| LOCATION | Edinburgh, NL Scotland |
| MANUSCRIPT | Edinburgh, NL Scotland, Adv.MS.24.1.11 |
| ITEM No. 6 | Decisiones curiae supremae Scotiae - Practicks 1574/5/2 - 1577/5/4 'The gift of ane altarage' |
Decisiones curiae supremae Scotiae - Practicks 1574/5/2 - 1577/5/4 'The gift of ane altarage'
Explicit:
Decisiones curiae supremae Scotiae - Practicks 1574/5/2 - 1577/5/4 'The gift of ane altarage' .
The text is fully transcribed below. In origin these leaves started a separate volume - as evidenced by the fact that leaves numbered 139-181 bear an old numbering in ink from 1 to 43.
The decisions are not continuously arranged in chronological order. Abstract propositions of law, many of them without date and without parties' names. Dates, if any, are at times written at the beginning of the item, and at other times at the end of the item. Some items mention fictitious persons: Titius, Seius, Sempronius, Lucretia. They might even have been devised for purposes of teaching. The items bear no headings, but in some of them the essential question of law is written on a separate indented line, and this is also done for the answer to the question.
This collection exists only in the present MS and in its copy Adv.MS.24.1.8. I have therefore transcribed the full text.
[{i}1574/5/2{/i}] The gift of ane altarage or ony thing ecclesiasticall to ane person excommunicat is null, as in the actioun of reductioun befor the Commisars of Edinburgh betuix Thomas Hay, student, and Robert Symson, 2. Maii 1574.
[{i}1574/6/14{/i}] In ane actioun of reductioun, na dilatour of warrandice aucht to be grantit, as was practisit in the actioun of reductioun persewit be the Lady Polmais agains the Laird of Drumquhassill and all uthers having entres [{i}compare Maitland's case Orr 191, 1563/3/18, Lady of Polmaiss the relict of the Laird tharof against Laird of Drumquhassil{/i}].
Item in the actioun of removing, na dilatour is grantit, as was (practisit) in the actioun betuix te Laird of Caprintoun, persewer, and the Laird of Cumnok and his tennants, defenders.
In the actioun of spuilzie intentit agains diverse and sundrie persons, efter the persewer hes chosin whom he will persew, he cannot chuse ovir againe. And if thairefter he transact or agrie with ane of them namit and chosin, that exceptioun of transactioun being proponit, cuttis all actions of spuilzie intentit agains the rest.
Gif a man hald any land in few of ony abbay etc., and his few chartor beir 'to him and his aires maill, gottin of his bodie. Quhilk failzeing, to the eldest female, without divisioun', then indeed, if thair be na aires maill, the eldest female sall succeid to the haill few landis haldin in maner forsaid. But if the few chartor beir 'to him and his aires maill. Quhilkis failzeing, to his aires quhatsumever', then if thair be na aires maill, the aires female sall succeid equallie to the saidis few landis. And the eldest sall have besyd hir pairt the duelling place. And if thair be na duelling places, the cheif duelling house upon or perteining to the saidis few landis.
Gif a man die without children, having tua sisters or mae, the sisters succedes equalllie to thair brothers airschip and moveables.
Titius, haldand certain landis in few of ane abbay, putts his sone Sempronius in base fie of the same, halden of him selfe, and binds him be ane contract to Sempronius to enter him immediat fewer to the superior, quhen the superiors will sould happin to be gottin. Sempronius deceisses without ony children or brethren, havand tua sisters, dochters to the forsaid Titius, his father. And befor his deceis was not enterit be the superior. Queritur if the said Titius may anywayis hurt the forsaidis dochteres, be resignatioun of the landis in the superiors handis, to be givin to his brethren or brether sones or any uther way be tailzeing of the same to the narrest air maill. Resp.: that in na maner of way, becaus the said Titius can resigne na mair in the handis of his superior then remainis with him selfe. Quhilk is onlie the superioritie. Nather could Titius have done hurt to Sempronius if he wer on lyfe, except be alienatioun of the lands to be bruikit be ane uther, conforme to the 85 act of King James the 5. Or ever the sisters can be enterit be the superior, they man be retourit be thair brother Sempronius.
The superior neids not, but if it lyk him, to receave his few maillis fra any uther except onlie of the immediat fewer wha haldis of him. For he neids not to know uthers. If the fewer nather offer nor pay his few maills for the termes or the zeires continuallie togidder, the fewer sall tyne his few, if he be callit or convenit thairfor. But if he be not summondit to the effect, the few remains ever gud quhill ane declaratour be givin and ane decreit obtenit agains the fewar. And sua, if thair rests the few maills of xl. zeires without payment, and the superior or his assignayis - befor the fewer be sumondit - receave the few maill, the few cannot be tint for not-payment of the zeires forsaids, but the fewer sall be in als guid cace as if he had payit termelie or zeirlie or within the space contenit in his chartour, prescryvit to the tinsall of his few.
[{i}1574/6/18{/i}] In the actioun of removing persewit agains the Laird of Caprintoun, be the Laird of Cumnok and his tennentis, it was alledgit be Capringtoun that he was onlie warnit to remove fra the tent pairt of the landis L.t, and his tennents to remove fra the rest, and he aucht [{i}blank space, obviously because the scribe could not read a text passage in the model MS, thus proving that this is a copy, and not an original text{/i}] principall not beand warnit to remove thairfra with the tennents [{i}blank space{/i}], the tennents could not be decernit to remove. It was replyit be [{i}blank space{/i}] Cumnok had na title, becaus he had sauld the propertie of the landis to the said Capringtons father. It was ansserit be Cumnok that the tyme [{i}blank space{/i}] alienatioun that the persewers father, efter the alienatioun made to him, [{i}blank space{/i}] tuik Cumnokis landis and obliged him to pay him vii.xx bollis victuall, and thairfor Cumnok sould possesse the same. It was fund be the Lordis: Cumnok to be possessour, and that Capringtoun with his tennents being warnit aucht to remove.
[{i}1574/6/18{/i}] Ane reclamatioun or appellatioun (not) making mentioun of them to whom it was appealit is not sufficient, as wanting ane of the solemnities and partie of ane appellatioun. The quhilk being anis producit and instruments takin be the pairtie adversary upon, it can not be takin up again and mendit. And the persewer aucht not to be hard, albeit he wold tak to preive - be the same notar et testes insertos - the reclamatioun producit sould contein the names of the persons to quhom it was appealit.
[{i}1574/6/21{/i}] In the actioun of removing persewed be the Laird of Purie Ogilvie agains te tennentis of the Laird of Ruthvene, quhom the tennents had callit for thair warrand upon ane lettre of tak made be him to them, Ogilvie persewer desyrit cautioun of the tennents. The tennents offerit the said Laird of Ruthvens. The persewer alledgit, he could not be cautioun, becaus he was ane of them wha was persewit, albeit not imediatlie, zit mediatlie, be the tennents defending wha callit him to be thair warrand. The Lordis repellit the alledgence of the persewer and fand that the said Laird of Ruthven mycht be caution, notwithstanding the alledgeance proponit be the persewer agains him. But it was alledgit be the persewer that his sone was in fie of the land, and so could not be caution. Quhilk alledgeance was thought sufficient be the Lordis, and sua the Laird of Ruthven was not receavit cautioun.
[{i}1574/6/21{/i}] In the actioun of John Cockburne parson of Skirling and Thomas Weir, quhilk was reseavit to the Lordis to be decydit be them amicablie. The said John Cockburne, efter the matter was referrit in deducing the proves befor the Lordis, producit ane instrument, quhilk the said Thomas tuik to impreive. The said John alledgit thair could be na improbatioun tane again the instrument, seing the matter was referrit to them as amicable compositours, and the nature of improbatioun was far different from any amicable compositioun. And thairfor desyrit ather the matter to be handlit amicablie, or els baith the pairties to be reponit in that place in the quhilk they were befor the matter was referrit, to proceid efter the rigour of the law. The said Thomas ansserit that the said instrument producit was na pairt of the matter quhilk was referrit, and that the improbatioun thairof could not stop the amicable sentence and decisioun upon the principall. At the leist desyrit the saids Lordis to refuse the amicable compositioun. Quhilk the Lordis refusit, and thairfor reponit the pairties in thair awin partis in the quhilk they were befor the referring. Becaus they could not baith proceid amicablie in the principall matter and the improbatioun of the said instrument, quhilk was coherent thairwith. Quhilk improbatioun requyrit extreme rigour of the law. Then the said John past fra the said instrument, efter he was requyrit if he wold stand thairat. Quhilk the Lordis thocht he mycht doe, albeit the said Thomas alledgit that he mycht not pas fra that quhilk he had usit, and thairupon the instrument is takin. .
Ane man eftir his deceis leavand behind him ane dusson of silver spoons. Queritur, gif the air of the man departit sould have the dussone of silver spoons, cum onere payand the thing the ly(?) for, or sine onere. Resp.: [{i}space for the answer to the question is left blank{/i}].
The air being persewit be his father to give ane discharge of certain airschip to his father befor his deceis, befor that he ressave the best of his geir(?). Queritur, gif the discharge may stand be the law, or not [{i}No answer is provided{/i}].
Ane silver tass, albeit befor the fathers deceis be struken(?) togidder, zit it remanis ane tass and sall pertein to the air.
Ane man havand ane silver tass disponis the same eftir the contracting of his seiknes in the quhilk he dies, ayther be gift or uther wayis, and not for povertie. Queritur, gif the same sall appertein to the air, and how and in quhilk maner the air sall persew and come to the same [{i}No answer is provided{/i}].
Ane man havand (in) his chartor of blench, haldin of his superior, this claus of service: 'faciendo inde Scotianum servitium domino regi, quantum ad dictam terram pertinet'. Queritur, gif he aucht any service to his superior. Resp.: Not, but he aucht to obey the kingis generall proclamatioun pro rata, and ryd with his superiour to the kings service, but he aucht not to ryd or obey his superiours charge.
[{i}1577/5/4{/i}] Ane burges man resignis ane tenement of land bak and fore into the baillies handis in favors of his sone A. The quhilk bailzie gives over seasing to the said A., Albeit the said baillie livit 15 zeires efter the said resignatioun made in his handis, the said burges man, certain zeires efter the said first resignatioun of the haill, resignis the tua pairt of the said tenement, videlicet the forland, in the handis of ane baillie, in favors of the said A., and the thrid pairt and the backland in favors of his uther sone B. Conforme to the quhilk resignatioun the saids A. and B. gettis sasing, and the said A. is witnes in the said B. his seasing. Queritur, gif the said A. aucht to have the haill tenement conforme to the first resignatioun without seasing past thairupon, or onlie the tua pairt conforme to the last resignatioun and seasing past thairupon. Resp.: The haill tenement sould pertein to A., becaus the said last resignatioun can tak na assent, becaus the father could not resigne that quhilk he had not, but had resignit of befor in his superiors handis, whom the bailzie representit. The same was practicat in the actioun of reductioun persewit be David Ramsay, burges of Perth, agains William Ramsay his brother and Adam Anderson, whais seasingis wer reducit at the instance of the said David upon the forsaid reason becaus the haill landis was first resignit be Adam Ramsay in favors of the said David his sone. 4 May 1577. In the quhilk actioun the defender was absolvit for the expenss, and actioun for modification of the byrun profites resservit to the Lordis them selffis.
Ane burges man deceissand, fear of ane burrow land, eftir whose deceis his sone, nather servit air to him, nor enterit air be seasing, nor zit be hesp and staple, sellis the said land to Titius. Efter the quhilk selling he enters air to his father. And efter he is enterit air, he sellis the same to Seius. Queritur, gif the land annaliet aucht to pertein to Titius or to Seius. Resp.: to Titius, to whom it was first annaliet, becaus [{i}space for the reasoning is left blank{/i}].
All improbatiouns that comes incidenter befor any iudge aucht to be iudgit be the same iudge, whidder it come directe per testes insertos, or indirecte.
[{i}1573/3/20 (= 1574){/i}] Titius in his testament makis thrie executours. Quhilkis thrie acceptis the office of executouris and becomes all thrie intromettours. Of thir thrie, tua persewis certain debtoris of the defunct be ane summondis raisit in thair names, without ony mentioun of the thrid. But the thrid in the persute of the actioun insistis with the uther tua at the bar. The debtoris desyris to be absolvit fra the summondis becaus they ar raisit at the instance of tua executours onlie, there being thrie constitut be the defunct [{i}MS erroneously:{/i} 'defender'], wha hes acceptit the office on them. The persewer replyis that the thrid did concur with them and assist them at the bar. Quhilk was fund sufficient be the Lordis, in the actioun persewit be Mr. John Alnot, ane of the executours of Mr. John Spens of Condie.
Quhen ane actioun is persewit be Titius agains Sempronius, gif Seius, ane thrid person, compeir and be hard for his entres, he can be hard to propone nothing that makis for Sempronius agains Titius, exceptit be ane defence directlie for him selfe - as was practicat in the actioun pesewit be [{i}blank space{/i}].
Tua or mae assignatiounis to ane band, debt of uther moveables to sundrie persons, the assignatioun that is first intimat prevailes.
Ane assignatioun made to any uther for any debt or uther moveables be ane person, if it be not intimat befor the deceis of the assignant or cedent, it is of nane availl, but as if it had not bein made. And the executour to the defunct sall be preferrit to the cessioner or assigney in recovering of the said debt or moveables. And sic ane assignatioun comparatur mandato, quod expirat mortuo mandatore. Exceptit be ane assignatioun made in testament, quod comparatur legato, and requyris na intimatioun.
Ane man at the horne may mak assigney to redeeme landis, and the assigney may mak intimatioun of his assignatioun to him wha hes the landis wodsett undir reversioun, but the assigney cannot redeeme lands without he that made him assignay be relaxit. For redemptioun fallis not undir eschet. Item he that is at the horne may contract mariage, annalie landis and doe any thing without iudgement, quhilk fallis not under eschet be the horning.
Howsaever, for quhatsumever caus any landis be aprysit, the act of apprysing man be keipit, and he fra quhom the landis ar apprysit hes regres to the landis within seven zeires efter the comprysing, for payment of the soume for the quhilk they were comprysit. And if the mans wyfe, fra quhom the landis is apprysit, be in coniunctfie with hir husband, sua cannot tyne hir lyfrent sua long as scho lives, and sua the comprysit man tak his eventar of the wyfis lyfrent.
[{i}1575/5/5{/i}] Ane common pyper may not be witnes, albeit he hes some land be his pyperie - as wes practisit be the Laird of Balumbie producer and my Lord Gray repeller, in the actioun of fishing.
The lyk was done in ane uther pyper wha was nocht admittit to be witnes, albeit it was offerit to preive that he had 40 heid of ky of his awin.
Kirkland quhilk wes and in tymes past hes bein in use to pay ferme may be sett in few to the priour his convent, with augmentatioun of ane furlott to the rentall. And the ferme may be sett to 8 s 4 d in the few chartor, or all few sall stand gud if confirmatioun pass thairupon.
If thair be tua fundatiouns of ane dait, agreeing in all chargis, except in the patrons thair presentis, that fundatioun prevailes of the quhilk the patroun hes bein in use to present to the benefice and be the quhilk the preists hes bein provydit to the same.
The fundation beires, the Deane of Gild and Merchandis Gild brether to be patrones. Wha, if they presentt not within 15 dayis nixt efter the benefice vaikis, the presentatioun to pertein illa vice to the aires (maill) of the fundatour. Sua the fundatioune of the altarage is proveist be Provest, Counsall, Deane of Gild and Gild brether, Bailzeis, and Deacone of Craft - without ony mentioun of merchandis in his provisioun, albeit it be subscryvit be sundrie merchantis and also the greatest pairt of the baillies subscryvand be merchandis. Item, the said Titius is not provydit within 15 dayis, but lang efter. Item Sempronius is provydit de iure devoluto be the aires maill of the fundatour, wha ar narest aires to the fundatour, but condiscending of the fundatour per muliebris sexus personas, for thair is na air that descendis of the fundatour per virilis sexus personas, and the provisioun of Sempronius is efter the provisioun of the said Titius. Queritur, quhilk is meant be the 'airis maill' ? Resp.: the narrest aires maill, whidder they descend of the defunct per virilis sexus personas, or per muliebris, but if thair be aires maill both the wayis, sunt preferendi qui descendunt per virilis sexus personas. Farder the gift of Titius is better then that of Sempronius, albeit it be not gevin within the 15 dayis, becaus it preceids the gift of Sempronius, et licitum est purgare moram. And albeit in Titius gift thair be na narratioun of merchandis, conforme to the will of the fundatioun, zit it is sufficient becaus it is allowed be the merchandis be quhom it is subscryvit. And also it is necessair that the air maill presenter be cognoscit air, ut constet his idem esse.
Gif ane poore man have not 40 libras besyd the actioun quhilk he persewis or defendis, he obteins the priviledge of the poore folkis table. The quhilk being anis obtenit, he cannot tyn it again in that actioun, albeit he becum very rich thairefter. If, when he seikis the priviledge of the poor folkis table, his competitour alledgit him to have mair nor 40 libras of geir and effaires, he sall not be hard to prove that alledgence if the poor man offerit to mak the alledger assigney to all that he hes besyd the said actioun for 40 libras.
Gif he, quhilk is nominat patron in ane fundatioun of alterage, agrie with the anuellers and straipes furth of the same certain of the anuellers contenit thairin, producit in (ius) patronatus perpetuum, and that he that is nominat second patron in the fundatioun succeids in the place of the first, the quhilkis failzeing, the aires of the fundatours becomes patrones them selffis to the restoringe againe of the fundatioun. The Commissars of Edinburgh ar iudges to the second patrone, or the aires of the fundatour, or he that is provydit to the alterage, or ony of the kin of the fundator (quha) hes gud actione and interes to persew agains the first patron and annuellers diminishers of the fundatioun, for restoring of the same to the former estate.
Gif Titius, efter that he hes spuilzeit certain gudis and geir from Sempronius, come infra triennium and offer the gudis to Sempronius, or if Sempronius receavis them, or in cace he refuse, Titius restoris them reallie in effect to the place of the quhilk they were spuilzeit, Titius sall have ane gud exceptioun peremptour agains the actioun of spuilzie intentit agains him be Sempronius.
[{i}1574/5/20{/i}] In the actioun intentit be the Advocates and Mr. James McGill agains Alexander Kincraigie for breaking of ane arreistment made upon certain cornes and geir pertaining to Kincraigie, it was thocht sufficient and the libell relevant and speciall enough, albeit efter it had made (na) mentioun in speciall thingis (quhilk) were tane away that were putt under arreistment, but onlie in generall, videlicet that they had tane ane pairt thairof away, becaus the taking away of ewer so litle thing brekkis the arreistment. Farder, if cornes be arreistit, and efter the arreistment takin, and sawin in the land quhair they were arreistit and quhair they stuid and quairof they were takin, that is na brekking of arreistment.
Gif Titius, be vertue of ane decreit obtenit agains Seius, poind certain guds perteining to Sempronius, if Sempronius come to the officer poinder and alledgis the gudis to appertein to him and to have bein in his awin possessioun the tyme of the poynding, and thairupon offeris to mak faith then presentlie, he deforcis not the officer, albeit he takis his gudis from him or stop the officer to tak his gudis away with him, sua that [{i}= as long as{/i}] it be done the tyme of the poynding.
Gif Titius give tak and assedatioun to Sempronius, without ony mentioun of the aires or assigneis of Sempronius, in that cace nather can Sempronius mak assigney, nor zit can the aires of Sempronius enjoy any pairt thairof, albeit it happin Sempronius to die, havand zeires of his tak to run.
Gif Sempronius buy land fra Titius under reversioun and thairefter Sempronius contract mariage with Lucretia and obleisses him in the said contract to infeft himselfe and hir coniunctlie in the said land, be resignatioun in the handis of the superior thairof, and the superior refuisses to give his infeftment, then Sempronius may give infeftment to the said Lucretia halding of him selfe. The quhilk infeftment the aires of Sempronius ar obleist to warrand, if it sall happin the said Sempronius to inlaik befor the said Lucretia. And in lyk maner Sempronius is ay bund to give infeftment to Lucretia conforme to the contract, quhensoever the gude will of the superior can be obtenit, notwithstanding of any infeftment gevin to hir of befor, haldin of him selfe, albeit his aires be bund to warrand the same to hir, as also to infeft hir haldin of the superiour quhen the superiours favour may be obtenit.
For that quhilk was givin immediate to the wyfe from the husband, and the husband from the wyfe, may be revokit thairefter be the gevare [ ={i}only{/i}]. The aires of the givers can never be hard to impugne it, but that infeftment man ever stand firme [{i}because gifts between spouses become irrevocable at the giver's death{/i}] [C.5.16.10; D.24.1.32.2].
[{i}1574/5/22{/i}] In the actioun betuix Weir and the Duke, queritur if ane air, efter that he hes proponit ane exceptioun peremptour, may ask ane day to call his warrand. Resp.: (ay,) as was practisit in that actioun, if ane ansser refult and be made to the peremptour that inducit the occasioun of the warrandice, ane day may be assignit to call ane warrand, efter the proponing of ane peremptour.
Titius receavit chartor and seasing of certain landis to him and the aires maill gottin of his bodie. Quhilks failzeing: to the eldest female, without divisioun. Titius deceissand without any aires gottin of his bodie, but ane brother callit Sempronius and ane sister callit Lucretia, queritur how aucht the chartor to be interpreitit, ... landis
No. of pages: Fol. 139r-141r
Explicit:
Colophon: Finis coronat opus. 11 Maii sub horam circiter quintam pomeridianam finem huic libro imposui. 1631. Finis.
Fol. 141v blank