Enter Page Title Here Enter Page Title Here

Glossary of terms used in the catalogue

 

Other useful glossaries can be found at

http://www.scan.org.uk/researchrtools/index.htm

and

http://www.scotcourts.gov.uk/library/publications/docs/glossary.pdf

 

If you are unsure what an entry in the catalogue means please contact the Archives.

 

A

adjudication

or 'adjudication for debt', the legal action by which a debtor's property was passed to his creditors.  ‘Adjudication in implement’ on the other hand, is a decision by a court to implement a defective title to land.

 

aliment

Support or maintenance of a spouse or child enforceable by law.

 

anent

concerning

 

annual rent

interest on money which has been lent, which takes the form of a yearly rent out of land

 

apparent heir

not the person who ‘appears’ to be heir to landed property, but the heir who has already succeeded to it

 

arrestment

seizure by legal process of a person or his property

 

articles of roup

the conditions under which property was to be auctioned

 

assignation

can have various meanings.  In general, it means the conveyance to another of one's rights in moveable property, or one’s claim for debts, or rights in land which is leased.   The person who gets an assignation is called the assignee

 

augmentation

an action pursued by a minister of the church to get an increase in his stipend

 

B

baillie, bailie, baile, baille, bailze, bailzie
a magistrate; but 'baillies in that pairt' (part) are representatives appointed to carry out a specific function, usually the giving of sasine. People appointed thus by the Crown are 'sheriffs in that pairt'.

 

bear, beir, bere
barley

 

benefice

a parish presented to a minister.

 

bill of lading
document detailing the quantity and type of goods loaded aboard a ship

 

bond

in general, a written obligation to pay or perform something; a bond of corroboration is an additional confirmation by a debtor of his original debt (for example to the ancestor of the obligor); a bond of caution is an obligation by  one person to act as security or surety for another; a bond of relief is an undertaking to relieve such a cautioner from his obligation; a bond of disposition in security was the commonest form of heritable security in the 19th century, combining a personal bond by the borrower with a disposition of the lands on which the sum was secured. 

 

burgess
a citizen or freeman of a burgh

 

C

caption

‘letters of caption’ are an authority to arrest a debtor, or someone who has not fulfilled a promised obligation

 

caution, cautioner

pronounced ‘cation-‘
security; bail; one who stands surety for another

 

cessio bonorum

surrender of a debtor's goods in favour of his creditors

 

charge

a command in the king's name to do something; usually to enter a person as heir; i.e have him accepted as heir to landed property

 

commissary

originally, one of a bishop's officials; but after the Reformation an official of an organisation called the Commissary Court; in both cases he dealt with matters to do with inheritance, particularly the confirmation of testaments

 

Commissioners of Supply

people appointed in each county to assess the land-tax due from it, keep up the roads and control the raising of militia etc  The Commissioners of Supply were superseded by the County Council in 1890, and finally ceased to exist in 1930.

 

commonty

a common; a piece of ground used by or belonging to more than one person. In Shetland the commonty  was usually called a Scattald

 

compearance

in Scotland, defenders don't ‘appear’ in a legal action; they ‘compear’

 

composition

a payment made by an heir succeeding to land, to the superior of the land

 

confirmation
the process of recognition by a court of law, for example where executors are empowered to secure or dispose of the deceased. The equivalent term in English law is 'probate'.

 

Court of Justiciary

the High Court of Justiciary is the principal criminal court in Scotland, operating through a number of circuits


Court of Session

the main court in Scotland which tries civil cases


croft
a small agricultural holding, originally a general term (for example the house and large garden belonging to a burgess might be termed 'toft and croft'. After the Crofters Act of 1883 the term became a specific type of land tenure in the counties of Argyll, Caithness, Inverness, Orkney, Ross and Cromarty, Shetland and Sutherland.

curator

a person who is appointed to act for someone else who cannot manage his own affairs, usually someone who administers the estate of a minor

 

D

dean of guild

a magistrate of a local council who deals with building matters.

 

declarator

a form of action to have some right or interest declared by law


decree or decreet

the final judgement or sentence of a court


decree of modification

a decree of the Teind Court, modifying a clergyman's stipend


decree of locality

a decree of the Teind Court, allocating what particular proportions of such a modified stipend would be paid by each of the parish heritors


decree of valuation

a decree of the Teind Court, determining the extent and value of a heritor's teinds


decreet arbitral
the award of arbitrators on a point or points at issue jointly submitted to them by the parties in the dispute.

 

deed

in the most usual Scottish sense, a formal written document in a set form which gives the terms of an agreement, contract or obligation;


de facto

‘in fact’, applied to something which has been actually done


defender

the Scottish term for the party who is defending in a court action


deforcement

hindering or resisting officers of the law in the course of their duty


defunct

the deceased person

 

deposition

the testimony of a witness put down in writing


destination

nomination of successors to a property in a specific order; see entail


diligence

a legal action to compel a defaulting party to an obligation to pay or perform what he had undertaken in the obligation; it comes in various forms, depending on whether action is taken against the defaulter's moveable or heritable propertyHorning and poinding are the usual ones applied to moveable property, inhibition to heritable subjects.


diocese

the extent of a bishop's jurisdiction. 


discharge

a written deed which cancels or extinguishes an obligation, usually one to repay a debt

disposition

a deed whereby a right to property (either heritable or moveable) is alienated by one person and conveyed to another

 

disposition in implement

A disposition granted in implement of a previous, imperfect conveyance.

 

dispositive clause

the clause in a deed which transfers property of any sort


dittay

the substance of the charge against a person accused of a crime

 

E

entail

or tailzie.  A deed by which the legal course of succession to lands can be altered and another one substituted, or by which the descent of the lands can be secured to a specified succession of heirs and substitutes


entry of an heir

acceptance of an heir to landed property


evidents

a Scottish name for any deeds or other written evidence


excambion

a contract whereby one piece of land was exchanged for another


execution

a certificate by a law officer that he had served a summons, letter of diligence or some other writ as he had been ordered to do.


executor

the legal administrator of the moveable property of a dead person, either nominated in the deceased's testament or by the Commissary Court.

 

executrix
female executor


expiry of the legal

the end of the period during which lands which had been adjudicated for debt might be recovered by the debtor's repaying of the debt

 

extract

the authenticated copy of a deed, taken from one of the public registers

 

F

factor

usually the administrator of an estate, but can be any agent whose powers depend on some specific authority within which he acts.

 

fee or feu

one of the four conditions, or tenures, on which lands could be granted by charter.  In this case, the superior received (usually annually) a return ('feu duty') in agricultural produce or money, rather than military service. The 'fee' or 'feu' was also the name of the piece of property so conveyed, and the 'feuar' the vassal who held the property by feu tenure.

 

feuar

see fee or feu above

forestalling or regrating

forestalling was the crime of buying goods on their way to a market with the intention of selling them there at an inflated price


forfeiture

the loss of property following on the commission of a crime or on the breaking of some condition by which the property was held from a superior; usually coupled with escheat

 

forthcoming

a legal action ordering a debt to be paid or a debtor's property to be surrendered to his creditor(s)

 

G

Glebe

a piece of land to which a country minister had a right in addition to his stipend.

 

guids and geir

possessions (moveable as opposed to heritable)

 

H

heir, heirs
can come in various forms.  The heir general is one who succeeds to both the heritable and moveable property of a deceased person, who also happens to be that person's heir at law and heir by normal course of succession (his heir of line); the heir of provision on the other hand, is one who succeeds by virtue of the terms of a settlement or some express provision; ‘heir special’ refers to the right of an heir to receive infeftment in particular lands; an heir of conquest is one who inherits lands or other heritable rights from someone who did not succeed to the lands or rights himself but acquired them in some other way; and heirs portioners are women who succeed jointly to heritable property; see also apparent heir

 

heritable bond

an obligation to repay borrowed money, which has been secured by a grant of land which would be held by the lender as security for the repayment.


heritable property

one of the two types of property recognised in Scots law.  This concerns all rights to land and whatever goes with land, houses, mills, fishings, teinds and so on. (The other type is moveable property, which comprises just about everything else. The laws and documents relating to each type of property are different).

 

heritable security
see heritable bond


heritors

the landed proprietors in each parish who were responsible for the upkeep of the parish church, the parish school, payment of the minister's stipend and schoolmaster's salary etc.

 

horning, letters of

one of the forms of diligence; the comparatively mild one.  Takes the form of a letter in the monarch's name under the signet seal which is sent to a law officer. It instructs him to charge someone who has defaulted on an agreement to pay what he had agreed within a set time, under pain of being denounced rebel and ‘put to the horn’. It opens the way for the action by which the defaulter's moveables can escheat to the Crown in theory and in fact be sold to satisfy the complainer in practice. See poinding.

 

I

 

indenture

an agreement in two identical halves written on one sheet which then usually has the word ‘chirograph’ written between the two parts and is cut with a jagged line through that word, each half then being given to a party to the agreement, the principle being that the two halves can authenticate each other when matched up.  But in practice in Scotland, the word is almost entirely applied to a contract in a normal form drawn up between a master and an apprentice

 

infeftment

the act of giving symbolic possession of land or other heritable property; see sasine, symbols

 

infield
field or land lying nearest to the farm, usually the most fertile ground which was kept continuously under cultivation


inhibition

another form of diligence, this one being against heritable property.  It is the usual order in the monarch's name under the signet, prohibiting a debtor from running up any other debt which might put a burden on his heritable property to the disadvantage of his existing creditor(s)


inquest or inquisition

an enquiry made by a sheriff of a county and a number of locals as jurymen into a point of fact; it is usually held to establish who is next heir to a piece of heritable property (what can be called an ‘inquisition post mortem’) but they could in theory be about virtually anything, what to do with a stranded whale, for instance

 

instrument

a formal document created by a notary-public and authenticated by him; after the Reformation they are generally instruments of sasine, which constituted the only legal evidence of the giving of possession of a piece of heritable property; before then, they could be about anything that took the fancy of the clients who paid for them


interdict

the order made by a court for putting a stay on any unlawful proceeding


interdiction

this is a type of restraint imposed by a court, which usually takes the form of a bond; it is imposed by a court on (or assumed voluntarily by) a person who cannot handle his own affairs and therefore might be taken unfair advantage of, and its purpose is to prevent him from doing anything which might affect his estate, without the prior consent of those who are named in the bond


interlocutors

judgements or pronouncements of a court


intromission

taking up the possession and management of property belonging to someone else; it can be legal, when someone is designated as an ‘intromettor with the goods and gear’ of another, or illegal, when it is called ‘vicious intromission’ in which case an heir intromits with the moveable property of his ancestors without right


intrusion

same idea as intromission, but has to do with heritable not moveable property; it means taking up possession of heritables without any title to do so

 

L

 

Landmails

In Shetland, rent of land

 

Lawburrows, letters of,

were letters in the monarch's name under the signet seal to the effect that a particular person had shown cause to dread harm from another, and that therefore this other complained of was commanded to find ‘sufficient caution and surety’ that the complainer would be free from any violence on his part

 

lease generally called in Scotland, a tack


letters

in Scots law there were various types, those in the name of the Crown being under the signet seal; most of the types are covered under the headings, caption, cocket, diligence, fire and sword, horning, inhibition, lawburrows, marque, poinding, regress, reprisal, respite and slains.  ‘Letters of four forms’ were a form of diligence incorporating successive means of getting debtors to pay up. 


libel

it can mean scandalous statements made in writing about someone in the same sense as in England, but in Scotland most often means the form of a complaint made in a civil case, or the grounds of the charge made against the accused in a criminal one


lieges

the word commonly used to mean ‘the subject of the Crown’


liferent

a right entitling a person (called a ‘liferenter’) to use and enjoy another's property for life, providing this was done without wasting it; the liferent might be a sum of money paid yearly, or the income from a piece of land

 

M

 

mail, maills and duties

mail is the Scots word for rent; maills and duties were the yearly rents of an estate

 

mark or merk

a silver coin worth 13 shillings 4 pence (or two-thirds of a pound) Scots, and therefore just over shilling sterling at the time of the Union;

 

merk of land

In Shetland, a measurement of arable land; usually a quarter of an acre to an acre in extent.

 

marriage contract

a contract made between the husband or promised husband of a woman who was about to marry or just had, and her male relatives, settling the provision to be made for the wife or future wife.  The idea was to improve on the legal rights of the wife or future wife and any children of the marriage, usually by the husband agreeing to grant them a liferent, or to grant the wife an annuity (the jointure), which would safeguard against any risk of the husband becoming insolvent.   The contract could be made before marriage, when it was termed an ‘ante-nuptial contract’, or it could be ‘post-nuptial’ if made after; the ante-nuptial version gave the wife and children much stronger rights over the husband's estate should  get into debt, because they would then be entitled to be considered as his creditors.

 

minor

someone who is older than 12 if female or 14 if male, but still under the age of 21; however ‘minority’ can be used to refer to the whole period of a person's life from birth until they reach 21.  Minors may have curators who are appointed to look after their affairs; see also pupil

 

modification

a decree of the Teind Court, awarding a suitable stipend to a minister


molestation

interfering with someone's peaceful possession of their lands

 

mortification

a grant, often of land, to a public body

 

moveable property

the other kind of property in Scots law as opposed to heritable; in general, it is every type of property which isn't land or something connected with land.


multiple poinding

happens when someone has property which is being claimed by several others, for instance a debtor owing money to several creditors; he can then raise an action of multiple poinding with the aim of having it decided that he is only liable to make one single payment

 

N

 

notarial instrument

strictly, any document drawn up by a notary.

 

notary public (NP)

in the middle ages, almost invariably a churchman. who had been admitted to practice by the authority of the Pope or the Holy Roman Emperor.  But there seem to have been little to stop anyone who could write from setting himself up as a notary, and the authority of some them to do so and their trustworthiness were, to say the least, doubtful - Scottish parliaments were much concerned about ‘false notars’.  After the Reformation, they were regulated to become public functionaries who, on passing an examination and trial were admitted by the Court of Session to the power of making instruments which had faith in law; these could be about any ‘lawful and honest business’ but in practice were usually instruments of sasine.

P

Parsonage teinds

the tithes of corn and other crops belonging to a minister; see teinds

 

patronage

specifically, the right of presenting a clergyman to church

 

pendicle
a small piece of ground, usually attached to a building or separated from the rest of a property in some way.

 

plenishings

in general, furniture and other household moveable goods; ‘outsight plenishings’ were those kept out of doors

 

poinding

Pronounced ‘pinding’;

a diligence (enforced by letter under the signet called ‘letters of poinding’) whereby ownership of a debtor's moveable property is transferred to his creditor.   ‘Real poinding or ‘poinding of the ground’ is the poinding of goods lying on lands which are a security for the debt; ‘personal poinding’is the poinding of moveables which are then sold at auction the proceeds of which are used to pay the debt.  If there is more than one creditor, there may be an action of multiple poinding raised by the debtor

 

portioner

a proprietor who held only a small piece of land; heirs portioners were women who succeeded jointly to property

 

precept of sasine

an order by a superior to his baillie representing him, to give heritable possession of lands to a vassal, which could only be done by the ceremony of sasine.  Originally these precepts were documents in their own right, but after 1672 they were incorporated in charters.  The precept of clare constat would be used if sasine was to be given to an heir of a deceased vassal

 

Precognition

Preliminary statement by a witness.

 

prescription

a means whereby a right might be lost or acquired due to lapse of time; for example, long uninterrupted and unchallenged possession of property (usucaption) would confer a right to it, whereas if someone possessing a particular right did not exercise it for long enough, he might lose it

 

presentation

the act by which the patron of a church appointed its minister; his right to do so was his ‘advowson

 

Privy Seal

One of the four royal seals; the privy or secret seal was originally used for royal orders or brieves, but later came to be used for such things as grants of moveable property and grants of minor offices

 

process

all the documents (usually bundled together) which related to a particular court case, whether civil or criminal in nature

 

Procurator fiscal

Literally, the procurator for the fiscal or treasury; now the public prosecutor in the sheriff court.

 

procuratory of resignation

the authority granted by a vassal to his representative (who is in this case called his procurator) to restore the lands held by the vassal to his superior, either to remain in the superior's hands, or to be granted out again for example, by a charter of novodamus; this resignation was neccesary if the vassal sold his lands to someone else, who would then have to have the lands re-granted by ths superior to him to complete his title.

 

progress of title

all the documents relating to rights in a piece of land and their transference from person to person; it is typically a bundle containing charters, precepts and instruments of sasine, tacks, wadsets, reversions and the like

 

R

 

relict

a widow

 

renunciation

that act of renouncing a right or a title to property

 

resignation

the action by which a vassal restored his lands to his feudal superior. Resignation into the hands of the superior was either for the purpose of a regrant to a third party (resignation in favorem) or, less commonly, to remain in the superior's own hands (resignation ad remanentiam);

 

retour

the report of any inquest which had been held to determine who was next heir to the property of a dead vassal who had held his lands of the Crown; it was in effect the reply to a brieve of inquisition.  Once the inquest had made up their minds, the retour would be ‘retoured’ (returned) to the king's Chancery.  A ‘special retour’ established the heir's right to succeed to particular lands

 

room

In Shetland, a township

 

roup

pronounced ‘roop’

an auction, governed by conditions called ‘articles of roup’

 

S

sasine
either the symbolic act of giving legal possession of a piece of heritable property, or the instrument by which such an act was proved to have happened. The origin of the term is the same as that for the word 'seize' - meaning to take possession of (in Scottish documents it is generally rendered 'seis'). Hence, someone who became the owner of a property (by succession, gift, purchase or whatever) is recorded as being 'seised' of that property.

 

Scat

In Orkney and Shetland, a tax on land

 

sequestration

confiscation of a bankrupt's assets by a court of by his creditors

 

service of heirs

the process by which an heir acquired the right to an estate.  It started with the brieve ordering an inquest to determine who was next heir to the estate, followed by the retour of the inquest stating the heir's right to succeed followed by his entry, (his formal acceptance by the superior of the estate).  It was called a ‘special service’ when the heir's ancestor had been formerly infeft in the estate, that is, had had full legal possession of it by virtue of a sasine; if the heir's ancestor was not infeft, then the process was called a ‘general service’.  Until the process of serving the heir had been gone through, he would be the apparent heir; see also heirs

 

servitudes

obligations which went with a property, or which had to be performed to a particular person

 

Sheriff A qualified person who sits in judgement , in the sheriff court in Scotland.

 

spuilzie

the taking away of someone else's moveable goods against their will or without the order of the law

 

stipend

a regular payment made in money, grain or both for the support of a parish minister, which was renewable (and re-negotiable) every five years

 

symbols

the giving of sasines was a ceremony deriving from a time when few people were literate and it was thus highly symbolic so that anyone could see and recognise what was going on.   The grantee's baillie would meet the granter's baillie on the ground of the lands being granted, with several witnesses and a notary, present the grantee's title to the lands (his charter and precept of sasine from the granter) and ask that sasine be given; these would be passed to the notary who would read them to the witnesses, and then the granter's baillie would give sasine by presenting the grantee's baillie with a symbol appropriate to what was being granted, so that the witnesses could understand that ownership had been formally transferred.  The most common symbols were earth and stone used for the giving of sasine in lands; if what was granted was an annual rent from lands, these would be passed over together with ‘a penny money’. If lands were resigned to a superior, the symbol passed over were the staff and baton.  After all this was done, the notary would go away and write it all up in the form of an instrument

 

tack

a lease; in Scotland it had to be a formal written contract between landlord and tenant laying down the period of the lease and the payments to be made for it

 

tacksman

leaseholder

 

teinds

the Scottish equivalent of the English tithes, they were the tenth part of the annual produce of a unit of land, which was payable to the Church, though ‘vicarage teinds’, the lesser teinds due from a parish and paid in kind, were due not by law, but by custom. The Teind Court grew out of the fact that, after the Reformation, a great deal of the property of the medieval church fell into the hands of laymen so that the ministers of the reformed church were rarely adequately provided for; in 1617 a committee of Parliament called the Commissioners of Teinds was appointed to settle suitable stipends for ministers and after 1707 its powers passed to the judges of the Court of Session who formed the Teind Court, with power to decide on such matters as the valuation and sales of teinds, the augmentation of stipends and the building of new churches, which had the advantage that the authority of the Court of Session could be annexed to their decisions

 

tenant

one who holds lands (generally for a fixed term) by a lease or tack


tenement
in legal terms, a landholding, usually (but not always) a piece of land which is build upon. A more modern, architectural meaning of 'tenement' is a type of domestic building, divided into separate dwellings (flats), each of which is separately rented or owned.

terce

a widow's legal entitlement to a liferent of one-third of her husband's heritable property.

 

terms

when rents and feu-duties fell due to be paid, usually half at Pentecost or Whitsun, and half at Martinmas. (11 November)

 

testament

a written deed appointing an executor to adminster a person's moveable property after his death.  That is all it has to do; it needn't contain any bequests or instructions on disposal of the property, and the two possible types depended on how the executor has been appointed.  If this is done by the person making the testament during his life-time, it is called a testament testamentar, if the person died without making a testament the Commissary Court would appoint the executor, and the deed by which this was done was a testament dative. One of the deceased's creditors could be appointed as his executor, so that he could recover the debt due him, and he was called an ‘executor creditor’ or ‘qua creditor’. Testaments were not really wills; they had no bearing on the disposal or administration of any heritable property the deceased might have had, and for that reason they were gradually replaced by the trust disposition and settlement

 

tutor

a person who is legal representative, guardian or adminstrator of the estate of a pupil, a child under 12 if female or 14 if male. (Older children who were still under 21 were minors, and had curators instead of tutors to do these things for them).

 

U

 

udal right

a method of holding lands in Orkney and Shetland which did not require the holder to have sasine, or even to have a charter to the lands, but only to have evidence of his undisturbed occupation of the lands; such lands were held direct from the Crown for a payment called ‘scat’

 

umquhile

late, deceased

 

 

V

 

valuation

the name given to a decree of the Teind Court, determining the extent and value of the teinds due to be paid by a heritor

 

wadset

a written deed which transferred land to another a security for, or in satisfaction of, a debt due to him by the granter of the deed, with a reserved power to the granter (called the reverser) to redeem his lands from the lender of the money (called the wadsetter) when his debt was repaid or his obligation fulfilled.  See also  reversion

 

wakening, summons of

the means of reviving a legal action which had lain dormant for a year and a day

 

Warrant

A written authority, e.g. from court, authorising certain actions such as a search of premises or an eviction of occupiers. Also used to signify a document evidencing a right of some kind, e.g. in a title to heritable property.

 

Writs

Documents of title.

 

writer to the signet (WS)

were originally clerks who prepared letters under the king's signet seal.  However, when the signet came into widespread use as the means of sealing all summonses to the king's court and all diligences issued by it, they increased in number and, as writers to the signet, not only prepared all summonses and diligences, but acted as agents or attorneys in presenting cases in the Court of Session

 

Powered by CalmView© 2008-2022