Manuscripta juridica

Ius proprium Scotiae - Treatise "Minor practicks" .

[{i}Title page:{/i}] Sir Thomas Hope of Craighall: Practical Observations Upon divers Titles of the Law of Scotland, Commonly called Hope's Minor practicks, ... [{i}edited{/i}] By the late John Spotiswood of that Ilk, Advocate [{i}with ample comments and updates{/i}]. Edinburgh 1734 [{i}copy at Aberdeen, UL, shelfmark pi 342 (41) Hop. The volume belonged to Hugh MacLeod, D.D., Glasgow, in 1809/i}].

Edited by John Spotswood. His father Alexander Spotswood had started to prepare this edition. The latter was a son of Sir Robert Spottiswoode, author of Spottiswoode's Practicks, President of the Court of Session, unfortunately executed in 1646, who was a son of John Spottiswoode, archbishop of Saint Andrews, Lord Chancellor and author of the {i}History of the Church of Scotland{/i}.

Comments refer to Acts of Parliament (with extracts of MacKenzie's Observations 1686 to them), Acts of Sederunt, Haddington's Practicks (pag. 154), Durie's Practicks, Spottiswoode's Practicks [arranged by subject matter], younger decisions (e.g. Stair's Decisions, but not his 'Institutes'), Craig's 'Jus feudale', Skeen's De verborum significatione, MacKenzie's Institutes (pag. 141, 168, 184, 255, 307), System of stiles by Dallas (pag. 282), Nisbet of Dirleton's Doubts, and Stewarts answers to them (e.g. p. 181, 233, 236), Spotswood's Scots Law Lexicon (pag. 98, 143). References to the "Auld Lawis" are rare.

Quotations of Jus Commune:

Corpus iuris civilis is quoted frequently (e.g. prominent in pag. 19, 21, 36, 45, 143-144, 246, 270, 326-329), but references to the Corpus iuris canonici are rare (pag. 337, on 330 verbatim). Struvius, Syntagma juris feudalis (pag. 302-303). Hostiensis [= Henricus de Segusio, 13th c.], Summa iuris canonici (pag. 50). Antonius Faber, Coniecturae. Carpzovius (pag. 45). Brunnemann (pag. 45). Vinnius, Commentarius in Institutiones (pag. 19). Pet. Fab. 2. Semestr. 24 (pag. 19). Raevard. pro tirib. (pag. 19). Jacobus Cuiacius, Observationes (pag. 19).

Exceptional richness of references on pages 89-91, dealing with relations between church and state, citing works of French and Italian and even Spanish authors: Aubéry, Antonius Charles, Matthieu de Larroque, Evêque de Pamiers, Philippus Probus, Acacius Ripoli, Arnulphus Ruzaeus, Sfondratus Cardinalis Caelestinus, Bibliotheca Rocaberti, Antonius Olivan Catalanus, Benignius Millelotus, President Le Maître, Guymier Chopin, Pasquier, Dr. Gilbert Burnet Bishop of Sarum.

Observation that the treatise was probably written in 1632 (pag. 160), and that a doctrine in question about the form of bonds was abrogated by Act 57 of the Parliament 1641.

[{i}List of titles in the edition 1734 and their pertinent first and last words:{/i}]

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Author(s):

• Thomas Hope of Craighall

No. of pages: Pag. 1-410

Incipit:

• 1 The Form of process before the Lords of Session. Summons before the Lords of Session, ordinarily should be execute upon 21 days warning (in which count of days, either the day of the execution of the summons, or the day of compearance, should be free) except the summons by privilege ... [{i}Paragraph 7 = corresponds to incipit in the MSS:{/i}] No summons before the Lords may be either continued, or called, the said day of compearance, except allenarly in receiving of witnesses, which may be called the day of compearance ... [{i}Explicit:{/i}] in respect of their importance, being for the loss of heritage.

  2 Of kirks and benefices. [{i}Incipit:{/i}] All kirks are either several benefices, or are part of benefices ... [{i}Explicit:{/i}] annexed to the bishoprick of Galloway.

  3 .1 Of confirmation of testaments, 3.2 of executors, 3.3 of bonds heritable and moveable, 3.4 of the succession of heirs. [{i}Incipit:{/i}] The bishops of old had double jurisdiction ... [{i}Explicit:{/i}] heirs of the bairn on the father's side cannot possibly succeed.

  4.1 Of ward, 4.2 Non-entry, 4.3 Marriage, 4.4 Relief, 4.5 Of retours, with the precepts directed thereon. [{i}Incipit:{/i}] If the lands which pertain'd to the defunct ... [{i}Explicit:{/i}] the particulars following are to be adverted to.

  5 Of publick and base infeftments. [{i}Incipit:{/i}] Lands may be sold to be holden either of the anallier, or of the superior ... [{i}Explicit:{/i}] to be holden of the superior.

  6 Of wadsets and reversions. [{i}Incipit:{/i}] Where lands are disponed in wadset under reversion, either the wadset is to be holden ... [{i}Explicit:{/i}] pertains to him, by disposition of the law.

  7 Of simple and liferent escheats. [{i}Incipit:{/i}] The right of the liferent escheat ... [{i}Explicit:{/i}] and litiscontestation made in the special.

  8 Of signatures. [{i}Incipit:{/i}] A signature is properly a letter of gift, donation, or disposition ... [{i}Explicit:{/i}] nor in the sasine, nor any one of them.

  9 Of the power and jurisdiction of barons, sheriffs, lords of regalities, stewarts and burghs. [{i}Incipit:{/i}] The jurisdiction of a baron or barony ... [{i}Explicit:{/i}] like effect by act of prescription.

  10 Of judgments possessory and petitory, and of actions personal and real. [{i}Incipit:{/i}] Possessorium iudicium is properly this, where a party is pursued to remove from lands ... [{i}Explicit:{/i}] against the party compearing.

  11 Of comprisings and adjudications. [{i}Incipit:{/i}] Comprisings may be led either upon a personal bond, or upon a real right ... [{i}Explicit:{/i}] troubling the superior in time coming.

  12 Of reductions and improbations. [{i}Incipit:{/i}] Where summonses of improbation are simply raised, without reduction, then in effect ... [{i}Explicit:{/i}] the same in that same process.

  13 Of actions of removing. [{i}Incipit:{/i}] Item, in actions of removing, the defences are either peremptory of that instance ... [{i}Explicit:{/i}] fifteen days warning, to the Clerk of the Bills.

  14 Of diversity of decreets. [{i}Incipit:{/i}] Decreets, or letters conform, are now commonly craved upon rolments of courts or decreets of baron courts ... [{i}Explicit:{/i}] principaliter and primario, and the retours to fall in consequentiam.

  15 Of the force of an assignation. [{i}Incipit:{/i}] An assignation made by the heritor of lands, to the mails ... [{i}Explicit:{/i}] the title of the benefice is not disponable by assignation.

  16 Of tailzies. [{i}Incipit:{/i}] There is a difference betwixt a bond or contract of tailzies and an infeftment of tailzie

Explicit:

• they cannot have the right, nisi cum sua conditione et causa