22. The forme and paine of Law-borrowes.

FORSAMEIKLE, As sindrie gude Actes hes bene maid anent finding of Lawborrowes, for preservation of the trewe & obedient Subjectes from injust force and XVII. Commissioun for Reformation to the hospitallis masondewis, almoushouss and beidhouss, and reducing thame to thair first institution.

"Anent the Supplicatioun presentit be oure Souerane Lord and thre estatis of this pre"sent parliament, be the puir pepill of this his hines realme Makand mentioun that quhair "his majesteis maist nobill progenitouris of worthie memorie vpoun ane godlie zeale quhilk "thai and the baronis and otheris of this realme, thair guid subjectis hes borne to the re"leif of the aiged and decayit honest folkis, foundit and erectit certane hospittallis, masoun❝ dewis, almoushousis, and beidhousis to the glorie of Almytie God, and relief of the pure " and hes continuallie mantenit the Samyn till of lait dayis. That the present possessouris ❝ of Sindrie benefices vnder cullour of reformatioun of the religioun hes appropriat the haill "levingis of the saidis hospitallis masondewis almoushousis, and beidhousis to thair awin ❝vses and thair airis, or hes Sauld the landis and rentis thairof for greit Sowmes of money " to vtheris in fewfirme, and further hes dimolischit the godlie houss that was appoyntit for "ressaving and ludgeing of the pure, and applyit the samyn to thair awn particular vses "mynding that never sic thing sal be in tyme curing, to the greit offence of Almyte God, "the defraud of oure Souerane Lord and his posteritie Kingis of this realme, and thair "subjectis the foundatouris, and to the extreme vndoing of greit nu beris of the puir pepill “that wer and aucht to be sustenit thairby gif his hines foirsie not the samin, and put not "timous remeid thairto. Ane deid assuritlie that in na pairt of Christindome, ye not "amangis the verie turkis wald be sufferit. And albeit his majestie with aduise of his "estatis in parliament appointit the Chanceller and certane vtheris to considder the foun"dationis of the saidis hospitallis masondewis, almoushousis, and beidhousis and ordanit "the same be act of parliament to be reformit, according to the godlie institutionis and " erectionis of thame, yit is thair nathing done thairin, quhowbeit the exceding nu beris "of the puir that daylie incressis in this land, cryis vnto Almychtie God for reformatioun "thairof, and maist humlie seikis the same of his hienes, to quhome God hes onlie gevin "the pouer, quhairfoir oure Souerane Lord and thre estatis of this present parliament hes “gevin, and grantit like as thai be the tenoure hereof gevis and grantis power and comissoun, to Coline, Erle of Ergyle, Lord Campbell & the lorne Chancellair, Williame Erle " of Gowrie, Lord Ruthuen, thesaurair, Johnne Lord Hereis, Robert Comendatoure of Dumfermling mark comendatour of Newbottill Alexander Commendatour of Culross "Maister Robert Crechtoun of Eliok his hines aduocat, Alexander Hay Clerk of Register, " and Alexander Clerk Provost of Edinburgh, or onie thre of thaime coiunclie to convene "thame selffis and sit in the tolbuyt of Edinburgh, quhatsumever day or dayis, alsweill "after none as befoir for taking cognitioun in the said mater ay and quhill the sadis hos"pitallis masondewis almoushousis, and beidhousis within this realme be brocht, reponit ❝ and reducit in and to the ordoure and estait of thair first foundationis, according to the "mynd and intentioun of their godlie foundatoris, safar as may stand aggreabill with the "lawes of this realme and christiane religioun presentlie professit within the same and "to that effect that oure Souerane Lordis letteris be directit vpoun the warrandis and de❝lyverance of the saidis comissioneris, or onie thre of thame chargeing the hauaris and 'keparis of the erectionis and fundationis of the saidis hospitallis masondewis, almous"housis and beidhousis, or of quhatsumever landis teyndis rentis, or vther possessionis gevin and dotat for relief and sustentatioun of the puir, alsweill within burgh as without, " and of all chaiplanreis, prebendareis annuells freir, or nunnis landis disponit to burrowis "to the effect foirsaid fewaris, rentalaris, takismen and intrometteris thairwith, to produce "the saidis fundationis, richtes and tytles outher fewes or takis quhairby thai brouk "or pretendis richt to onie pairt of the leving and patrimonie of the saidis hospitallis "masondeweis, almoushouss and beidhouss befoir the saidis lordis comissioners at sic dayis "as they pleis assigne, to be sene and considerit be thame, to the effect foirsaid, vnder the " paine of rebellioun and putting of thame to oure Soueranes horne with certificatioun and

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violence. And laitlie for their greater comfort, IT was weill ordained, that the paines of Law-borrowes suld be divided betwixt the King and the Pairtie offended unto. Neverthelesse, seeing the paines of Law-borrowes hes extended only in time bygane, for safetie of bodielie harme from the person of the compleener: The

"thei failzie, letteris wilbe directed to put thame to the horne, or ellis to reduce for null "productioun and in cais of failzie and null productioun of the saidis erectionis and vtheris "writtis and rychtis abone writtin, at the dayis to be appoyntit thairto, to proceid and direct "further chargeis and put out the dissobeyaris or to reduce the pretendit richtes and tytills "quhatsunever as thai sall find caus worthie and als to direct letteris to arreist and seques"trat the maillis, fermes profittis, and dewteis of the saidis landis teyndis and vthir posses"sionis, pertening to the saidis hospitallis, or onie thing gevin and dotat for sustentatioun of "the puir to remane in the handis of the tenentes and possessouris, quhill the said reforma"tion be maid and perfitit then to be gevin to the puir and helping to reedifie the houss big"git to that effect be oure Soueranes maist noble progenitouris, and thair subjectis of guid “zeall, vpoun cautioun alwayis to be found be the saidis tenentis and possessouris that the "saidis maillis fermes profittis and dewteis salbe furthcuand to the effectes abone written; "and als with power to the saidis Juges the foirsaidis erectionis infeftmentis and richtis being producit befoir thame to try the qua tie of thair rentis ordoure of fundatioun and estait, "quhairin the rentis and housis thairof presentlie ar and quhairin they find the zeirlie rentis "of the saidis hospitallis diminischit or onie pairt or portioun of thair levingis or bigingis "appropriat and apply it to particular menis vses contrair the tenoure of thair first funda❝tionis and godlie intentioun of thair fundatouris be partis infeftmentis, takis or vthir speciall "richtis, to reduce the samyn as the saidis comissioneris sal find caus worthie and geve "furth thair decreit reductiue thairvpoun, declining all the saidis richtes gevin and sett in "prejudice of the first fundationis, as said is, null and of nane availl force nor effect in all "time coming, and to returne and be appropriat to the saidis almoushousis, hospitallis "masondewis, and beidhousis and sustentatioun of the puir being thairin in all times heirefter, according to the tenoure of thair erectionis, sicklike and in the samyn maner as gif the saidis new dispositionis of the patrimonie thairof had never bene maid or grantit. Qlk decreittis the kingis majestie with advise of the saidis thre estatis declaris "salbe of als greit force and effect, and sicklike executioun to pass and follow thairon, as gif the samyn had bene gevin and grantit before the haill Lordis of Counsaill and Ses"sioun, sittand in full number prouyding alwayis that all pairteis lawful defenss be first "hard and discussit as the saidis comissioneris will asert to oure Souerane Lord vpoun "the executioun of thair offices gevand thame power in like maner to creat Clarkis and "vtheris officeirs and membris of Court requisite and to ressave thair aithis to that effect "for quhome they salbe haldin to anser, witnessis to caus be sumondit suorne and exami- “nat, and to call for the production of onie writtis evidentis, or registeris, that may fur"ther the knawledge of the trewth of the said mater, and sicklike to direct onie ane of thair "number or ma for visitatioun of the saidis hospitallis masondewes almoushousis and "beidhousis gif the same beis found requisite to thame for thair bettir informatioun and "generalie to do and use all vthir thingis that to the execusioun of this present commis"sioun is necessarlie requirit. And all the said comissioneris being personalie present acceptit the said comissioun in and vpoun thame, and maid fayth for dew and faythful "administratioun thairintill."

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This is one of a numerous class of statutes relating to the proper management of funds belonging to hospitals and other endowments for the poor. Although it is merely a temporary act, it is nevertheless important, in respect that there can be little doubt that the directions given to the Commissioners under this and other similar commissions are such as Judges in the present day would regard as obligatory in the event of any question coming before them as to the management of this kind of property.

Reference is made to the following statutes in Thomson's folio edition of the Scots acts, which relate to the same subject and enforce similar directions, viz. 12th March 1424, ch. 2; 1457, ch. 12; 9th October 1466, ch. 13; 1469, ch. 16; 14th March 1540, ch. 19; 1578, ch. 7; 1579, ch. 51; 28th August 1584, ch. 18; 1592, ch. 19.

malice of the wicked sa increassis, as they cease not be indirect meanes, and hounding out of Limmars, vagaboundes, and uthers not responsal, to invade the innocent persones, not onlie in their bodies, bot to rieve, steale, houch, or slay their Oxen, Horses, and uther Cattel, cut or destroy their Cornes, or to cause eate the same with Bestial, to hound and slay their scheepe with dogges, boast themselves in sik sorte, as they dare not lie in their awin Houses, or to minace their servandes, to lieve their service, quhairthrow their ground may be layed waist, to the utter wrack and depaupering of the Innocentes.

QUHAIRFOIR, OUR SOVERAINE LORD, with advise of his three Estaites in this present Parliament, Ordainis, That all Letters of Law-borrowes, sall be direct in time cumming, at the instance of the pairties compleenand, Chairgeing the persones compleened upon, to finde sicker sovertie and Law-borrowes, that the compleeners, their wives, bairnes, tennentes and servandes, sall be harmeles, and skaithles in their bodies, Landes, Takkes, possessiones, gudes and geare, and on na wayes to be molested or troubled theirin, be the persones compleened upon, nor na uthers of their causing, sending, hounding-out, receipting, command, assistance and rati-habition, quhome they may stoppe or let directlie or indirectlie, utherwayes nor be ordour of Law and Justice, under great paines to be modified be the Lordes of Session, or uthers ordinar Judges, Be quhome, in case the said Law-borrowes sall be dewlie tryed to be broken, the ane halfe of the paine sall perteine to OUR SOVERAINE LORD, and the uther halfe to the pairtie grieved, according to the effect and meaning of the said Act, maid to that effect of befoir.122

23. Anent deforcements, breaking of Arreistmentes, and Alienationes maid in defraud of Creditoures.

FORSAMEIKLE, As it is heavelie compleened to OUR SOVERAINE LORD, be divers his subjectes; That quhen they have upon their lang travel and expenses recovered their sentence, they ar deforced in execution theirof. Lyke as quhen Arreistmentes ar maid to make the gudes furth cummand, after the recovery of the debt, the samin ar contempnandlie broken. And farder, the execution of sentences and decreetes are ofttimes impedite be fraudful alienationes of the debtoures Landes and gudes, maid be them throw colorate meanes, to their friendes and conjunct persones. And the Pleyes and actions upon deforcements, breaking of arreistments, and reduction of fraudeful alienationes, hes bene swa tedious, sumpteous and langsum, that very fewe of them are brocht to ony gude end, quhairby our Soveraine Lordis Authoritie is contemned, and his Subjectes are brocht to great inconvenient. For remeid quhairof, IT IS statute and ordained, That the Lordes of Councel and Session proceede summarlie and diligentlie in all actiones of deforcementes, and breaking of arreistmentes, to be intented befoir them, at the instance of quhatsumever persones, and speciallie that the saidis actiones, quhen they are called, sall with all convenient speed without intermission be put to ane poynt, after the calling theirof. And that the persones convict of deforcement, or breaking of arreistment, sall be punisched be the Escheit of their gudes movabil, and punischment of their persones, at our said Soveraine Lordis will, according to the Lawes observed of befoir, with this addition: That the pairtie recoverer of the sentence, sall be first payed of his debt and of his expenses, to be heichlie taxed be the saidis Lordis, and of ane certaine summe of money to be modified at the saidis

122 See Erskine, b. i. tit. iii. § 21, and b. iv. tit. i. § 16.

Lordis discretion, to the pairtie, for the damnage and interest susteined be him. Anent the quhilk the pairtie interest, sall have the reddie execution upon the first and reddiest gudes and gear of the person convict: Notwithstanding the richt of the Escheit perteining to our said SOVERAINE LORD, quha for weill of his subjects, wills and grantis, that the creditours be preferred to him in this case. And further with advise of his saidis three Estaites, IT IS statute and ordained be his Hienes: That all gifts of escheit quhilkis sall be given hereafter, to quhatsumever person or persones of gudes, geare and uthers cummand in his Hienes handes for deforcement, or breaking of arreistment, sall conteine expresse exception and reservation, to the Creditour, of the summes recovered for his principal debt, expenses and summe, to be modified as said is. And gif ony gift of Escheit proceeding upon the cause foirsaid, be given without the said reservation and exception, the same sall be null and of nane avail. And siklike, for the greater expedition of reduction of Alienationes and dispositiones of Landes and gudes, maid in fraude of the Creditour, IT IS statute and ordained, that the samin be maist summarlie decided and priviledged be summondes upon 21. dayes warning, without diet, table or continuation of uther summonds. And that the Pairtie receiver of the saidis fraudful alienationes and dispositiones, sall not be heard to defend theirin, except that they (befoir they be admitted to produce the saidis alienationes and dispositiones, and to answer to the summonds) consigne in the handes of the Clerk of Register and his Deputes, for quhome he sall be halden to answer, sik summes of money, as sall be modified, be the discretion of the saidis Lordes, to be delivered to the pairty persewer, in case the saidis alienationes and dispositiones sall be declared fraudful.123

24. Anent registration of inhibitiones and interdictiones.

ITEM, Albeit interdictiones and inhibitiones, for many great and weichtie considerationes, to divers intentiones, ar very necessar and profitable: Neverthelesse, it is of lait considered, that the saidis inhibitiones and interdictiones, ar greatly abused, to the hurt and prejudice of our Soveraine Lordis lieges, contrarie to the end quhairunto they were first directed: In sa far, as interdictiones, for the maist pairt proceedis upon consent of Pairty, like as the saidis interdictiones, and letters of inhibition, oftentimes proceedis upon licht causes: The executiones quhairof, ar sundrie times forged and fenzeit, and after mony zeires, the executor and witnesses being deceassed, the saidis inhibitiones and interdictiones ar used against our Soveraine Lordis lieges, at the instance of the receivers theirof, and uthers, for rescinding and retreating of contractes, infeftmentes, and uther richtes upon allegeance, that the samin are maid fraudfullie, after the publication of the said interdiction, and inhibition: Be the quhilk craftie dealing, sik as contracted bona fide, or brocht in danger to their great damnage, and to the advantage of the saidis persones, abuseres of the saidis inhibitiones and interdictiones. For remeid quhairof, and to the effect that everie ane of our Soveraine Lordis lieges may knaw and understand, the conditione & qualitie of the person, with quhom he contractis in this head, quhidder he be subject and thrall to interdiction of inhibition, or be at his awin freedome and libertie to contract. IT IS statute and ordained, that all inhibitiones and interdictiones to be raised hereafter for quhatsumever cause, with the executiones and indorsationes theirof, be within 40. dayes after the publication and execution of the saidis inhibitiones and interdictiones, produced first to the Schireffe Clerk of the Schire, quhair the persone interdited or inhibit dwellis, and makis his

123 See Erskine, b. i. t. iii, § 21; and b. iii. t. vi. § 14.

residence. And gif the said persone have his landes and heritage, or the maist pairt theirof lyand in ane uther Schirefdome, nor quhair he dwellis: That the person, at quhais instance the other is interdited or inhibite, produce the said interdiction and inhibition, dewly execute and indorsat to the Clerke of the Schire, quhair the saidis lands lyes, within the samin 40. dayes. Quhilkis letters of inter-diction and inhibition, with the execution theirof, the saidis Schireffe Clerkes, sall insert in their registers, takand for everie letter, with the execution theirof, five schillinges. Quhilk letter, with the execution theirof, they sall signe with their subscription, and deliver the samin swa signet to the partie, within xxiv. houres, nixt after the receipt theirof. The extract of the quhilk register, sall have as great faith and strength, as gif the original wer schawin, except the parties havand interest to oppone against the saidis inhibitiones and interdictiones, offer to imprieve the samin, be way of action, or exception. In the quhilk case, the pairtie purchesser of the saidis letters, and uthers havand interest to defend the samin, sall be halden to produce the principalles, and originalles, notwithstanding that they be registrat, as said is. And that na interdiction or inhibition to be raysed and executed heirafter be of force, strength, or effect, to onie intention, bot the samin to be null and of nane avail, except the samin be dewlie registrat, as said is.124

26. Anent the Convention of Burrowes.

FORSAMEIKLE, As it was found necessar to OUR SOVERAINE LORD, and his Hienes Predecessours, That the Commissioners of Burrowes convene at sik times, as they suld think gude; in quhat Burgh they thoucht maist expedient, with full commission, To treat upon the weilfair of Merchandis and Merchandice, gude rewle and statutes for the commoun profit of Burrowes, as at mair length is conteined in the Acts of Parliament maid theiranent, and anent the Priviledges of Burrowes. Theirfoir our Soveraine Lord, with advise of his three Estaitis of this present Parliament. Ratifies and apprevis the saidis Actes. And for the better observation of the saidis Conuentiones be sik Burrowes, as hes heirtofoir not sent their Commissioners at onie time theirto, hes statute and ordained, that in time cumming, quhen onie conventiones of Burrowes is appoynted, be the maist pairt of the saidis Burrowes, or be the Burgh of Edinburgh and onie sex or aucht of the rest, The Burgh warned theirto be ane Missive bill of the Provest and Baillies of the Burgh, quhair the said convention is to be halden, or utherwayes lauchfullie cited theirto, and not compeirand be their Commissioner sufficientlie instructed sall pay for the charges of the Burghes that sall convene the summe of twentie pundes. And ordainis the Lordes of Councel and Session, to grant and direct letters of horning or poynding, against the Burrowes absent fra the same Convention, and adjudged bee the remanent Burrowes, to have incurred the said paine and unlaw. And this at the instance of the Burgh of Edinburgh, without farther proces or calling of pairty theirto. The saidis Lords seand the Act authenticklie subscrived be the Clerk of that Convention, That they ar absent and convict, as said is.125

124 This is the first act which established a Register of Inhibitions and Interdictions. See Erskine, b. ii. t. xi. § 5, et seq.

By 1597, ch. 35, registration is made competent in the books of the proper jurisdiction within which the party resides, whether it be a baillerie or stewartrie, either of Royalty or Regality. By 1600, ch. 22, registration is also made competent in the Books of Council and Session, and such registration affects lands lying within any part of Scotland.

125 The acts here ratified are 1487, ch. 17; and 1578, ch. 11, which see, with the notes thereon.