[1587/7/33]¹

Ratification of the act of the lords of council and session concerning proceeding in causes of molestation

²Our sovereign lord and three estates convened in this present parliament ratify, approve and, for his highness and his successors, perpetually confirm the act of the lords of council and session made concerning proceeding in causes of molestation, and ordain the same to take full effect and execution in time coming as a most necessary and profitable law to all his highness's subjects, and the said whole act to be inserted in the books of parliament, of the which act the tenor follows:

At Edinburgh, the [...] day of [...] the year of God 15[...] years. Forasmuch as the multitude of actions before the lords of session impedes greatly the ordinary course of justice in weighty causes of heritage and other matters of great importance, which are most proper to be decided by the said lords of session, and the greatest hindrance and impediment proceeds from the great number of actions of molestation and troubling in the possession of properties and communities, which were accustomed of old to be decided by the sheriffs of every shire, bailies of regalities and other ordinary judges where the lands lie and by the determination of an assize of the best and worthiest of the country; and the said lords, by daily experience understanding perfectly what stop and hindrance the said matters possessory are to the expedition of other weighty causes, how sumptuous such processes are to the parties by bringing of the witnesses out of the far parts of this realm for verifying of the summons or exception admitted by either party in the said matters, and yet the truth of the case is not thereby sufficiently tried, partly by the abuse of the witnesses and partly because it is not possible to the said lords of session to try the verity so well by examination of the witnesses before them as the sheriff and his deputes may try the same by an inquest of the best and worthiest upon the ground; for the which causes, the said lords of session have thought suitable and expedient, statute and ordain that all matters of molestation and troubling in properties and communities consisting in the possessor to be intended hereafter or already intented, wherein no litiscontestation is made, shall be remitted to the sheriff of the shire, bailies of regalities and other inferior ordinary judges where the lands upon the which question shall be moved lie. And to that effect, whenever any party shall submit themselves to the said lords upon troubling or molestation committed upon properties or commonties, the lords, by their deliverance, shall direct letters ordaining the said inferior ordinary judges to take cognition therein upon summons or precepts to be directed upon 15 days' warning, and the courts following to be continued from eight days to eight days at the longest, or shorter, as the cause shall require, at the discretion of the judge; which cognition shall be taken by this order: first, that the parties' defences shall be lawfully discussed in the place where said inferior ordinary judges used to sit or that shall be appointed to them by the said lords of council, and if the defences be all rejected, that the said judges, after the production of the parties' rights consisting in writ, shall put the whole other points of the summons or exception which shall be admitted, so much thereof as by the order observed before might or should have been proven by witnesses, to the knowledge of a condign inquest, to be elected and chosen of persons least suspected and that best know the verity to a sufficient number, the most part whereof shall be landed men having at the least four ploughs of land or 300 merks of yearly rent unredeemable and other substantial, reputable and honest yeomen, which persons shall be taken and chosen in parishes where the said lands debatable lie, if a sufficient number may be found there, and failing thereof, of the nearest parishioners adjacent, admitting always all objections competent against their persons according to the law; which persons of inquest, after they be lawfully sworn and admitted, shall have power to inspect the ground if they think it expedient and take all other trial as they shall think good upon their oath and conscience, and shall return their answer to the judge upon the truth and verity of the claim or exception admitted, and that in face of judgement that the said judge ordinary thereafter may give his sentence definitive upon the said debates. And if the said persons of inquest commit error in their said determinations, they shall be called, accused and punished for that under pain of judgement rashly upon assize in their persons and goods according to the ancient laws of this realm and custom observed within the same. And if it happens mutual pursuit, convention or reconvention on either side to be intended, both the parties doing their due diligence by intending and pursuing of their actions henceforth before litiscontestation made by either of them, and all their reasons and allegations in the law being produced before the matter be put to the knowledge of an inquest, the judge shall proceed in them both of equal space, and shall remit the heads and articles of the claim, precepts, summons or exception which consist in fact and were accustomed to be verified by witnesses to the determination of an assize, which shall take cognition in both the causes where they cannot be divided, and the equal half of the said assize shall be taken of the persons summoned for either of the said parties. And if the number of the half of the assize may not be had of the number summoned by either of the parties, in that case the judge shall take so many as wants of other sufficient assizers, albeit they be not summoned by either of the parties, the same persons being always landed men or being substantial, reputable and honest yeomen as said is; and the arbitrator shall be chosen by drawing lots. And where it shall happen the sheriff of the shire, bailie of regality or other inferior judge ordinary to be suspected and unable to judge the said causes for deadly feud and other reasons which may decline the judge or the place of judgement to be incompetent, that thereto the party cannot have sure access for his pursuit and defence, in that case, the matter being submitted to the said lords and found and declared by them, the other party being lawfully summoned, they shall appoint unsuspected judges and a place competent for the said cognitions and determination for the causes aforesaid by commission, by their act and ordinance or under the testimonial of the great seal by their deliverance; and the said judges to be appointed shall, at the acceptance of the said commissions upon them, make faith not only that they shall duly and lawfully administer justice in the said matters, lend that they have not taken nor shall not take any reward, profit or good deed from any of the parties and that they have not made nor shall not make pact or contract with any of them for any certain sum before the lawsuit be intented or during the dependence thereof; and the oath of the said judges to be taken before the recompense of their just travail to be modified by two of the lords of session before the pronunciation of the decreet in the said matters, which shall be paid to them before the giving of the decreet aforesaid or at the acceptance of the commission upon their supplication; the party, obtainer thereof, shall make the first payment, but shall have the same modified to be repaid to him by him that loses the lawsuit, if it be found that he has litigated rashly, with the other expenses to be sustained by him in the recovery of the said decreet. Nevertheless, if the persons to be appointed judges to the said causes shall happen to be drawn from their own dwelling house or places to the ground of the land or other place where justice shall be administered in the said matters, the party who shall require them thereto shall make the expenses for their voyage in going, abiding and returning, which shall not be imputed to the judges as any fault before the lords of council or before the nearest judge adjacent to the lands, who shall have power of the said lords to that effect by the said commission and inserted therein. And because sometimes the question falls out between possessors of lands lying contiguously and yet in diverse sheriffdoms, and at sometimes the one land lying within the royalty and the other within the regality, that in the first case, the sheriff of one of the shires, and in the second case, neither the sheriff nor bailie of regality may be judges competent to both the actions, therefore when such cases occur, the lords upon the complaint of the party having interest shall appoint judges unsuspected with a competent place, keeping and observing in all other circumstances the order above-written. And further, the said lords declare that this act and ordinance in no way hurt nor prejudice the lords of session and college of justice and their members; but that they have and shall use their privilege to pursue their actions before the said lords or other ordinary judges according to the old accustomed use, used and accustomed before the making of this act.