Manuscripta juridica

Ius proprium Scotiae - Treatise "Minor practicks"

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Author(s):

• Thomas Hope of Craighall

No. of pages: Fol. 1r-33v

Rubric: Hopes Practiques. [{i}First chapter heading:{/i}] The form of process before the Lords

Incipit:

• First, there is ane generall that no summonds can be called before the Lords while the first day of compearance be bygone.

  (End, fol. 31r-33v:) Of tailzie. There is a difference betwixt a bond or contract of tailzie and an infeftment of tailzie, past without bond or contract ... eorum omnium eadem est causa et ratio ... causa

Explicit:

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

  [{i}Appendix - as in MSS Edinburgh, NL Scotland, Adv.MS.6.2.4, 24.3.9,London, BL, Lansdowne 605, Edinburgh Advocates Library '9/6', and in the printed edition 1726:{/i}] Nota: poynding must always go before comprysing, and therefore, since I cannot poynd but for a debt whereof the term of payment is come and bygone, neither can I compryse but for the like debt. It is otherwise in adjudications. For when I charge one to enter heir to my debitor, that I may have siclike action and execution against him as against the principall debitor. If he renounce to be heir, then I have recourse contra haereditatem jacentem, that omne jus thereof may be adjudged to me, not only for bygone debt, whereof the term of payment is come, but also for debts which have tractum temporis futuri, as liferents etc. And if another creditor come in, he must not only pay me all bygones, but also give me security for all time coming, before I be holden to quite my right in his favours. And so it seems that comprysing is only execution, but ... execution

• adjudication carries both action and execution. Finis