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BY this Act there ought to be a constant Vice-President in the Session, but this is in Desuetude; for Vice-Presidents are chosen by the Lords in absence of the President, and thus the Lord Stairs was chosen Vice-President in Sir John Gilmor's absence, 1663. Likeas, though by this Act the eldest Lord is to be President in absence of the Vice-President, yet now in absence of the President the Vote of the Lords elects him who is to Preside in his place.
It is also observable that our Kings have been so jealous of suffe∣ring any Act of the Pope to have authority, without being ratifi∣ed by them as Kings, that the Popes Ratification of the Colledge of Justice being thought convenient, because of the assignation of some Ecclesiastick Benefices, for its better support, the King does in this Act ratifie and confirm the Popes Ratification of the King's first Act.
SHeriffs, Stewards, &c. compear yet yearly in Exchequer, and make their Aeque, and the time of their compearance is in July, vid. supra obs. on Act 77. Par. 6. Ja. 5.
BRibing is expresly discharged by the 25 Cap, Stat. K. Will. and by the 22 Cap Stat 1. Rob. 1. They who take Lands to Champart, are to be in the Kings will, and lose their employment for all their life∣time. Champart is a ••rench word, signifying a part of the Land controverted, so that whosoever takes part of the thing controver∣ted, per pactum de quotâ litis, falls under that Law. By this Act whoever takes Rewards or Buds are punishable by tinsel of Ho∣nour, Fame, and Dignity; and by the 93 Act, 6 Par. Ja. 6. the taking by their Wives and Servants, which was here omitted, is punishable by Infamy, Deprivation, and Confiscation of all the De∣fenders Moveables.
By this Act, giving of partial counsel, that is to say, consulting, is declared a species of Bribing, though nothing be taken, at least it is punishable as bribing, so that it seems a Judge may not consult albeit he abstain from judging in that cause.
These words, That he shall take no further Rewards nor Buds than is permitted of the Law, are set down to shew that Judges may law∣fully take the Quota allowed by Law to Judges, which we call Sen∣tence-money, and the Civil Law Sportulae.
The taking Bribes was in the Civil Law punish'd per l. Jul. repe∣tundarum, l. 1, 3, 6. d. t. And the punishment was death, if Mo∣ney was taken to pronounce a Capital Sentence, or Confiscation of Goods, and Banishment in other cases, l. 7. §. 3. eod. tit. but by the Doctors, and in our Law, this Crime is called Barratrie.
Such as defame Judges as Bribers, are punished here as Bribers; but besides the poena talionis which is inflicted upon all such as mur∣mure against Judges; there is likewise an Arbitrary punishment ad∣jected, and either the King or his Council are Judges competent to the cognition of this Crime by this Act.
Nota, That if a Spiritual Man murmure against any Judge, he has the priviledge to be called before his own Judge ordinar by this Act; but this revocatio sori is not now in use since the Refor∣mation.
BAse Infeftments are these which are given to be holden of the Disponer, which are valid Rights in themselves, though they never attain possession, for else they could not give good Interest to reduce the Rights that may hinder them to attain possession.
These base Infeftments are introduced with us contrary to the prin∣ciples of the Feudal Law, which allows no Feudal conveyance without the Superiors consent, and were introduc'd rather by accident than upon design. This Act upon which they are founded being introduc'd rather to suppress simulate Infeftments, than to strengthen base Infeftments, and the great priviledges a∣rising to them now, did insensibly grow from the favour which our Law shewed alwayes to lawful Creditors, even as the priviledge of necessitating Superiors to receive Comprizers did.
Base Infeftments, though yet wanting possession, are preferable to posterior Arrestments, but they are not preferred to posterior Life-rent Escheats, except they attained possession in cursu rebellionis, Feb, 21. 1667. Miln contra Clerkson; and before this Act of Parlia∣ment, 1540. they were still preferr'd to posterior publick Infeft∣ments: But by this Act it is statuted that publick Infeftments cloath∣ed with Possession for year and day shall be preferr'd to base In∣feftments not cloathed with possession, though prior, which prae∣sumptione juris & de jure, are by this declared to be simulate Rights.
But though this Act requires that the publick posterior Infeftment be granted for onerous Causes, yet a publick posterior Infeftment, though gratuitous, will be preferr'd, 3 March, 1626. Law con. Balgow∣nie. But this may be doubted because of this Act, and in that Decision the publick Infeftment was preferr'd, because Inhibition had fol∣low'd thereupon, for any Act that can take off the presumption of simulation, and which will make the Infeftment any way to be known, doth fortifie the Infeftment, as well as if possession had follow'd; and so an Inhibition following upon the debt for which the base Infeftment was granted, will prefer that Infeftment to a po∣sterior publick Infeftment, without necessity to reduce ex capite In∣hibitionis, and an Infeftment following upon an Appryzing was with∣out reduction ex capite Inhibitionis, preferr'd to a prior base Infeft∣ment, though clad with possession, because the Appryzing follow'd upon a debt whereupon Inhibition was serv'd before that base In∣feftment, the said 3 of March, 1626.
And likewise, if other diligence was done, or the time was so short that a years possession could not be attain'd, then a Terms pos∣session was sustain'd; or though there followed no possession at all, the base Infeftment will be preferr'd to a posterior publick Infeft∣ment interveening, before the possession could be acquir'd, 13 Feb. 1624. Possession likewise of a part of the Land sustains the Infeft∣ment for all, but this should hold only in Lands erected in a Barony, or such wherein one Seasing may serve, 5 Feb. 1668. Ker contra Ker.
Hope in his lesser Practiques is of opinion, that in the concourse of two base Infeftments, the prior will be preferr'd in petitorio, though no possession follow'd thereupon, which seems to be reasonable, because before this Act of Parliament, jus illud obtinebat, and by this Act, Nihil quoad hoc est innovatum; yet de practicâ a base Infeftment is as null till it be cloathed with possession, as an Infeftment à me is before it be confirmed.
If neither of the two base Infeftments be cloathed with possessi∣on prior in tempore est prior in jure.
The Husbands possession was alledg'd to be the Wifes possession as to her principal, but not quoad her additional Joynture, 7 Decemb. 1664. Lady Craig contra Lord Loure; and in our Law the Husbands possession is accounted the Wifes possession whether the Husband possest by himself, or by Wod-setters, or Comprizers deriving right from him, though it was alledg'd that this was not the Husbands possession, they having possest proprio jure, which priviledge is not only introduc'd ob savorem detis, but because she could not possess, for which reason likewise a base Infeftment for relief is preferr'd to a posterior publick Infeftment upon a Comprizing, albeit the Cau∣tioner was only charged to make payment, which was found a suffici∣ent distress, 28 July, 1625. As also, after a solemn dispute, the Lords did prefer a prior base Infeftment for warrandice, though not cloathed with natural possession to a posterior publick Infeftment, 9 January, 1666. Brown contra Scot. But here the Infeftment of warrandice was given simul & semel with the Infeftment of the principal Lands, so that there remains still a doubt as to Infeftments of warrandice given ex intervallo, but Infeftments for relief were not found sufficient∣ly cloath'd with possession, by payment of the Sums for which they were granted as Infeftments of warrandice are by possession of the principal Lands, because it was alledg'd that it was more natural that the possession of one Land should cloath the Infeftment of ano∣ther, than that possession of Annualrents should cloath an Infeft∣ment of Land, and that there might be greater collusion in payment of Sums, than in possessing of Lands, because Creditors might alter their Sums, and take new Assignations, or retire old Rights, where∣as no man could quite his principal Lands, 26 June, 1677. Cra∣mond contra the Tennents of East-barns.
But a Fathers possession as Life-renter was not sufficient to pre∣fer a base Infeftment given to the Son to a posterior publick In∣feftment granted to a second Wife, or to any Creditor the like in a base Infeftment granted by a Good-sir to his Oye by the Daughter, which was not found sufficient, being cloathed with the foresaid Civil possession of the Good-sirs reservation of Life-rent to exclude a posterior publick Infeftment, 17 of July, 1635. And this pos∣session by the Husband, or Father, or Disponer, is called possessio per constitutum, and is not favourable in a competition with other Creditors, and therefore a Factory granted by the Father to the Son to uplift the Mails and Duties of Lands dispon'd, to be hol∣den base by the Son of the Father, was not found sufficient to cloath the Sons Infeftment, though there were several Processes intented upon the Factory, 10 July, 1669.
This Act requires natural possession, by labouring the Land, or Civil, by uplifting the Mails and Duties; and before Registers were invented, that kind of possession was only able to put their Creditors in mala fide, but though Civil possession hath been found sufficient, such as obtaining of Decreets, and payment of Annual∣rents, albeit the same had no relation to the Infeftment of Annual∣rent,
but was only relative to the Bond whereupon the Infeftment followed; yet the setting of a Back-Tack by the accepter of a Wodset, hath not been found sufficient to maintain a base Infeft∣ment, except payment of the Back-Tack-Duty had likewise fol∣lowed, so that it appears that possessio Naturalis vel Civilis sufficit sed non illa quae a doctoribus dicitur civilissima, as is a Back-Tack.
By this Act also, such as make double Dispositions to defraud their Creditors, shall be declared infamous, and shall be punished in their persons and Goods at the Kings pleasure, and this punish∣ment is extended against such as make double Assignations, and the 140 Act Par. 12 Ja. 6. bears, That no Dewty shall be Dispon'd to two sundry persons, which is Crimen stellionatus by the Law, and though this Act does not make double Dispositions to be crimen Stel∣lionatus, yet it is so in effect; but the Civil Law distinguisheth thus, l. Quin. duobus ff. ad l. Corn. de falso Qui rem unant duobus vendidit dicens rem esse suam tenetur falsi, at si non dicat esse suam tenetur Stellio∣natus.
Though by this Act Superiours receiving double Resignations are guilty and punishable as said is, and seing to receive such Resigna∣tions, is a great prejudice, because it puts the Parties to great ex∣pences, and that the Superior is presum'd to get, and may get advantage by accepting such double Resignations, or contributing to the making of such double Rights, therefore they ought likewise to be lyable in Damnage and Interest to the Party in∣jured.
BY this Act it is Statuted, that a Charge to enter Heir, may be directed against the Successors of the Defuncts (they being of perfect age) to enter to their Lands, within fourty days, Year and Day being first past, after the Decease of the Predecessor, and a Comprizing being led upon their failʒing to enter, the same shall be as valid as if they were Infeft.
Nota, Though this Act bears the being of perfect age, yet Mi∣nors may be validly charged to enter Heir de practica; but seing this Act is only made against such as may enter, but wilfully ly out: It might have been doubted whether Minors in Ward-Lands may be Charged to enter Heir, for these cannot enter till they be twenty one years compleat; but by our constant Practique they may be Charged, since this is necessary for compleating the Creditors Diligence.
Nota, That this Act does not appoint that generally such Execu∣tion should pass against the appearand Heir, as if he were entred, but only that his Land may be apprized; and therefore quaeri∣tur what execution may be gotten against his moveable Heirship, and it may be urg'd that the same may be affected, as the De∣functs other moveables; for though they be Heirship, respectu hae∣redis, yet they are but moveables respectu Creditoris, for they be∣come only Heirship after they are drawn; and yet it hath been found, that the moveable-heirship may be adjudg'd, and by that
Decision it would appear, that they can only be affected by ap∣prising; but there is a Warrand wanting in this Act for apprising them; there is an Act of Sederunt anno 1613. allowing Charges to enter Heir, to be rais'd within the Year and Day, but the Summons thereupon must be execute after the Year and Day expire, but not till the fourty days expire after the execution of the Charge; but this annus deliberandi, being introduced in favours of the appearand Heir, he may omit the same, and Re∣nunce within the year if he pleaseth; Neither can an Adjudicati∣on following within the Year be challeng'd ex eo capite, July 14. 1631. albeit that the said Act appoints, that a Charge to enter Heir may be rais'd after Year and Day expire, after the Defuncts Death; Yet the Year and Day must only be computed from the ap∣pearand Heirs birth, if he was posthume Spots. tit. Heirs, Living∣stoun contra Houlerton, & de jure civili posthumus non habetur pro nato cum de incommodo ejus agitur l. etiam §. Ille, ff. de minor.
THough the meaning of this Act seems to be, that where Trades∣men, who are Free-men, either desert their work, or de∣lays the same, the Owner of the Work may choose other Free-men, or complain to the Deacon; Yet it was found in July 1675. by the Council in the case of Borlands against the Masons of Edin∣burgh, that where a Free man either deserted or delay'd, the Own∣er of the work might imploy any, even Unfree-men; though it was alleadg'd, it was not just to punish all the Free-men for the fault of one; Nor was it convenient for the Common-wealth, that Unfree-men should be admitted, for whose work none can be answerable.
THis Act is Verbatim, formerly set down, Act 90 Par. 6. Ja. 4.
BY the Civil Law, Testaments and all Writs of importance were to be Seal'd; and with us the appending of the Seal without the Subscription of the Party was sufficient, R. M. lib. 3. cap. 8. num. 3, & 4. and Papers were then Tri'd by comparison of Seals, as now by comparison of Subscriptions; but by this Act the Subscription of the Party and Witnesses is likewise to be added with the Seal, and thereafter, K. Ja. 6 Par. 6. Act 80. all Papers of importance are to be both Seal'd and Subscrived; but now they need only be Subscrived without being Seal'd; and though by this Act, the Subscription of the Notar is sufficient; Yet by that Act two No∣tars and four Witnesses are requisit, where the Party cannot Write.
By the 4 Act Par. 9. Ja. 6. Writs that are to be Registrated, need not be Sealed, but there is no express Law dispensing with Seal∣ing, as to other Papers which need no Registration, so that the not Sealing is in these warranted only by uncontroverted Custom.
FIre-rising, and ravishing of Women are to be put under surety, as Mutilation and Slaughter, by this Act; From which, some conclud∣ed that Mutilation was punishable as these Crimes were; but the Act ap∣point not the punishment to be the same, but the way of finding Cauti∣on to be the same, and by the old Law, Stat. Rob. 2 Cap. 11. Mutilation is to be proceeded against as Murder; but yet licet redimere vitam, and it is not declar'd there punishable by Death, and in all the Journal Books, no man was ever punish'd with Death for Mutilation; the punishment being ordinarly confiscation of Moveables, and As∣sythment to the party; nor see I any warrand for Confiscation of Moveables, since the Crime is not punishable by death, nor any express Statute to warrand Confiscation; I find that Mutilation is infer'd upon the cutting of a Thumb or Finger, though digitus was alleadg'd not to be membrum; but pars membri, June 27. 1677. and it was formerly found, July 15. 1642. Ch••in contra Mowat; but though this may infer Mutilation; Yet I conceive it would not infer Dis-membration, Vid. observ. on 28 Act 3 Par. Ja. 4.
BY this Act all the Lieges may sell Fleshes on Sunday, Munday, and Thursday, but thereafter all Mercats being discharg'd on Holy-days, there is an Act of Town Council, ordaining these Landward Fleshers to bring in their Fleshes only on Tuesday, Thurs∣day and Saturnday, and not to sell in pieces, but in Quarters, which is confirm'd by a Decreet of the Session, July 7. 1595. and ratifi'd in the Parliament, 1681.
FRom this Act it is clear that the Acts of Parliament cannot be Re-printed without the Kings special approbation even though the Lord Register consent; for else why needed the Regi∣ster get a Warrand by this Act, and the Custom alwise is, that the Register gets a special Warrand for that effect, and the Coun∣cil the 17 of November 1681. found that the Kings Printer hav∣ing Re-printed the Acts of Parliament without such a special War∣rand, the Copies were Confiscable and should be burnt, and the reason of this is, because of the great danger that may arise from the wrong Printing of Acts of Parliament, the difference of a word altering the sense to a contrariety; but yet it seems the Re∣gister should have liberty to Re-print them, since he is answerable for all the Errors; and therefore we see that the Register used still to subjoin his Subscription to the Acts he Re-prints, as is to be seen at the end of the 15 Par. Ja. 6. where Sir John Skeen's or∣dinary Subscription is set down at the end of the Acts which he Re∣printed; and Sir John Hay's at the end of the first Parliament, Ch. 1.
ACT 93.
ACT 96.
ACT 104.
ACT 105.
ACT 106.
ACT 111.
ACT 116.
ACT 117.
ACT 118.
ACT 122.
ACT 127.