and prievis payment thereof to bee maid be him or be uthers in his name Na poynd suld be taken And gif ony is taken the samin suld be delivered againe utherwaies gif he grantis the debt and proovis it not payed The Schireff suld take the poynd and cause
the Lawes of England TERRAE Dominicales Ane worde commounlie used in Charters infestments quhilkis ar called ane Maines or demaine lands laboured and occupied be the Lord and proprietar of the samin from the French worde Domaine Domanium or Demanium Quhilk worde properlie signifies the Kingis Landes perteining to him in propertie Domanium Quia domanium definitur illud quod nominatim consecratum est unitum et incorporatum Regiae Coronae ut scribit Chopinus de domanio Franciae Tit. 2. per l. Si quando 3. C de bon vacant Lib. 10. Et Matthaeus de afflictis in Constitut Siciliae Lib. 1. Tit. de locatione demanij 82. quhilk may be called Bonae incorporatae et in corpus fisci redacta THANUS is ane name of dignitie and appearis to be equall with the Sonne of ane Earle For the Cro of the ane and the uther is alike Lib. 4. c. Si quis calumnietur 28. statuit 64. And Thanus was ane Freehalder halding his landes of the King Quoniam attach c Recordatio 63. Ass reg Da. c. Recordatio 17. stat Alex. c. Recordatio 26. And gif ane man not taken with the fange is accused of thieft and na sufficient probation is deduced against him he suld purge him be the aith of twentie seven men or of three Thanes Lib. 4. c. Si quis calumnietur 28. Thanagium Regis signifies ane certaine part of the Kingis landes or propertie quhairof the rule and government perteinis to him quha therefore is called Thanus For Domania Regis et Thanagia Regis idem significant Ass reg Da. c. statuit Dominus 38. It is ane Dutch word for teiner signifies ane servand and teinen to serve And Thane is likewise ane servant and unter Thane ane inferiour servand or subject Vid. Leg. Britonum verbo Thanus THEME lib. 1. c. 3. is power to have servandes and slaves quhilk are called nativi bondi villani and all Barronnes infest with Theme hes the same power For unto them all their bond-men their bairnes gudes and geare properlie perteinis swa that they may dispone there-upon at their pleasure lib. 2. c. Consequenter 13. cum seqq And in sum aulde authentick buikes it is written Theme est potestas habendi nativos ita quod generationes Villanorum vestrorum cum eorum catallis ubicunque inveniantur ad vos pertineant Theme cummis fra than id est servus and therefore sum times signifies the bond-men and slaves conforme to an aulde statute and law De curia de Theme Quod si quis teneat curiam de Theme et illa querela in illa curia movetur ad quem theme vocantur Curia de Them id est de nativis seu Servis non debet illa curia elongari sed ibidem determinari et omnes Themi ibi compareant Quhilk is understand of the questioun of libertie quhen it is in doubt quhidder onie person is ane bond-man or free-man Quhilk kinde of proces suld not be delaied bot summarlie decided Quhairof their is twa kindes for either ane free man is alleaged to be ane servand and slave or ane quha is in servitude desiris to be maid free and put to libertie dict Cap. 13. Cap. 14. THIFT-BOTE vide Bote. TIMBRELLUM Tumbrellum ane kinde of torment as stocks or jogges quhair-with crafts-men sik as browsters ar punished Leg. Burg. cap. Si aliquis 21. Quhair it is called Castigatorium TOLL Lib. 1. Cap. 3. Custome from the Greeke worde of the samin signification Telos He quha is infest with Toll is custome free and payis na custome Quhilk is maniefest be sindrie auld Buikes quhairin it is written Toll h. e. Quod vos homines vestri de toto homagio vestro sint quieti de omnibus mercantiis de tolneto de omnibus rebus emptis venditis Mair-over all Earles Barronnes Knichts vassalles life-renters Free-halders and all quha hes landes Nomine eleemosynae suld be quite and free fra paymente of Toll and custome within Burgh in bying meate and Claith and uther necessair thinges to their awin proper use Bot gif ony of them be commoun merchandes they suld paye tholl and custome Albeit they have al 's greate libertie as Barronnes De Judic cap. 3. Leg. Forest cap. cap. Comites 13. And in the auld Britton Lawes of King Edwarde It is written Thoill quod nos dicimus Tholoneum est quòd ita infeodatus habeat libertatem emendi vendendi in terra sua TORRALIUM Thoralium à torrendo is called ane Kill quhair cornes ar dryed Leg. Burg. c. Si quis 53. De combustione domus aut torralii of the burning of the house or Kill Gif ane servand burne rakleslie thy house Kill or neichtboures houses adjacent He suld not bee punished bot tinis his service Bot gif ony man hiris ane Kill and it burne he sall paye bot the hire Bot gif he borrowis it and it burne he sall paye the valure of it to the partie skaithed vide Iam. 1. Parlia 4. Cap. 71. Cum seqq TORT Et non reason un-reason wrang and unlaw Stat. 2. Rob. Br. c. Item quod nulla 17. Tort in the French toung is wrang or iniurie Unlaw cummis fra on Vnlaw Privativa particula apud nos Germanos eodem modo quo In apud Latinos and law or lauch id est lex Quasi sine lege vel contra legem vel quod non jure fit Ius Normand Lib. 12. cap. 1. Actiones of wrange and unlaw appearis to be civill actiones and ar opponed to Actiones criminall touching life and lim Stat. Alex. cap. Si quis 9. Cum seqq Leg. Mal. Mak. c. 4. TOSCHEODERACHE ane office or jurisdiction not unlike to an Baillierie speciallie in the Iles and Hielandes For 9. Mart. 1554. Neill Mack-neill disponed and annalied to Iames Mack-Oneill the Lands of Gya and utheris with the Toschodairach of Kintyre Some alleagis to be ane office pertaining to execution of summonds Lib. 1. cum autem 8. Quon attach c Si aliquis 49. Sik as ane quha summondis attachis or arreistis ane uther to compeir before ony judge Stat. Dav c 6. Uthers understands the same to be ane Crowner Lib. 4. c. Raptus 9. Last summe understandis it to be ane searchour and taker of thieves and limmers For King Evenus did statute that in sindrie Schireffdoms there suld be sindrie searchours of thieves reivers of them that lyis in wait in the hie-streetes and commoun passages Hector Bcetius Lib. 2. Lib. 10. Aberrans inquit Pecus aut Domino furum judagatori Tochederauch vulgus appellat aut Sacerdoti reddito Latrunculatores quod si tridúum apud te retinueris furti reus esto In the Civill Law they are called Latrunculatores Leg. Solemus 61 ff de Iudic TIMBRIA Pellium leg Burg cap Capitulum 138. Ane Timmer of skinnes That is swa mony as is inclused within twa
mannis haire and did cut it Quhairby the ane became the Father adoptive and the uther the Sonne adoptive BORCH ane Cautioner pledge or sovertie Iam. 3 Par. 14. c. 99. In Latine Fide-jussor vide Free Borgh vid. Plegius Borgh of Ham-hald de Maritag Borgh of Ham-hald c. Sciendum 17. Ane Caution or sovertie used in byeing and selling quhilk the seller findis to the byer to make the gudes furth-cummand as his awin proper gudes and to warrand the samin to him For it is Statute that na man sall bye ony geare except the seller thereof finde him ane lauchfull pledge quhilk is called Borgh of Ham-halde And gif it fall happen the gudes sauld and bocht to be challenged bee ane uther and the saide pledge cannot finde him for quhome he is pledge to relieve him of the said challenge He sall pay to the Challenger the triple of the thing challenged And aucht Kye to the King as ane un-law And gif he quha faunde the said pledge relievis him not from the said damnage he he sallbe banished the realme Lib. 1. c. Statuit etiam 19. St. Alex. c. Statuit etiam 13. For generally the Cautioner hes gud action contrair the principall for his relief Lib. 3. ca. 1 Is fine And siklike within Burgh the like caution suld be found in byeing selling of all merchandice except meate and drinke and uther thinges of small consequence Leg. Forest c. Nullus 48. Et de jure civili venditor per evictionis praestationem cogitur servare emptorem indemnem eodem modo ac si domimium nactus esset L. exempto N. in prin ff de actionibus emp. vid. Hambaldare vid. Hamsuken Mair-over gif ony man becummis ane furth-cummand borgh for ane uther to make him furth cummand as ane haill man it is sufficient gif he produce him personallie hail sounde before the judge in lauchfull time place Bot gif he be pledge for ane uther that he salbe answerable as law will he man satisfie for him in court and to the partie to quhom he is pledge in all thinges as the principall suld have done Quoniam attach c. vbi aliquis 11. BOTHNA Buthna Bothena L. 4. c. Si quis namos 30. appearis to be ane Parke quhair cattel ar sed and inclused vt in Libro M. Alexandri Skene fratris mei germani quandam in supremo Senatu Advocati Quhlk in confirmed be Hector Boetius l. 7. c. 123. Nu. 35. Cum scribit maritimam Thessaliae partem á vectigali quod Regiis procuratoribus ab incolis in annos pendi solitum erat cum gregum multitudine abundarent Buth qahaniam appellataÌ„ est enim quhain ideÌ„ quod vectigal prisca Scotorum linguaret Buth oviuÌ„ collectio haec ille And it is manifest that the place in the quhilk the Èowes ar inclosed quhen they ar milked is commonlie called an Bucht Sicklike Aulus Gellius l. 11. c. 1 writts that Italy is so called a Bubus Italie because Italoi in the auld Greek language signifies Oxen of the quhilk there was great aboundance and multitude in Italy quhilk is confirmed be Paulus Vanefridus lib. 2. c. 24. Italia inquit ab Italo Siculorum duce qui eam antiquitus invasit sive ob hoc Italia dicitur quia magni in ea boves h.e. Itali habentur ab eo namque quod est Italus per diminutioneÌ„ una litera addita altera immutata vitulus appellatur Item Bothena Stat. Wilb. c. 11. Signifies ane Barronnie Lordship or Schireffdome as is manifest Ex Libro Sconens ca 99. Assis Regis David Et Dominus Bothenae is the lord of the Barronie land or ground Leg. Port. ca. 1. in Libro M. Willielmi Skene fratris mei Commissarij Sancti Andreae Pag. 149. c 79. item It is statute and ordained that the Kingis Mute that is the Kingis Court or ilk Bothene that is of ilk Schireffedome salbe halden within fourtie daies Ass Reg. Da. ca. 6. in Libr. quondam M. Roberti Carbraith I. C. Doctissimi BOTE Ane auld Saxon worde signifies Compensation or Satisfaction As man-bote theift-bote And in all excambion or cossing of landes or geare moveable The ane part that gettis the better givis ane Bote or compensation to the uther Quhairof there is ane example in § Si familiae instit de Offic. Iudic. id § quaedam actiones Instit de actionibus Man-boate Kin-boate Thieft-boate Ane man-bote is assithment for the slauchter of ane man Kin-bote for the slauchter of ane Kins-man Thieft-bote is quhen ony man agries with ane thiefe puttis him fra the Law I. 5.12 Iul. Par. 1. c. 2. Or quhen ony sellis ane thiefe or finis with him for thieft-dome done or to bee done Ia. 1. Par. 13. c. 137. BOVATA TERRAE ane oxen-gate of land Li. 4. c. Si quis sederit 23. Quhilk in sum buikes is wrangeouslie written Davata terrae The Lordes of the Session be their decreete 18. Iulij 1541. Esteemed and modified ane Oxen-gate of land to twentie shillinges in all dewties Èeirly Bot in this I finde na certaine rule For some land is mair fertill and uther mair barren Alwaies ane Oxen-gate of land suld conteine threttene acker And four Oxen-gate extendis to ane pound land of auld extent conforme to the decreetes given be the Lordes of the Checker 11. Mar. 1585. Patrik Mony-penny of Pilrig and uthers contrair Adam Bishop of Orlenay And at the instance of John Criechtonne of Bruntstoun contrair Iohn Fontoun BREVE Ane commoun worde in the Lawes and practicque of this Realme And also in the Civil Law Lib. 1. C. De exactorib Tribut Li. 10. leg ult c. de conveniend fisci Debitorib Lib. 10. Quhair in the Glosse it is called Schedulae ane schort compendious write Like as all brieves ar conceived in few words and ar alswa called Brevicula And in Rubr. C. de sentent ex periculo recitand Alciatus Lib. 1. Dispunct cap. 21. Et Jacobus Cuiacius Antonio Contio repugnante Legunt ex Breviculo id est ex scripto breviori formula concepto Because the sentences and decreetes of Ordinar judges suld be red and pronounced in writ Breve testatum is ane writ or instrument subscrived be ane publick Notar Or be twa witnesses Breve testatum quha ar called pares curtis vel curiae b. c. Convassalli Quha baith halds their land of ane superiour Cuiacius Lib. 1. Lib. 2. Tit. 3. De feud in the auld Lawes of this realme diverse and sindrie Brieves hes bene used and wonte quhairof mention is maid Quon attach c. de brevibus 31. And in sindrie uther places Brieves now in use Bot seven formes of Brieves allanerlie are nowe commonlie used The first the Brieve of Mortancestrie The seconde the Brieve of tutorie The third the brieve of Idiotry The fourth the brieve of Terce The fifth the brieve of line or lineation of landes and
tenementes within Burgh The sext the brieve of division The seventh the brieve of perambulation Quhairof the three first brieves are answered and retoured againe to the Chancellarie And the uther foure receivis na retoured answer The cause of the diversitie dependis upon the forme of the brieves direct furth of the Chancellarie Because the three first brieves in the end of ilk ane of them conteinis an command to the judge to quhome they are direct to send back againe his answere to ilke point of the brieve And the remnant foure brieves hes na sik command And theirfore requiris na answer BREVE de divisis faciendis Is the brieve or summonds of cognition or molestation anent the propertie and commontie of Landes anent the bounds meithes and marches theirof betuixt Neighbour and Neighbour Quhilk be the new act of Parliament suld be decided be ane assise before the Schireffe and his deputes Ja. 6. p. 11. c. 42. It maie be likewaies called the brieve of division or of perambulation or onie uther concerning the marches of landes lib. 2. c. dicitur 74. BREVE de nova dissasina quo attach c. de brevibus 31. Is the brieve or summondes of ejection or spuilÈie For dissasitor is he quha ejectis onie man furth of the possession of his landis without ordour of the law as writis John Rastel verb. dissasitor And nova dissasina signifies alswa spuilÈie maisterful wrangous or violent spoliatioÌ„ away taking of moveable guds and gear 22. March 1547. William Lindsay contrair Alex. Chene Molinans in stilo curiae parliament part 1. c. 10. c. 18. affirmis that noua dissasina is that quhilk in the civil law is called interdictum unde vi And coÌ„prehends also interdictum uti possidetis And in the Law of Normandy li. 8. c. 3. it is called interdictum recuperandae possessionis vid. dissasina BREVES pleadable breve placitabile are all sik brieves quhilkis are persewed and defended be ane ordinar forme of proces before ane competent judge at the instance of ane persewer against ane defender For it is Statute that na man sall be ejected furth of his land or tenemente quhairin he alledgis him to be vest and saised bot be an brieve pleadable or sum uther brieve accordand theirto that the said person be lawfully summound to answer upon his heritage at ane certaine day place Stat. 2. Rob. Br. C. Item 25. quhilk is conforme to the acts of Parli Ia. 3. P. 6. c. 41. BREVE de recto the brieve of richt was used before the Justice generall and his deputes in decision of the ground richt and propertie of lands and reduction of infeftments the quhilk forme of proces is declared at length in the first buike of Regiam Majestatem and in quo attach c. de brevibus 13. and be the Lords of councell and session is decerned nocht to have bene nor Èit to be thir mony Èeires in use and theirfore they find themselfe conform to the institution of the Colledge of Justice and jurisdiction granted to them to be judges competent in all causes of heretage vlt. Februar 1542 Patrick Weemes contrair Forbes of Reres BREVE de morte antecessoris the brieve of Mortancestrie l. 2. c. generalia 25. Or the brieve of succession or of consanguinitie de iudicib c. Natura 158. Or breve inquisitionis Stat. Rob. 3. c. 1. Or the brieve of inquest I. 4. p. 6. c. 94. Albeit all brieves are inquisitions because they are determinat per inqusitionem patriae de iudicib c. cum quis 152 or the brieve of recognition breve recognitionis Stat. 2. Rob. Br. c. Item quia 23. It is the maist necessar common and profitable brieve or inquisition that is used be the lieges of this Realme quhairby ane desiris to be served and retoured as narrest and lauchfull aire to his father or uther predicessour This brieve is rased furth of the Chancellarie and persewed be ane appeirand aire of perfite age The persewer of the Brieve for recovering of his landes furth of his superiours handes togidder with all the proffites and commodities theirof leg forest c. et si haeres 71. The raiser of the brieve at the samin time suld find caution to persew and follow the brieve and his clame conforme theirto lib. 3 c. generalia 25. The Judge Be the auld law of this Realme the Iustice generall and his deputes haveand jurisdiction nocht onelie in criminall causes bot also in civil actions was judge competent to the service of this brieve quoÌ„ attach c. de brevibus 31. Bot now the samin is served before the Schireffe Stewart baillie or onie uther judge havand power and jurisdiction Stat. Rob. 3. c. 1. Or before judges delegat be commission granted be the Lords of Councel Proclamation for the serving of the said brieve Ia. 5. p. 6. c. 82. The brieve suld be proclaimed upon fifteene dayes warning exclusivè That is upon fifteene daies nocht comptand the daie of the service of the brieve to bee ane of them be sik persones as hes power be their office or commission to proclaime the samin in ane lauchfull publick and convenient place That is to say in the principall Burgh of the Schireffe-dome Balliery or uther place quhair the landes lies at the mercat croce theirof and in mercat time of daie before twa witnesses at the least to the effect that the knawledge theirof may cum to the audience of all parties havand or pretendand entres theirintill and theirafter the brieve suld be lauchfullie execute and indorsate Indorsation be the officiar executor theirof and stamped with his seale or signet before the samin be presented in judgement Stat Rob. 3. c. 1. I. 1. p. 9. c. 127. 1. 4. p. 6. c. 94. 1. 6. p. 11. c. 60. In registro 16. No. 1537. It is necessar and also lesum to the Schireffe or onie uther Iudge of this brieve Assise suld be summound to suÌ„mmond certaine persons maist worthy within his jurisdiction to passe upon the assise and that upon the space of fifteene daies or Èit gif he pleasis upon ane schorter time and gif they be present in the tolbuith un-summoned it is leasum to the Judge to compell them to passe upon the said inquest Ia. 4. p. 6. c. 94. And all sik persones summoned and nocht compeirand ar charged at the barre and dissobeyand suld bee decerned in ane unlaw and amerciament of court The brieve beand lauchfullie proclaimed and the persons of inqueist like-waies summoned and the daie of compeirance being cum the persewer exhibitis and presentis the brieve dewlie execute and indorsate in judgement to the Judge and desiris him to cause the samin be red and put to the knawledge of ane assise Thereafter the officiar executour of the said brieve be his great aith Verification of the brieve sall sweare judiciallie that he did execute the samin brieve conforme to
4000. iiij ounce Ilk seck of gait-skins conteining 680. ij ounce Ilk three chalder of salt i. ounce Ilk hundreth of dailles i. ounce Ilk last of Narvis talloun ij ounce Ilk tunne of lead i. ounce Ilk four chalder of coales i. ounce Ilk three hundreth of drie fisch ij ounce Ilk thousand ling or killing in peill ij ounce For ilk four cradill of glasse ij ounce For ilk seck of wooll conteining xxiiij stanes ij ounce The last of wax conteining xiiij schip pund ij ounce BURLAW Byrlaw Lawes of Burlaw are maid and determined be consent of nichtbors elected and chosen be common consent in the courts called the Byrlaw courts In the quhilk cognition is taken of complaints betuixt nichtbour and nichtbour lib. 4. c. The quhilk men sa chosen as judges and arbitrators to the effect foresaid are commonly called byrlaw men It is an Dutch word for haur or haursman in Dutch is rusticus an husband-man And sa byrlaw burlaw or baurlaw leges rusticorum Lawes maid be husband-men concerning nichtbour-heid to be keeped amangs themselves C CADROW quhairof mention is maid in the act of P. printed 1568. Ia. 2. 4. An. 1454. c. 41 wrangously for cadÈou because furth of the barony of CadÈou an Èeirly pension or annuel-rent of 26. pound 13. schil 4. pen. was payed to the King in the checker as is manifest in the Schireff-rolles Ia. 2. 1456. and likewaies in the Schireff-rolles Ia 3. 1487. in the quhilk rol the barronny of CadÈou is called Hammilton in divers uthers rolles CANUM Cana. In sindrie charters and infeitments of lands specially halding of the kirk is commonly used for the duety and revenue quhilk is paied to the superiour or lord of the land and specially to bischops or kirk-men quhidder it be quheat beir aites or uther kinde of victuals salt or summes of mony as is manifest ult feb 1509. The King contrare the L. of Balmonth Èœit nevertheles the lands of Kilconquhair liand within the schirefdome of Fyfe are retoured to be halden be service of ward and relieve payand an certain sum of silver nomine cani to the B. of S. Andrews Quhilk to be weill done I cannot affirme for it is certaine that all lands halden nomine cani payis ane certain sum of silver or some uther certain duty particularly expressed in the infeftment Sa gif that maner of halding be like to the halding be service of ward and relieve of necessitie the samin mon be ane taxed ward and during the time thereof the tennent suld pay na mair but the particular sums or duty conteined in his infeftment Canum appeirs to be an Irisch word for Keane signifies the head as King Malcolm Kenmoir grandis Capite vel capito great head and likewaies kain or Chan is called tribute payed be the servand or subject to the maister as I have red in ane auld authentick register of the bischoprik of Dunkeld quhair it is called Chan or Chanum And amangis the Romaines there was twa kinds of tribute ane real quhilk was impute be reason of the quantity of the landes and guds immoveable quhilk is called jugatioÌ„ quod pro modo jugerum imponebatur l. 9. C. de agricol censil lib. 11. Ane uther personal quhilk was injoyned to the person and is called capitatio quod pro capite hominis praestatur d. l. 9. cum l. seq ibi gl l. sacrosanctae 8. C. de sacrosanct eccles l. ult C. de annon tribut lib. 9. And in the Evangel licetne dare censum Caesari Theod. Beza interpretit licetne dare capitationem Caesari Aulus Gellius and uther latin writers makis mention of them quha was taxed be the head or pow In latin capite censiti Sa this word Cane signifies the head or rather tribute or dutie as Cane fowles Cane cheis Cane aites quhilk is payed be the tennent to the maister as ane duety of the land specially to kirk-men and prelats quha in the time of their greatnes and supremacie used ane forme and stile divers from uthers and the auld form of precepts given in the time of K. Robert Èit extant anent the in bringing of the K. rents conteins censum Cana reditus custumas And canage of wol or hyds is taken for the custome theirof le navium fol. 171. in li. M. Willielmi Skene commissarij Sanctundreae fratris mei germani Specially quhilk is given for the mending and up-halding of the haven for schips leg burg c. ult in lib. Carbraith CAMPIONES ane word commonly used in singular battell For in auld times quhen controversies and debates culd not be utherwise decided bot be singular battell the parties did either fecht in proper person or conduced and fied for wage uthers to fecht for them Quha war called campiones because they faucht in campo or in the fields de judic c. 93. Albeit sumtime they did fecht in the K. palace lib. 4. c. stat 38. and sumtime in the common streits quo attach c. apud Dumfreis 59. stat Alex. c. apud 28. from the quhilk consuetude cummis the common saying Do thou richt do thou wrang cheis thou a campion strang for this is the law of Scotland Because in all actions and quarrels decided be campions in singular combat That partie did win the cause quhais campion was victorious he quhais campion was vanquished and overcum in battel did tine his cause vi Duellum gladiatores or duellatores are forbidden l. unic C. de gladiatoribus CATALA an French word Chattel as is commonly taken in the lawes of this realm for all guds and geare moveable li. 2. c. cum quis 52. c. usuratii 53. c. 55. ubi res mobiles dicuntur catalla and likewise in the lawes of Normandy gudes moveable signifies all things as possessions quhilkis may be removed fra ane place to an uther and commonly are called cattel as horse claith gold silver and uther sik things li. 5. c. 1. l. 8. c. 1. Like as haereditas or heritage signifies all lands immoveable guds in the said law of Normand li. 8. c. 1. And also in the lawes of this realme li. 2. c. 53. stat gild c. item quod quicunque 19. and leg burg c. si contigat 104. gif ane burges deceas without an testament his aire and his cattell salbe in the keiping of the kinsmen of the mother side called cognati And his heritage in the keiping of his kinsmen of the fathers side called agnati CATHORIUS Catherius The paine of him quha is convict in battell or break the Kingis protection quhat it signifies I cannot well declair alwaies it is equivalent to the valor of 9. Ky St. Alex. c. apud 28. quo at c. apud 59 quhair it is statute that gif ony person beis convict in singular battel or utherwaies of breaking of the K. protection or peace he sall give to the K. viginti duas vaccas tres cathorios vel pro
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-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
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.
maa persones then ar dailie in their houshald and families And being cum to their Innes and ludgeing suld laye their armour and weapones from them and use na weapons bot their knife Ia. 2. p. 12. c. 83. Mair-over all Lordes Spirituall and Temporall Barrones and uthers cummand to the justice aire suld na-waies mainteine fortifie supplie defend nor be Advocattes nor stand at the Bar with maniâ—est traitoures men-slayers thieves rievers nor uther trespassoures nor persones perteining to themselves or utheris Saisand it salbe leasum to them in sober waies to stande with their kin and friendes in defense of them in their honest actiones Ia. 3. p. 14. c. 98. Quhen the justice aire is to be halden upon the Bordoures The Wairdaines within their Wairdainries and their deputes with the free-halders of the Schireffdome being warned thereto be the Schireffe be open proclamation suld convoy the justice and his deputes to the place appoynted for halding of the Court And accompanie them in-during their residence and untill they be out of the boundes of their Schireffdome and received be the nixt Schireffe Ia. 6. p. 11. c. 81. In the justice aire suld compeir all persones attached and arreisted Persones attached conforme to the dittay given taken up upon them quhairof some were arreisted of before to have compeired in the justice Courte preceiding alreadie ended and expired and compeired nocht in the samin quhais names ar given to the Crowner to be of new attached and arreisted to the aire following as of before Uthers are of new indited upon quhom nae poynt of dittay was taken up in ony time by-gane quhais names ar comprehended in ane Catalogue called portuous All the foresaidis persones indited baith of auld and of new suld be attached and arreisted be the Crowner to compeir and underly the law the time of the justice aire as is manifest be the precept foresaide direct be the justice generall to the Schireffe All persons arreisted that may be apprehended the time of the aire in the Tolbuith or in the town quhair the justice is salbe taken and delivered to the justice to be justified for their crimes and trespasses Swa that the arreistment be maid before the time of the beginning of the justice aire and seat of justice Jam. 3. par 7. cap. 57. And quhair landes lyand in sindrie Schireffdomes ar annexed and united in ane Barronnie Inhabitants of annexed landes The inhabitantes thereof sall answer in the justice Court quhair the landes lyis and the Lorde or proprietar of the landes annexed givis presence or service in the court of the Schireffdome within the quhilk the barronnie lyis to the quhilk the landes ar annexed Ja. 4. par 6. c. 93. For in this case respect and considderation is had to the naturall situation of the landes and to the jurisdiction within the quhilk they lye rather nor to the imaginar and civill forme of lying of the landes be annexation Attour all inhabitantes of stewardries and baillieries Stewardries Baillieries sall cum to the head burgh of the Schireffdomes quhairin they lye And within the quhilk head burgh the Kings justice aires are halden Ja. 6. par 11. c. 81. The judge in the Kingis justice aire is the Kingis justice generall The judge or the Kingis baillie in his regalles havand lauchfull power and commission granted to them Ja. 2 p. 3. c. 9. For the King or the justice generall may make aucht deputes quha with ane depute of the Thesaurer and ane uther of the justice Clerke suld passe severallie throw the aucht quarters of the realme and hald justice Courtes I. 6. p. 11. c. 81. The justice generall suld have for his sustentation ilke day of the aire five pound Like as the justice Clerke suld receive for ilk man clenged The justices expenses be ane assise and drawen furth of the rolles four pennies And for ilk man amerciat or componand ij s. Leg. Mal. Mak. c. 2. For ilk Actorney and commission twa shillinges For ilk man quha producis ane remission twa shillinges For ilk man that cummis in the justice will twa shillinges For ilk man convict and filed twa shillinges For ilk letter of witnesse sex shillinges aucht pennies The Schireffe suld be present as he quha is warned be the justice precept to answere to all the poyntes thereof The Schireffe The crowner And touching the execution of his office togidder with the Crowner quha suld answer for his attachementes and arreistmentes and verification thereof And the Schireffe with the Crowner suld thoill ane assise the last day of the aire anent the using and execution of their offices to quhome justice suld be ministrat as they sall be founde innocent or culpable Jam. 3. parlia 14. cap. 103. The day of compeirance being cum to the quhilk the justice aire is cryed and proclamed The justice and his deputes The forme of the court suld compeir with all uther persones charged and commanded to concurre and assist with them Ar the quhilk time the sutes suld be first called The sute of courts with their Lordes For albeit the Suiters compeir neverthelesse their Lords and maisters ar oblished likewise to compeir and give presence to the justice in his aire They being lauchfullie summoned and charged to that effect be open proclamation and be the justice precept aboue written 2. The Commission and power given to the justice suld be produced and red Commission And gif the Commission be given and granted to maa persones nor ane conjunctlie They suld be all present utherwaies it is na lauchfull courte Bot gif they be constitute conjunctlie and severallie It is sufficient that ony ane of them be present And mair-over the justice may nocht make and constitute deputes and substitutes under him except he have speciall power in his commission to do the samin Lib. 4. c. si unus 27. The fensing of court Thirdly the judge suld begin and fense the court conforme to the common ordour and consuetude vsed and observed Ia. 6. par 11. c. 81. The dempster The sutes Quhilk suld be done at elleven houres before noone Ja. 6. p. 11. c. 86. Fourthlie the court beand affirmed the dempster suld be called and caused to be sworne that he sall leallie and trewlie use and exerce his office Fiftlie the suites suld be called Ia. 6 p. 11. c. 81. Èit againe as of before ilk man twise with their lords and masters and the absents decerned to have failÈied and therefore suld be unlawed and gif baith the suiter and his Maister be absent ilk ane of them be themselves suld be amerciat The assise Sextlie the assisouris being summoned be ane precept direct be the justice to that effect suld be called ilk persone under the paine of fourtie punds and the justice may cheife assise ane or man as he pleasis of the best and maist
swa Ordeil signifies innocent quha hes na part or is not participant of the crime quhairof he is accused Purgation be the fire is quhen ony man with bair feete passis throw the fire without ony harme or hurte or quhen ony man dois carry and bear in his bare hand hoat burnand iron without ony hurt of his hand quhilk is called ferri candentis judicium In the quhilk case he was decerned to be Ordeil or na waies participant of the crime Utherwaies Purgatio per ignem gif his fute or hand was hurt be the fire or hoate iron he was condemned as participant and fowle of the crime And siklike Purgatio per aquam is quhen ony man suspect or accused of ane crime Purgatio per aquam was casten in hoate or cauld water And gif he passed to the bottome without ony hurt of his bodie he was decerned ordeil innocent Bot gif he did not fal to the ground bot did swimme abone he was condemned as fowle of the crime as is written in the auld laws of the Brittones Verb. Ordalium And be Cuiac li. 2. de feud Purgatio vulgaris is discharged be the Canon Law c dilecti exer de purgatione vulgari c. ex tuarum 8. de purgat canonica Purgatio vulgaruÌ„ And likewaies be the lawes of this realme it is forbidden as unleasuÌ„ Ass Reg. Da. c. Stat. etiam 30. In fine ubi pro fossam lege aquam Stat. Alex. c. Statuit Dominus 6. And be the law of God it is commanded that nane sulde suffer their sonne or dauchter to go throw the fire Deut. 18.10 MANELETA Ane kinde of evil and Pestilent herbe quhilk growes amangst the cornes called Guld de Iudic c. 7. The law of maneleta or of the Guld was first institute be King Kenneth quha ordained that he quha throw his fault or negligence sufferis sawen lands to be filed with noysum herbes For the first fault sall pay ane Oxe for the second fault ten Oxen and for the third fault sall be remooved fra the possession and laboring of the land Hector Boetius Lib. 10. And gif ane mailer or tennent filis the land with guld will not clenge the samin he may be punished as ane seducer quha bringis or convoyis ane armie within his maisters land to wrack and destroy it Leg. Forest ca. Si nativis 28. de Iudic. c. 6. And gif thy awin native man or bondman nativus tuus hes guld within thy lande For ilk stock or plant thereof he suld pay ane Mutton as ane unlaw Leg. Forest d. c. 28. de Iudic. c. 27. The quhilk lawe and constitution is keiped and observed within certaine partes of this Realme quhere the tennent sufferand the guld to grow amangst his corns payis ane wedder or scheipe to his maister MANERIUM landes laboured with hand warke quasi manurium à manu Ane mainnes or domaine landes Or terrae dominicales Terrae dominicales Because they are laboured and inhabited be the Lord and proprietar of the samin gif there be twa mainnes perteining to ony man that is deceased the principal maines suld not be divided bot suld remaine with his aire and successour without division togidder with the principall messuage And full satisfaction suld be maid to his wife or relict therefore furth of the second mainnes or utherwise Lib. 2 cap. Dos autem 19. de Iudic. cap. 112. MANSUS A manendo ane habitation or dwelling place speciallie quhair husband-men labourers of the ground dwellis a-landwart to the effect they may labour their land mair commodiouslie L. Si. plures Nu. 9. C. de condit insertis Molinaeus in Still cur part 3. c 85. Bot Bartol in l. Si ita Nu. 10. de Aur. argent legat affirmis ane Manse to be al 's meikle lande as may be gudlie tilled be twa oxen in the Èeir Cuiac lib. 1. de feud writtis that mansus is sa-meikle lande quhairby ane man may susteine honestlie himselfe and his familie and pay the dewtie to his Maister quhilkis called Haeredium Bot in the practicque of this realme it is rather called Gleba That is ane certaine portion of arable lande Haeredium Gleba In Latine Terra culta Or terra veluti nativi venditi cum gleba h. e. terra Qui nativi ascriptitij vocantur Lib 2. c. Pluribus 14. And the four aickers of land quhilk is graunted to the Ministers of the Evangell within this Lande is called ane gleebe the quhilk suld be free fra payment of ony teindes I. 6. p. 5. c. 62. And Carolus Magnus to the effect that the Ministers of the word of God suld not perish be hunger or povertie gave to ilk Kirk ane manse For the quhilk they suld paye na dewtie or service Cuiac Lib 1. de Feud MANUS Mortua dimittere terras ad manum mortuam hoc est ad multitudinem sive universitatem quae nunquam moritur Quhilk utherwaies is called Mortificare terras That is to give and dispone landes to the hand or power of the Kirk College Communitie or ony Universitie capable to posseede bruik or joyis gudes or landes The quhilk is saide per Antiphrasin seu à contraio sensu Because sik Kirks Colleges Communities or universities dois nocht die albeit the particular members thereof ar mortall alters and deceasis Ius Normand Lib. 5 c. 7. Quhilk is conforme to L. Proponebatur 76. ff de judiciis Swa Manus may signifie power as in the Latine toung Or Manus mortua may bee conforme to the Scottish word borrowed fra the Dutch worde MeinÈie quhilk signifies ane multitude MeinÈie and speciallie of folke and people And swa dimittere terras ad manum mortuam it is to give landes to ony Universitie and multitude of people Alwaies it is not leasum to ony man to mortifie ony part of his landes to the Kirk without consent of the King Lib. 2. c. Notandum 26. Because the King may be thereby prejudged in his tennendrie dewtie service fra the quhilk the Kirk-men in auld time were exeemed MARK In tractatu de ponderibus mensuris signifies ane ounce weicht Dram. or halfe ane pound quhairof the dram is the aucht part Like as the ounce is the aucht parte of ane mark Chessa in Censuetud Burgund-Rubric 1. § 7. Verb. 65. solêª Turnoys Solidus Libra solidus inquit in jure capitur pro aureo quorum 72. faciunt libram auri Et duodecim vnciae faciunt Libram octo vnciae marcam Gl. Ia. Fabr. in § nos autem verb. solidos instit de attil tutor MARCHETA King Evenus did wickedlie ordaine that the Lord or maister of the ground or Land suld have the first nicht of ilk maried woman within the samin The quhilk ordinance was after abrogate be King Malcolme the Third quha ordained that the Bride-groome sulde have the use of his awin wife And
therefore suld pay ane peece of money called Marca Hector Boetius lib. 3. c. 12. For the quhilk certaine Kye was used to be payed Lib. 4. cap. Sciendum 63. Bot utherwaies in my opinion Mark or March signifieth ane horse In the auld French Irish and Dutch tounges For in the French toung Marcher is to ride or gang as Marcher devant to ride or gang before And Paulus diaconus Histor Longobard writtis that Mar is called in Latine Mar. Equa quhilk wee call ane Meare Alciatus de singulari certamine c. 32. Marcam inquit Germani equam dicunt unde Marcomanni qui hodie dicuntur Moravi equitatu pollentes populi Et Maroboduus Rex Mar comannorum cui corpus instar equi erat Mair-over I finde ane auld constitution written be Lotharius Imperator Carolus Rex in this manner Vt missi nostri in illorum missatijs h. e. commissarij nostri in iis locis ad quos mittuntur curam habeant ne homines nostri aut alij quilibet vicinos suos majores vel minores tempore aestatis quando ad herbam suos caballos mittunt vel tempore Hyemis quando Marescalli illos ad fodrum dirigunt depraedentur aut opprimaÌ„t Be the quhilk it is manifest that fodrum is a dutch word pro paubulo equoruÌ„ quhilk we call fodder marchalcus or mariscallus Fodrum Marschallus Marche Schalk Trimarchisia Hors-marsceall Downe is a master of stable or a servand that hes cure of the horse for March signifies ane horse and Schalk in Dutch is ane servand as Godschalk the servand of God And Alciatus d. c. 32. Affirmis that the troupes of horse-men in the armie of Brennus was called Trimarchisia because ilk man had three horse And in the samin signification we use the word Hors-marschel Quhair horse is adjoyned for interpretation of the word Marche As likewaies in Silverdown hill This word hill is the interpretation of the uther word Downe quhairof the ane and the uther signifies anething In Latine Mons. Swa horse-marschel is ane servand that keipis or curis horse as is commonlie used within this Realme Quhilk oppinion sindrie Germane writters confirmes and speciallie the Scholiastes of Guntherus lib. 8 Austriados Swa leavand to ilk man his awin oppinion and judgement free to himselfe I think that Marcheta mulieris is the raide of the woman or the first carnall copulation and conjunction with her quhilk in respect of her virginitie is maist esteemed be men Quhilk interpretation is confirmed alswa bee Cuiac Lib. 1. de feudi MARITAGIUM Haeredis The marriage of ane aire maill or femaill Maritagium legale quhilk is modified and liquidat be the Lords of the Session to ane certaine summe of money after consideration of the rentall and valure of the lands perteining to the aire quhilk is either legall or conventionall The mariage Legall is that quhilk be disposition of the Law perteinis to the superiour and over-Over-lord For the mariage of ane aire maill or femail of landes halden be service of warde and relieve being within lesse age or being of perfite age and not maried the time of the decease of his father or uther predecessour to quhom he is aire perteinis to his immediat superiour be the commoun disposition of the law of this realme The mariage perteinis to the King And gif there be maa superioures the marriage perteinis to the first and eldest superiour to quhom the predecessoures of the said aire maid first leageance and homage Or of quhom they have the first infestment of their landes Leg. Forest c. si alicui 75. Mair-over gif an air haldis certain lands be service of ward of the King immediatlie And certaine uther landes be the like maner of halding immediatlie of ane uther superiour Spirituall or Temporall The Marriage of the aire suld perteine to the King allanerlie without ony respect of the quantitie of the landes or of the prioritie or posterioritie of the hading Because the King hes not ane peere or companion far les ane superiour within his realme Lib. 2. c. Restituere 44. c. 45 Maritagium conventionale is that quhilk cummis not be disposition of the law Maritagium conventionale bot be the convention and consent of parties As quhen ony man haldis his landes in blench or in few-ferme His awin or his aires mariage na-waies thereby perteinis to his superiour Bot Èit gif hee payis ony dewtie for his landes nomine albae firmae or nomine feudi-firmae vna cum maritagio haeredis cum contigerit Gif he happenis to decease the mariage of his aire nocht being maried perteinis to his superiour not be the nature of the halding of his landes bot be the convention and provision conteined in his infestment Single and double availe of mariage The availe of ane aires mariage is either single or double For gif the superiour requires not ane aire to marie and the aire marie with out his consent The superiour suld obtaine allanerlie for his mariage be the estimation of the ordinar judge sa-meikle as may be ane competent summe or tocher to the said aire conforme to his Èeirlie rente Or gif the aire refusis to marie hee cannot be compelled to doe the samin Quia matrimonia debent esse libera Bot quhen he cummis to perfite age he sall give to his superiour al 's meikle as he micht have fra ony uther person for the samin marriage before he receive his landes out of the hands of his superiour quia maritagium eius qui infra aetatem est de mero jure pertinet ad dominum feudi leg Forest c. Siquis 66. The double availe of the mariage of ane aire perteinis to the superiour quha makis ane lauchfull offer of ane partie to the aire in mariage Providing that the partie offered be of equal parage For gif the superiour dois marie the aire with ony persone in disparage as with ane burgesse man or with ane villaine Gif the aire bee of the age of fourteene Èeires or mair and givis his consent to the saide mariage the samin is gude and valiable of the law Bot gif the aire be within the age of fourteene Èeires quhair-throw he may nocht give ane lauchfull consent to his marriage In that case gif his kinsman compleinis the Over-lord sall tine and omit the warde and all commoditie that he may have thereby untill the aire be of lauchfull age of twentie ane Èeires Quhilk salbe converted and employed be the sight of his friendes to his use and commoditie be reason of the schame and dishonour done to him Leg. Forest c. Si qui domini 65 Quhilk is conforme to the Lawes of England Hen. 3. stat Merton c. 6. c. 7. Swa gif the Mariage of ony aire or heretrix be fallen in the superiours handes and the aire beand lauchfullie required be the superiour or his donatar or be ony
De Maritag cap. Sciendum 17. NATIVE Borne slaves or servandes vide Pondagium NONE-ENTRES Is quhen ane vassall vest and saifed in the fee and propertie of the landes deceasis leavand behinde him ane aire quha beand of lauchfull age may enter to the landes be taking of saising thereof and Èit enters nocht In the quhilk case the landes ar in the handes and power of the immediate superiour be reason of none-entresse Twa kinds of none-entresse Propter negligentiam haeredis jus suum non prosequentis Stat. Rob. 3. Cap. Nota 21. Mair-over there is twa kinds of None-entres The ane simple nocht follow and after ane warde in the quhilk the superiour of the Landes untill they be declared be decreete of ane ordinar judge to be in None-entresse suld have allanerlie the retoured maill thereof conforme to the new extent And after the declaratour the superiour may remove the tennentes or occupie the landes as he pleasis induring the time of the None-entresse The uther kinde of None-entresse is that quhilk followis after ane wairde As quhen landes are halden be service of warde and relieve and the aire is Minor and may nocht enter The samin landes perteinis to the superiour be reason of warde and nocht of None-entresse For quhair there is warde there is na None-entresse be reason the warde sa long as it indures stops the none-entresse Bot quhen the warde expyris togidder with the twa termes of the relieve The None-entresse beginnis gif the aire beand of perfite age enteris nocht to the landes and obteinis saising thereof The quhilk None-entresse requiris na declaratour bot is of the like nature with the warde preceidand And induring the time thereof the Èeirly mailles and dewties of the landes as they give be tack and assedation perteinis to the superiour or he may remove the tennentes and possessoures therefra and occupie the samin as he please like as he micht do in the time of the warde Mair-over this kinde of None-entresse beand given and disponed be the King or uther superiour to the appearand aire himselfe or to ony uther person is sufficient and valiable to the donatar for all Èeires and termes preceiding the gift and disposition and three termes after the perfite age of the aire allanerlie And endis and ceasis after the ischue out-running of the said three termes And gif the aire enters nocht within the said space It is leasum to the King or uther superiour to dispone of new the said none-entresse to quhom he pleasis to be used be him unto the entrie of the lauchfull aire as was decerned and ordained be the Lordes and Auditoures of the Checker in the Moneth of Julij 1596. And conforme thereto decided be the Lordes of the Session 9. Julij 1597. The Laird of Capringtoun contrair the Laird of Hessilhead quhilk is not disconforme to the Laws of the fewes quhair be the aire of the vassal not desirand investiture or possession fra his superiour within Èeir and daye after the decease of the vassal his predecessour tines and fore-faltis his few and the samin perteinis to his superiour § 1. Et ibi Gl. quo temp miles investitur petere debent lib. 1. de feud NOVA Dissasina recent spuilÈie or ejection vid. Dissasina O OCHIERN Ogetharint is and name of dignitie and of ane free-halder Stat. Alex. c. recordatio 26. and appeiris to be of equal honor and preheminence with the son or daughter of ane Thane quha baith hes the like Marcheta viêª twa Kids or twelve pennies lib. 4. c. sciendum 63. And likewise the Cro of ane Oye of ane Thane of an Ochiern is four Kye lib. 4. c. statuit 64. And the un-lawe quhilk the King may take fra ane Thane is sex Kye and from ane Ochiern fifteene scheip or sex schillings Ass reg Da. c. recordatio 17. ORA ane auld Saxon worde and signifies mettall sik as brasse or goldes And mairover in auld times it was ane piece of cunÈied silver or golde Vre For tres orae aureae are the price of ane Cowe lib. 4. c. sciendum 63. From this comes the worde Èit commonly used Vre as leid Ure and in the Garviach within the Schireff-dome of Aberdene there is ane hill called Dounyndure monticullus metalli and the scheep there pastured hes their teeth colloured with Èellowe coulour quhilk is ane taken of abundance of mettall ORIGELLUM quasi aurigellum ane Habergion maid of mailÈies quhairof the edges are of mailÈies of Èellow coulor resembland the coulour of golde or brasse Stat. 2. Rob. Br. c. ordinatum 27. quhair it is caled Habergellum vid. Hawbert OUT-FANG-THIEF vid. Infang-thief P PANNAGIUM Porcorum ane French worde signifies the deutie quhilk is given to the King for the pastorage of Swine in his Forrestes Leg. forest c. 5. 6. 8. As it is maniefest in the lawes of England in the chartour of Forrestes quhair Pannage is called ane certaine summe of silver quhilk the awner of ane Parke or of some great wood quhair-in there is great store and abundance of Maste Aik Betche or uther trees usis to take of his tennents or uthers for their swine that sall feed there betuixt Michael-mes and Martine-mes Item Pannagium signifies ane pairt of the Kingis demaine or propertie given to his second or uther Èounger sonne or cousing quhairof Chopinus writes de domanio regis Franciae But hereof no mention is maid in the lawes of this Realme PARTICATA vel perticata terrae From the French word perche meikle used in the English lawes ane ruid of land leg burg c. 1. c. particata 140. stat Wilh c. particata 13. quon attach c. de brevibus 31. It is of verity that three beare cornes without tailes set togidder in length makis ane inche Of the quhilk cornes Inche Fute Eln. Fall an sulde be taken off the mid rig an off the side of the rig and an off the furrow Twelve inches makis ane fute of measure Three fute and ane inche makis ane Elne Sex elnes lang makis ane Fall quhilk is the common lineall measure and mette And sexe elnes lang and sex elnes broad maks an squair superficiall fall of measured land Rod. Raip Fall lineall and superficiall And it is to be understand that ane rod ane raip ane lineal fall of measure are all ane and signifies ane thing for ilk ane of them conteinis sex elnes in length albeit ane rod is ane staffe or gade of tymmer quhairwith land is measured in latine pertica Ane raip is maid of towe sik as hempt or uther stuffe and sa meikle lande as in measuring falles under the rod or raip in length is called ane fall of measure or ane lineall fall because it is the measure of the line and length allanerly Likeas the superficial fal is the measure baith of the lengh the bredth quia linea est mensura
duobus 19. And last of all doomes pronunced in the justice Court was falsified in Parliament before the Lordes called Auditores querelarum in this maner conteined in the register 7. October 1476. Datum fuit judicium infra-scriptum per os Alexandri Dempster judiciarij Parliamenti in praesentia Serenissimi Principis Iacobi tertii S. D. N. Regis cum corona in capite suo sceptro in manu sedent in Cathedra Iusticiae Parliamenti sub hac forma The Lords chosen be the three Estaites of this present Parliament upon discussing of the doomes deliveris and declaris that the doome given in the justice aire of Edinburgh the xij of Iulij last by-past be the mouth of Andrew Blackfurd soytour for the Lands of N. for Iohn N. and Ionet N. his spouse and againe called be David Balfoure of Caraldstoun fore-speaker for Archebald N. was evill given and weill againe said For diverse reasones schawen and understand to the saidis Lordes And therefore ilk soytour of the saide doome and their lordes ilk man be him-selfe is in ane ammerciament of the courte of Parliamente sik as effeiris to be taken in the justice aire and in ane unlaw of the said justice aire for them And in ane unlaw of Parliament amangst them all sik as effeiris of Lawe and this I give for doome Swa it is manifest that in all courtes inferiour to the Parliament the soytoures pronunced the doome And gif the doome given be them in ane Barronne courte was falsified in the Schireffe courte All the soytoures payed bot ane unlaw Bot gif the doome given be them in the Schireffe courte was falsified in the justice courte ilk soytour payed ane unlaw of ten poundes of the quhilk diversitie the reason is conteined in Quoniam attach c. quilibet 7. SOKMANRIA Or Socage Is ane kind of halding of Landes quhen ony man is infest freelie without ony service warde relieve or marriage and payis to his Maister sik dewtie as is called petit seriantie Or quhen ane haldis his Landes in name of Burgage or in Libera Eleemosyna de Maritag Cap. 1. Soccomannus is called ane vassall or Freehalder Soccomannus quha haldis his Landes in maner fore-saide or in blench-ferme sive nomine albae firmae Et opponitur militi qui tenet per servitium militare That is be service of warde and relieve Lib. 2. Cap. Si quis plures 30. Cap. Et haeredes 41. And in Magna Carta of England Anno. 51. Henr. 3. cap. 27. Mention is maid of sindrie formes of halding Soccage Viêª Free-ferme burgage soccage and Knicht-service Read the statute maid be Edward the First King of England the xviij Èeire of his reigne Utheris alleagis that Socagium cummis fra Socco sive Aratro affirming that Socage is properlie quhen the tennent is bound and oblished to cum with his pleuch to teill and labour ane part of the Lordis landes Concerning tenures and divers halding of lands reade the treatise written be Littleton STALLANGIATORES A stallo Creamers or Forraine merchandes quha within Burgh in the time of Faire or mercat payis certaine dewtie for their stall or stande in the quhilk place they sell their merchandice For it is ordained that ilk stranger sall either agree with the Provest of the Burgh in the best form as he may or else ilk mercat daye sall paye to him ane halfe-pennie Leg. Burg. cap. Quilibet 39. And in the auld forme of customes It is called the stallange of the mercate And Leg. Burg. Mercenarius 40. It is called Stallum or Botha in Foro. STINGISDINT Leg. Burg. c. Sciendum est 9. Ane dint or straike with ane sting or Batton In Latine Fustigatio STERLINGUS Est genus ponderis ane kinde of weicht conteining threttie twa cornes or graines of Quheate Vt in Assisa Reg. Da. de ponderibus mensuris And in the Cannon law mention is maid of five shillinges sterling and of ane marke sterling c. 3. de Arbitris c. Constituit 12 de procuratoribus And the sterling pennie is swa called because it weyis sa mony graines as I have sindrie times proven be experience And be the Law of England the pennie quhilk is called the sterling round and without clipping weyis threttie twa graines of Quheat without tailles quhairof twentie makis ane ounce and twelve ounces makis ane pund and aucht pound makis ane galloune of wine and aucht gallounes makis ane buschell of London quhilk is the aucht part of ane quarter Anno 17. Edward 2. c. 10. The quhilk cunÈie was meikle used within this realme as is maniefest be auld Charters and evidentes For the sexteenth daye of August Ane charter conteining an reversion and sterling money the Èeire of God 1395. Walterus Senesculli Dominus de Ralston Vicecomes de Perth impignoravit Necnon nomine pignoris dedit concessit Nobili potenti Du. Dom. Roberto Comiti de Fife Menteith totam et integram Baroniam suam de N. próducentis marcis sterlingorum monete Scotiae ipsi pereundem Comitem mutuatis prae manibus plenariè persolutis Tenent habent ipsi Comiti haeredibus suis de Domino Rege c. Quousq dictus Walterus Senescalli aut haeredes sui praefato Domino Comiti vel suis haeredibus ducentas mercas sterlingorum monetae Scotiae vno die inter solis ortum occasum in Ecclesia Parochiali de N. persolverit vel persolverint Et praeterea dictus Valterus omnes firmas reditus coÌ„moditates proficua de dicta Baronia medio tempore provenient dedit concessit prose haeredibus suis praedicto domino Comiti haeredibus suis prosuo consilio bono ipsi impenso impendendo Faciendo inde annuatim praedictus Comes haeredes sui Domino Regi servitia debita consueta The quhilk Charter conteinis the reversion and also ane donation of the profites of the lands quhilkis were wad-set conforme to the practicque used and observed unto the time of King Iames the Third of gude memorie vid. Regres SUBVASSORES Subvaluassores base halders or inferioure halders speciallie they quha haldis their Landes of Knichtes leg Malc Mak c. 4. Quoniam attachiamenta cap. Si aliquis 49. As Reg. David c. Statuit 8. Quhair it is ordained that ilk person quha is accused criminallie sall bee judged be his Peere or Superioure in estate and dignitie T. TAYNT vide Attaynt TENEMENTUM Is commonlie taken for the propertie of onie landes Or immoveable gudes within Burgh or without the samin Lib. 2. cap. Dos duobus 19 capit Fieri autem 67. Liberum tenementum And the superiour sulde not have the Warde of the tenement perteining to his vassal being Minor Nor can crave na service nor relieve fra him being Minor or Major except he first receive his homage Lib. 2. cap. Praedictis 60. In the quhilk signification it is commounlie used in
broddes of Timmer quhilk commounlie conteinis fourtie skinnes In the quhilk maner merchands usis to bring hame Martrik Sable and uther coastlie skinnes and furringes TIMBRELLUS Dicitur parvis Cetus ane little Quhaill Le. Forest c Si quis cetum 17. de Iudic. c 27. TINNELLUS De Iudic. c 27 Leg Forest c. Si quis Cetum 17. The sea-marke uther-waies in English Tyde-mouth That is the farrest parte quhair the sea tyde flowis Littus Littus quo scilicet fluxus hybernus maris maximus excurrit hoc est quantumcunque mare aliquo tempore plus extenditur in hyeme vel aestate tantum est littus ejus § Flumina Et ibi Gl Instit de rer divis TRAISTIS Jam. 3 par 14 c 99. Signifies ane roll or Catalogue conteinand the particular dittay taken up upon malefactoures quhilk with the portuous is delivered be the justice Clerke to the Crowner to the effect the persones quhais names are conteined in the portuous may be attached conforme to the dittay conteined in the traistis For like as the portuous comprehendis the names of the persones indited swa the traistis conteinis the kindes of dittay given up upon them quhilk is swa called because it is committed to the traist faith and credite of the Clerkes and Crowner quha gif they be trustie and faithfull suld nocht reveale deleete change or alter the samin Jam. 2. p. 6. c. 28. TRIBULA Leb Burg. cap. Sihomo 16. Ane Flaile quhair-with corn is threshen A terendo quod frumentum terat Like as Tribulus is called ane thrissell and Tribulum ane Pestell quhair-with spices or ony uther thing is brayed in ane morter Barbarè magis quam Latinè secundum usitatum versum à pueris in scholis decantatum Tribulus thressill la staill lum quoque pestell TUERNAY Quid sit valde ambigo hic aliorum avidè expecto judicium In the Burrow lawes Cap. Quilibet 34. Si uxor alicujus fuerit calumniata de aliquo in placitis Burgorum utitur Tuernay That is as in the auld English buik the husband may do richt for his wife in courtes of Burgh Et de judic cap. cum quando 28. Si quis fuerit implacitatus coram justitiario domini regis vel alio ballivo si dominus ejus vel ejus Ballivus venerit allegaverit pro ipso in debita hora potest recuperare curiam domini sui Et si per negligentiam suam responderit dixerit tuentynay de omnibus sibi oppositis planè respondebit sic amittit curiam Domini sui In quibusdam libris legitur Twentynay Tuentynay Itaque conjicio esse antiquum verbum forense quo reus utens intelligitur approbasse judicem adeo ut eum postea declinare non possit V. VADIUM Vadimonium from ane auld worde veddum used in the Britton Lawes In Latine Pignus in French Gage quhilk we call ane wedde Immobile vadium Immobile vadium signifies immoveable gudes sik as landes annalied and wadset under reversion The profites quhairof computantur in sortem That is ar compted and reckoned within the stok Swa that the samin being payed in sik quantitie as extendis and is equivalent to the quantitie of the stocke and principall summe Thereby the principall summe is esteemed as compted and payed quhilk is called Mortuum vadium Bot now the contrair is maist commounlie used in the practicque of wadsettes and alienation of landes under reversion And be the aulde law of this Realme is called ocker and usurie and Èit be the samin was permitted and tolerated Lib. 3. c. 6. Quhidder the commoun forme of wad-setting of landes now used under reversion is leasum or unleasum vid Ias in Le cunctos populos C. de summa Trinitate Et Ches in Consuetud Burgund Rub 5 § 1. 2. In auld times I finde that quhen landes war wad-set nomine pignoris or ad immobile vadium The profites and rentes thereof were given and disponed be the annalier to the buyer for some certaine reasonable causes sik as pro consilio vel auxilio impenso vel impendendo to the effect that as the buyer bruikis the landes ex dispositione legis swa he micht have richt to the profites thereof Ex pacto conventione hominis vid. Reversion vid. Sterlingus vid. Mort-gage VADIARE duellum lib 4 c 2 A vadii datione to enact battell as in the English lawes be giving of pledges baith bee the persewer and defendar before the justice and his deputes The persewer is said vadiare duellum Quhen after leave asked and obtained from the King hee offeris to proove in plaine field al to be trew quhilk he affirmis to that effect offeris ane wad or pledge And the defendar is understand to vadiare duellum quhen he denyis all quhilk is spoken bee the persewer and affirmis the samin to be false and untrew and thereto offeris his bodie to fight with him and ane wadde or pledge to that effect de judic c. 61. c. 86. Molinaeus stil cur Par. part 1. c. 16. Et author tractatus de Corona Appellatus inquit defendet latrocinium feloniam totum factum per patriam vel per corpus suum secundum electionem suam prout curia consideraverit aut vardaverit Si autem elegerit se defendere per corpus suum vadieturinter eos duellum Et appellatus det Vadium defendendi appellans det vadium disrationandi Bot Philippus Pulcher King of France discharged all singular combattes and all finding of pledges there-anent Molinaeus D. part 1. c. 10. de duello in this realme the appealer and defender castis their glooves till uther quhilk representis the finding of the pledge VAGABUND is called properlie ane quha hes na certaine dwelling place Guido Papae quest 202. Per Gl. 1. Bart. l. § 1. Praetor ff de damno infecto Quhilk is verie speciallie declared in the act of Parliament Ia. 6 p. 6. 20. Octob. c. 74. VARDA ane French word Garde custodie or keiping For we use the letter W. quhair the French men usis the letter G. As wardaine for Gardaine Warderob for Garderobe Warrenne for Garrenne And the warde custodie and keiping of the aire haldand his landes be service of warde and relieve perteinis to his immediate superiour quhilk is conforme to the Lawes of Normandie Lib. 5. c 10. Quhair-anent thir rules after following suld be observed and worthie to be noted The ward perteinis to the superiour The warde and custodie of lands halden be service of warde and relieve perteining to ane aire being Minor and of lesse age aucht and suld perteine to the over-Over-lord and superiour of the saidis landes quha within the time of of the warde may present Ecclesiastical persones to Kirkes vaikand suld susteine honestlie the aire and suld nocht onelie pay the debtes auchtand be the defunct Bot also aske crave all debts auchtand to the defunct or to the aire