GS2 



L A W. 



rommissa- 

 ry Court. 



Law ceeding used in the English court of exchequer, under 



Jn<1 - the following limitations ; that no debt due to the 



m ~Y~*" / crown shall affect the debtor's real estate in any other 



manner than such estate may be affected by the laws of 



Scotland, and that the validity of the crown's titles to 



any honours or lands shall continue to be tried by the 



court of session. 



Court of 9- The high admiral is declared the king's justice- 

 AOmiralty. general upon the seas, on fresh water within the flood, 

 mark, and in all harbours and creeks. His civil juris- 

 diction extends to all maritime causes, and so compre- 

 hends questions of charter-parties, freights, salvages, 

 bottomries, &c. He exercises his supreme jurisdiction 

 by a delegate, the judge of the high court of admiral- 

 ty; and he may also name inferior deputies, whose ju- 

 risdiction is limited to particular districts, and whose 

 sentences are subject to the review of the high court. 

 The admiral has acquired by usage a jurisdiction in 

 mercantile causes, even where they are not strictly 

 maritime, cumulative with that of the judge ordinary. 



10. At the Reformation, all Episcopal jurisdiction, 

 exercised under the authority of the bishop of Rome, 

 was abolished by an act 1560, ratified by 1567, c. 2. 

 As the course of justice in consistorial causes was there- 

 by stopped, queen Mary, besides naming a commissa- 

 ry for every diocese, did by a special grant mentioned 

 in Books S. 1, March 1563 4*, establish a new commis- 

 sary court at Edinburgh, consisting of four judges or 

 commissaries, which grant is ratified by an unprinted 

 act, 1592, c. 25. This court is vested with a double 

 jurisdiction ; one diocesan, which is exercised in the 

 special territory contained in the grant, viz. the coun- 

 ties of Edinburgh, Hacldington, Linlithgow, Peebles, 

 and a part of Stirlingshire ; and another universal, by 

 which the judges confirm the testaments of all who die 

 in foreign parts, and may reduce the decrees of all in- 

 ferior commissaries, provided the reduction be pursued 

 within a year after the decree.. They have an exclu- 

 sive power of judging in declarators of marriage, and of 

 the nullity of marriage, inactions of divorce and of non- 

 adherence, of adultery, bastardy, &c. because all these 

 matters are still considered properly consistorial. 



1 1 . Sheriff" is the judge ordinary constituted by the 

 crown over a particular division or county. He judges 

 in all actions upon contracts, or other personal obliga- 

 tions, to the greatest extent, and indeed in most other 

 actions. His criminal jurisdiction extends to certain 

 capital crimes, as theft, and even murder, though it be 

 one of the pleas of the crown ; and he is competent to 

 most questions of public police, and has a cumulative 

 jurisdiction with justices of the peace in all riots and 

 breaches of the peace. He has also a cumulative ju- 

 risdiction with magistrates within borough. 



12. Justices of the peace are magistrates named by 

 the sovereign over the several counties of the king- 

 dom, for the special purpose of preserving die public 

 peace. 



13. A borough is a body corporate, made up of the 

 inhabitants of a certain tract of ground erected by the 

 sovereign, with jurisdiction annexed to it. Boroughs 

 are erected, either to be holden of the sovereign him- 

 self, which is the general case of royal boroughs, or of 

 the superior of the lands erected, as boroughs of rega- 

 lity and barony. Bailies of boroughs have jurisdiction 

 in matters of debt, services, and questions of posses- 

 sion betwixt the inhabitants. Their criminal jurisdic- 

 tion extends to pettj riots ; and by special statute, to 

 reckless (not intended) fire-raising. 



Sheriff 

 Court. 



Justice of 



Peace 



Court. 



Borough 

 C'ourU 



14. To constitute a baron in the strict law sense, his Law 

 lands must have been erected, or at least, confirmed by f Scotland 

 the king in liberam baroniam ; and such baron had '^*' 

 a certain jurisdiction, both civil and criminaf/ which is 



now greatly abridged. His civil jurisdiction is reduced 

 to the power of recovering from his vassals and tenants 

 the rents of his lands, and of condemning them in mill 

 services ; and of judging in causes where the debt and 

 damages do not exceed 40s. Sterling. His criminal ju- 

 risdiction is limited to assaults, batteries, and other 

 smaller offences, which may be punished by a fine not 

 exceeding 20s. Sterling, or by setting the offender in 

 the stocks in the day time, not above tliree hours. 



15. The office of the lyon king of arms was chiefly Court of tic 

 ministerial, to denounce war, proclaim peace, carry pub- L > on Kin g 

 lie messages, &c. But he has also a right of jurisdic- ofArms - 

 tion, whereby he can punish all who usurp arms con- 

 trary to the law of arms, and deprive or suspend mes- 

 sengers, heralds, or pursuivants, who are all officers 



named by himself. We now proceed with actions, pro* 

 secutable in one or other of these courts. 



16. Actions are either real or personal. A real ac- Actions ar* 

 tion is that which arises from a right in the thing itself, either wal. 

 and which therefore may be directed against all pos- or P ersona1 ' 

 sessors of that thing. Thus an action for the recovery 



even of a moveable subject, when founded on a jus in 

 re, is, in the proper acceptation, real ; but real actions 

 are in vulgar speech confined to such as are directed 

 against heritable subjects. A personal action is found-, 

 ed only on an obligation undertaken for the perform- 

 ance of some fact, or the delivery of some subject ; 

 and therefore can be carried on against no other than i 



the person obliged or his heirs. Both rights are in- 

 cluded in an infeftment of annualrent, which contains 

 not only a personal obligation on the granter to pay, 

 but a right of hypothec on the subject itself; and there- 

 fore the creditor can either sue the granter or his re- 

 presentatives in a personal action ; or he may, for his 

 payment, insist in a real action of poinding the ground 

 against the possessors of the subject affected, though 

 they should not represent the gvanter. Poinding of the p . ,. 

 ground, though it be properly a diligence or an execu- of JJJ 

 tion, is generally considered by lawyers as a species of ground, 

 real action ; and is so called -to distinguish it from per- 

 sonal poinding, which is founded merely on an obliga- 

 tion to pay. Every debilumfundi, whether legal or con- 

 ventional, is a foundation for this action. It is compe- 

 tent to all creditors in debts which make a real burden 

 on lands ; and is directed against the goods that are 

 found on the lands burdened, even though the original 

 debtor should be divested of the property in favour of a 

 singular successor. 



17. Actions are either ordinary or recissory. All ac-. Actions ei- 

 tions are, in the sense of this division, ordinary, which ^ K or<li pa- 

 are not recissory. Recissory actions are .divided, 1. Into ^ r r recis ' 

 actions of proper improbation. 2. Actions of redu'ction- 

 improbation. 3. Actions of simple reductions. 'Pro- 

 per improbations, which are brought for declaring writ- 

 ings false or forged, are treated of in Book IV. 



Reduction improbation is an action, whereby a person Reduction- 

 \vho may be hurt or affected by a writing, insists for improba- 

 producing or exhibiting it in court, in order to have it tion> 

 set aside, or its effect ascertained, under the certifica- 

 tion that the writing, if not produced, shall be declar- 

 ed false and forged. This certification is a fiction of 

 law, introduced that the production of writings may 

 be the more effectually forced, and therefore it operates 

 only in favour of the pursuer; so that the 



