Manuscripta juridica

Decisiones curiae supremae Scotiae - Practicks 1624-1639 (alphabetical, 'Acts of court' - 'Wife', 'Unlawis') (1627/1/16 - 1637/12/20, with additions 1610-1647).

Gathered from decisions of the early 17th c., arranged under subject-matter keywords in alphabetical order. Year dates range from 1610 (p.3) to 1647 (p.2), but I suppose that these were only added later, because the vast majority of cases date from the late 1620s and the 1630s. Several items are quite detailed. It would be possible to re-arrange this work chronologically, for comparison to chronologically arranged Practicks

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Author(s):

• George Auchinleck of Balmanno

No. of pages: (item 1)

Rubric: [{i}Title, on the flyleaf:{/i}] Practicks [{i}No mention of an author.{/i}]

Incipit:

• [{i}First keyword, and first two entries in it:{/i}] Acts of court. A judiciall act of ane inferior judge obleidges no moir ... 27 Julii 1627 More et (McBuy) [{i}Not in Tait's index{/i}]
• (Second entry:) Ane act of court befoir a baillie not obligatoir after 36 yeires ... 17 Dec. 1635.

  [{i}Second keyword and first three entries in it:{/i}] Adjudicationes. Robert Greis of Barrarie charges the Laird of Closburne ... 1637/12/20 [{i}Not in Tait's index{/i}].

  In adiudicatione of lands ... 1631/11/18.

  Rachaell Stevart, ane of the tua daughteres and appearand aires.

  [{i}Third keyword and first entry in it:{/i}] Aires. The Laird of Monymuse, being persewit be ane Fraser ... 1627/1/16 [{i}Tait's index p. 179 --» Auchinlek, MS p. 1 = Morison 9662, with this beginning, verbatim{/i}].

  [{i}Last keyword:{/i}] Sessione and Lords therof. King James the 6th , King of Great Britanie, departit this lyfe 27 March 1625. At this tyme the ordinar Lords of Session were Thomas Erle of Melros secretar president, Sir Alexander (H)om of Fosterseat, Sir Andrew Hamiltoune of (E)idhous, Sir Alexander Leivingstoune of Kilsyth, Sir William Oliphant of (New)toune knight advocat to our soverane Lord, David Lord Carnegie, Johne Erle of Lawdrdeall, Sir Alexander Gibsone of Durie, Mr. Thomas Hendersone of Chester, Sir Johne Hamiltoune of Magdalene clerk registre, Sir Archibald Na(i)per of Merchiestone [{i}etc. etc., many names. Many acts of Parliament quoted. Ends with a note about the nomination of Lord Traquair as an extraordinary judge, in November 1630{/i}].

  Clerks: Sir William Scot of (E)lie and Mr. William Scot conjoyned with him, Mr. Alexander Gibsone of Durrie, Mr. Jon Hay of Eisterkennet and Mr. Alexander Hay his sone conjoynit with him. Charles succeidit upon the 15 Feb. 1626. Sir James Skeine of Curriehill was electit president, being recommendit be the kings letter. ...

  [Principles of Jus Commune discussed].

  {i}Sample item under keyword 'Contractis', fol. 28v-29v. The item corresponds to Durie's Practicks 553 = Morison 4299, Tait's index p. 423, 1631/1/14, and Spottiswoode's Practicks = Morison 15662, and Folio Dictionary ii 430{/i}: 14 Januarii 1630. Ther was ane contract of mutuall tailzie betuixt Mr. Johne Sharpe and Sir Williame Sharpe, his brother, with consent of Sir Johne Sharpe, ther father, quarby ilk ane of them was bound and obleist to resigne ther landis wherin they war infeft, and quhilk they should acquyre by the moneyes left to them by ther father. And to tack infeftment therof to them selffes and the aires to be gotin of ther awin bodies. Quhilks failzieing, to Sir Johne Sharpe ther fatheres neirest and laufull aires quhilksumever. Sir Williame performit not this contract in his lyftyme, but conquest some lands and tenements, and bot respect of the contract of mutuall tailzie, tooke infeftment to him selffe and his aires whatsumever. Hee dies and leaves behind him a sone who, after he was servit air to his father, deceast minor. Yit befoir his decease maister Johne obteanit the contract transferrit againest him. The goodwyffe of Pitlochie, who was sister german to the said Sir Williame, and the sone of the goodman of Burgie, sone and air to his mother, who was ane uther sister german, serves them selffes aires portioneres to Sir Williame his sone Johne Sharpe in all the landis wherin he died vest and seasit. And maister John Sharpe transferres the contract of tailzie againest them and charges them to fulfill the samen. They suspendit and intendit reductione upon sundrie reasones.

  (1) That the said contract was nudum pactum, nullius rei interventu vestitum, seing non of the pairties did any thing for fulfilling the said contract, and that it was pactum de futura successione, quhilk is null of the civell law.

  To the quhilk it was anserit that this was a contract of mutuall tailzie, quhilk was ordinar and laufull be our law and practik. In respect quharof the Lordis repellit the first reasone.

  (2) That this contract was not obligator, and that Sir Williame could not have beine compellit to fulfill the samen specifice, for altho that inhibitione hade bein servit upon this contract, yit he might have disponit all his heritages bona fide, and the landis disponit be him could not be reducit ex capite inhibitionis.

  (3) The contract is reduceable, because it being reciprocall, and the s(undrie) impulsive cause therof was the mutuall tailzie made, or to be made, be maister Johne to Sir Williame. If the said maister Johne his pairt was not fulfillit to Sir William nor his sone in ther lyftyme, bot be the contrair maister Johne did contrarie deides and tooke infeftment to him selffe, not conforme to the contract of tailzie, the said contract became voyd, and both perties becam in ther awn places, tanquam contractus ob causam (datam), causa non secuta. And producit a practik in terminis of the lyke contract of tailzie, reducit be the aires of maister Johne Spence of Condie againest the aires of umquhill Johne Spence advocat in anno 1580 for the same reasones.

  To the quhilk thrid reasone it was anserit that, notwithstanding aither of the perties brack to utheres, yit either of them might have compellit the uther to fulfill, and the breach did not deprieve the contract. And as to the practique, it was a colludit cause, because tua pairties, quharof nather of them hade no right to succeid be vertue of the said contract.

  (4) Contractus est '(in)nominatus do ut des', et in hujusmodi contractibus locus est penetentiae. And as Sir William might have repentit him, so might his aires. Nather can the persewares of this reductione as aires to Sir William fulfill this contract bot according to the strict formes of the contract, videlicet to infeft them selffes and the aires of ther bodies, quhilks failzieing maister Johne and his aires.

  To the quhilk it was anserit to the first member that this contract is not 'innominatus', but a contract of tailzie, wherin ther is not locus penetentiae. And to the last member, it is possible to the aires to fulfill - be resigning the lands in favores of maister Johne. And that they should have any benefit of successione be vertue of this contract, it is expreslie againest the meining therof.

  The cause being disput be wrytt, the Lordis obsolvit the defendares fra all the reasones of the reductione, and fand that the mutuall contractis of tailzie war so obligator as non of the pairties without consent of the other might institute uther aires to that heritage then these conteanit in the contract. But notwithstanding of the samen, and altho inhibitione war servit one these contractis, yitt any of the perties might sell and dispone laufullie - bot might not mack any uther tailzie in prejudice of the samen contract