Observations on the acts of Parliament, made by King James the First, King James the Second, King James the Third, King James the Fourth, King James the Fifth, Queen Mary, King James the Sixth, King Charles the First, King Charles the Second wherein 1. It is observ'd if they be in desuetude, abrogated, limited, or enlarged, 2. The decisions relating to these acts are mention'd, 3. Some new doubts not yet decided are hinted at, 4. Parallel citations from the civil, canon, feudal and municipal laws, and the laws of other nations are adduc'd for clearing these statutes / by Sir George Mackenzie ...

King JAMES the fifth, Parl. 4.

EXcommunication is here called the Process of Cursing, and Excommunication used in time of Popery to be granted for not payment of Civil debt, or not performing of Contracts, or not restoring of spuilʒied Goods, is now in desuetude (for all these were held to be mortal sins;) and by this Act Letters to Poynd or Ap∣pryze were to be granted thereupon; And by the 7. Act, Par. 4. Q.M. their Moveable Escheat falls to the King, if they ly under the Pro∣cess of Excommunication for a year, the Creditor being first payed,

which Acts are further enlarg'd by the 3. Act 20. Par. Ja. 6. By which their whole Rents and Revenues are to be applyed to the use of the Publick, and all Gifts of Escheat granted to the behove of the Wife, Children, or Confidents of such as are Excommunicated for Popery, are declared null, Act 197. Par. 14. Ja. 6. It may seem strange that Excommunication repells ab agendo sed non a defenden∣do, and yet Horning debars from both, though the person Excom∣municated be the greatest Delinquent, being at Gods Horn, 8. July, 1636. Colstoun contra Cranstoun, Vid. observ. on Act 11. Par. 6. Ja. 2. supra.

THis Act is innovated and enlarged by the 1. Par. Ch. 2. Sess. 1. Act. 41.

THis Act is in observance to this day, but it holds only in For∣rests noto••ly known to be such; for if there was probable reason of doubting whether it be a Forrest, the Goods feeding in it will not be escheat for bygones, vid. Leg. For. c. 2. §. 2. & sequen. Because this Act sayes, if any person be found putting their Goods in Pa∣sturage in the Kings Forrest, they shall escheat the same; therefore it seems reasonable that if Goods be only found there, this is not suf∣fici••nt to escheat them, since they might have strayed there, & Do∣minus non tenetur ad poenam si animal ex seipso ingrediatur in locum prohibitum ut est Forresta Borel, de Magistrat. Edict. lib. 4. cap. 6. num. 18.

VId. Annot. on Act 61 Par. 7 Ja. 3. supra.

THis Act relates to Act 88 Par. 14 Ja. 2. Whereby Hares are not to be kill'd in time of Snow: and Act 59 Par. 11 Ja. 6. and Act 266 Par. 15 Ja. 6. whereby Hares are not to be kill'd at any times by Guns, Girns, Nets, or Cross-bows, which last is yet in observance, and all these Acts are reviv'd by a Proclamation of Council, in Febr. 1680.

BY the 25 Act 3 Par. Ja· 4, It is ordain'd that the Superior of Ward lands or his Donatar, shall find Caution to leave the Houses, Orchyards, Woods, Stanks, Parks, &c. in as good condition as they found them, they taking their Sustentation, or using them in needful things, without waste or destruction, which is extended to all Life∣renters and Conjunct-feers, who are ordain'd to find the like Cau∣tion by this Act. By which also, all Sheriffs, Stewards, Magistrats within Burgh, and Spiritual men within their bounds, are also com∣manded to exact this Caution.

These Acts are also extended to all such as have Life-rent Tacks from the Heretors, without payment of any considerable duty, though the words of this Act run only against such as have Liferent Infeftments; but this Act should not be extended to such as have Liferent-Tacks, for payment of an equivalent Duty, Qui sunt

conductores & non usufructuarii; for the Heretor is rather oblig'd to entertain the Houses to such Tacks-men, than they to him, Janua∣ry 23. 1635. Laird of Laidly contra Boyd. But this is to be under∣stood of such Tacks-men, as pay a Dewty equivalent to the Rent, for else Relicts would in place of Liferents, take Tacks during their life for any imaginary Dewty, which should not free them from the finding of Caution. In that case it was also found, that this Act did oblige Donatars of Liferent-Escheats, to find Caution to maintain the Houses, Orchyards, &c. which fall under his Gift; but quid juris, if the Fisk retain Liferents so faln in his own hands, & peregr. de jur. fisc. tit. 1. num. 35. is of opinion, that usufructu sisco legato siscus non satisdat de utendo fruendo arbitrio boni viri; but it is hard that the Heir should be in a worse case by the Crimes of the Liferenter, or their going to the Horn, so that his Estate should be thereby expos'd to mis-managment: and albeit where a Liferent is left to the Fisk, Caution may seem to be remitted by the intention of the Party, yet that should not be extended to the case of its falling to the Fisk, without his consent, and it rather seems, that since a Donatar is ty'd to find Caution, that therefore the Fisk should.

Nota, There needs no precognition to be taken by an Assize of the condition the Houses were in conform to the 226 Act. Par. 14 I••. 6. For that Act only ordains such precognitions to be taken when Houses are ruinous within Burgh, and the Liferenters re∣fuse to concur in Re-building them, in which case the Heretor is allow'd to repair, he finding Caution to pay the Liferenters the Dewty that these Houses pay'd formerly, March 23. 1626. Foulis contra Allan.

Though this Act ordains the Sheriffs, and others who refuse to exact this Caution, to be lyable to the Heretor of the Ward-lands, without mentioning that they shall be lyable to Liferenters, or Conjunct-fiars, yet doubtless they are lyable to them also for the damnage sustain'd, in not exacting this surety.

Though in some cases cautio juratoria be allow'd, yet it would not be allow'd here Gail. lib. 2. obs. 47. for that Caution cannot secure the Heretor, and there is as little reason to receive it in this case, as in Removings. But Perez▪ is of opinion, that cautio jurato∣ria is receivable si offerens sit probatae & honestae vitae.

There was likewise cautio usufructuaria by the Civilians, & introducta est per senatus consultum in iis quae usu consumuntur, §. 3. just. de usu∣fruct. & l. 1. ff. de usufructu earum rer. quae usu consum. But all this matter is learnedly Treated by Christin. ad Consuetud Mechli••. tit. 14. where he determines that the lesser and temporary expences are to be bestow'd by the Liferenter, but that she will get 〈◊〉〈◊〉 from the Heretor of these expences, quae perpetuam rei utilita. tem concernunt, if she advertise the Heretor, that they were neces∣sary, and first desir'd him to repair, but that she cannot by her Reparation alter the form of the thing, though for the better, nor use it otherways than the Proprietar himself did.

By the former Act Ja. 4 Par. 3 cap. 25. to which this relates, the Liferenters are to find Caution that they shall not destroy the Orch-yards, Woods, &c. From which it may be observ'd, that where Woods are upon Liferented Lands, the Liferenter as well as the Conjunct-fiar, may make use of as much of the Wood, or Coal, as is necessary for her own use, since she is only restrain'd by this Act from wasting; and by the custom of some Countreys, she cannot pretend Right to Trees fallen by Winds or accidents, if the Trees be such as are fit for sale, & in sylvâ caedua ita in••isio∣nem facere potest ut ad fructum pertineat non vere ad destructionem vid. l. ex sylva 10. ff. de usufruct. which agrees with our Law, by which the Liferentrix has only right to as much of the Coals or Trees as are necessary for her own use; but even this Right is on∣ly due to her, whilst the Land is the Fiars, but does not hinder the Fiar to sell his own Land, Craig. pag. 189.

FOrestallers are these who buy Goods before they come to an open Mercat; and Regraters are properly only these who buy up all Goods, that they may sell them again at dearer rates. But our Law has us'd these two words promiscuously, though by this Act such as buy any thing before it be presented to the Mercat, or who buy it in the Mercat; but before the Mercat be proclaim'd, which is call'd here the time of day of the Mercat, are punish'd as Forestal∣lers; yet there must be something of design proven, as if they should stand in the way upon a Mercat day, or should every day cause buy up what were going to such a Town, to hinder the Traffick of that Town; for it were hard to make generally all who buy things going to a Town, or a Mercat Forstalling, for that may be done either ignorantly, or necessarly.

Though the punishment here be Imprisonment and escheating of the Defenders Moveables, yet by the 148 Act Par. 12 Ja. 6. The punishment is ordain'd to be fourty pounds for the first fault, a hundred for the second, and escheating of Moveables for the third; and though severals have been found guilty of Forstalling, as par∣ticularly upon the 9. of June 1596. and the 6. of August that year; yet I find no punishment follow'd.

The Chamberlain of old was the only Judge in his Chamberland-air, cap. 35 Stat. Will. Reg. But now the Justices are only com∣petent Judges to this Crime, they were call'd Dardanarii by the Civil Law, and were punish'd poenâ extraordinariâ l. 6. ff. de extraor. crim.

THis Act is innovated and enlarg'd by the Act i6 Sess. 3 Ch. 2 Par. 1.

ALL Officers within Burgh are discharg'd to purchase Lord∣ships out of Burgh, least they give dreadure to their Neigh∣bours; by which they are as I conceive, discharg'd to be Lords of

Session, or Lord Barons, or at least they lose their Offices how soon they attain to these.

Each Burgh does to this day compt in Exchequer for their Feu∣dewty yearly, conform to this and other Acts.

It was thought that a pursuit against the Magistrats of Edinburgh, for compting for their Common good upon this Act, was not com∣petent at the Instance of a privat Burgess, or of any save the Lord Thesaurer of the Kingdom, who comes in place of the Chamber∣lain Air, though it was said to be actio popularis, and a species of suspectae tutelae; but this would have given too great occasion to Faction, and would have discourag'd Magistracy too much, nor are such popular actions in matters of Government to be easily allow'd under Monarchy, though they are necessary in privat Rights.

THough this Act appoint such as trouble Burrows in using their Liberties, to be punish'd in Justice Courts, as com¦mon oppressors▪ yet this is in Desuetude, except the oppression▪ be very attrocious; but the ordinary remedy is now, either by actions of Molestation, or declarator of Property before the Ses∣sion, or by actions of Ryot before the Privy Council.

COlonel Borthwick having gotten a Gift of this penal Statute, pursu'd the Malt-men criminally thereupon; which Pursuit was discharg'd by the Council 1672. upon a Bill, and these Statutes found to be in Desuetude, and impracticable in this age, wherein Malt cannot be sold for two shilling more than the price of the Boll of Bear, as this Act appoints.

BY our Law, all single Escheats fall to the King, for bona mobi∣lia sunt allodialia, and hold not of the ordinary Superior, who has no Right, jure proprio, to the Escheats of such as dwell within his Territory: and thus Lords of Regality have only right to such Escheats by their Erection from the King. But the Liferent-escheats which fall either for civil or criminal Causes, belong to immediat Superiors respective, so that if a Vassal who is at the Horn, have Lands holden of many Superiors, each Superior will have right to the Land which holds of himself; for Feus being given for service, and the Vassal being nullus in jure; by his Rebellion the Feu returns to the Superior, except in the case of Treason, in which it falls to the King.

Observe from this Act, that the Lords of Articles are Judges to Processes in the first instance, but the Debate must be resum'd to the Parliament.

BY this Act Justice-airs and Courts are peremptor at the second Diet; but by the Act 79 Par. 11 Ja. 6. they are peremptor at the first Diet, and parties not appearing now are unlaw'd if pur∣suers, and are declar'd Fugitive if Defenders, at the first Diet. Vid. observ. on Act 39 Par. 5 Ja. 3. supra.

This Act relates to another Act of Parliament, dated the 10. of July 1625. but there is no Parliament amongst our Printed Laws of that date.

THough by this Act Depredations, Reiffs and Spuilʒies, are or∣dain'd to be first civily pursu'd; yet the Justices use to su∣stain Criminal Pursuits for these causes in the first instance; except a defence be propon'd upon matter of Right, as if the Defender alleadg'd he had a Disposition, or other Right; and in these cases the Justices superceed to give answer to the Criminal Pursuit, till the Civil Right and Title be first discust; and this the Privy Coun∣cil uses to do in Riots pursu'd before them.

Notes

• ACT 9.
• ACT 10.
• ACT 12.
• ACT 13.
• ACT 14.
• ACT 15.
• ACT 21.
• ACT 22.
• ACT 26.
• ACT 27.
• ACT 29.
• ACT 32.
• ACT 33.
• ACT 34.