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The high estimation in which the following Work has ever been held, as an authority in the Law of Scotland, is well known to the Profession. But, since its first publication in 1773, the many alterations which have necessarily taken place in the system, render Mr Erskine's InstITUTE a much less satisfactory and secure guide to the student or practitioner than originally. It is the object of the present Edition to remedy these imperfections, without diminishing the authority of the principal work. Accordingly, the Editor has been careful to preserve the original Text without alteration; while, in the Notes, he has adverted to every material circumstance in which our law or practice has, since the days of Mr Erskine, been modified or affected by special Statute, by Acts of Sederunt, or by the Decisions of the Supreme Court.

The present undertaking appeared to argue so much presumption, and was found upon trial to be so difficult in the execution, that the Editor would probably have abandoned the task in despair, had he not occasionally obtained access to superior information, which he is proud to acknowledge with respectful gratitude.

The concluding title of the Institute, “ On Crimes,” being comprised by Mr Erskine in a very small compass, and the late publication of Professor Hume having nearly exhausted all that could be said upon that department of Scottish Jurisprudence, little more remained than to make such annotations as appeared to be called for by subsequent entries in the criminal record. For that purpose, the Éditor has carefully searched the Books of Adjournal ; and he is not aware that any entry of importance, since the date of Mr Hume's valuable work, has been overlooked.

In the Appendix are inserted several late Statutes, of general application, and of frequent occurrence, together with such of the Standing Orders of the House of Lords as seemed most likely to facilitate the practice of business before that most Honourable House.

Jan. 31. 1805. }


This Fifth Edition has passed through the press under the superintendence of the Editor of the DICTIONARY OF Decisions, 4to.

While the former mode of reference to the cases is retained, they are likewise referred to according to their distribution in that Dictionary.

The Notes of the fourth edition are reprinted, with such alterations merely as obvious mistakes rendered necessary, and such additions as happened to occur to the recollection of the Editor while reading the proof sheets; for, as the former edition was exhausted, and it was necessary that this one should be prepared in the course of a few months, it was not his object, nor was there time, to attempt premeditated improvements.

W. M. M. November 12. 1811.


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1. Of be perfected record and by writing, cercessory obligations, 609

1. Of obligations and contracts in general, and of contracts to

Of obligations by word and by writing,

3. Of obligations arising from consent, and of accessory obligations, 639
4. Of the dissolution of obligations,
5. Of assignations,

6. Of arrestments and poindings,


7. Of prescription, - -


8. Of succession in heritable rights,

9. Of succession in moveables,

2. Of last heirs and bastards,




1. Charter of lands held soccage,


2. Charter by James IV. to Lady Margaret Stewart, by which as well

as by the charter mentioned in Mr Hay's Vindication of Elizabeth
More, it appears that legitimation per subsequens matrimonium

was rejected by the ancient law of Scotland, - - ib.

3. Declaration by a bailie, in a separate writing, that he had given

possession to the vassal, -

- - -


4. Notorial instrument of seisin before the return of James 1. from Eng.

land, the period when these instruments are supposed to have been

introduced into this country, - - -

5. Rollment of court,

6. Service of the heirs-portioners of Duffgall, in 1271, by which it ap.

pears that general services were then in use, though from the pre-

ceding article it would seem that they were not known about the mid-

dle of the 16th century,



7. Abstract of the act 10. Geo. III. c. 51, for encouraging the im-

provement of lands in Scotland held under settlements of strict en-

:: tail,






8. Abridgment of An Acť (39. and 40. Geo. III. c. 46, passed

May 30. 1800), “ for the more easy and expeditious recovery of

6 small debts, and determining small causes, in that part of Great

“ Britain called Scotland,” - .


9. Abridgment of An Act (43. Geo. Ill. c. 54, passed 11th June

1803), “ for making better provision for the Parochial School-

masters, and for making further regulations for the better Go.

vernment of the Parish Schools in Scotland,"

- 13

10. Abridgment of “ An Act (39. and 40. Geo. III. c. 98, passed

28th July 1800), “ to restrain all Trusts and Directions in Deeds

or Wills, whereby the profits or produce of real or personal estates

shall be accumulated, and the beneficial enjoyment thereof post-

poned beyond the time therein limited,


NOTE of ABBREVIATIONS, and of the manner of referring

to Authorities.

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Acts of Sederunt of the Session, edition 1790.
Books of Regiam Majestatem.
Quoniam Attachiamenta.
Leges Burgorum.
Statuta prima Roberti primi ; and so of the other sta-

tutes in Skene's collection.
Sir Thomas Craig De feudis, quoted according to the

edition 1732, fol. Sir Thomas Hope's Minor Practics, sometimes by page

and section, sometimes only by section, of edition

1726, 8vo. Visc. Stair's Institutions, by book, title, and section,

of edition 1759. Lord Bankton's Institute, by the book, title, and sec


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Printed collections of decisions observed
Dirl. - . by Lord Dirleton, from Dec. 1665 to

June 1677,
Gilm. -

by President Gilmour, from July 1661

to July 1666, Pr. Falc.

by President Falconer, from Novem

ber 1681 to January 1686, · Harc.

by Lord Harcarse, from 1681 to 1691, Dalr. . . by President Dalrymple, from June

1698 to June 1720, Br. . . by Mr Alexander Bruce, from Nov.

1714 to July 1715, Kames,

by Lord Kames, from Nov. 1716 to

Feb. 1728,
Kames, Rem. Dec. by Lord Kames, from Feb. 1730 to

June 1752,
Kames, Sel. Dec. by Lord Kames, from Feb. 1752 to

· Nov. 1768,
Kilk. . . by Lord Kilkerran, from 1738 to 1752,
Clerk Home,

by Mr Alexander Home, from Nov.

1735 to July 1744,
Falc. i. or ii. . by Mr David Falconer, in 2 vols. from

Nov. 1744 to Dec. 1751,
Fac. Coll. i. ii. iii, &c. denotes the Decisions collected by ap-

pointment of the Faculty, which commence in 1752,

to by the
number of
the deci.



by Sir Robert Spottiswoode, Fount.

by Lord Fountainhall, in 2 vols. from
June 1628 to July 1712, .

Referred to Durie, by Lord Durie, from July 1621 to

by the date July 1642,

of the deciStair, by Lord Stair, in 2 vols. from June

sion and the 1661 to July 1681, Forbes, by Professor Forbes, from Feb. 1705

name. to Nov. 1713, Edg. - - by Mr Edgar, from Jan. 1724 to July

1725, Balf. . . by Sir James Balfour, referred to by the page and


Manuscript collections of decisions observed
Had - . by the Earl of Hadinton.
Hop. Maj. Pr. . by Sir Thomas Hope.
Gosf. . . . by Lord Gosford.
Forbes, MS.

by Mr William Forbes. Br. MS. . . by Mr Alexander Bruce, from June 1716 to Jan.

1717, (afterwards printed). Tinw. . . by Lord Tinwald.

N. B. The cases referred to as in these MSS. which are

in the Library of the Faculty of Advocates, (except Lord Tinwald's, which has not been preserved,) will now be found printed in the Dic

tionary of Decisions, 4to. Steu. Ans. . Sir James Steuart's Answers to Lord Dirleton's

Doubts. Skene,

Sir John Skene, De verborum significatione. Mack.

Sir George Mackenzie's Institutions, referred to by

the book, title, and section. Mack. Ob

Sir George Mackenzie's Observations on the acts of

parliament. Mack. Crim. . Sir George Mackenzie's Treatise on the Criminal

law, referred to by the part, title, and section.

The decisions from 1621 to 1713, referred to by the date of the decision and the pursuer's name, without any distinguishing mark, are to be found in the

printed collections by Lord Durie, Viscount Stair, or Mr Forbes. The decisions after 1719, which are neither to be found in any printed col.

lection, nor in the Dictionary of Decisions, were observed by the author. The acts of parliament before the reign of James VII., are quoted by the

year of God, and the number of the act. The quotations from the Code of the Roman law are marked in the usual way

by the letter C. Those from the Pandects have no distinguishing letter. The references from one part of this work to another, are marked by the book,

title, and section; but if the reference is from one part of the same book to another, then it is marked only by the title and section.

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