Page:The Laws and Acts of Parliament of Scotland.djvu/862

2> ver-boru p'ctcnt judge, at the inftance ofane perfewer againft ane defender. For it isStatute, that na man fall be ejected .forth of his land or tenements, quhairin he alledgishimtobeveftand faifed.botbean brieve pleadable or fum uther brieve accordand theirto, & that the faid perfon be lawfully fummound,to anfwer upon his heritage, at ane certaine day 6c place.Stat. 2. ,Ro£.:Br.C.Item. 2 5. quhilk is conforme to theactsofParli.Ia.3.P.'6.c4ii BREVEie reilo, the brieve of richt was ufed before the Juftice ge- nerallandhis deputes in decifion of the ground, richt and propertie of lands, and reduction of infeftments, the quhilk forme of proces is declared at length, in the firft buike oiRegictm Majcftatem> and in quo. attach. c. de brevibus. 1 3 . and be the Lords of councell and feffion is decerned nocht to have bene, nor zittobe thir mony zeiresinufe, and theirfore they find themfelfe, conform to the iriftitution of the Colledgeof Juftice, and ju- rifdictiongranted to them.to be judges competent in all caufes of heretage, vlt. Februar.i 542, Patrick V/eemes contrair Forbes of Rerej. BREVE de morteautecefforis, the brieve ot'Mortanceffrie.l-zc- gene- ralia, 2 5. Or the brieve of fucceffion, or of confanguinitie, de iudicib c.Na- tura. 1 58. Or breve inquifitionis- Stat. Rob 3-ci.Or the brieve of inqueft I. 4. P-6.C.94 Albeit all brieves are inquifitions, becaufe they are determinat per itiqufitionem patria, deiudicibc- cumquis. 1 52, or the brieve ot recog- nition, breve recognitions Stat-z.Rob.Br-c-Item quia 23. It is the maift ne- ceflar,commonand profitable brieve.orinquifition that is ufed be the lie- ges of this Realme,quhairby ane defiris, to be ferved and retoured,as nar- reft and lauchfull aire to his father or uther prediceflour. This brieve is ra- jheperfi-djer fed furih of the Chancellarie and perfewedbeaneappeirandaireof per- cf the Brine. £ tea g C) f or recovering of his landes, forth of his foperiourshandes:to- gidder with all the proffites and commodities theirof. legforefl- c. etfihts- res 71. The raifer of the brieve at the famin time fold find caution to per- few and follow the brieve, and his clame conforme theirto. lib.3c.gene- thejxdge. ralia.z 5. Be the auld lawof this Realme, the Iuftice generall andhis de- putes haveand jurisdiction nocht onelie in criminall caufes, bot alfo in civil actions.was judge competent to the fervice of this brieve, quo.attach. c.de brevibus. 3 1 . Bot now the famin is fetved before the Schireffe,Stew- art, baillie, or onie uther judge havand power and jurifdiction.S*«.Ko&. 3. c.i. Or before judges delegat be commiffion, granted bethe Lords of Proclamation Councel, for the ferving of the (aid brieve. la. s-p.G.c 82. The brievefuld be proclaimed upon fiiteene dayes warning exdufivh- That if upon fif- teene daies, nocht comptand thedaie of the fervice of the brieve to bee ane of them, be lik perfones, ashes power be their office or commiffion, to proclaime the famin, in ane lauchfull, publick, and convenient place : That is to fay, in the principall Burgh of the Schireffe-dome, Balliery, or uther place quhair the landes lies : at the mercat croce theirof, and in mer-, cat time of daic, before twa witnefTesat the leaft, to the effect that the knawledge theirof may cum to the audience of all parties, havand or pretendand entres theirintill, and theirafterthe brievefuld be lauchful- lie execute and indorfate, bethe officiar, executor theirof, and damped $gd»rf*uon. ^^ jjj s j- ea j e 01 . {jgoet before the famin be prefented in judgement. StMi R06.3. c.i.1. 1./.9.C 1 27. i.4./>.6.c-94. .6p-i i.e. 6o. Inregiflro 16.N0.1 537. It is neceflar and alfo lefum to the SchircfFe, or onie utherludge of this '^tffiftfuldbe brieve, to fammond certaine perfons maift worthy within his jurifdiction fitmmomd. to p a {f eu p n the affife, and that upon the fpace of fifteene daies, or zk gif hepleasisuponanefchorter time, and giftheybe prefent in the tol- buith un-fummoned, it is leafom to the Judsjeto compell them to pane upon the faid inqueft- Ia-4. p-6. c 94. And all fik perfones fommoned and nocht compeirand, ar charged at thebarreand diflobeyand, fold bee decerned in ane unlaw and amerciament of court ; The brieve beand lauchfullie proclaimed, and the perfons of inqueift like- waics fommo- ned, and the daieofcompeirance being cum: the perfewer exhibitis and prefentisthe brieve dewlie execute and indorfate, in judgement to the Judge, and defiris him to caufe the famin be red, and put to the knaw- ledge ofane affife : Thereafter the officiar ; executour of the faid brieve, Verification be his great aith, fall fweare judiciallie, that he did execute the famin ef the brieve, brieve, conforme to the indorfation thereof in all poyntes, and the wit- nefTes infert there-in-till,fall alfo make faith, that they heard ,faw,and by- ftude, quhen the faid officiardid execute and proclaime the Brieve, in fik manner, as is contained in the indorfation thereof: The brieve and mdor- Defcndir. fttion being fwa verified, gif ony perfon havand entreffe, compeiris to defend and object againft the brieve, he fulde have infpettion thereof, gif he defiris the famin: And gif he proponis ony relevant exception, ) declinatour, dilatour, or peremptour : Hee thereby caftis and armullis the Brieve, either until ane new brieve be raifed againe, or/zBJp/ia'tirrinall times cumming: utherwaies, githehes na reafonable exception or de- fence to ftop the brieve;the famin fall pane to the knawledge of ane affife, Quoniant attach, c. de brevibus. 1 3 . An affife it THEN Certaine lauchfull menne maifte worthie , and quha chofen. ^efte knawis the veritie , to the number of Threttcene , or fif- teene, ar chofen in judgements , in prefenceof the perfewer, and defender : Or in prefence of the perfewer, and in abfence of the defender, knawin to have enterefle, and being lauchfullie fom- moned, and nocht compeirand, to the faid election, to object againft fa mony perfones/as he may leafumlie ftop be the law, topaffeupon the affife : For likeas it is neceflar, that he be anis fummoned : i'wa gif hecompeircs nochr, being lauchfulliefommoned, the bricve-fold receive proceffe, and paiTe to the knawledge of ane inqueft, at the defire of the perfewer, in abfence of thedefender. Lib. s.c.Generalia. 3 $.aff.Reg. C ntm-aticn J>a - c -f c ' en ^" m e/r;44.W.4.c. Si petens. 57. fluhilkis perfones, nalauchful ofthe brieve, objection maid againft them, fold be received, fworne, and admitted; And therefore ar called Juratores.vid. Bona Tatria. And gif they, or onie ane of them be fworne and received , the judge may continue the brieve to ane uther daye, gif he pl'eafis, and as neceffitie requiris : uther- waies the continuation thereof, is nocht leafom , without the T ie claime S :rvice neh tiVCj 'Mjignificatione. confent of the partie, after the claime is given in ; And inquifition ta- ken in the caufe, gif the perfones of inqueft, being weill counfelled, and advifed, deliveris and fervis Negative , in favoures of the defend- er, and findes the perfewer na waits neareft and lauchfull aire to him quha died laft Vefte, andfaifed in the Landes acclaimed: Inthatcafc the defender doisbruik and joy is the pofleffion of the faid lands, and the perfewer is debarred and fecluded therefra. Bot gif the affife deliveris and fervis negative, as faid is, or affirmative, in favours of the perfewer againft Service «j the del ender, conforme to the claime in all poyntes: This theiranfwere m * r ' iVe ' to all and fundrie the pointes of the brieve, fealed with all their feahs, or of the maift part of them, togidder with the feale of the Schireffe, or u- ther judge clofed, and the brieve inclofed therein (to the effect the fame may be conferred with the anfwer) is fent back and retoured to the chan- %etonr. cellaric, conforme to the Kingis command, conteinedinthe end of the bvieve.Stat.Ro. 3. c.i. Quhilk therefore is called ane retoure. And it is to Twal <.""ti wit, that there is twa kindes of retoures, or anfweres maid be the perfons of inqueft, to this brieve, and retoured to the Chancellarie : The ane is generall and the uther fpeciall : The generall is, quhair na landes or tc- Generall rc- nements ar fpeciallie acdamed or foucht be the perfewer of the brieve: """' m A Bot onelie it is defired, that hee may be ferved and retoured generalie, neareft and lauchfull aire to his Predeceflour : To the quhilk generall claime, ane generall retour is maid, be vertue quhairof the faid generall aire, ties gude richt arid title to all contractes, obligaticnes, andreverfi- ones, and to the moveable aire-fchip guds> quhilkis perteined to his pre- deceflbur, and were not difcharged, or difponed before his deceafe, in his liege pouftie : And fik-like, he may perfew, and defend quhatfomc- ever action competent to him.be deceafe ofhisfaidepredeceflour, to quhom he is ferved air generall. 8. March. 1540. lames Scot, contrair ilair : The fpeciall anfwere and retour is, quhen the perfewer Special! re- of the brieve, claimis fpeciall landes» and the perfones of inqueft givis *»>"■. ane particular and fpeciall anfwer to ilk fpecial poynt of the brieve ./.16.4 c./?afK«Dc»?i»MJ45.Thequhilkis direct and fend to the directour of the Chancellarie, to be tryed be him, gif the famin be conforme to the di- rection and ordour of the brieve in all poyntes. Here is to be under- ftand, that the landes conteined in the retour, ar halden immediatlieof ourSoveraine iord the King, or of ony uther fuperiour. Gif the lands be halden of the King in chief , the directour of the Chancellarie, com- rnandis his Clerkes to direct ane precept, under the tcftimoniall of the great feale, called the quarter feale, in quhite Walx, to the Schireffe of the Schire, quhair-inthe landes lyis: commanding him to give failing to the perfon retoured, or his Actournay, of the landes conteinedinthe retour : And to take fecuritie of'the maillcs aud dewties of the landes, fa langastheyar retoured, to havebenein the handes of theKing, or his PredecefToures, be reafon of warde, or none-enterefle, quhairof ane me- Of lands re-' . moriall is made in ane buike called,Re//io»(/f, vid. Refponde. Gif the lands toKred,haUen retoured be halden of ane- inner immediate fuperiour then the King; °, p-"'^' The directour of the Chancellarie, directis ane precept, chargeing the fuperiour, to give faffing to the perfon retoured, of all and findrie the landes conteined in the retour; He doand to him therefore all quhilk he is obifhed to do be the Law : Cuhilk precept, gif the fuperiour diflb- beyis, beand required perfonallie, or at his dwelling place, to obey the famin: And for verifying thereof, ane authentick inftrument repor- Thefecovi ■ ted to the Chancellarie: Then the fecond precept, called Meminimus, t fc "V- is direct to the faidefuperiour,bearand in effect, that theKing remem- brand, that of before he gave command to him to give faffing: quhilk command as zit is nocht obeyed, quhairof he mervailis : And therefore zit, as of before, chargis and commandis the (aid fuperiour, to give fai- fing to the perfon retoured, of the landes conteined in the retourc. And gif ane uther authentick inftrument be reported to the chancellary for verification of the foperiouris difobedience the fecond time ; The third precept called Fmche, is direct, commanding him to give the faid faifing, or utherwaies gifhedifobey, the king certifies him , that he will direct his uther precept to his fchireffe to give the famin. In the ex- ecution of al thir three precepts, itisnotneceilare, that the fuperiour fall be perfonally apprehended. Butitisfofficientgithebefa charged in the Thefozrth 1 execution of any ane of them. The third precept and charge being like- precept of the wayes difobeied, and the famin difobedience lawfully verified, as faid is: J r ' l " r 'S- ane precept is direct furth of the chancellarie, to the fchireff and his depu- tes of the fchire within the quhilk the landes retoured lyes. Makand men- tion, that the King hes given command be his uther letters, to N.Barron andhis deputes, that he without delay fold uive faifing to the perfon re- toured, or his attornay of the landes conteined in the retour, quhilk gif he dois not, he commands and chargis foe fchireff, to give faifing of'the faids lands with the pertinents without delay, faifand ilk mans richt. Cjihilk precept being obeyed be the fchireff, and faifing given conform theirto: the fuperiour who was three times charged of before and refuted, be rea- fon ot his difobedience, tynisandforcfaultsthc fuperiority of* the lands quhairofhe refufed togivc faifing induringhis lyfe-time. fiuhilkfupe- rioritie. fall pertein to his immediat fuperiour, quhidder that be the King or ony uther. And after his dectas, his aire being ferved and retoured to the foperioritie of the famin lands, recoveris the faid fuperioritie quhilk his father did tine throw his difobedience. And fa be the law and prac- ticque of this realme, ane fuperiour may tyne and forefault hisfuperi- Tw* m -'-"* , oritie. Fiift, quhen he is entered and failed in the 'fuperioritie, and being °f"-, T &iek charged be precepts of the Chancellarie, refufis toreceavehisvaflall, 8c *"' tennent, ferved and retoured to the property. In the quhilk caife be rea- fon of his contempt and difobedience of the Kings precepts and com- mand, he tynis the fuperiority, induringhis lyfetime, without any de- claratour, or deceit ofane judge. Secondly, quhen the fuperiour is not' - entred nor faifedin the fuperioritie, and is charged be the Lords letters raifed be his vaffall , to enter within fourtie dayis thereto, to th* effeft he may ■ at tin The third precept. V