The institutions of the law of Scotland deduced from its originals, and collated vvith the civil, canon, and feudal- lavvs, and vvith the customs of neighbouring nations ... / by Sir James Dalrymple of Stair ...

The institutions of the law of Scotland deduced from its originals, and collated vvith the civil, canon, and feudal- lavvs, and vvith the customs of neighbouring nations ... / by Sir James Dalrymple of Stair ...

Table of contents

[1]

Title page

To the KING.

INDEX of the TITLES of the whole BOOK, with the SUMMARIES subjoyned.

PART I.

TITLE I. Common Principles of Law.

TITLE II. Of Liberty.

TITLE III. Of Obligations.

TITLE IV. Conjugal Obligations.

TITLE V. Obligations between Parents and Children.

TITLE VI. Obligations of Tutors and Curators, Pupils, Minors, and Persons interdicted.

TITLE VII. Restitution.

TITLE VIII. Recompense.

TITLE IX. Reparation: where of Delinquences, and Damage thence arising.

TITLE X. Obligations Conventional, by Promise, Paction, and Contract.

TITLE XI. Liberation from Obligations.

TITLE XII. Rights Real: where of Community, Possession, Property, Servitudes, and Pledges.

TITLE XIII. Infeftments of Property.

TITLE XIV. Superiority: where of its Casualities, Non-Entry, Relief, Compositions for Entries, Ward, Marriage, and Liferent-Escheat.

TITLE XV. Annualrent: where, of Pensions, and Poinding of the Ground.

TITLE XVI. Liferents: where of Conjunctfees, Terces, and Liferents by the Courtesie of Scotland.

TITLE XVII. Servitudes real.

TITLE XVIII. Teinds: where of Benefices, Stipends, Presentation, Collation, Institution, Tacks, Annats, and Patronage.

TITLE XIX. Tacks where of Rentals, tacite Relocation, and Removing.

TITLE XX. Wadsetts: where of Reversion, Regress and Redemption.

TITLE XXI. Extinction of Infeftments: where of Resignation ad remanentiam, Recognition, Disclamation, Purpresture, and other Feudal Delinquences.

TITLE XXII. Prescription.

PART II.

TITLE XXIII. Assignations: Where of Arrestments, and Actions for making forthcoming.

TITLE XXIV. Dispositions: where of Resignations in favorem, Apprisings, and Adjudications of real Rights.

TITLE XXV Confiscation: where of Single-Escheat, Liferent-Escheat, Shipwrack, Waith-goods, Treasure, Forefaulture, Bastardy, and Last-Heir.

TITLE XXVI. Succession.

TITLE XXVII. Heirs.

TITLE XXVIII. Behaving as Heir.

TITLE XXIX. Lucrative Successors.

TITLE XXX. Executory: where of Testaments, Codicills, Legacies, Relict`s part, Bairns part, Dead's part, Confirmations, and Office of Executory.

TITLE XXXI. Vitious Intromission.

§

TITLE I. Common Principles of Law.

TITLE II. Of Liberty.

TITLE III. Of Obligations.

TITLE IV. Conjugal Obligations.

TITLE V. Obligations between Parents and Children.

TITLE VI. Obligations of Tutors and Curators, Pupils Minor, and persons Interdicted.

TITLE VII. Restitution.

TITLE VIII. Recompence.

TITLE IX. Reparation where, of Delinquences and Damnage thence arising.

TITLE X. Obligations Conventional, by Promise, Paction and Contract.

TITLE XI. Liberation from Obligations.

TITLE XII. Rights real, where, of Community, Possession, Property, Servitudes, and Pledges.

TITLE XIII. Infeftments of Property.

TITLE XIV. Superiority where, of its Casualities, Non-entry, Relief, Compositions for Entries, Ward, Marriage and Liferent Escheat.

TITLE XV. Annualrent where, of Pensions, and Poinding of the Ground.

TITLE XVI. LIFERENTS, Where, of Conjunctfees, Terces, and Liferents by the Courtesie of Scotland.

TITLE XVII. Servitudes Real.

TITLE XVIII. TEINDS, Where, of Benefices, Stipends, Presentation, Collation, Institution, Tacks, Annats, and Patronage.

TITLE XIX. TACKS, Where, of Rentals, tacite Relocation and Removing.

TITLE XX. WODSETS, Where, of Reversion, Regress and Redemption.

TITLE XXI. Extinction of Infeftments, Where, of Resignation ad remanentiam, Recognition, Disclamation, Purpresture, and other Feudal Delinquences.

TITLE XXII. Prescription.

[2]

Title page

§

TITLE XXIII. Assignations, Where, of Arrestments, and Actions for making Forthcoming.

TITLE XXIV. Dispositions, Where, of Resignations, in favorem, Appryzings and Adjudications of Real Rights.

TITLE XXV. Confiscation, Where, of single Escheat, Liferent-Escheat, Shipwrack, Waith-goods, Treasure, Forefaulture, Bastardy, and Last-heir.

TITLE XXVI. Succession.

TITLE XXVII. Heirs.

TITLE XXVIII. Behaving as Heir.

TITLE XXIX. Lucrative Successors.

TITLE XXX. Executorie, Where, of Testaments, Codicills, Legacies, Relict's part, Bairns part, Dead's part, Confirmations, and Office of Executorie.

TITLE XXXI. Vitious Intromission.

§

§

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[Page]

THE INSTITUTIONS OF THE LAW OF SCOTLAND, Deduced from its Originals, and Collated vvith the Civil, Canon, and Feudal-Lavvs; and vvith the Customs of Neighbouring Nations.

The first PART.

By Sir JAMES DALRYMPLE of STAIR, PRESIDENT of the SESSION.

EDINBURGH, Printed by the Heir of Andrew Anderson, Printer to His most Sacred Majesty, Anno DOM. 1681.

To the KING.

[Page]

[Page]

May it Please Your Majesty.

I DO humbly present to Your MAJESTY a Summary of the Laws and Customes of Your ancient Kingdom of SCOTLAND, which can be no where so fitly Placed, as under the Rayes of Your Royal Protection: I am confident it will tend to the Honour and Renoun of Your MAJESTY, and Your Princely Progenitors, that You have Governed this Nation so long and so happily, by such just and convenient Laws, which are here offered to the view of the World, in a Plain, Rational, and Natural Method; In which, Material Justice (the common Law of the World) is in the first place orderly deduced from self evident Principles, thorow all the several private Rights thence arising: And in the next place, the Expedients of the most Polite Nation, for Ascertaining and Expeding the Rights and Interests of Mankind, are Applyed in their proper places; especially these which have been invented, or followed by this Nation; so that a great part of what is here offered, is common to most Civil Nations, and is not like to be displeasing to the Judicious and Sober any where, who dote not so much upon their own Customes, as to think that none else are worthy of their notice. There is not much here asserted upon meer Authority, or Imposed for no other Reason, but [Page] quia majoribus placuerunt, but the Rational Motives inductive of the several Laws and Customes, are therewith held forth: And though the Application of those common Rules, to the varietie of Cases determined by our Statutes, our ancient Customes, and the more recent Decisions of our Supream Courts, be peculiar to us; Yet even the Quadrancy of these to the common Dictates of Reason and Justice, may make them the less displeasing; and that no Nation hath so few words of Art, but that almost all our Terms are near the Common and Vulgar Acceptation; Yea, the Historical Part relating the Helps and Expedients for Clearing and Securing the Rights of Men out of the Word of GOD; the Moral and Judicial Law contained therein; the Civil, Canon and Feudal Laws, and many Customes of the Neighbouring Nations Digested, as they fall in with the Common Rules of Justice, may probably be acceptable to these who may, and will allow time for their perusal, a quaint and gliding Stile, much less the Flourishes of Eloquence, the ordinary Condiment and Vernish, which qualifie the pains of Reading, could not justly be expected in a Treatise of Law, which of all Subjects doth require the most Plain and Accurate Expressions; to ballance which, the Nausiating burden of Citations, are as much as can be left out.

We do not pretend to be amongst the Great and Rich Kingdoms of the Earth, yet we know not who can claim preference in Antiquity and Integrity, being of one Blood and Lineage, without mixture of any other people, and have so continued above two thousand years; during all which, no forreign Power was ever able to setle the Dominion of a Strange Lord over us, or to make us forsake our Allegeance to Your MAJESTIEs Royal Ancestors, our Native and Kindlie Kings; Whereas, most of the other Kingdoms are Componds of Diverse Nations, and have been subjugated to Princes of different and opposite Families; and oftimes Forreigners. The great Monarchies which did design Universalitie, are all broken in pieces; and there is no Familie that can claim a just Title to Redintegrat any of them. There is no Emperor nor King, except Your Self, but knows to what other Families their Predecessors did Succeed, and when, and by what means It is evident what a mixture hath been in Greece and Italy, in France and Spain, in ENGLAND, and elsewhere. This Nation hath not been obscure and unknown to the World; but the most famous Nations have made use of our Arms, and have still in grateful remembrance, retained Trophies and Monuments of our Courage and [Page] Constancy. There be few Wars in Christendome, wherein we have not had considerable Bodies of Souldiers, Regimented and Commanded by themselves, and oftimes general Officers Commanding them; and whole Armies of Strangers, with great Reputation and Gallantry, which did advance them above the Natives of these Countreys where they served. Neither have we wanted the fame of Learning at home and abroad, in the most eminent Professions, Divine or Humane. And as every where the most Pregnant and Active Spirits, applie themselves to the Study and practice of Law; so these that applyed themselves to that Profession amongst us, have given great Evidence of sharp and piercing Spirits, with much readiness of Conception, and dexterity of Expression; which are necessary Qualifications both of the Bench and Bar, whereby the Law of this Kingdom hath attained to so great Perfection, that it may without Arrogance be compared with the Laws of any of our neighbouring Nations, for we are happy in having so few and so clear Statutes. Our Law is most part Consuetudinary, whereby, what is found inconvenient is Obliterat and forgot: Our Forms are plain and Prompt, whereby the generality of the Judicious, have with little pains much insight in our Law, and do with the more Security enjoy their Rights and Possessions, which by our publick Records are better known then any where, by which, we may with the greatest assurance Trust our Purchase, seing no Land-Right is effectual against Purchasers by Consent or by Law, but where the ultimate perfection thereof, by Seasing or other Evident, is upon Record in Registers, set apart for the several Rights, without mixture of any other, whereof there are Authentick Minute-books keeped, with the Records in each Shire and Jurisdiction, whereby with the least pains or expence, all the Rights affecting any Land within the course of Prescription, can easily be found. We are not Involved in the Labyrinth of many and large Statutes, whereof the posterior do ordinarly Abrogate, or Derogate from the prior, that it requires a great part of a life to be prompt in all these Windings, without which, no man with sincerity and confidence, can Consult or Plead; much less can the Subjects by their own Industrie, know where to rest, but must give more implicite Faith to their Judges and Lawers, then they need or ought to give to their Divines; and we do always prefer the Sense to the subtility of Law, and do seldom trip by niecities or formalities. The greatest Fixation and Improvement of our Law hath been by the Establishment of the Supream Civil Judicature of the Kingdom, by King JAMES the fifth, in the Institution of the Colledge of Justice, consisting of fifteen ordinarie Senators, in place of the Kings daily Council, which followed His Residence and Court, and of the Lords of Session, who came in their place, and were nominated of the Estates of Parliament Ambulatory; [Page] and the Senators of the Colledge of Justice were Invested with the powers of both, and their persons and the place of Judicature became fixed, and hath so continued near the space of an hundred and fifty Years. This Court was much improven by Your MAJESTIEs Royal Grand-Father, who delighted exceedingly in it, and honouredit frequently with His Presence while He was in Scotland: So did Your Royal Father when He came to Scotland to be Crowned: And Your MAJESTY hath owned and encouraged it more then any.

Your MAJESTY doth not demand or expect great Revenues from this Kingdom; that which we can be useful in to Your MAJESTY, is our personal Service, and our firm adherence to Your Crown and Monarchy, and to Your Royal Family, in which we have a peculiar Interest; and which no time can communicate to any of Your other Dominions, which they neither can claim, nor should invy that You are of our Nation, and hath Governed us during twenty Centuries and more, and by us You are the most Ancient King in the World, which is the most Noble and Resplendent Jewel in Your Crown; What Family on Earth can parallel that Motto, which an hundred Years ago, was Written about Your Royal Ensignes, upon Your Palace,

— Nobis haec invicta miserunt

Centum sex proavi.

Therefore Your Royal Family hath been betroathed to a Virgin Crown, which never knew another Husband; and though it hath been darkened with Clouds and Recesses, yet never was, and I hope never shall be in Widuity. The mutual Affection betwixt Your MAJESTIES Royal Family and this Nation, is a prime Interest to both, which should be much incouraged and improven: Your MAJESTY without just ground of Jealousie to Your other Kingdoms, may own a peculiar Care of us; and weought to [...] a singular kindness to, and confidence in Your MAJESTY, and Your Royal Successors; This might he so promoved, that Your MAJESTY might by Treaties, have Armies of this Nation abroad, Intertained without Your Charge, and ready at Your Call, as You had Dowglas Regiment in France, which might secure Your Peace at Home, and make You stand in need of less Aids from Your People. You might also have thriving Plantations abroad, if these who every year go from this Nation, to seek their Fortunes abroad, were directed and encouraged; And it is certainly a great Interest to keep the Nation at Home, in constant Affection

INDEX of the TITLES of the whole BOOK, with the SUMMARIES subjoyned.

[Page]

PART I.

TITLE I. Common Principles of Law.

1 DEscription of Law.

2 Description and Division of Justice.

3 Divine Law.

4 Reason,

5 Conscience,

6 Equity.

7 Moral Law.

8 Positive Laws of God.

9 Judicial Law.

10 Law of Nations.

11 Civil Law.

12 Feudal Law.

13 Canon Law.

14 The reasons of Humane Laws.

15 The Law of Scotland.

16 Whether Law may be handled as a rational Discipline?

17 Three common principles of Equity, and three of positive Law.

18 Obedience,

19 Freedom,

20 Ingagement.

21 Description and Division of Rights.

22 Method of the Civil Law, and the method here proposed.

TITLE II. Of Liberty.

1 LIberty described.

2 Liberty [...] from Dominion and Obligations.

3 The Principle whence Liberty ariseth.

4 Restraint and Constraint.

5 Liberty is bounded by Obedience.

6 It is diminished by Delinquence.

7 By Ingagements.

8 By subjection.

9 Liberty is lost by Bondage.

10 Bondage introduced by the Law of Nations.

11 Bondage lawful.

12 Manrent.

13 Manumission.

14 Patronage.

15 The condition of our Servants.

16 Injuries agaiost Liberty, how obviat.

TITLE III. Of Obligations.

1 PErsonal Rights and Obligations described.

2 Kinds of Obligations.

3 Obediential Obligations described.

4 Divided.

5 Enumerat.

6 Obligations Natural and Civil.

7 Obligations principal and accessory.

8 Obligations pure, conditional, and to a day.

TITLE IV. Conjugal Obligations.

1 MArriage a divine Contract.

2 Whereby Marriage is formally constitute.

3 Dissolution of Marriage by Death.

4 Desertion and Adherence.

5 Jus Mariti.

6 The Husbands Obligations.

7 The power of the Husband by the Civil Law.

8 By the Custom of neigbour Nations.

9 By the Custom of Scotland.

10 The Wife's Escheat.

11 The Husband's concourse.

12 A Wife's Obligation null.

13 A Communion of Goods and Debts.

14 Donations betwixt Man and Wife revocable.

15 Dissolution of Marriage within the year.

16 Divorce.

17 Rights arising from the Dissolution of Marriage.

18 Priviledges of Wives.

TITLE V. Obligations between Parents and Children.

1 OBligations betwixt Parents and Children, are Divine by the Law of Nature.

2 The Power of Parents over their Children,

3 In Infancy;

4 In Minority;

5 In Majority.

6 Oeconomical Government.

7 Provision of Children.

8 Obligations of Children to their Parents.

9 Aliment due to Parents.

10 Obligations mutual of Children.

11 Patria potestas amongst the Romans.

12 Amongst other Nations, especially as lawful Administrations.

13 Forissawiliation and Emancipation.

TITLE VI. Obligations of Tutors and Curators, Pupils, Minors, and Persons interdicted.

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1 THe rise of Tutory in the Law of Nature.

2 Order of Tutory by the Law of Nature.

3 The natural Obligation of Tutors:

4 Pupils Obligations to their Tutors.

5 Kinds of Tutors by the Common Law.

6 Tutors Testamentar.

7 Tutors Testamentar exclude all others.

8 Tutors of Law, who?

9 How Tutors of Law are entered?

10 The Time within which they must enter.

11 Tutors Dative.

12 Pre-Tutors.

13 Factors for Tutors.

14 Con-Tutors.

15 Tutors custody of the Pupil's Person.

16 Tutors authorizing their Pupils.

17 Tutors or their Factors Rightsrelating to the Pupils, accresce to them.

18 Tutors can only do necessary, not free arbitrary Deeds, but may not sell Lands. sine authoritate judicis.

19 Tutors are lyable for Annualrent for their pupils means.

20 Tutors are conveenable with their Pupils, and lyable in quantum intus babent.

21 Tutors Accompts.

22 Tutors are lyable for exact Diligence, both for Intromission and Omission.

23 Tutors are lyable in solidum.

24 Tutory how finished.

25 Tutors of Idiots & furious Persons:

26 Gesta Tutarum accrescunt pupillis.

27 Removing or suspect Tutors.

28 Duty of Pupils to their Tutors.

29 Rise of Curators.

30 Curators ad lites & negotia.

31 Minors may at their option, choose or not choose their Curators.

32 Minors Deeds having Curators without their consent are ipso jure null, nisi in quantum [...].

33 Curators Consent not requisit to Later-Wills.

34 Restitution of Minors upon enorme lesion.

35 Minor non tenetur placuare super [...] paternam.

36 Differences betwixt Tutors and Curators.

37 Duty of Curators.

38 Curators, or Interdictors for Prodigals, or lavish Persons.

39 Interdictors constitute causâ cognitâ.

40 Interdiction by Parents Consent:

41 Publication and Registration of Interdictions.

42 Interdictions extend only to heritable Rights, not Moveables, nor to personal Executions.

43 Interdictions are only competent by way of Reduction.

44 Interdictions cannot be taken off, but by authority of a Judge.

TITLE VII. Restitution.

1 REstitution of other mens Goods a natural Obligation.

2 Restitution is not solely an effect of Property.

3 Restitution of things straying, or Waith and lost.

4 Restitution of things bonafide acquired, not from the right Owner:

5 Restitution of things recovered from Theeves, Pirats, and Robbers.

6 Restitution not competent of things recovered from publick Enemies.

7 Restitution of things quae cadunt in non causam, causâ datâ & non secutâ.

8 No Restitution of things given ob turpem causam.

9 Restitution of indebite soluta.

10 Restitution reacheth also the Fruits not consumed.

11 Restitution is grounded on Having, and that ceassing without fault, the Obligation of Restitution ceasseth.

12 Bonae fidei possessor facit fructus consumptos saos.

13 Restitution by Heirs.

14 From Restitution arises the Action of Exhibition and Delivery.

15 Thence arises Division of things common without Society.

TITLE VIII. Recompense.

1 REcompense or Remuneration, a natural Obligation.

2 Obligation negotiorum gestoram.

3 Actio directa & contraria de negotiis gestis.

4 The Diligence of Negotiators.

5 The natural Obligement to recompense, in quantum locupletiores facti sumus.

6 Actio de in rem verso.

7 Relief due to those who satisfie Obligations, whereby more Persons are lyable, in cosdem.

TITLE IX. Reparation: where of Delinquences, and Damage thence arising.

1 The Obligation of Reparation of Damages by Delinquence, ana ural Obligation.

2 Delinquence inters the Obligation of Punishment, and Reparation of the injured.

3 Damage described.

4 Kinds of Delinquence.

5 Concurrers in Delinquence, how lyable.

6 Special kinds of Delinquence by our Customes.

7 [...].

8 Extortion, vi majori & metus causâ.

9 Circumvention by Fraud, dolo malo.

10 The Edict de dolo malo:

11 Circumvention rarely inferred by Witnesses.

12 Simulation.

13 Collusion.

14. The effect of Fraud, as to the Party contracting.

15 Deeds done in fraudem creditorum, contrair the Act of Parliament, 1621. anent Bankrupts.

16 The nature of Spuilzie.

17 The Title of Possession.

18 Oath in litem, in Spuilzies.

[Page]19 Spullzies elided by any colourable Title, Warrand, or bona fides.

20 Spuilzie elided by voluntar Delivery.

21 By lawful Poinding.

22 Replyes against Poinding.

23 Spuilzie elided by Restitution within twenty four houres.

34 Prescription of Spuilzies.

25 Intrusion and Ejection described and distinguished.

26 Ejection proper to the natural Possessor:

27 Exceptions against Ejections.

28 Molettation.

29 Breach of Arrestment and Deforcement:

30 Contravention.

TITLE X. Obligations Conventional, by Promise, Paction, and Contract.

1 THe Original of Conventional Obligatious.

2 The Acts of the Will, Desire Resolution and Ingagement, and their effects.

3 Pollicitation, or Offer, and its effects.

4 Promise.

5 Contracts in favours of third Parties valid.

6 Pactions: and how Words are obligatory.

7 Naked Pactions.

8 Pactum corvinum.

9 Locus penitentiae.

10 Promises and Pactions are morally obligatory by Canon Law, and our Customes.

11 Kinds of contracts amongst the Romans, with the Exception de non numerata pecunia, and Homologation.

12 Distinction of Contracts according to the matter.

13 Common Requisits to Contracts

14 Permutative Contracts, and the equality to be keeped in them.

15 Latent insufficiency altereth Contracts.

16 How far Mutual Contracts are effectual to Assignys, without performing the Cedents part.

17 Loan comprehendeth mutuum and commodatum.

18 In mutuo transfertur dominium.

19 Senatus consultum Macedonianum & Velleianum.

20 Mutuum can only be in Fungibles and Quantities.

21 Specialities in mutuo, and Bills of Exchange.

22 Mutuum stricti juris.

23 Commodatum described.

24 Borrowers Diligence.

25 Precarium.

26 Commodatum how ended.

27 Actions arising from commodatum.

28 Mandatum, or Commission.

29 The terms of Mandats.

30 Acceptance of the Mandatar.

31 Mandats in things lawful.

32 Acceptance must be freely.

33 Mandats are personal.

34 How far Mandatars may Intrust others.

35 Mandats are ambulatory, and revocable by the Mandant.

36 Mandatars must perform, in forma specifica.

37 Mandatars Diligence.

38 The Ohligations of Maudatars.

39 Kinds of Mandats.

40 Tacit Mandats.

41 More Mandatars, how far they may act severally.

42 Whether joynt Mandatars are lyable in solidum.

43 The effect of general Mandats.

44 What is special in Offices amongst Mandats.

45 Specialities of Trust amongst Mandats.

46 Obligations of Exercitors.

47 Obligations of Institors.

48 The nature of Custody, or depositum:

49 Diligence of Depositars.

50 Nautae caupones stabularij.

51 Depositation of Writs.

52 Sequestration.

53 Consignation and Trust

54 Depositation admits uo Compensation.

55 But admits Retention.

56 Joynt Depositars, how far lyable.

57 The nature of Pledge, or pignus.

58 Specialities in Pledges.

59 How Pledges may become irredeemable.

60 Clauses irritant in Pledges.

61 Hypothecation of the Crop or Goods for the Rent.

62 Hypothecation of the Teinds for the Teind-duty or Stipend.

63 Exchange and Sale, wherein they agree and differ.

64 What things are lyable to Sale, and of buying of Pleas by the Members of the Colleege of Justice.

65 Effect of Earnest.

66 Reversion of things sold.

67 Clauses irritant, or resolutive in Sale.

68 Knowledge of Acquirers of an anterior incompleat Right, how effectual.

69 After Sale, before Delivery, to whom the thing perisheth.

70 Location described, and compared with Sale.

71 Whether Sterility frees from the Pension.

72 The effect of Vastation.

73 Location is personal, and ceaseth with the Constituent's Right.

74 Usury, or Annualrent of Mony.

75 Annualrent due by Law, without Paction.

76 The Conductor's Obligation.

77 The Locator's Obligation.

78 The effect of Society.

79 The matter of Society.

80 The nature of Society and Equality therein.

81 The Power of the Partners in Society.

82 How Society ceasseth.

83 Partners acting severally, how these things accresce to the Society.

84 Diligence of Partners.

85 Contracts mediat and immediat.

86 Kinds of Cautioners.

87 Cautioners how far lyable.

88 Cautioners for Executors.

89 Cautioners for Tutors and Curators.

90 Cautioners for the Factors in Camphire.

91 Cautioners for loosing Arrestments.

92 Cautioners are lyable according, by the Oath of the Principals.

93 Cautioners as Law will.

94 When the Cautioners are lyable, and the Principal not.

95 Cautioners when lyable in solidum.

[Page]96 Relief of Cautioners.

97 Effects of promissary Oaths.

98 [...].

99 Interest.

100 Profit of Performance.

101 Time of Performance.

102 Place of Performance.

103 Manner of Performance.

TITLE XI. Liberation from Obligations.

1 OBligations ceass by contrary Consent, by Discharge, Declaration, Renunciation, or per pactum de non pentendo.

2 Three subsequent Discharges liberat from preceedings.

3 Payment made bona fide.

4 Confignations;

5 Acceptilation;

6 Compensation;

7 Retention;

8 Innovation;

9 Confusion;

TITLE XII. Rights Real: where of Community, Possession, Property, Servitudes, and Pledges.

1 THe original Dominion of Man over the Creatures.

2 What Rights are heritable, and what moveable.

3 Moveable and heritable Bonds.

4 How heritable Obligations become moveable and return to be heritable.

5 The Original Community of Mankind over this inferiour World, and all therein.

6 What remains yet common to Mankind.

7 Grass and Fruits on High-wayes are publick, not common

8 In Possession what is facti, what is juris.

9 Possession described.

10 Possession natural and civil.

11 Possession of Moveables.

12 Possession of the Ground.

13 Possession by Limits and Bounds.

14 Possession by Occupation, and by lifting the Profits.

15 Symbolical Possession.

16 Possession by Reservation.

17 Definition of Possession.

18 Requisits to begin Possession.

19 Requisits to retain Possession.

20 How Possession is troubled, interrupted, or lost.

21 Kinds of Possession.

22 Lawful Possession gives Right to continue it against all illegal and [...] Acts contrary thereto.

23 Bonae fidei possessor facit fructus consumptos suos.

24 This not extended to unlawful Possessors.

25 Possessor decennalis & triennalis non tenetur docere de titulo.

26 Quinqutnnial Possession of forefaulted Persons.

27 Possession, to what Right ascriveable.

28 The nature of Property.

29 Property by Possession of things common.

30 Appropriation by Industry.

31 First Property of the Ground was of Houses and Wails.

32 Next of Fields and Countreys.

33 Quae nullius sunt.

34 Appropriation by Accession of Birth and Fruits.

35 Appropriation by [...].

36 Appropriation by Specification.

37 Appropriation by necessary Conjunction.

38 De tiguo injuncto.

39 Inaedificata solo cedunt.

40 Things sown and planted, haw far-they follow the Ground.

41 Posseision of Moveables presumes property.

42 Reprisals.

43 Enemies Goods taken in War.

44 Goods of Neuters assisting Enemies become Prise.

TITLE XIII. Infeftments of Property.

1 THe original of Fees.

2 Feudal Jurisdiction, especially of the King in Parliament.

3 Feudal Jurisdiction of Superiours.

4 [...].

5 Requisits of proper Fees.

6 Kinds of improper Fees.

7 Dominium directum essential to all Fees.

8 Dominium [...].

9 Fidelity [...] necessary.

10 Feudal Contracts.

11 Udal Rights.

12 Infeftment what it signifies.

13 How Writ is necesiary for Infeftments.

14 What kinds of Writs are necessary for Infeftments.

15 The [...] of formal Charters.

16 When Instruments of Sealin became necessary.

17 The Tenor of formal Seasins.

18 The essentials necessary in Seasins.

19 Seasins must have Warrands and Adminicles, and what these are.

20 Registration of Seasins.

21 Registration of Ressignations ad remanentiam.

22 Registration of the Allowance of Apprisings and Adjudications, Inhibitions, and Hornings.

23 The Attest of the Nottar and two Witnesses, necessary in Seasins.

24 Extracts of Seasins not probative.

25 Transumpts of Seasins.

26 Bounding Infeftments.

27 Base Infeftments, how far effectual without Possession.

28 Infeftments by Confirmation.

29 Infeftments upon Apprising or Adjudication.

30 The effect of Apprisings or Adjudications with a Charge.

31 Infeftments Ward.

32 Feus of Ward-lands, how far valid.

33 Infeftments Blench.

34 Infeftments Feu.

[Page]35 The annexed Property of the Crown can only be set Feu after Dissolution in Parliament.

36 Feus of the annexed property set with diminution of the retour'd Duty, are null.

37 Feus of Kirk-Lands.

38 Infeftment in Burgage.

39 Infeftment in Mortification.

40 Manses and Gleebs.

41 Conjunct Infeftments.

42 Infeftments to Heirs substitute.

43 Infeftments Simple and Tailzied.

44 Union.

45 Erection.

46 Warrandice.

47 Tacit Conditions implyed in Ward-Lands.

48 Tacit Conditions in Warrandice and Relief.

49 Tacit Conditions in Infeftments of Offices.

50 Tacit Conditions in Excambion.

51 Tacit Conditions in Feus.

52 Liferents reserved in Infeftments of Property.

53 Exceptions in Infeftments, how far effectual.

54 Faculties reserved in Infeftments.

55 Burthens of Sums in Infeftments, how far effectual.

56 The effect of impossible or unlawful Conditions in Infeftments.

57 Conditions inconsistent are null.

58 Clause de non alienando in Tailzies.

59 Clauses restrictive and irritant in Tailzies.

60 Regalia not exprest, are not carried by Infeftment.

61 Regalia are carried in Barony, though not exprest.

62 Jurisdiction and Courts.

63 Juriidiction of Baron Courts, how far restricted.

64 Issues of Baron Courts belong to themselves.

65 Infeftments of Constabulary.

66 Fortalices, how far extended.

67 Forrestries.

68 Hunting of Deer, inter regalia.

69 Salmon-fishing.

70 Cruves.

71 Milns.

72 Priviledge of Brewing.

73 Part and Pertinent.

74 Wood and Coal.

75 Houses and Biggings, and Park Dykes.

76 Fowling, Hunting, and Fishing.

77 Cunningars.

78 Dovecotes.

79 Free Ish and Entry.

80 Herezelds.

81 Steel-bow Goods.

82 The effect of infeftments, in possessorio.

83 The effect of Infeftments, in petitorio.

84 Inhibitions and their effects against Infeftments.

TITLE XIV. Superiority: where of its Casualities, Non-Entry, Relief, Compositions for Entries, Ward, Marriage, and Liferent-Escheat.

1 THe Superior's dominium directum.

2 How Property is established in the King.

3 Superiors may exerce all Acts of Property, except against their Vassals.

4 How the Property coming in the person of the Superior, is established.

5 Superiors cannot interpose betwixt them and their Vassals.

6 How far Superiors need to instruct their Title.

7 Superiors have personal Action against Intrometters with the Rent of the Land for their reddendo.

8 They have also real Action for the same, by poynding of the Ground.

9 Jurisdiction of Superiors.

10 Superiority carrieth to Heirs and singular Successors, all bygone Casualities not separat by Gifts or Decreets.

11 Superiors of Kirk-Lands need not instruct a Consent to the Surrender.

12 Superiors must receive Apprisers or Adjudgers, or pay the Debt, salvo jure suo.

13 He must receive the King's Donatar upon presentation gratis.

14 He must receive his Subvassal, whom his immediat Vassal resuseth to enter.

15 How far Superiors may extend Gifts of their own Ward against their Vassals.

16 Superiors need not accept Resignation or Confirmation, and if they do, it is salvo jure suo.

17 Superiority falling to more persons, the eldest Heir or greatest Interest only receives the Vassals.

18 Non entry falls, when Infeftment is not renewed by every Vassals Heir, or singular Successor, or upon Resignation.

19 Non-entry falls by Reduction or Nullity of Infeftments, or Retours.

20 Burgage falls not in Non-entry, as to the Burgh or particular Persons.

21 The effect of the general Declarator of Nonentry.

22 The effect of Non-entry, after Citation in the general Declarator.

23 Exceptions against Non-entry, as to the Feuduty or retoured Maill.

24 Exceptions against Non-entry, as to the full Rent.

25 Whether Non-entry after Ward requires Declarator.

26 The original of Relief.

27 The Custom of England and France, as to Relief.

28 The quantity of Relief with us.

29 Whether Relief be due during Non-entry.

30 Whether Relief is due when the Heir is entered, whether the Fee be burdened with Conjunct-fee or Liferent.

31 Relief stops not the Heir's Seasin.

32 Compositions for the Entry of Apprisers of Adjudgers

33 The original of Ward.

34 The effect of Ward as to the Heir's person.

35 The effect of Ward as to the Fee.

36 The Restrictions of Ward.

37 The Value of the Marriage of Heirs of Ward-Vassals.

38 The true Interest of Superiors in the Marriage of their Vassals.

39 The single Value of Marriage, not penal but favourable.

40 Double Value penal and unfavourable, with the exceptions against it.

41 Single Value found due where the Heir was married before his Predecessor died, by precipitation.

42 The quantity of the single Value in Heirs Male or Female.

43 Marriage is debitum fundi.

44 It belongs to the eldest Superior.

45 The Royal Prerogative prefers the King to all others, as to the Marriage of the Vassal.

46 Marriage is due by the Heirs of Apprisers.

47 Exceptions against the Value of Marriage.

[Page]48 The rise of Liferent Escheat.

49 It extends to all kinds of Liferents.

50 Liferents of Fees not having Infeftment, or not owing Fidelity to a Subject, belong to the King.

51 Liferent Escheat of Sub vassals, to whom they belong.

52 Liferent-Escheat is not excluded by voluntary Infeftment after Denounciation, not being for Im plement of a special Obligement to infeft before Denounciation.

53 Liferent-Escheat is excluded by Apprifing for Debts anterior to the Rebellion, there being Infeftments or Charge in cursu rebellionis.

54 Liferent-Escheat extends not to Burgage or Mortification.

55 But extends to Ministers Stipends.

56 Liferent-Escheat is made effectual by Declarator.

TITLE XV. Annualrent: where, of Pensions, and Poinding of the Ground.

1 DEscription of Annualrent.

2 The rise of Annualrent.

3 The manner of constituting Annualrents.

4 The kinds of Holding of Annualrents.

5 Liferent-Escheat of Annualrenters.

6 Kinds of Annualrents amongst the English.

7 The difference of Feu-Annuals, Ground-Annuals, and Top-Annuals.

8 Poinding of the Ground.

9 The extent thereof.

10 Who must be cited in Poynding of the Ground.

11 The effect of poynding the Ground as to Ground Rights.

12 The Order of poynding Moveables, by several Annualrenters.

13 Annualrents are effectual, personally against Intrometters.

14 Annualrents are moveable as to bygones.

15 Extinction of Annualrents.

16 Ecclesiastick Pensions affect the Benefice.

17 Pensions by secular Persons, how far effectual.

18 The Kings Pensions are not arrestable.

TITLE XVI. Liferents: where of Conjunctfees, Terces, and Liferents by the Courtesie of Scotland.

1 SErvitudes personal by the Roman Law.

2 Servitudes personal by our Custom.

3 Clauses of Conquest, of Liferent, or Fee of Lands acquired during Marriages, how far extended.

4 All Liferents must be salva rei substantia.

5 Liferenters are burthened with Aliment of Heirs.

6 Liferents without Infeftment are not effectual against singular Successors.

7 The effect of Assignations to Liferents.

8 Liferents are not prejudged by Tacks or other Deeds of the Feer, being posterior.

9 What Terms do belong to Liferenters.

10 Conjunctfees.

11 Liferenters by Conjunctfees have all the Casualities of Superiority.

12 Terce.

13 Services of Terces.

14 Kenning to Terces.

15 The effect of Terces.

16 The extent of Terces.

17 Exceptions against Terces.

18 Burthens of Terces.

19 Liferents by the Courtesie of Scotland.

20 Publick Burthens.

TITLE XVII. Servitudes real.

1 REquisits to constitute real Servitudes by Consent.

2 How Prescription constituteth Servitude.

3 How far Servitudes ate effectual against the Superior.

4 Extinction of Servitudes.

5 Kinds of Servitudes.

6 Servitudes of Support.

7 Stillicides.

8 Sinks.

9 Servitudes of Prospect or Light.

10 Wayes.

11 Watering.

12 Watergang.

13 Feuelling.

14 Pasturage.

15 Thirlage.

16 Several wayes of constituting Thirlage.

17 Several Cases in which Thirlage is not constitute.

18 The effect and extent of Thirlage.

19 The import of several Clauses of Thirlage.

20 Invecta & illata, or tholling Fire and Water.

21 Sequels.

22 Miln-service.

23 Priviledge of Milns.

24 How Thirlage becomes extinct.

25 In Multure, Seed and Horse Corn, are to be deduced, but no other expense of Labouring.

26 Thirlage constitute by a Vassal, not effectual against the Superior.

27 Deductions for insufficiency of the Miln, breaking down of the Damm, or Frost.

TITLE XVIII. Teinds: where of Benefices, Stipends, Presentation, Collation, Institution, Tacks, Annats, and Patronage.

1 TEinds affect all Intrometters, but not singular Successors.

2 The rise of Teinds.

3 The first division of [...].

4 Whether Teinds be jure divino.

5 Kinds of Teinds.

6 We have no personal Teinds, and Vicarage is local according to the Custom of the several Places.

7 What Lands are Teind-free.

8 Teinds might not be Feued after the Lateran Council.

9 Teinds are not annexed to the Crown.

10 Teinds included.

[Page]11 Surrender of Teinds to the King, and his Decreet arbitral for valuing and selling thereof.

12 Commission for Valuation of Teinds.

13 Annuity of Teinds.

14 The Rule for valuing Teinds.

15 Benefices.

16 Decime debentur parocho.

17 Consent of the Chapter, Convent, or Prebend, how far requisit.

18 Diminution of the Rental of Benefices.

19 Consent of Patrons.

20 Tacks by Colledges.

21 The present condition of Teinds.

22 Drawn Teinds.

23 Spuilzie of Teinds and Inhibitions.

24 Rentalled Teind Bolls.

25 The Interest of Bishops in their Benefices.

26 The Interest of Ministers in Benences.

27 Kirks patrimonial or [...].

28 Presentation and Collation.

29 The effect of Possession as to Benefices and Stipends.

30 Stipends allocat and unallocat.

31 Teinds change as the Lands are in Grass, Corn, or other Crop.

32 Teinds are not debita fundi.

33 The legal Terms of Benefices and Stipends.

34 The Annat.

35 Patronage.

TITLE XIX. Tacks where of Rentals, tacite Relocation, and Removing.

1 THe nature of Tacks.

2 How Tacks become as real Rights, effectual against singular Successors.

3 Who may grant Tacks.

4 How Tacks may be ser.

5 The Tenor or Tacks.

6 The effect of Obligements to set Tacks.

7 Tacks become real Rights by Possession.

8 Tacks in Wadsets after Redemption become valid.

9 The extent and effects of Tacks.

10 Tacks-men in Possession need not dispute the Setter's Right, disputing as heritable Proprietar.

11 The effect of Tacks, whereof the Tack-Duty is payable to Creditors.

12 Tacks are good active Titles for Maills and Duties.

13 The effect of Tacks set to Husband and Wife.

14 Kinds of Tacks.

15 Rentals.

16 The effect of Assignations or Subtacks of Rentals or other Tacks.

17 The effect of Sub-tacks, as to Tutors and Donatars.

18 The effect of Rentals in Court Books, or Rental Books only.

19 The endurance of Rentals.

20 The effect of Grassums.

21 How far Rentals become void by Alienation, Assignation, or Subtack.

22 Defect of Subtacks.

23 Tacit Relocation.

24 How Tacks fall in Escheat.

25 Tacks sleep during Ward and Non-entry of the Setter, and are valid against his Liferent-Escheat.

26 Tacks are [...] juris, and extend not to Heirs, or voluntary Assignys, or Subtacks, or Removing, but when exprest, except Tacks for Liferent or equivalent.

27 Tacks without Ish are null.

28 How far Tacks to endure till a Sum be payed are valid.

29 Tacks are null without a Tack-Duty.

30 Tacks are valid though not expressing the Entry.

31 Tenents must labour and not wast or open the Ground for any Minerals.

32 Tacks become void by two years not payment of the Tack-Duty.

33 Or for not finding Caution to pay the Tack-duty bygone, and in time to come.

34 Or by the Tenents Renounciation.

35 By contrary Consent of both Parties.

36 By Deeds contrary to the Tack.

37 Or by Removing.

38 Summary Removing without warning, in what Cases.

39 The old way of removing Tenents.

40 Warning of Tenents to remove.

41 The active Title in Removings.

42 Exceptions against Removings not instantly verified, are not receiveable till Cautiou be found for the violent Profits.

43 Defenses against Removing and Replys thereto.

44 Violent Profits.

45 Succeeding in the vice of Tenents removed.

TITLE XX. Wadsetts: where of Reversion, Regress and Redemption.

1 Infeftments for satisfaction of Sums Principal and Annual, or for Relief, are proper feudal Impignorations consisting with the Disponer's Property.

2 The Nature of Wadsets.

3 The Nature of Reversions.

4 Kinds of Reversions.

5 [...] requisit in Reversions.

6 The effect of Clauses irritant in Reversions.

7 Reversions are stricti juris.

8 Kinds of Wadsets.

9 Proper Wadsets.

10 The effect of Tacks after Redemption, contained in Reversions.

11 Improper Wadsets.

12 Regress.

13 Discharges of Reversions.

14 Wadsets become legally extinct by Declarator of explring thereof, or by the Order and Declarator of Redemption.

15 The Order of Redemption of Apprisings or Adjudications.

16 The Order of Redemption by conventional Reversions.

17 Premonition.

18 Gonsignation.

19 Declarators of Redemption.

20 The effect of Declarators of Redemption.

21 Defenses against Declarators of Redemption.

22 Requisition.

23 How far other Rights may be reserved in Redemptions, or Renounciations.

TITLE XXI. Extinction of Infeftments: where of Resignation ad remanentiam, Recognition, Disclamation, Purpresture, and other Feudal Delinquences.

[Page]

1 THe form of Resignations ad remanentiam.

2 They may be by Procurators, or propriis manibus.

3 Instruments of Resignation prove not without a Warrant in writ.

4 Resignations ad remanentiam, were valid without Registration, till the year 1669.

5 Resignations imply all Burthens by the Vassal affecting the Fee.

6 Resignation by him who hath no Right, with consent of him who hath Right, how far effectual.

7 How far Superiors may not reject Resignations ad remanentiam.

8 How Infeftments become extinct by Succession as Heir, or singulari titulo.

9 The original of extinction of Fees, not by the Vassals consent, but by his Deed.

10 Recognition by Alienation of the Ward Fee.

11 Recognition by Infeftments a se.

12 Whether Recognition can be incurred by Deeds in minority, or on Death-bed.

13 Whether Recognition can be incurred by Subfeudation.

14 How far Feus exceeding the Half of the full Rent may subsist without Recognition.

15 In what Cases other Feus of Ward lands, infer not Recognition.

16 Recognition by Alienation, is only of Lands clearly Ward, simple or taxed.

17 Recognition is not incurred, unless the major part be alienat.

18 Recognition is not incurred by Alienations to the Vassals apparent Heir.

19 Whether Recognition be incurred by Alienations on condition that the Superior consent.

20 Inhibition excludes not Recognition.

21 Recognition is not excluded by the Vassals drunkenness, when he alienat.

22 How the Superior's Consent may be adhibit to Alienations to shun Recognition.

23 How far the Kings Confirmation without a novodamus takes off Recognition.

24 How Recognition is taken off by homologation.

25 Recognition excludes all Infeftments, Tacks, or Servitudes, by the Vassal's Deed without the Superior's Consent or authority of Law.

26 Servitudes by Prescription are not excluded by Recognition.

27 In Recognitions who must be cited, and who may compear.

28 The Title and Order in Declarators of Recognition.

29 Disclamation, how incurred.

30 Purpresture; how incurred.

31 Feudal Delinquences adduced by the Feudists for resolving Fees.

32 Atrocious Deeds against Vassals Fidelity to their Superiors resolving their Fees.

33 How far the Ignorance or Weakness of the Vassal excuses, with other exceptions for the Vassal.

34 Whether the Delinquence of the Subvassal infers Recognition.

TITLE XXII. Prescription.

1 PRescription distinguished and described.

2 Usucapion.

3 The several times required to Usucapion or Prescription, by the Roman Law.

4 Requisits to Prescription.

5 Bona fides requisit to Prescription.

6 Whether he who doubteth of his Author's Right be in bona or mala fide.

7 Evidences of mala fides.

8 The Title requisit to Prescription.

9 The Motives inductive of Prescription.

10 Exception where Prescription took no place by the Civil Law.

11 The common Rule of Prescription with us.

12 The beginning of Prescription of personal Rights with the extensions thereof.

13 Prescription of Moveables.

14 Prescription is reckoned de momento in momentum per tempus continuum.

15 Prescription of heritable Rights.

16 Prescription is not extended against the Right of Superiority.

17 Prescription runs not for Tenents against their Masters.

18 Prescription runs not against Minors, but there is no exception of Mortifications to pious uses.

19 In our long Prescription bona fides is not required.

20 The Titles requisit in Prescriptions of heritable Rights.

21 This long Prescription secures Wadsets, Infeftments for Security, Teinds, and long Tacks.

22 How far Teinds can prescribe.

23 This Prescription extends to Patronage and Offices.

24 And to Thirlage and all Servitudes.

25 This Prescription excludes all Action and ground of Reduction and Declarator, if the essentials of the Title appear.

26 The several ways of interruption of Prescription

27 The way of Interruption by King CHARLES the first, as to special Rights of the Crown, by Letters of publication.

28 The annual Prescription of the priviledge of apparent Heirs intra annum deliberandi.

29 The biennial prescription of the preference of Diligences of the Creditors of Defuncts, to the Diligences of the Creditors of the Heir.

30 Triennial Prescription of Spuilzie, Ejection, Intrusion, and Succeeding in the Vice, Merchants Compts, House-maills, and Removings.

31 Quadrennial Prescription of the priviledge to reduce Deeds of Minors intra quadrennium utile.

32 Quinquennial Prescription of Arrestments, Ministers Stipends, Multures, Rents of Tenents removed, and legal Reversion of special Adjudications.

33 Septennial Prescription of old Apprisings, and Summons for Interruption.

34 Decennial Prescription of late Apprisings, or general Adjudications.

35 Prescription of twenty years of holograph Bonds, Missives, and Subscriptions in Compt-books, without Witnesses.

36 No Prescription runs in Minority, except Removings, House-maills, and Merchant Compts.

PART II.

[Page]

TITLE XXIII. Assignations: Where of Arrestments, and Actions for making forthcoming.

1 THe several Conveyances of Rights

2 What Rights are not transmissible.

3 The rise of Assignations.

4 The tenor of Assignations.

5 The Conveyance of blank Bonds, &c.

6 The rise and effect of Intimations.

7 The several wayes of Intimation.

8 What Assignations are perfected by Possession, without other Intimation.

9 Other supplies of Intimation.

10 Intimations to more correi debendi.

11 Intimation is not necessary to Rights registrat for publication, as Reversions, &c.

12 Nor to Orders of Merchants.

13 Nor to judicial Assignations, by Apprisings, &c.

14 Nor to the legal Assignation, Jure mariti, by Marriage.

15 Nor against the Cedent's Heirs or Executors, even though Creditors.

16 To what Rights Assignations extend.

17 Assignations carry Inhibitions following on the Rights assigned, albeit not exprest in the Assignation.

18 In what Cases the Cedent's Oath proves against his Astigny.

19 Assignations intimat before the Cedent's Death, gives summar Execution without Confirmation.

20 All Exceptions against Cedents before Intimation are relevant against Assignys to personal Rights, or Tacks.

21 The effect of Back-bonds, Discharges, or Assignations of Dispositions before Infeftment, or Apprisings during the Legal.

22 Assignys by Tutors have no Execution till the Tutor-Counts be made.

23 How far Assignys to mutual Contracts, may be debarred till performance of their Cedent's part.

24 Arrestment may be granted by all Judges, Superior or Inferior, and how far they are effectual before other Courts.

25 The effect of Arrestments made in the Debitor's own hand.

26 Arrestment is Personal, and doth not burthen the Successors of him in whose hands it is made, but is valid against the Successors of the Debitor.

27 Arrestment is not effectual for, or against herltable Sums by Infeftment, but against the same, when made moveable, or any other moveable Sums.

28 Rents or Annualrents are alwayes arrestable.

29 The effect of Arrestment of Rents, Annualrents, or other Sums, laid on before the Term of payment.

30 The effect of Arrestment laid on in the hands of Factors.

31 Arrestment extends, only to the Debts, due by him in whose hands it was laid on.

32 Arrestment makes the Subject litigious.

33 The Order and Tenor of loosing Arrestments.

34 In what Cases Arrestments laid on for Sums due by Decreets, are loosable or not.

35 The effect of loosing Arrestment.

36 The order of Actions for making foorthcoming.

37 Exceptions in the Actions for making foorthcoming.

38 The effect of Arrestments for making moveable Goods foorthcoming.

39 The effect of Arrestment of Sums.

40 He to whom payment is made after Arrestment, is lyable to restore.

41 The Oath of Parties in whose hands Arrestment is made, must condescend specially what they then owed, and when they payed.

42 The Decreet for making foorthcoming doth only transter the Right to the Arrester of the Goods, or Sums arrested.

43 But Assignations do transfer the Right when intimat, without farther Diligence, and so is preserable to all posterior Arrestments, and respect is had to priority of Hours, if exprest in the Intimation.

44 If the Arrestment be prior to the Intimation, [...] is preferable, not faillng Diligence.

45 How Assignations are completed by [...], Citation, Charge, Possession, or Corroboration.

46 The preference of Arrestments in Competidon.

TITLE XXIV. Dispositions: where of Resignations in favorem, Apprisings, and Adjudications of real Rights.

1 DIspositions of Property carry virtually all lesser Rights.

2 How superveening Rights, belonging to Authors, belong to their singular Successors.

3 Dispositions described.

4 How Dispositions are accomplished in Equity.

5 How by the Law of the Romans, and other civil Nations.

6 Possession accomplisheth real Rights.

7 Property of Moveables is presumed from Possession.

8 Resignation in favorem.

9 Dispositions or Assignations by those who have no Right with consent of those who have, how far [...].

10 Procuratories or infeftments of Resignation, after fourty years Possession by Charters, need not be produced.

11 Infeftments on Resignation carry any lesser Right in the Disponer, though not exprest.

12 The effect of Resignations accepted by the Superior, before Infeftment follow thereon.

[Page]13 Superiors are not obliged to receive the singular Successors of the Vassals after Infeftment expede, though it bear to the Vassals Heirs and Assignys.

14 Apprisings can only proceed on liquid Sums.

15 Apprisings reach all heritable Rights, though not provided to Assignys.

16 Apprisings carry all personal Rights without Intimation.

17 The rise of Infeftments upon posterior Apprisings.

18 Infeftments may be obtained summarly upon Apprisings after the Debitor's Death.

19 The effect of Apprisings as to Non-entry, Ward, and Liserent Escheat.

20 The Denounciation whereupon Apprisings follow, renders the matter litigious, and excludes posterior voluntary Rights.

21 Competition of Apprisings.

22 The effect of Apprisings at the Instance of Superiors against their own [...].

23 The effect of Apprisings at to Removings, & Maillsand Duties.

24 Allowance of Apprisings.

25 Whether Superiors must receive Apprisers, not instructing their Authors Right.

26 The quantity of the year's Rent due to Superiors for entering Apprisers.

27 What course is competent against contumacious Superiors.

28 The legal Reversion of Apprisings.

29 Apprisers may use other Diligence for their payment, though the Apprisings were expired.

30 Nullities of Apprisings.

31 Modification of exorbitant Penalties in Apprisings.

32 Apprising sustained without a Charge for the sum.

33 Apprising sustained, though the Letters and Executions were blank as to the Lands, the Messenger who denounced, being Judge to the Apprysing, in which they were filled up, which was a more solemn Execution.

34 An Apprising sustained without producing the Letters of Apprising, being long before, but the Instructions of the Debt were found necessary to be produced within Prescription.

35 An Apprising sustained, though by Dispensation at a privat Place, and the Court of Apprising adjourned.

36 An Apprising of Rights generally, preferred to a posterior Apprising of the Right in special, being an Annualrent.

37 Apprisings become extinct by Payment, and the Debitors Right revives without new Investiture.

38 In what Cases Apprisers must possess, and how they are countable.

39 What Alterations in Apprysings are introduced by the Act of Parliament 1661. cap. 62. as to the indurance of the Legal, and coming in pari passu.

40 Now Apprisings coming in the Person of the Debitor's apparent Heir, are satisfiable from him or his Trustees.

41 How Apprisings against Parties charged to enter Heir, are redeemable.

42 Legals run not against Minors.

43 Apprisers continuing to possess after the Legal, can use no other Diligence, but the Sums are thereby satisfied, though a part of the Lands were evicted, the rest being worth the whole Sum.

44 The rise of Adjudications.

45 The Form of Adjudications on [...] to be Heir.

46 Why Adjudications past at random, and the [...] may now be put to instruct some Interest in the Debitor.

47 What Rights are affected with Adjudications.

48 Superiors must receive Adjudgers, paying a years Rent, unless they pay the Creditor, and then the Superior will have no years Rent.

49 How Adjudications are redeemable:

50 Adjudications may be for the apparent Heir's own Debt.

51 How Adjudications become extinct.

52 The form and effect of Adjudications to perfect Dispositions.

53 The form and effect of the partial and total Adjudications introduced by the Act of Parliament, September 6. 1672.

TITLE XXV Confiscation: where of Single-Escheat, Liferent-Escheat, Shipwrack, Waith-goods, Treasure, Forefaulture, Bastardy, and Last-Heir.

1 THe Tenor of Letters of Horning.

2 The Executions of Horning must bear the Party charged personally, or at his Dwelling-House designed.

3 The Execution at the Dwelling-House must bear six Knocks at the most patent Gate, because the Messenger could get no entry.

4 The Knocks must be audible, that those within may hear.

5 If the Messenger get entry, the delivery of a Copy to any of the Family, is sufficient without Knocks, and must be so express'd.

6 The Dayes requisit for the Charge beyond the Water of Dee.

7 The Denounciation must he against the Party, and at the Mercat Cross of the Jurisdiction where he dwells.

8 The Denounciations must bear three Oyesses, or the equivalent.

9 The Execution must bear three blasts of the Horn.

10 The Execution must be stamped.

11 The Horning must be registrat, and how.

12 Denounciation after satisfaction, hath no effect.

13 The effect of general Letters of Horning.

14 The Order and Effect of Relaxation from the Horn.

15 The Single-Escheat and extent thereof.

16 How far the Denounced's Debts or Deeds, affect his escheat Goods.

17 Gifts of Escheat, and preference thereof.

18 Gifts of Escheat not expressing the particular Horning whereon they proceed.

19 Gifts of Escheat, though bearing Goods to be acquired, extend but to those acquired within a year after the Gift.

20 Eicheats within Regality.

21 In what Cases Gifts of Escheat are held simular.

22 Who must be called in the general Declarator.

23 The Titles and Tenors of general Declarators.

24 Exceptions against general Declarators.

[Page]25 Special Declarators of Escheat.

26 Leferent-Escheat.

27 Confiscation of Treasures, Waith, or Shipwrack-Goods.

28 Forefaulture.

29 Several kinds of Treason by Statute.

30 Forefaulture confiscats without the burthen of the Debcs, or Infeftments, not confirmed by the King.

31 How far Feus are effectual against Forefaulture.

32 How far Tacks of forefault Lands are effectual.

33 Forefaulture by a rescinded Act, was burthened with the Debts and Deeds of the Rebel.

34 Forefaulture, when, and how it may proceed in absence.

35 How far the Person of the Rebel gives Right to the Fisk.

36 The effect of Forefaulture of apparent Heirs.

37 In what Cases Forefaulture dishabilitats.

38 How far the Forefaulture of apparent Heirs may be extended.

39 Explanation of the Act of Parliament 1594. cap. 202. importing burthening of Forfaultures with the Debts and Deeds of the Rebel.

40 Forefaulture is not reducible upon any Nullity, but only by way of grace.

41 How far Forefaulture takes effect without Declarator.

42 What Children are lawful, and what Bastards.

43 Declarator of Bastardy.

44 The effect of Bastardy, as to Succession.

45 Legitimation and effects thereof.

46 How the Debts and Deeds of the Bastard affect his Estate.

47 Ultimus haeyes, and the difference thereof from Bastardy.

TITLE XXVI. Succession.

1 WHether in equity there be a Rule in Succession.

2 That Rule is the express will, or presumed will of the Defunct.

3 The first Degree of Succession by the presumed will of Defuncts.

4 Whether in equity, there be Right of Representation.

5 Failing Descendents, Ascendents succeed in equity:

6 Failing both, Brothers and Sisters succeed.

7 Failing those, the nearest agnat succeeds.

8 The Succession of cognats.

9 The Jewish Succession, whereby all the Sons succeed, and exclude the Daughters, and the eldest Son hath a double Portion.

10 Fathers could not prejudge the primogeniture of their eldest Sons.

11 By the Jewish Succession, failing Descendents, the [...] passeth to Brethren; and these failing, to Father's Brethren; and failing these, to the nearest Kiufman.

12 Whether in the Jewish Succession there be Right of Representation.

13 Why no Females but Daughters, succeed among the Jews.

14 Why Parents succeed not amongst the Jews.

15 Succession amongst the Romans was first by Testament.

16 If there was no Heir institute by Testament, the ancient Roman Law called all the Children of the Family unjorisfamiliat, male and female, (not excepting adopted Children) to succeed.

17 These failing, the nearest agnats, (but no Parents) thereby succeed.

18 The Roman Succession by the praetorian Law.

19 Their Succession by Justinian's Novel Constitution.

20 In Feudal Succession, the first Rule is the express will of the Party by the Investiture.

21 The next Rule is, the conjectured Will, according to the nature of the Fee.

22 Primogeniture now established by common custom, in Feudal Rights.

23 Succession in Scotland, is wholly different in Moveables and Immoveabies.

24 The several Degrees of Succession in Moveables.

25 Succession in heritable Rights.

26 The difference betwixt the two Successions.

27 The priviledge of Heirs, not to be prejudged by their Predecessors Deeds on Death-bed.

28 What is estimat Death-bed.

29 Against what Rights Death-bed is extended.

30 Death-bed annuls no Deeds for Causes onerous.

31 Dispositions in Testaments, are as on Death-bed.

32 Annus deliberandi.

33 Kinds of Heirs in Scotland.

34 No place for Adopted, or Cognats in Succession with us.

35 Parents succeed to their Children, and exclude the Parents Collaterals, or those representing the Collaterals.

TITLE XXVII. Heirs.

1 APparent Heirs may pursue Exhibition ad deliberandum.

2 They may desend their Predecessors Rights and Possessions, being called, or compearing for their Interest; and their Executors have Right to the Rents of those years they were apparent Heirs.

3 The Aliment of Heirs from the Donatars, and Liferenters.

4 Heirs not entered have the benefit of Clauses, which by nature import, they should not be actual Heirs.

5 Heirs have Interest in all Rights granted to their Predecessors, though not mentioning Heirs, which are not exclusive of Heirs, by their Tenor and Nature.

6 Heirs have the benefit of all Rights heritable, by Destination, or having a future tract of Time, after the Defunct's Death.

7 Heirs have Right to Moveable Heirship, or Obligements for Sums wherein Executors are excluded.

8 Heirs of Line, are Heirs generally; their interest.

9 Heirship Moveables.

10 Heirs of Conquest, their Interest.

11 Heirs Portioners, their Interest.

12 Heirs Male, of Tailzie, and Provision, their interest.

13 All Heirs are lyable passivè for the Defunct's Debt, but not in the same way.

14 Heirs portioners, how far lyable?

15 The effects of different Provisions, or Obligations by Defuncts, in favour of divers Heirs-portioners.

16 Heirs not being Portioners, not substitute in Bonds, are lyable in solidum.

17 The Order by which Heirs are lyable passivè, and may be discuss'd.

18 Heirs of Tailzie represent not the Defunct, in Obligations contrary to the Terms of the Tailzie.

19 Heirs of Marriage may quarrel their Predecessors Deeds, being meerly gratuitous in their prejudice, but not such as are onerous, or rational Deeds.

[Page]20 Heirs having the benefit of Discussing, may propone the Exception, That all Parties having Interest are not called, without instructing the Right whereto they may succeed.

21 The Exception of the order of Discussing, is not sustained without condescending on the Heritage, whereunto the anterior Heir may succeed: and what Discussing is.

22 The order and effect of a general Charge to enter Heir.

23 The Order and Effect of a special Charge to enter Heir.

24 Renounciallon to be Heir, its Order and Effect.

25 The Entry of Heirs general, and effects thereof.

26 The Entry of Heirs upon Precepts of clare constat.

27 The Entry of Heirs by Hesp and Staple within Burgh.

28 Entry of Heirs by Brieves out of the Chancery.

29 To whom those Brieves are directed.

30 The manner of citing the Inquest, and proclaiming the Brieve.

31 Exceptions competent against Members of Inquest

32 The apparent Heir's Claim.

33 Exceptions against the Claim.

34 First Head of the Brieve.

35 The second Head of the Brieve.

36 The third Head of the Brieve.

37 The fourth Head of the Brieve.

38 The fifth Head of the Brieve.

39 The sixth Head of the Brieve.

40 The seventh Head of the Brieve.

41 The Service.

42 The Retour.

43 Reduction of Retours by a Great Inquest.

44 Reduction thereof otherwise.

45 Reduction of Retours, how competent.

46 Precepts out of the Chancery to Superiors to infeft.

47 Suspensions of the Precepts, and the Reasons competent therein.

48 The Certification of the Loss of the Superiority, during the Life of the Superiors disobeying.

49 Further Reasons of Suspension of these Precepts.

50 Whether the Persons nearest at the Defunct's Deceass, may be entered, where a nearer is in spt.

51 Who are Feers of Conjunct-Fees, or Provisions substitute.

52 The Interest of Heirs of Provision, and import of Clauses of Conquest, in Contracts of Mariage.

TITLE XXVIII. Behaving as Heir.

1 GEstio pro baerede described.

2 The time when this passive Title was introduced.

3 The Reasons of introducing it.

4 The latitude used in this Title.

5 This Title not competent after the Intrometters Death, or where there was any colourable Title.

6 Behaving as Heirs by Intromission with Heirship, only competent against Heirs of Line.

7 Intromission of Tutors or Curators infer not gestionem against the Pupils or Minors.

8 Cases inferring gestion by Intromission with the Heirship-moveables.

9 Exceptions against this member of the Title. As first, the Pursuer must instruct that the Defunct was either Baron, Prelat, or Burgess, by Infeftments of Lands, or Annualrents.

10 The 2. Defense against Intromission with Heirship Moveables, and vitious Intromission, That the Defunct died Rebel, and his Escheat gifted before intenting the Creditor's Pursuit.

11 The 3. Defense, That the apparent Heir Intrometted, by a Gift to himself, or to his behoose.

12 The 4. When Moveables belonging to a Defunct remain in his House, whereunto his apparent Heir hath Right by Infeftment.

13 Gestion by intrometting with Lands, Teinds, or Tacks, wherein the Intrometter might be Heir.

14 Defenses against this member.

15 Gestion by intrometting with the Defunct's Charter Chest.

16 Item, by intromission with Sums due to the Desunct, or doing any Deed, that may transmit the Defunct's Right.

17 This passive Title excluded, unless established in the Behaver's Lifetime.

18 How far Heirs Portioners, behaving as Heirs are lyable, and whether behaving as Heir excludes the benefit of Discussion and Relief competent to Heirs actually entering.

TITLE XXIX. Lucrative Successors.

1 THe rise of this passive Title:

2 It takes place though the Disposition bear Cause onerous, unless it be otherwise instructed.

3 It is extended to Dispositions in Contracts of Marriage, in some Cases.

4 Lucrative Dispositions of any part of the Heritage infer this passive Title.

5 This Title is extended to Dispositions made to Oyes, though then not immediat apparent Heirs; but not to Brothers, though none then nearer.

6 Whether it sufficeth to infer this Title, that the Infeftment was after the Debt; or if the Disposition whereon the Infeftment proceeds, must also be after.

7 Cases in which this Title takes no place.

TITLE XXX. Executory: where of Testaments, Codicills, Legacies, Relict`s part, Bairns part, Dead's part, Confirmations, and Office of Executory.

1 THe Romans carefulness to preserve the freedom of Testing.

2 The ancient form of Testing amongst the Romans.

3 The modern form of Roman solemn Testaments.

4 Their nuncupative Testaments.

5 Their military Testaments.

6 Requisits for Roman Testaments.

7 How far Sons in familia could Test.

8 Persons who could not Test:

9 Persons who could not be institute, or substitute.

10 Restriction of the freedom of Testing, in favour of Children.

11 The Legittimes of Children.

12 The Falcidian Portion.

13 The difference of the Legittime and Falcidian.

[Page]14 The Trebellianica.

15 Fideicommissa

16 Codicills.

17 Institution of Heirs.

18 Substitution.

19 Substitutions vulgar and pupillar.

20 Legacies.

21 Legacies are void if the Legatar die before the Testator, or if the Testament be void; unless there be therein a codicillar Clause.

22 The Kinds and Effects of conditional Legacies, or [...].

23 Special Legacies.

24 Conditions adjected to Legacies in [...].

25 The Inventary.

26 Collation.

27 Jus accrescendi.

28 The Power of Testing with us may be restricted by Contract or Paction.

29 It is restricted to Moveables, and extends to no heritable Right.

30 Wherein the Office of Executors consists.

31 The nearest Agnats are Successors in Moveables to the Intestat.

32 The line of Succession in Moveables.

33 The Nomination of Executors, and Codicills.

34 Solemnities requisit in Testaments with us.

35 The Effects of Testaments made abroad.

36 Verbal Legacies.

37 The power of Testing is competent to Minors having Curators, without their Consents, and to Wives without their Husbands Consent: but not to Pupills, Idiots, or surious Persons.

38 Legacies with us.

39 Legacies and Donations mortis [...] are proportionally abated if they exceed Dead's part.

40 Whether special Legacies will be so abated.

41 The Effect of Legacies of things not in the power of the Testator.

42 The Effect of Legacies left severally.

43 The Relict's part of the Executory.

44 The Bairns part.

45 What Forisfamiliation is.

46 Collation by our Custom.

47 Sums bearing Annualrent without Clause of Inseftment, fall in Executory as to the Defunct and his Children, but not as to the Relict.

48 Heirs have no benfit of the Bairns part, except they renounce in favour of the remanent Bairns.

49 If there be but one Child unforisfamiliat, the same is both Heir and Executor, and has the full Bairns part.

50 The Executory is divided as it was at the Desunct's Death, and the time of the Confirmation.

51 The interest of the nearest of Kin.

52 Dead's part.

53 The interest of Executors nominat, and Dative.

54 The Order of confirming Executors.

55 How Executors nominat in England are admitted here.

56 Licences to pursue.

57 Executors interest, as to the Rent the year the Defunct's died.

58 Executors have Right to Steelbow Goods:

59 Co-executors and their power.

60 The Effect of Executors Assignations before Sentence.

61 Executors ad non executa.

62 Executors ad omissa & malè appretiata.

63 Executors Creditors.

64 How far Executors are lyable passivè, and of their Diligence.

65 The Relief [...] Heirs and Executors.

66 How Executors may safely pay Creditors.

67 What time Executors have to do Diligence, before they be lyable to Creditors.

68 All Executors, and Creditors, doing Diligence within six months of the Defunct's Death, come in pari passu.

69 After six months, Creditors come in according to the priority of their Diligence.

70 Executors paying Relicts, Bairns, and Legatars, after six months, and before Citation of Creditors, are secure; and the Creditors have only Repetition against these.

71 Executors after obtaining Bond or Decreet, are not in pleno dominio of the Defunct's Goods: not do they fall under the Executor's Escheat, but the Defunct's Creditors are preferable to the Executor's proper Creditors.

72 Executors may pay priviledged Debts, at any time.

73 Arrestments hinder the Executor to prefer any Creditor.

74 Compensation is not competent to the Defunct's Debitors, upon Debts due by the Defunct, assigned after the Defunct's Death.

75 Exoneration of Executors.

76 Exhausting of Executors, how competent.

77 The Diligence necessary to liberat Executors: Executors are not obliged to depone upon their Knowledge of the Defunct's Debt, except as to their own Share.

78 How far Co-executors are conveenable severally.

80 Executors surviving, are not lyable for the Share of the deceased in so far as they executed the Testament, and lifted their part.

81 Executors are lyable for the Inventary, without proving their Intromission.

82 Where Testaments are to be confirmed.

TITLE XXXI. Vitious Intromission.

1 VItious Intromission only a passive and no active Title, even against other vitious Intrometters, without Assignation from the Creditors.

2 Vitious Intromission is the most extensive palsive Title, reaching not only those who migh represent the Defunct, but all other Intromet ters.

3 The reason of the large extent of this Title.

4 All vitious Intrometters are lyable in solidum, and conveenable severally.

5 Whether vitious Intromission be competent by Exception?

6 Vitious Intromission sustained generally, without the Pursuer's Condescendence.

7 Vitious Intromission is only competent to Creditors.

8 How far vitious Intromission must be universal.

9 Vitious Intromission is excluded, if Executors were confirmed before Citation, though after the Intromission.

[Page]Whether Executors Creditors, being confirmed, exclude vitious Intromission pursued thereafter.

11 How far Confirmation of Executors, although after Citation, excludes vitious Intromission.

12 Super-Intromission.

13 Vitious Intromission how far excluded by Gift of Escheat and Declarator.

14 Vitious Intromission is excluded, by any colourable Title, though defective.

15 The Custom of England as to Intromission.

16 Vitious Intromission sapit delictum, and is only competent against Intrometters themselves during their life.

17 How far vitious Intromission is excluded by acquiring bona fide?

§

TITLE I. Common Principles of Law.

[Page]

1. Description of Law.

2. Description and division of Justice.

3. Divine Law.

4. Reason.

5. Conscience.

6. Equity.

7. Moral Law.

8. Positive Laws of God.

9. Judicial Law.

10. Law of Nations.

11. Civil Law.

12. Feudal Law.

13. Cannon Law.

14. The Reasons of Humane Laws.

15. The Law of SCOTLAND.

16. Whether Law may be handled as a Rational Discipline?

17. Three Common Principles of Equity, and three of Positive Law.

18. Obedience.

19. Freedom.

20. Ingagement.

21. Description and division of Rights.

22. Method of the Civil Law, and the method here proposed.

MY Design being to give a Description of the Law and Customes of SCOTLAND, such as might not only be profitable for Judges and Lawers, but might be pleasant and useful to all persons of Honour and Discretion; I did resolve to Raise my Thoughts and theirs, to a distinct Consideration of the Fountains and Foundations of the Peculiar Laws of all Nations, which Common Reason makes Intelligible to the Judicious, when plainly and orderly proposed: And therefore, have always in the first place set forth, that Common Rule of material Justice, by which Mankind ought to Govern themselves, though they had no Positive Statutes or Customes; and then shewing how these are thence Introduced. I have therefore chosen the Method I thought fittest for this Purpose, and the Terms most Intelligible in common use; and have as much as I could, forborn the Terms of Art. No man can be a knowing [Page] Lawer in any Nation, who hath not well pondered and digested in his Mind, the Common Law of the World, from whence the Interpretation, Extensions and Limitations of all Statutes and Customs must be brought. I have therefore begun with the Common Principles of Law, and thence have laid down the Method I follow, and have Explained the general Terms, commonly made use of in Law.

There is no Term of which men have a more common (but confused) apprehension, than what Law is: and yet there be few Terms harder to be distinctly conceived or described. The clearest Conception of it I can find, is thus;

1. Law is the Dictat of Reason, determining every Rational Beeing to that which is congruous and convenient for its Nature and Condition; this will extend to the determination of indifferency of all Rational Beeings.

God Almighty, though he be accountable to, and controllable by none, and so hath the absolute freedom of his Choice; yet doth he unchangeably determine himself by his Goodness, Righteousness and Truth; which therefore make the Absolute, Soveraign, Divine Law: The same is also the Law of all Rational Creatures, by which they ought to determine and rule their free Actions; but the congruity and conveniency of their Nature affords them other Dictates of their Reason, which quadrat not with the Divine Nature; such as Adoration, Obedience, common to Angels and Men. And Reason doth determine Mankind yet further from the conveniency of his Nature and State, to be humble, penitent, careful and diligent for the preservation of himself and his kind; and therefore to be sociable, and helpful, and to do only that which were convenient for Mankind to be done, by every one in the same condition, whereof the Rule in the Gospel is an excellent Test,

Quodtibi fierinon vis, alteri ne feceris.

Thence also are the three Common Precepts in the Roman Law, Honeste vivere, Alterum non ledere, Suum cuique tribuere; All which are evidently the common Interest and Advantage of mankind.

This is that Eternal Law which cannot be altered, being founded upon an unchangeable Ground, the congruity to the Nature of God, Angels and Men; and therefore God cannot deny himself, or act unsuitably to his Divine Perfections: And therefore it is said, Shall not the Judge of all the Earth do justly? And that it is impossible for God to lie; Not by any fatal necessity, as if he had not power and freedom enough, but because his Goodness, Justice and Truth, are as certain by his free Choice, as are his Omnipotency and Soveraignty.

This is also called the Law of Nature, because it ariseth from the congruity or conveniency of Nature, and thence is known by the Light of Nature.

2. Correspondent to these Dictats of Reason, wherein Law consists, which are in the Understanding; There is an Inclination in the Will to observe and follow these Dictats, which is Justice: and therefore it is described, Constans & perpetua voluntas suum cuique tribuendi, where, by the Will, is not understood the Faculty, but the Inclination thereof, determined by the Law, to give every one that which the Law declareth to be due; and it is divided into Distributive and Commutative Justice.

Distributive Justice, is the Inclination to retribute Rewards to the Virtuous; [Page] and Punishments to the Vitious, proportioned to their actings, which is now almost wholly devolved upon Publick Authority; little remaining, but Incouragement and Praise to the Virtuous, and Discouragement and Discountenance to the Vitious.

Commutative Justice, is the Inclination to give every man his Right; and though the Name is taken from the Interchange of private Rights, yet it reacheth to all Prestations, which are not by way of Reward or Punishment.

There being nothing here proposed but the private Rights of Men, it is only requisite to consider the Laws by which private Rights are Constitute, Conveyed or Destitute, and these are either Divine or Humane.

3. Divine Law is that mainly which is Written in Mans Heart, according to that of the Apostle, For when the Gentiles who have not the Law, (to wit, written in the Word) do by nature the things contained in the Law, these are a Law unto themselves, which sheweth the works of the Law written in their hearts; their conscience also bearing them witness, and their thoughts in the mean while accusing or excusing one another; This is called the Law of Nature, because it is known Naturally, either immediately, like unto these Instincts which are in the other Creatures, whereby they know what is necessary for their preservation: So the first Principles of this Natural Law are known to men, without Reasoning or Experience, without Art, Industry or Education, and so are known to men every where through the World; though they keep no Communion nor Intercourse together, which is an unanswerable demonstration of the being of this Law of Nature. It is said to be written in the Hearts of Men, because Law useth to be written on Pillars or Tables, for certainty or conservation: So this Law is written by the Finger of God upon mans Heart, there to remain for ever. Such are the common practical Principles, that God is to be obeyed, Parents honoured, our selves defended, violence repulsed, Children to be loved, educate and provided for.

4. With these common Principles, With which God hath sent Men into the World; he gave them also Reason, that thence they might by consequence, deduce his Law in more particular Cases; and this part of the Natural Law, is called the Light or Law of Reason. It is called by Solomon, the Candle of the Lord, searching the inward parts, Proverbs 20. verse 27.

5. This Law is also called Conscience, which is said in the forecited place, to bear Witness, and thereby our thoughts do either accuse or excuse one another, according to the Judgement or Testimony we have of our own Thoughts, as good or evil, consonant to, or dissonant from, the Law of Nature, shining in the heart. This Natural Law, as it is derived from these Principles, the nearer it is thereto, it is the clearer; and by the more immediate consequences it be derived, it is the surer: for as the Body in its progressive motion, from one step to another, walketh surest by the shortest steps; so doth the Mind in deducing this Divine Law: whence it is, that this part of the Law of Nature is not equally evident to all men; but the more of Reason they have, the more clearness they have of it, which hath made men of Reason, especially these who have exercised themselves in the inquiry of Right, to be had in high esteem and admiration amongst men, who, though their Invention was not so eminent, yet their Judgement closed and went along with that, as having a native Obligation in it. And so many times these responsa prudentium, have been received with as much Authority, and more heartiness for Laws, than the Dictates of Soveraigns. Cicero in his Oration, Pro Milone, Doth excellently set forth and distinguish [Page] this Natural Law, from Positive Law; for, saith he, Hac non scripta sed nata lex, quam non didicimus, accepimus, legimus verum ex natura ipsa arripuimus, hausimus, expressimus, ad quam non docti, sed facti; non instituti, sed imbuti sumus, ut si vita nostra in aliquas insidias, si in vim, aut in tela, aut inimicorum, aut latronum inciderit, omnis honesta ratio esset expediendae salutis.

6. This Law of Nature is also called Equity, from that Equality it keeps in all persons; and is not framed or fitted for the Interest of any, as many Laws of mens choice be; from the rigour whereof, recourse ought to be had to this Natural Equity: for though mens Laws may be profitable and ne, cessar for the most part; yet being the Inventions of frail men, there occurs many, casus incogitati, wherein they serve not. But Equity takes place, and the Limitations and Fallancies, Extensions and Ampliations of Humane Laws are brought from Equity, though Equity be taken some times for the moderation of the extremity of Humane Laws; yet it doth truly comprehend the whole Law of Nature; otherwise it could not possibly give remeid to the rigour, and extremity of positive Laws in all Cases.

7. The Law of Nature is also termed the Moral Law, being the absolute and adequat Rule of the Manners of men, for all times, places and persons; and this denomination, it hath commonly in opposition to the Judicial and Ceremonial Law.

The Roman Law doth sometime take the Law of Nature in a most strict sense, as it excludeth the Law of Reason, and as it is founded in the Nature of man, in so far as is common with other Animals; and therefore they define it to be quod natura omnia animalia docuit, as the conjunction of Male and Female: or Marriage, the Procreation or Education of Children, &c. But even in that Law, the Law of Nature is extended and distinguished into the Original and Primitive Law; and that which is derived thence, such, as for the most part, is the Law of Nations: and there is no doubt, but there is more of the Law of Nature founded in the rational Nature of man, as he is a rational and sociable Creature; and even that which appeareth to be in the Sensitive Nature, is truely founded in the Rational Nature; and therefore is not properly communicable unto the Beasts, who have no Law but their natural Instincts, having only some resemblance to the Law of Nature.

The Law of Nature, as it is imprest in our hearts; so in the goodness of God, it is exprest in his Word, wherein he hath not only holden forth these Sacred Mysteries, which could only be known by Revelation, as having no Principle in Nature from whence they are deducible; but also, because through sin and evil Custome, the Natural Law in mans Heart was much defaced, disordered and erroniously deduced: he hath therefore Re-printed the Law of Nature in a viver Character in the scripture, not only having the Moral Principles, but many conclusions thence flowing, particularly set forth. This Analogie of the Law of Nature, even in the Hearts of Heathens, and as it is set down in the Law of God, evidenceth sufficiently, that both of them proceed from the same Omniscient Author.

8. Beside this natural, necessar and perpetual Law, God hath also given to men voluntar and positive Laws, which, though not at the pleasure of men, yet in themselves are mutable; and as they had a beginning, so some of them had, and others of them shall have an end, when the occasion, exigence and utility for which they were constitute, shall cease: such were the Ceremonial Laws, which containing a Figurative and Typical Administration of the Worship of God, shadowing forth Christ and his Propitiatory Sacrifice [Page] of himself; now when the Sun of Righteousness hath arisen, these shadows have flown away, and are in the Scripture repealed; in lieu whereof, is the outward Order of the Worship and Government of the Christian Church, and the Laws of God relating thereto, though we are to expect no change of them while Time is, and are as binding to all, to whom their Lines are gone, as the Natural Law, yet are they no part of it, for they are not written in the heart of man, nor deducible by Reason from any such Principle. Such are the Sabboth on the first day of the week, the particular Offices in the Church, their Authority and Maintainance; for though the Law of Nature doth teach, that God is to be acknowledged and adored, yet the impowering of some certain persons to be leaders in the Publick Adoration, and the fixed time thereof, either as it was under the Law, or as it is under the Gospel, cannot be reached thence, but had its beginning, and hath been altered. Some also do account Marriage, and the degrees forbidden in Levit. to be a positive Law of God, though they acknowledge it, not only to be given to the Jews, but to all men; yet the natural and universal aversion of Marriage in these degrees, and abhorrence of that brutish commixtion, without discretion of degrees, which is observed in all Nations, whom corrupt custome hath not so far depraved, as to forget, not only this, but most of the uncontroverted Laws of Nature, do sufficiently evince the contrair; for if Parents and Posterity be all accounted as one Degree, there is nothing prohibited by the Law of God, but the very next degree of these who are in the place of Parents, as Uncles and Aunts, or in the place of Children, as Nephews, Neices, or Brethren and Sisters, so that there can be no doubt, but the prohibition of commixtion of Ascendents and Descendents, is purely Natural.

9. The prime Positive Law of God, is the Judicial Law, which God by the Ministry of Moses, prescribed to the People of Israel, wherein the Lord was pleased to be the particular Law-giver, and Judge of that People whom he had chosen from among all Nations, for a peculiar People to himself, and to whose Inclinations it is befitted; there are not a few who esteem the Judicial Law oblieging to all Nations, mainly, because it doth not appear in the Gospel, to be abolished as the Ceremonial Laws are, and because of its excellency beyond the Laws of Heathens, or other men, who might not only err in expediency, rendring their Laws unprofitable; but also might make them unjust and inconsistent with the Immutable moral Law of Nature: which Reasons do sufficiently infer, that in the constitution of Humane Laws, chief respect ought to be had to the Judicial Laws of God; and they assumed where the Inclination of the People and their condition, do not render them inconvenient. But that these Laws were accommodate unto their proper temper, is evident in the Law, concerning the Bill of Divorcement, which beareth, to be permitted for the hardness of their hearts, which was natural and peculiar to them, of Jealousie and bitterness against their Wives; therefore the Lord not only appointed tryal, neither natural, necessar, nor accustomed elsewhere, by those tokens of Virginity, for evidencing the Wifes faithfulness in not giving a polluted Woman for a chast; but also the extraordinar and miraculous Tryal, by the Water of Jealousie; and therefore Christ did expresly abrogate that Law, and shew us that Moses did not command to Divorce, but for the hardness of their hearts, only permitted it, and did command, that when the Husband would put away his Wife, he should give her a Bill of Divorce; but it doth not follow, that the Judicial Law is in it self a Law to all Nations, or that the Lord purposed it so to be: but on the contrar, it appeareth that his Purpose was only to [Page] deliver it, for a peculiar Law to Israel, when he saith, What Nation is so great, that hath Statutes and Judgements sorighteous, as is all this Law which I set before you this day, Deut. 4. vers. 8. And again, he sheweth his Word unto Jacob, his Statutes and Judgements to Israel, he hath not dealt so with every Nation, and as for his Judgements, they have not known them, Psal. 147. vers. 19. And therefore the same Law was not to Israelits and to Strangers, even to Proselytes, as appeareth in the matter of Usury and Bondage, which were allowed as to Strangers; but the former simply forbidden, and the latter limited as to Israelits: neither is there any necessity of an abolition express of this Law in the Gospel, seing it was not given to all Nations; and it doth yet bind the Jews, so far as it doth not build upon the Ceremonial Law: And therefore that part of the Judicial Law, which is founded upon, or conducible to the Moral Law, may be well received by other Nations, to whose Inclinations the same expediencies will agree, as most of the Criminal Laws are: And though they could suit with the frame and current of the Laws already established, yet would they be far from making up a Law to rule any Nation now, after mans Pravity hath so much increased Vice and Deceit, that which was sufficient in the simplicity of these times, would come far short.

10. Humane Law is that, which for Utilities sake is introduced by men, which is either by tacit consent, by consuetude or custome, or by express Will or Command of these in Authority, having the Legislative power, and these were ofttimes written, though sometimes also they were not written; as were Licurgus Laws, which not only were not written, but a Law against it, that they should not be written: Hence is the distinction of Laws, in written and unwritten, because of their Original; for, ex post facto, Customes or other unwritten Laws may be written by private persons; but they were not at first written by the Law Giver.

It is true, the Law is sometimes strictly taken in opposition to Custome, as it comprehendeth Equity or the Natural Law, and the Edicts and Statutes of Nations, and their Law givers. And sometimes more strictly, as in the Vulgar Distinction of Law, Statute and Custome; in which, Law signifieth Equity, or the Common Law, as Statutes and Customes do the peculiar recent Laws of several Nations. And though that be only the Law of man, which is voluntar and positive, constitute by man; yet Equity and the Natural Law, in so far as it is allowed, declared and made effectual by man, is in so far accounted among the Laws of men.

The Laws of men are either common to many Nations, or proper to one Nation, or peculiar to some Places or Incorporations in the same Nation; as were the Municipal Laws in the Roman Republick; and such are still in most Nations, not only in matters of lesser moment, but in the highest matters of private Rights, as in Succession, which is diversified in many Provinces, in France, Germany, and the Netherlands, and England, as may be instanced in the Gavil kind of Kent.

The Law common to many Nations, is that which is commonly called, the Law of Nations, which stands in the customs owned and acknowledged by all, or at least the most civil Nations, which for the most part, are nothing else but Equity, and the Law of Nature and Reason; though in part also, there be positive Laws introduced, by common consent of Nations, and which do no less obliege these Nations, as importing their obligatory consent, then do the customs of particular Nations and Incorporations: Such are the Laws of Captivity and Bondage, of these taken in War, the safety of Ambassadors, though more guilty of the common quarrel, than the rest of the Nations [Page] from whom they are sent; yet for common utilities sake, while they act in, and conform to that Capacity, they are safe, otherways there could be no Commerce, orderly Indiction of War or Pacification. And therefore the Romans, when they had to do with barbarous Nations, who did not acknowledge this Law, did send their Ambassadors to their Borders, and there did require Reparation, and denunce War because they could safely go no further; and for the same reason (though Slavery be against the Natural Law of Liberty) yet it is received for conveniency by the Nations, being more willing to lose Liberty than Life. Such also are the Laws of Hospitality, or the mutual Trust betwixt the Host and the Guest, whom he hath willingly received in his House, whereby neither of them can act any thing prejudicial to the Life or Liberty of the other, while in that relation; though otherwise they had just reason, and might do the same; yet the doing of it then, were a violating of the Law of Nations. But for the most part, the Law of Nations is nothing else but Equity, and the Law of Nature and Reason, which standeth as the common Rule among men, appointed of God, by which they may know, and crave each from other their Rights; and in case of refusal, may vindicate the same by force, wherein they are still regulat by the common Law of Reason, and the Customs of Nations, keeping a just proportion betwixt the Wrong and Reparation, though taken by force: And not like Draco, who made the punishment of all his Laws Death; and therefore were said to be written in Bloud, so by making the Issue of every Quarrel to be the Conquest of the debelled, and the swallowing up of all their Rights, as if they had pactioned to put them all upon the Issue of that War; whereas there is nothing in question by either Party, but the striving for Reparation of that Injury which the one owneth, and the other denyeth to acknowledge as an Injury, or refuseth Reparation thereof. This Law is chiefly understood, when the Common Law is named amongst us; though the English so name the common Current of their Civil Law, as opposite to Statute and their late Customes, which is sometimes so taken with us: and ofttimes by the Common Law, we understand the Roman Law, which in some sort is common to many Nations.

11. The Law of each Society of People under the same Soveraign Authority is called, The Civil Law, or the Law of the Citizens of that Commonwealth; though that now be appropriate to the Civil Law of the Roman Commonwealth, or [...], as the most excellent. And because of that Assinity that the Law of Scotland hath with it, as have also the Laws and Customes of the Chief Nations, to which the Victorious Arms of the Romans did propagat it, and its own worth, even after the ruine of the Roman Empyre, which hath so commended it, that though it be not acknowledged as a Law, binding for its Authority; yet as a Rule, followed for its Equity: it shall not be amiss to say something here of it.

The Romans were first Governed by Kings who gave them Laws, which being Collected by Papirius, in the time of Tarquinius Superbus; were therefore called the Papirian Law, Tarquinius and Monarchy being thrown out, the Papirian Law Collected in his Time and Name, was partaker of his Hatred, and Contempt of the People; and there was no fixed, nor written Law among the Romans, till they sent the triumviri, posthumus, Maulius and Sulpitius, to the Greek Republick, to understand the Laws of these Commonwealths, and thence to frame a Model of Government, and Laws for the Roman State, which they did, and made up the Law of the twelve Tables, which being comprehended in few Words and marrowy Sentences, all Written upon twelve Tables, was fixed upon the most publick Mercat place [Page] at Rome, that they might be easily known, and keeped in mind by all the Citizens.

These were so acceptable and satisfactory to the Romans, that they have been the Foundations and Principles of all that great Body of Law, which afterwards they had; all which was ordered to that Ancient Law, as Extensions and Limitations of it, which was done at first by parts, by the Plebiscita Laws, Inacted by the Suffrage of the People, or by the Senatus Consulta, or by the Edicts of the Pretor. or by the Responses of the Jurisprudents, who were authorized to give answer in dubious Cases; as Cornelius, Nasica, Fabauf. Cato, Gallus, Ariciusidius, Manlius, Scevola, Crassus, Iuventius, Ulpianus, Paulus, Julianus and others; and when the Soveraign Power was devolved upon the Emperour by their Edicts, Rescripts and Decrees, until the Roman Law increased unto so great a bulk, that there were thousands of Books of Law, in which the Brevity and Perspicuity of the twelve Tables was then lost, as now the body of them, through the injury of time has perished. But at last the Emperour Justinian, did by the pains of seventeen Select Jurisconsults, pick out the Marrow of all the Ancient Laws, and digest them into some Method, into the fifty Books of the Digest or Pandects, which therefore have the Authour of every Law prefixed to it; he did also by Tribonian and others, Collect the Rescripts, Decrees, and all the Edicts of the Emperours, which before were more imperfectly compiled in their Theodosian Codex, and which thereafter he perfeited, and named the Justinian Codex, as Posterior Constitutions of the Emperours were gathered together in nine Collations, which were called the Novel Constitutions. Justinian did also cause frame the four Books of the Institutes, as the Sums and Elements of the whole Law. But as nothing Humane is stable, shortly after this greatest perfection of the Roman Law, in the time of Phocas the Emperour, who Raigned fourth after Justinian, and died in the year, 565. The Roman Empire being opprest by the Irruption of the Gothes and Longobards, the Roman Law did also lye under Ashes above the space of five hundred years, until a new shape of the Roman Empyre, being set up in Germany, Lothaius the Emperour, who flourished in the eleventh Century, did again revive and restore the Roman Law, which thence was every where Taught in the Schools, and inlarged with more vast heaps of Commentaries and Treatises, then were these of the Ancient Lawers, though not claiming the like Authority.

12. In the Interim, did the Feudal Law or Customs take rise among the Longobards, and other Nations, who having expulsed out of Italy the Roman Empyre, were willing to change their Barbarity, and to be successours to the Romans in Seats and Civility; and that they might maintain their Conquests, gave out all their Lands to their Souldiers and Assecls, as Benefices to them for their Service, and Assistance in their Wars: the example of which, and the new Interest it afforded to Soveraigns, to have all their Territories to hold of themselves; and most of their Subjects by that new relation, to become their Feudatars and Vassals, hath given the Feudal Law wings, whereby it hath spread it self over most of the World.

13. In the declining also of the Roman Empyre, the Bishop of Rome having mounted himself unto the Imperial Eminence of Universal Bishop, did in imitation of the Emperours Cause, Compile the Cannon Law; and first, that part which is called Decretum, which was perfeited by Gratian the Monk, out of the Fathers, Doctors and Counsels, though much thrown and vitiat towards the Interests and Errours of the Roman Church. And after the Decretals [Page] were Compyled by Pope Gregory the ninth, out of the Decretal Epistles of the Popes, which Boniface the eighth augmented by addition of the sixth Book of the Decretals; The first whereof, is in imitation of the Digests made of the Sentences of the ancient Lawers; and it out of the Sentences of the Fathers, Doctors and Councils of the Church; and the latter, in resemblance of the Codex, compacted of the Rescripts of the Popes, and that nothing may be improportional unto the Noval Constitutions, do answer the Clementins and Extravagants. This Pontifical Law extended unto all persons and things, belonging to the Roman Church, and separate from the Laity, all things that may relate to Pious Uses, or which may be claimed to be under the protection of his Holiness, as Orphans, the Will of Defuncts, the matter of Marriage and Divorce, all which he had obtained to be exempted from the Civil Authority of these Soveraigns, who were devoted to that See. These things being holy, were not to be temerat by the profane hands of Princes or free people; and so deep hath this Canon Law been rooted, that even where the Popes Authority is rejected; yet consideration must be had to these Laws, not only as to these by which Church Benefices have been erected and ordered, but as to these which contain many equitable and profitable Laws, which, because of their weighty matter, and being once received, may more fitly be retained than rejected.

14. Before we come to the Customes of Scotland, there lies this Block in the way of all Humane Laws; that seing, as hath been said, Equity and the Law of Nature and Reason is perfect and perpetual, all Laws of mens constitution, seem not only to be dangerous, in that they may Impinge upon the perfect Law of God; but also to be useless and unprofitable, seing men may live better, and more safely by the Divine Dictats of God written in our hearts, than by the devices of men, so that it may be thought, that those, who in stead thereof, imbrace the Laws of men, may meet with the reproof of the Israelites, who were said to reject God from raigning over them. This Reason is so pressing, that if the Law of Nature, and of Reason, were equally known to all men, or that the Dispensers thereofcould be found so knowing and so just, as men would, and ought to have full confidence and quietness in their Sentences, it would not only be a folly, but a fault to admit of any other Law; but the prime Interests of men being to enjoy their Rights, not only in safety and security, but in confidence and quietness of mind, that they may clearly know what is their Right, and may injoy the same: Therefore Humane Laws are added, not to take away the Law of Nature, and of Reason, but some of the effects thereof, which are in our power. And therefore as by the Law of Nature, man is a free Creature, yet so as he may ingage himself, and being ingaged by the same Law of Nature he must perform: so mens Laws are nothing else, but the publick Sponsions of the people, which therefore, even by the Law of Nature, they may and must perform, and therefore are they introduced.

First, For clearing and condescending on the Law of Nature, and of Reason; such Laws can none quarrel, because they do not alter, but declare Equity, and that very necessarily, because, though Equity be very clear in its Principles, and in thesi; yet the deduction of Reason further from the Fountain, through the byass and corruption of Interest, may make it much more dubious, in hypothesi, when it comes to the Decision of a particular Case, in all its Circumstances; and therefore it is necessar it be so fixed and cleared by Statutes and Customs, suitable thereto, that the people may be secured.

Secondly, There be many points of Rights competent to men in Equity, as [Page] it may be more profitable for the people to forbear the pursuance of them, than to be at the trouble and expenses of the pursuit; as when Humane Laws do cut offmatters of less concernment, and in them, rathertake themselves to the honesty of their party, than to compulsion by remeids of Law; such are the Remuneratory Obligations of Gratitude, and the inward Obligations of the Mind, as of Affection, Love, Kindness, &c. according to the Proverb, we cannot poind for unkindness. It is not to be doubted, but there be more such obligations, than are the Obligations relating to outward performances of some palpable or sensible thing; and it might easily appear, what vexation it might breed, if not only the latter, but also the former might all be pursued, and extorted by compulsion of Law. And none can think the Law of Nature injured, because of common consent, men will spare themselves the labour to pursue those things which they may easily dispense with; and so likewise for the same reason, though by the Moral Law, we are obliged to love our Neighbour as our Selves: From whence arise Duties of Charity and Mercy, Assistance and Relief; yet for the most part, men do not compel for the negative of these Commands, but only for the contrary acts of Injury, by doing evil in stead of good.

Thirdly, For the security of the people and anticipation of Error and Fraud, and that evident probation may be had, Men do most profitably order deeds to be done in such a palpable and plain form, as may easily appear; in which there can be no injury, seing the manner of doing these deeds, is free, and in our power: Thus, though the dispositive will of the Proprietar be sufficient to alienate any thing that is his, and to constitute the Right thereof in another; Yet by the Civil Law and custome of most Nations, delivery, or apprehension of Possession, for conveying the Right of Goods; and Seasing is necessar for conveying of the Rights of Lands by the Feudal Law; and so by our Customs, Assignations are not effectual to transfer Personal Rights, till Intimation follow: Our Custome also appoints Write to be made, where it is easie and ordinar to be done: and therefore as the penalty of the neglect, or contempt thereof doth exclude Witnesses, in matters of importance, and admitteth only Write, or Oath of party, in cases where Write is accustomed; So the Romans ordained, that because the agreements of the people, when they stood in meer Conference, that words were easie to be mistaken by themselves or Witnesses; that therefore the parties should perfeit such Contracts by a solemn stipulation, wherein the one party did interrogat, if the other did agree to such terms as he exprest, and the other immediatly repeated his answer, closing with him in terms: and therefore, if they did not so stipulate, they refused them Action upon naked paction.

Fourthly, Nations for the flourishing of their Families, do otherwise dispose of their Estates and Possessions, and their Laws do order them otherways than the Law of Nature doth; for in the most part, the Heretage and Succession in the whole Land-rights belongs to the eldest Son, as Stem and Line of the Family; and the Parents are presumed to provide the rest of the Children with competent Portions; though by the Law of Nature, the Right of Succession doth belong to all: and even in this positive Law, altering the course of the Law of Nature, hath its example from the Judicial Law of God, by which the Males exclude the Females, and the eldest hath a double Portion.

Fifthly, According to the humours and inclinations of People, men do lay the heavier penalties upon the Transgression of such Laws as stand in opposition thereunto, which may be altered when these inclinations alter. And [Page] so the Lord did frame the Law of Moses for the humors of that People, in some things permitting, without punishing the transgression of the most palpable and weighty Laws of Nature, as in Poligamy and Divorce; and also extending the proportion of Equality, observed in the Law of Nature, in Restitution and Retribution, as in Theft: hence it appears how necessar the Laws of men are; yetsurely they are most happy whose Laws are nearest to Equity, and most declaratory of it: And lest altering of the effects thereof, except in cases eminently profitable, like unto these now pointed at; yea, and the Nations are more happy, whose Laws have entered by long custome, wrung out from the Debates upon particular Causes, until it come to the Consistence of a fixed and known Custome, for thereby the conveniencies and inconveniencies through a tract of Time, are experimentally seen; so that which is found in some cases convenient, if in other cases afterward it be found inconvenient, it proves abortive in the womb of Time, before it attain the maturity of a Law. But in Statutes, the Lawgiver must at once ballance the conveniencies and inconveniencies, wherein he may, and often doth fall short, and there do arise, casus Incogitati, wherein the Statute is out, and recourse must be had to Equity. But these are best which are approbatory, or correctory of experienced Customs, and in a customary Law, though the people run some hazard at first of their Judges Arbitriment: Yet when that Law is come to a fulness and consistence, they have by much the advantage in this, that what custom hath changed, is thrown away, and obliterat without memory, or mention of it; but in Statutory Written Law, the Vestige of all the alterations remain, and ordinarily increase to such a Mass, that they cease to be Evidences, and Securities to the people, and become Labyrinths, wherein they are fair to lose their Rights, if not themselves, and must have an implicite Faith, in these who cannot comprehend them without making it the work of their life.

15. Our Customes, as they have arisen mainly from Equity, so they are also from the Civil Canon and Feudal Laws, from which the Terms, Tenors and Forms of them are much borrowed; and therefore, these especially (the Civil Law) have great weight, namely in cases where a custome is not yet formed; but none of these have with us the Authority of Law: And therefore are only received according to their Equity and Expediency, Secundum bonum & equum; And though it may appear from some Narratives of our Statutes, that the Parliament doth own the Civil and Canon Law, to be our Law, as in the Revocation of King James the fourth, Parliament 1493. c. 51. where it is said, and since it is permitted by the constitution of Law, Civil and Canon, that Minors may revoke, Par. 1540. cap. 80. So likewise Nottars, Forgers of false Writs, are ordained to be punished after the disposition of Common Law, Par. 1551. cap. 22. And in the Act establishing Religion, all Acts contrair, or Constitutions, Canon, Civil, or Municipal, are abrogated, Par. 1567. cap. 31. Yet these amount to no more, then that these Laws are an example; after the similitude whereof, the Parliament proceeded. And though in the cases of Falshood, the punishment be assumed as in the Civil Law, which will make that a part of our Law, it will not infer that in so far it was our Law before, much less in the whole. And there is reason for the Abrogation of the Canon Law, at the establishing of the Protestant Religion; because in the Popish Church, it was held as an Authoritative Law: but since it is only a Law as to these Cases, that were acted by it when it was in vigour; and in the rest only as our Customes assume some particulars thereof, according to the weight of the matter: But for the full Evidence of the Contrair, there is an express and special Statute, declaring [Page] this Kingdom subject only to the Kings Laws, and no other Soveraigns Laws, Par. 1425. cap. 48. Par. 1503. cap. 79. Yea, the Law of Scotland regulats the Succession, and Rights of Scottish men in Scotland, though dying abroad, being resident there, as was found in the case of Collonel Hendersons Children, who having died in Holland, Legatted upon Heretable Bonds, according to the custome there; yet they were found not to be conveyed by Testament, but belonging to his Heirs, according to the Law of Scotland, Dury, 9. Decemb. 1623. The like betwixt Melvil and Drummond, Dury, 3. July 1634. and lately, in the case of the Executors of Williami Schaw, Factor at London, dying there, it was found, that a Nuncupative Testament, confirmed in England, being contrair to the Law of Scotland, which admits of none such, was null, and the nearest of Kin preferred to the Executor, and universal Legatar named there, January the 19. 1665. Schaw contra Lewens; but as to the manner of Probation, or Subscription, the Law of the Place Regulates. Dury, 11. Decemb. 1627. Falconer contra the Heir of Beatty, and the 27. July 1623. Gordoun contra Morley, 15. Feb. 1630. Harper contra Jaffray. So a Bond by an English man to a Scottish man, residing there, being after the Style of England, payment thereof was found probable by Witness, and by the Oath of the Cedent against the Assignay, 28. June, 1666. Mcmorlan contra Melvil; yet a Bond granted by Scottish men to an English man in England, found regulate by the Law of Scotland, and not to be taken away by Witness, being after the Style of Scotland, and Registrable in Scotland, Decemb. 8. 1664. Scot contra Henderson and Wilson. But the Law of England and other Forraign Nations, is matter of Fact to us, probable by the Declaration of the Judges there. January 18. 1676. Cunningham contra Brown.

The Law of Scotland, as of all other Nations, at first, could be no other, than equum & bonum, Equity and Expediency; for it is not to be supposed, that any Nation at their first association and owning of a Government, did appoint positive Laws, nor could they have Customes anterior to their Constitution; and yet it is necessarily implyed, that they must submit to, and be Governed by a Law, which could be understood no other, than what their Soveraign Authority should find Just and Convenient. It may be some Cities at their first Constitutions, might have enacted Laws; but it cannot be found in all the Records of Antiquity, that ever any Nation or Countrey did so, whatsoever be said of the Salique Law of the French, which they hold so ancient and fundamental: It is either fictious or long posterior to their constitution, into a Nation. And therefore, as in Arbitriments, parties are understood to submit themselves to Arbiters, Secundum Arbitrium boni viri; So Nations of old submited to their Princes, choosing rather to refer their Interests and Differences to the Determination of their Soveraign, than that every one should be a Judge to himself, and should take and hold by force, what he conceived to be his Right, without any Superiour Judge than himself to appeal to, and thereby live in perpetual War: whence Government necessarily implys in the very beeing thereof, a yielding and submitting to the Determination of the Soveraign Authority, in the differences of the People, though one, or either party should conceive themselves injured, that thereby private opinion may give place to publick Authority, although they had natural power, sufficient to withstand the same; otherways they behooved to dissolve Authority and Society, and return to the Soveraignity of their private judgement, and their natural force, from which they did flie unto the Sanctuary of Government; which though it may sometimes err, yet can [Page] be nothing like to these continual errors, when every one owns himself as Soveraign Judge in his own Cause.

Next unto Equity, Nations were ruled by Consuetude, which declareth Equity and constituteth Expediencies. In the third place, positive Laws of Soveraigns became to be accustomed; Customes always continuing, and proceeding, so that every Nation under the name of Law, understand their ancient and uncontroverted Customs, time out of mind, or their first and Fundamental Law: So the Romans accounted their Laws of the twelve Tables, and when they did express any thing to be ipso jure, they meaned it to be such, by that ancient Law, in opposition to their recent Customs, introduced by their Pretors and Constitutions of their people, Senat and Princes. The English also, by their Common Law, in opposition to Statute and recent Customs, mean their ancient and unquestionable Customs. In like manner we are ruled in the first place, by our Ancient and Immemorial Customs, which may be called our Common Law, though sometimes by that name, is understood Equity, which is common to all Nations; or the Civil Roman Law, which in some fort is common to very many. By this Law is our Primogenitur, and all degrees of Succession, our Legittime Portions of Children, Communion of Goods betwixt Man and Wife, and the division thereof at their death; the Succession of the nearest Agnats, the Terces of Relicts, the Life-rent of Husbands by the Courtesie, the exclusion of Deeds on Death-bed, which are anterior to any Statute, and not comprehended in any, as being more solemn and sure than these.

In the next place are our Statutes, or our Acts of Parliament, which in this are inferiour to our ancient Law, that they are lyable to Defuetude, which never Incroaches on the other. In this, we differ from the English, whose Statutes of Parliament, of whatsoever Antiquity, remain ever in Force till they be repealed, which occasions to them many sad debates (publick and private) upon old forgotten Statutes. But with us, the Lords of Session, being, by their Institution, Authorized with Power, to make Rules and Statutes, to be observed, in the manner and order of Proceeding, and Administration of Justice, Par. 1537. cap. 43. Par. 1540. cap 93. Their Decisions are final and irrevocable, when solenmly done, in foro contradictorio; and thereby, recent Custome or Practique is established, both by their Acts of Sederunt and Decisions, which extend, not only to the Interpretation of Acts of Parliament, but to the Derogation thereof; especially so far as concerns the Administration of Justice, which is specially committed to them, whereby all the old Acts of Parliament, concerning the forms of Process, are in Desuetude, and in several points more recent Statutes; for instance, albeit by the Act of Parliament, 1621. cap. 81. Reductions of Infeftments are appointed to be sustained by exception or reply; yet the Lords seeing that this is inconsistent with the necessar and ordinar form of Process, whereby Rights cannot be annulled or reduced, till the parties and their authors be called, that the same maybe first produced, therefore they do not take away Infeftments by exception or reply, notwithstanding of the said Statute: But there is much difference to be made betwixt a custome by frequent Decisions, and a simple Decision, which hath not like force, especially if it be invested with many Circumstances of Fact. But such are more effectual, if they be in any abstract point of Law. Yet frequent agreeing Decisions, are more effectual than Acts of Sederunt themselves, which do easily go into Desuetude. Where our ancient Law Statutes, and our recent Customs and Practiques are defective, recourse is had to Equity, as the first and universal Law, and to expediency, whereby Laws are drawn in consequence, ad similes casus; but if it appear, [Page] that such cases have been of purpose omitted by the Parliament, the Lords will not extend the same, as albeit by the Act of Parliament, 1621. cap. 6. Composition to Superiours for receiving Apprisers, be appointed, and the same in the next Act omitted, as to Adjudgers. Therefore the Lords presuming thence, from the propinquity of these Acts, that such compositions were omitted of purpose, they would not extend the benefite of the Superiour to a composition in Adjudications. Dury, 21. of July, 1636. Greirson contra Closburn, but now it is extended to Adjudications; that in these, Superiour hath a composition by the Act of Parliament, 23. Decemb. 1669. How far the Civil, Common, or Feudal Law have place with us, hath been already said. But it is not to be thought, that the Feudal Law is our proper Law, as Craig relates, lib. 1. dig. 8. sect. per. there being scarce any thing as a Common, Feudal Law, but it is Local and customary to every place, and doth not extend to the half of our Rights: Craig doth very well observe, near that place, that these Books called Regiam Majestatem, are no part of our Law, but were compyled for the Customs of England, in 13. Books, by the Earl of Chester, and by some unknown and inconsiderate hand, stollen thence, and resarcinate into these four Books, which pass amongst us; which though they be mentioned, to be revised and reformed with our former ancient Laws, Par. 1425. cap. 54. Par. 1487. cap. 115. yet these do not acknowledge them, as already become our Laws; but as such, as by alteration thereof, may become our Law.

The Law of Scotland in its nearness to Equity, plainness and facility in its Customes, Tenors and Forms, and in its celerity and dispatch in the Administration and Execution of it, may be well parralleled with the best Law in Christendom, which will more plainly appear, when the proportion and propinquity of it to Equity shall be seen.

16. Before we come to the Common Principles of Law, this Question would be resolved, Whether Law may, or should be handled as a Rational Discipline, having Principles from whence its Conclusions may be deduced? Most Lawers are for the Negative part, commonly esteeming Law, especially the positive and proper Laws of any Nation, incapable of such a deduction, as being dependent upon the will and pleasure of Law-givers, and introduced for Utilities sake, and so frequently alterable, that they cannot be drawn from prior common Principles, and keep the artificial method of rational Disciplines; and therefore they rest satisfied with any order, whereby the particular Heads and Titles may be found, whereunto the confused Order of the Civil Law (which is the greatest blemish in it) hath been instrumental; for there is nothing more ordinar for learned men, than to maintain their Authors, and through their respect to them, not to be sensible of their tollerable Errors. There is little to be found among the Commentars and Treatises upon the Civil Law, arguing from any known Principles of Right; but all their Debates is a Congestion of the Contexts of the Law, which exceedingly nauseates delicate ingines, finding much more work for their memory, than judgement in taking up and retaining the Lawgivers Will, rather than searching into his reason; yet there are not wanting of late of the learnedest Lawers, who have thought it both feasible and fit, that the Law should be formed as a Rational Discipline, and have much regrated that it hath not been effectuated; yea, scarce attempted by any, as Duarrenus, de ratione discendi docendi (que) juris. And Grotius in his Prologues to his Learned Treatise, de jure belli & pacis, for which there are many peregnant Reasons.

First, As we have hinted before, Equity or the Law of Nature, standeth [Page] wholly in these Practical Principles, which are created in, and with the Soul of Man, and arise in him without reasoning or debate, as naturally as the Heat doth from the Fire, or the Light from the Sun: and in these Rules of Righteousness, which are deduced thence by evident Reason, so that Law is Reason it self, as it is versant about the Rights of men, and therefore called the Law of Reason: and can there be any thing more congruous to a natural Discipline, than Reason it self, and its Principles?

Secondly, God in his Goodness hath given man more radiant Rays of Reason, and preserved it more after his Fall, about his Rights, meum & tuum, than in any other Science or Knowledge, which for the most part are dubious and conjectural, and attainable only with great pains: but in the matters of Right, a man of Reason, though without Education, if not blinded or byassed with Affection or Interest, or marred with the Statutes and Customes of men, which are but as their Contracts and matters of Fact to him, would be able to discern right from wrong, though he cannot be so distinct, as by reflecting on his own Knowledge, to take up, and hold forth the Grounds upon which he doth proceed, or to reach matters of Intricacy or Difficulty, which require [...] Judgement and long Experience.

Thirdly [...] Expostulate and Argue with men, even for Moral Duties, from their Common Principles of Righteousness, which their Conscience cannot reject, as is evident every where in his Word; and therefore, seing the Law hath such Principles, it may and ought to be held forth as it is deduced from them.

As to the difficulties which seem to arise from the variety and multiplication of positive Laws, it will say nothing; for seing positive Law is only to declare Equity, or make it effectual, and in some cases to lay aside the effects of it, for the profite of man now in his lapsed estate, it may be easily ordered, by bringing it to the parts of Equity, whereunto it doth relate; and as a mans body may well be described, though it be not naked, and in its pure naturals, and have its hair cut and ordered, and ornaments upon it; all which will fall to be described as Appendicles, to the several parts of the body which they adorn: for, Equity is the body of the Law, and the Statutes of men are but as the ornaments, and vestiture thereof; and in the Explanation of every part of it, it will most fitly fall in: But the best demonstration of this will be occular, by delineation of Equity and positive Law together.

17. The Principles of Law are such as are known without arguing, and to which the judgement upon apprehenosin thereof, will give its ready and full assent; such as God is to be adorned and obeyed, Parents to be obeyed and honoured, Children to be loved and entertained; and such are these common Precepts which are set forth in the Civil Law, to live honestly, to wrong no man, and to give every man his Right: but here we shall speak of the most general Principles, which have influence upon all the Rights of men, leaving the more particular ones to the Rights flowing therefrom.

The first Principles of Equity are these, that God is to be obeyed by man. 2. That man is a free creature, having power to dispose of himself and of all things, in so far as by his obedience to God he is not restrained. 3. That this freedom of man is in his own power, and may be restrained by his voluntar ingagements, which he is bound to fulfil, or take them up more Summarly. The first principles of Right are Obedience, Freedom and Ingagement.

There are also three prime Principles of the positive Law, whose aim and [Page] terest is the profite and utility of man, as the Natural Law is, in equo, so the positive Law is, in bono, or utili; and upon those two legs doth Justice move, in giving every man his Right: If man had not fallen, there had been no distinction betwixt bonum and equum; nor had there been anything more profitable, than the full following of the Natural Law: but man being now depraved, and wanting Justice, or that willingness to give every man his Right, and apt to fraud or force; therefore, in this estate it is profitable for him, to quite something of that which by equity is his due, for peace and quietness sake, rather than to use compulsion and quarrelling in all things, and to find out expedients, and helps to make equity effectual: And therefore, to make up societies of men, that they may mutually defend one another, and procure to one another their Rights, and also to set clear limits to every mans Property, and to maintain Traffick and Commerce among themselves and with others; so that the three Principles of Positive Law, may be Society, Property and Commerce. The Principles of Equity are the efficient cause of Rights and Laws; the Principles of Positive Law, are the final causes or ends, for which Laws are made, and Rights constitute and ordered, and all of them may aim at the maintenance, flourishing and Peace of Society, the security of Property, and the freedom of Commerce, and so the Narratives of Statutes, do commonly bear the motives introductory, towards some of these Heads.

18. Obedience is that submission and sequacity of the mind and will of man, to the Authority and Will of his Maker, immediately oblieging without any tye upon him by himself, intimate to him by the Law of Nature, Light of Reason, and the Conscience, whereby man distinguisheth betwixt Right and Wrong, betwixt what is Duty, and what is not Duty; hence do arise these Obligations upon man, which are not by his own consent or ingagement, nor by the Will of Man, but by the Will of God; and therefore, these are fitly called Obediential Obligations. The first and most general of these, is, To Love the Lord our God with all our heart, and our Neighbour as our Selves; upon which saith our Saviour, hangeth all the Law and the Prophets, Matth. 22. vers. 40. which is a clear demonstration from his Mouth, of the dependence of the Moral Law, upon this Principle: such are also the Obligations betwixt Husband and Wife, Parents and Children, and the Obligations of Restitution, Reparation, and Remuneration; in all which we are ingaged, not by our will and consent; and such are the Obligations, which the Civilians call Quasi ex contractu, because they find them Obligatory, and yet not by Contract, and not adverting this their rise from Obedience, reduce them to Contracts by a quast.

19. Where Obedience ends, there Freedom begins, and man by Nature is Free in all things, where this Obedience has not tyed him, until he obliege himself. It is a great mercy to man, that God hath oblieged him only in a few necessar moral duties, and has left him free in much more, without any tye upon him, as to the matter, but with a liberty, ad contradictoria, that he may do or not do; and ad contraria, that he may do this or the contrair, providing that whatsoever he do (even where he is free) be ordered and directed to the Glory of God. It hath been the opinion of some, both Learned and pious, that there is nothing indifferent, in actu exercito; or as it is invested with the Circumstances, but that then every thing is a duty or a sin, and that because all things must be done to the Glory of God, and to mutual edification, from whence there is no exception, and so are not free; that we must make account of every idle word; and that we are oblieged, to try all things, and to hold that which is best: These Reasons indeed conclude, that [Page] there is nothing free, as to this contradiction, either to be done to the Glory of God, or not, and to Edification and Use, or not; but do not conclude that there is duty, or necessity in the matter of the Action it self, of which, either part of the contradiction may be chosen, so that either part be useful and ordered to the Glory of God, as saith the Apostle, He that observeth a day, observeth it to the Lord, and he that observeth not, doth so to the Lord. And likewife in that undenyable instance of Marriage, wherein the Apostle debating of the conveniency to Marry, or not to Marry, doth conclude so, that he that Marrieth doth well, but he that Marrieth not doth better; whereby both parts of the contradiction are approven; and that which is less profitable, is said to be well done: Therefore, there is a great difference betwixt duty which is necessar, and wherein we are oblieged, though we mistake or be wilfully ignorant by the very weight of the matter, and absoluteness of the Command, wherein the ordering of what is forbidden to Gods Glory, will not justifie, as we may not do evil, that good may come of it; as those who killed the Apostles, were far from being justified, though they thought they did God good service thereby. These things are, bona honesta, & mala inhonesta; but matters of expediency, are but bona utilia, or, mala inutilia, and not inhonesta; and therefore, our duty in these, is that which we conceive most to be for the Glory of God, and good of our selves and others; but if we do mistake, and choose that which is less expedient for these ends, we are free. God seemeth to do with men, as Princes do with their Ambassadors, to whom they give some express instructions, wherein they have no latitude in their Negotiations, and for the rest to do as they shall judge most fit upon the place, wherein, if acting bona fide, they mistake, and do not that which is most fit, they are not culpable. So man being sent into the World to behold the Works of God, and to Glorifie him, for doing whereof, he hath some Rules written in his Heart by the Law of Nature, and in the Word of God, and for the rest, is allowed to do as he conceiveth most conducible thereto, that whether heeat, or drink, or whatsoever else he do, he do all to the glory of God. It were a sad Rack to the Consciences of men, if their errors and mistakes in the matters of expediency, were to lyeas a guilt upon their Consciences, but that bona fides, or, conscientia illesa, so much spoken of in the Law, is that which cleareth and acquitteth men in such mistakes.

From this Freedom doth arise, not only our Personal Freedom and Liberty, whereby men are sui juris; but also their power of the disposel of other things within their reach, or that Dominion (which God hath given them) over the Creatures.

20. As Freedom began, where Obedience ended; so Ingagement begins where Freedom ends; it being our voluntar oblieging of our selves, where by Nature we are Free; every such Obligation, is a diminution of that Freedom, for thereby, we are either restrained from that power of disposel of the Creatures, or may be constrained to some performances contrair to our Natural Liberty. Some hold it not lawful for us, To give away our Native Freedoom, in whole, or in part, or to bind our selves where God has left us free, and that such Ingagements, except where they are profitable for us, or for an equivalent cause, are not obligatory; which shall be more proper to debate, when we come to the Obligations by Paction, Promise, or Contract, all which do arise from the Principle of Ingagement; but it shall be sufficient here, to conclude with the Law, that there is nothing more Natural, than to stand to the Faith of our Pactions; This much for the Common Principles of Law.

21. As to the Object thereof, the formal and proper Objects of Law, are the [Page] Rights of men; a Right is a power given by the Law, of disposing of things, or exacting from persons that which they are due; this will be evident, if we consider the several kinds of Rights, which are three, our Personal Liberty, Dominion, and Obligation; Personal Liberty, is the power to dispose of our Persons, and to live where, and as we please, except in so far, as by Obedience, or Ingagement we are bound: Dominion is the power of disposal of the Creatures in their Substance, Fruits and Use: Obligation is that which is correspondent to a Personal Right, which hath no proper Name, as it is in the Creditor, but hath the Name of Obligation, as it is in the Debitor; and it is nothing else but a legal tye, whereby the Debitor may be compelled to pay, or perform something, to which he is bound, by obedience to God, or by his own consent and ingagement, unto which Bond the Correlate in the Creditor is the power of exaction, whereby he may exact, obtain, or compel the Debitor to pay or perform what is due, and this is called a personal Right, as looking directly to the person oblieged; but to things indirectly, as they belong to that person; So Dominion is called a real Right, because it respecteth things directly; but persons as they have medled with these things, by which it is clear, that all Rights consist in a Power or Faculty, the Act whereof is Possession, Injoyment, or Use, which is a matter of Fact, and no point of Right, and which may be, where no Right is, as Right may be, where these are not.

22. The Roman Law taketh up for its Object, Persons, things and Actions, and according to these, orders it self; but these are only the extrinsick Object and matter, about which, Law and Right are versant; but the proper Object is the Right it self, whether it concerns Persons, Things, or Actions, and according to the several Rights, and their natural order, the order of [...], may be taken up in a threefold consideration; First, in their Constitution and Nature. Secondly, in their Conveyance, or Translation from one person to another, whether it be among the living, or from the dead. Thirdly, in their Cognition, which comprehends the Tryal, Decision and Execution of every Right, by the legal remeids, whereby the whole method may be clearly thus. First, of the Nature of the several Rights, and because Liberty standeth in the midst, betwixt Obligations of Obedience, which are anterior, and of Ingagements, which are posterior; but both these being of the same Nature, must be handled together; and therefore Liberty must have the first place; and next, Obligations Obediential, and then Conventional; and after these, Dominion in all its parts And in the Second place, shall follow the conveyance of these several Rights. And Lastly, Cognition of all the judicial Process and Executions: Rights, in respect of the matter, are divided in publick and private Rights; publick Rights, are these which concern the State of the Common-wealth; private Rights, are the Rights of Persons and particular Incorporations, of which, in their places.

TITLE II. Of Liberty.

[Page]

1. Liberty described.

2. Liberty distinct from Dominion and Obligations.

3. The Principle whence Liberty ariseth.

4. Restraint and Constraint.

5. Liberty is bounded by Obedience.

6. It is diminished by Delinquence.

7. By Ingagements.

8. By Subjection.

9. Liberty is lost by Bondage.

10. Bondage introduced by the Law of Nations.

11. Bondage lawful.

12. Manrent.

13. Manumission.

14. Patronage.

15. The condition of our Servants.

16. Injuries against Liberty, how obviat.

1. LIBERTY is that Natural Power which man hath of his own person, whence a Free Man is said to be suae potestatis, in his own power, and it is defined in the Law, to be a Natural Faculty, to do that which every man pleaseth, unless he be hindred by Law or Force.

2. That there is such a Right, distinct from the Dominion of the Creatures, and from Obligation, it is evident from this, that it can be referred to none of these, and yet is the most native and delightful Right of man, without which, he is capable of no other Right; so Bondage exeemeth man from the account of persons, and brings him rather in among things, quae sunt in Patrimonio nostro, and the incroachments upon, and injuries against the Right of Liberty, of all others, are the most bitter and attrocious; for the non-performance of Obligations, or Duties to us, or the taking away, or detaining of the things of our Property, are not to be compared with the laying violent hands on our persons.

3. This Right ariseth from that Principle of Freedom, that man hath of [Page] himself, and of other things beside man, to do in relation thereto, as he pleaseth, except where he is tyed thereunto by his Obedience or Ingagement, and this part of it which concerneth Personal Freedom, is maintained by that Common received Principle in the Law of Nature, of self-defence and preservation, for as Cicero saith in his Oration, Pro Millone, Haec & ratio doctis & necessitas barbaris, & mos Gentibus, & feris natura ipsa prescripsit, ut omnem semper vim quacun (que) ope, a corpore, a capite, a vita sua pro pulsarint. And as saith Gains, Adver sus periculum naturalis ratio permittit se defendere, which is only to be extended to private and unlawful violence.

4. Opposite unto Liberty are Restraint and Constraint, Restraint hindereth man to be where, and go whither he will; and Constraint forceth him to do what he will not; Restraint is exercised by Imprisonment and Captivity, or in the hinderance of the use of things necessar for Life, as Meat, Drink, Sleep, &c. Constraint is exercised by Beating, Wounding, or the like Force upon the Body, or the fear of it, whereby any thing is extorted.

5. Though Liberty be the most precious Right, yet it is not absolute, but limited; First, by the Will of God, and our Obediential Obligations to him, and to men by his Ordinance; and so though man hath power of his own person, yet hath he no power of his own Life, or his Members, to dispose of them at his pleasure, either by taking away of his Life or Amputation, or hurting of any Member by himself, or by giving power to any other so to do, unless it be necessary for preserving the whole, but he is naturally oblieged to God to maintain his Life: so likewise men may be restrained, or constrained by others, without Incroachment upon the Law of Liberty, in the pursuance of other Obediential Obligations; as a Husband hath power to restrain his Wife, from her Liberty of going where she will, and may keep her within the bounds of conjugal Society; so may Parents restrain their Children, and also constrain them to the performance of moral duties, and that without any Ingagement or Law; we may also without any injury, restrain a furious person, or one who is inferring violence to himself, in his Life or Limbs, because this is not against any Act of his lawful Liberty, and is done as a duty in us, of Love and Mercy: But in matters of utility and profite, where the Natural Liberty is not hemmed in with an Obligation, there, unless by his own delinquence or consent, man cannot justly be restrained, much less constrained upon pretence of his utility or profite; for Liberty, as far preferable to profite, and in the matter of utility, every man is left to his own choice, and cannot without injury to God and Man, be hindred to do what he pleaseth, or be compelled to do what he pleaseth not, in things wherein he is free, as Grotius saith, De jure belli, lib. 2. cap. 22. pag. 2. Non enim si quid alicui ntile est, id statim mihi licet, ei per vim imponere, nam his qui rationis, habent usum, libera esse debet utilium multilinimve electio, nisi alterijus quodam in eos quaesitum sit.

6. Liberty may be diminished or taken away by our Delinquence, in the way of punishment, for seing it is a Right in our own power; as Goods and Debts may be forfaulted by our Delinquence, so may our Liberty, in whole or in part.

7. Thirdly, our Ingagements do commonly import a Diminution of our personal Liberty, but much more, of that Natural Liberty of things without us; whence it is that the Law alloweth personal Execution or Restraint, and Incarceration of the Debitors Person, until he do all the deeds that are in his power, for the satisafction of his Creditor.

8. Liberty is diminished by subjection unto Authority; for as man by Nature [Page] is a free creature in his own power, he doth then become in the power of others; whether it be in the power of a Society, where the suffrage of the plurality is preferred to the natural and free choice of particular persons, or whether the Authority be stated in a few persons, or in one Soveraign?

9. Fifthly, Liberty is wholly taken off by Bondage, Slavery, or Servitude, which is Diametrically opposite to Liberty; for as Liberty is that power, by which men are sui juris, so by Servitude, they became alieni juris, in the power of another, unto whom they became as the rest of their Goods in their Patrimony, and are possessed by them, and may be gifted, legated, sold, and otherways disposed of at their pleasure, l. 4. ff. de statu hominis, l. qui in servitute, ff. deregulis juris, so that Masters had among the Romans, and almost every where, power of Life and Death of their Slaves, l. 1. ff. de his qui sunt sui vel alieni juris, though the constitutions of the Emperors did restrain that power to moderate chastisement, as appears by the former Law, §. 2. and next ensuing Servants being wholly their Masters, they could have nothing of their own, l. acquiritur de acquirendo rerum Dominio; so that their peculium, which their Masters committed to them, to Negotiat with, was wholly in their Masters power, and might be taken away at his pleasure, l. 4. ff. de peculio, neither could they be lyable to any Obligation, l. nec servus 41. ff. de peculio; neither could there be any Civil Action for, or against them, l. in personam, ff. 22. de regulis juris, neither could they be Witnesses, Procuratoss, or Arbiters, l. cum serv. ff. de regulis juris; yea, and they were accounted as no body, or as dead men, l. 32. de Reg. Jur. l. 7. de testib. l. 6. Cod. de judiciis, l. 7. de recep. qui arb.

10. Bondage was introduced by the Law of Nations, and it is among the positive Laws of Nations, settled by common Consuetude, and it took first place in the these who were taken in War, who being under the power of their enemies Sword, did loss their Liberty in lieu of their Life; such also were these, who sold their Liberty, and gave it up, and were content to be perpetual Slaves, as were the Jewish Bond-men, whose ears were pierced with an Aul, as the solemnity of their perpetual and willing Servitude, the offspring of Servants remained in their servile condition; and by the Custome of Nations, and the Roman Law, it followed the Mother and not the Father, partus sequitur ventrem, and in some cases, both by the Judicial Law, and the Roman Law, free Parents might sell and give their Children into Bondage.

11. Bondage, though contrair to the nature of Liberty, yet it is lawful; Liberty being a Right alienable, and in our disposel, so that the Natural Law constitutes us free, but puts no necessity on us, so to continue; and therefore Servitude is both approven in the Old Testament; and in the New, it is cleared against that obvious Objection, that being made free by Christ, we should not become the servants of men, to which the Apostle answereth, Art thou called, being a servant (or slave) continue so, for nevertheless thou art Christs freeman: But yet Christian Lenity and Mercy, hath almost taken away Bondage, except amongst the Spaniards, Portugals, and other Christian Nations, bordering upon the Turks, where, because the Turks do extreamly exercise Slavery, especially upon Christians, their neighbours do the like, that they may have Slaves to exchange with Slaves: little of Slavery remains elsewhere among Christians, except the Ascriptitii, who are not absolutely Slaves, but they and their Posterity are bound to several Services, to Ferms and Villages, to which, by reason thereof only, they are in Bondage, and their Masters cannot apply them to other Ferms, or to other Services, but those are fixed to, and follow those Ferms, and they are conveyed [Page] therewith; such are the English villains, but in Scotland there is no such thing.

12. There was formerly a kind of Bondage, called Man-rent, whereby free persons became the men or Followers of these who were their Patrons and Defenders, and these were rather in clientele, than in Bondage, but it is utterly abolished, both by Act of Parliament, 1457. cap. 78. and by Custome.

13. From Servitude arise Manumission, and the Right of Patronage; Manumission is the dimission of Servants, and the making of them Libertines, whereby they become Free, but with remaining thankfulness, reverence, and obsequiousness, and some other Duties and Offices, to their former Masters, then become their Patrons, and if in these they failed, they forefaulted their new acquired Liberty, and returned to their former condition of Servitude.

14. In these therefore, stood the Right of Patronage, and from this condition of Libertines, arose that distinction of men, into these who were always free, who were called ingenui, and in these who were bound, who were called servi, and in these of a middle condition, who having been Slaves, became Free, and so were neither fully free, but had some duties lying upon them to their Patrons, neither were fully bound as Servants.

15. The Servants which now retain that name, are judged free persons, and have at most but hired their labour and work to their Masters for a time, which is a Contract betwixt them; of which afterward.

16. The Customs of this Nation have little peculiar, in relation to Liberty directly, but the injuries done against the same, especially constraint, fall under the consideration of Delinquencies, and are so punished.

The Romans had express Laws, de libero homine exhibendo, and de privatis carceribus inhibendis, the English have their Action of false Imprisonment, determining with much exactness, in what cases Imprisonment is lawful, and in what not, and how remeidable.

It is also provided in the Judicial Law, against stealers of men; but amongst us, as these Crimes are very rare; so, if unlawful Restraint, or unjust Imprisonment should fall out, it remains among Delinquencies to be punished according to the Circumstances and Attrocity, and according to Equity, and thence also a civil Action for damnage and interest ariseth.

TITLE III. Of Obligations.

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1. Personal Rights and Obligations described.

2. Kinds of Obligations.

3. Obediential Obligitions described.

4. Divided.

5. Enumerat.

6. Obligations Natural and Civil.

7. Obligations Principal and Accessory.

8. Obligations pure, conditional, and to a day.

RIGHTS Personal, or Obligations, being in Nature and Time, for the most part anterior to, and inductive of, Rights [...] of Dominion and Property, do therefore come under consideration next unto Liberty.

1. The same Right as it is in the Creditor, it is called a Personal Right; but as it is in the Debitor, it is called an Obligation, Debt, or Duty, which is retained as the more proper name, Inst. de Obligationibus in principio.

Obligation is a Legal Tye, by which we may be necessitate, or constrained to pay, or perform something; this Tye lyeth upon the Debitor, and the power of making use of it, in the Creditor, is the personal Right it self, which is a power given by the Law, to exact from persons that which they are due.

2. Obligations by the Romans, are distinguished in four kinds; in Obligations, ex contractu vel, quasi ex contractu maleficiovel, quasi ex malificio, which distinction insinuats no reason of the cause, or rise of these distinct Obligations, which is requisite in a good distinct division; and therefore, they may be more appositly divided, according to the Principle, or Original from whence they flow; in Obligations Obediential and by Ingagement, or Natural and Conventional, or by the will of God, and by the will of man.

3. Obediential Obligations are these, which are put upon men by the will of God, not by their own wills, and so are Natural, as introduced by the Law [Page] Nature, before any addition made thereto by Ingagement, are [...] which we are bound to perform solely by our obedience to God, as Conventional Obligations are, such as we are bound by, and through our own will, Ingagement or Consent.

4. Obediential Obligations are either by the will of God immediatly, or by the mediation of some fact of ours; such are Obligations by Delinquence, whereby we become bound to reparation and satisfaction to the party injured, and are lyable in punishment to God, which may be exacted by these who have his Warrand for that effect; of these Obediential Obligations, there be some which tye us to God alone, whereby there is no right constitute in man to exact the same as his own due, or any Warrand or Command given him by God to exact them on his behalf; and some, though they constitute not a right in man, yet man is commanded and warranted to vindicate them; as the Crimes of Witchcraft, Blasphemy, Beastiality and the like, for which there is an express Command to inflict punishment, though there be no injury done therein to man, of which there could be any reparation; for the Command, Thou shalt not suffer a Witch to live, takes place, though the Witch have committed no Malifice against the Life or Goods of man: But these Obligations being among the publick Rights, belongs to the Magistrate, on whom is devolved that Authority, to vindicate for God, as his Vicegerent: We shall not here insist on them, nor on these other Obligations, whereby no right of execution is constitute in man for vindication, & quae solum Deum habent ultorem, (being only now about the private Rights of men) such are the Love and Fear we owe to God, and dependence on, and confidence in him.

5. We shall therefore insist only on the Obediential Obligations that are betwixt Husband and Wife, Parents and Children, Tutors and Pupils, Curators and Minors, and the Obligations of Restitution and Remuneration, and the Obligations of Reparation of Delinquence, and damnage, and then we shall proceed to Conventional Obligations.

[...] There is another distinction in the Law of Obligations, viz. Natural and Civil; Natural Obligations are these, which have a tye by the Law of Nature, and do raise a Right in the person to whom they relate; but the Civil Law, or Customs and Constitutions of men, do not second them with legal remedies or executions, but they remain only as bonds upon the good. will and honesty of these who are thereby bound.

First, There be many Natural Obligations which have no civil effect, either because they obliege to inward duties of the mind, which Law doth not consider, as Cicero saith, Philosophum spectant quae mente tenentur, juridicum quae manu tenentur: Or, Secondly, Because though they obliege to outward performances, yet the manner and measure is left to the discretion and arbitriment of the oblieged, as before hath been showen, though that in matters of expediency or utility, there be an Obligation to do that which is most conducible to these common ends, to which we are oblieged, yet in the particulars, our acting, bonafide, makes us free: Or, Thirdly, Because, though Absolute Obligationslye upon the oblieged, yet they relate to duties performable to God, whereof he hath given no power nor command to man; that there be some such Obligations that God hath authorized or commanded man to vindicate for him, and not all such, may be gathered from his own Judicial Law, in which many such are exprest, and many others omitted; though these Obligations be to duties relating to man, yet there is no correspondent Right or Power of Compulsion in man, and so the Creditor is God, and man is the third party, to whose behoove the Obligation is imposed, but who hath neither power of exaction for himself, nor of vindication for God; such are the [Page] Obligations of Beneficence, generally and particularly; of Charity to the poor, assistance to these in hazard, and relief of the oppressed; for Natural Reason will teach us, that though these do naturally obliege us, yet they in whose favours they are, cannot compel us; for example, we are bound is give alms to the poor, yet none will affirm, that the poor can extort it, or take it by force. It is true, that by the positive Law of any Nation, by their Consociation together, there is in the very Nature of the association, a duty of assistance for the common interest, into which they are associat; but that is not a Natural, but a Voluntary Obligation flowing from their voluntar association or union. Likewise, all the people are bound to concur and assist legal executions, and in some places to contribute by such a proportion to the poor, but these are only positive Laws, having the force and nature of Contracts: Legal compulsion is also laid aside in matters of smallest moment, and in some things of greater importance, wherein a way of procedor is prescribed, and as a penalty of none-observance of that order, legal remedies are denyed, when done any other way; as naked pactions among the Romans were ineffectual, because they did not interpose Stipulation. And with us, agreements requiring Write, are ineffectual, and may be resiled from, unless Write be interposed; and in most matters of importance, Obligations with us are ineffectual, unless proven by Oath of Party, or Write.

Civil Obligations, are these which have a civil effect and execution, though perhaps they be not naturally oblieging; as with us, an Obligation in Write, doth Civilly obliege, and hath execution at the Instance of the Creditors Heir, or Assignay, though the Debt was payed to the Cedent, or Defunct, because the Debitor hath not been so cautious to keep a Discharge in Write; but most part of Obligations, are both Natural and Civil: There are many such particular Obligations which will occur in their proper places.

7. There is a third Distinction of Obligations in Principal and Accessory, such are the Cautionary Obligations of Surety and Pledges, which are accessory to all other Obligations.

8. The fourth Distinction of Obligations, is in these which are Pure, Conditional, and to a day: Conditional Obligations are such as do depend upon a condition, and so are but Obligations in hope, till the condition be existent; but Obligations to a day, are such as are presently binding, but the effect, or execution thereof is suspended to a day, betwixt which, there is this main difference, that in Conditional Obligations, the Condition must necessarily be uncertain, either as being in the power of mans will, or an accidential event: For if the Condition be a thing certainly to come, though it may be conceived under the Terms of a Conditional Obligation, yet it is indeed an Obligation to a day, as if Titius be oblieged to pay Maevius ten Crowns, if an Eclipse shall be such a day; upon which day, by the certain Rules of Astronomy, it is known that it is to be, though perhaps it was uncertain to both, or either party; yet it is not a conditional Obligation: but the time of the Eclipse is the term thereof: so likewise, if the condition be impossible, de facto, or impossible, de jure, that is, unlawful, (nam id possumus quod de jure possumus) then, though the Obligation be conceived in Terms Conditional; yet because the Condition is not depending, and in it self uncertain, the Obligation is not truely Conditional, but is void and elusory in the case of the legal impossibility of the Condition; and if it be in the power of the Creditor, or any third [Page] party, so that it may be an occasion to move them to do wrong, the Obligation is valide and pure, and the Condition is void, as not adjected, nam conditio Illicita, est quasi non adjecta; Hence it appears, that such Obligations as are without conditions, are pure, and such are simple which are not clogged with the running of a course of time, the adjection whereof is always in favours of the Debitor, as to the intervenient time; and in this also, in favours of the Creditor, that he needs use no Interpellation, or Requisition for performance, sed dies interpallat pro homine, and the day being past, the Debitor is in mora; but in simple obligations, delay is only upon demand, and whensoever it is required, upon non-performance, the Debitor is in mora. Obligations, ad diem incertum, are in effect Conditioal, nam dies incertus, habetur pro conditione, as a Sum payable at such an age, which is frequently in provisions of Children, if they die before that age, the sum is not due to their Representatives; even after they might have attained that age, as was found, January, 17. 1667. Edgar contra Edgar, February, 22. 1677. Belshes of Toftes contra Belches.

A Conditional Obligation doth necessarily imply an uncertainty and dependence of the effect of the Obligation, upon the existence of the condition; for, if the Condition fail, the Obligation is void: and ofttimes, Obligations are conceived in conditional terms, though in effect there be no uncertainty of the condition, as to the beeing thereof, though it may be uncertain, as to the Contracters knowledge; as in Obligations where the condition is made of something past, or of something that cannot but come; the coming whereof, is the Term of Performance, and not a Condition, and it is an Obligation to a day, and not conditional: As on the contrair, a Conditional Obligation may be, when it is not yet conceived in Terms Conditional, as when it is conceived to a day, if it be uncertain, whether by the course of Nature that day will ever come, it is no Term, but a Condition. These uncertain Conditions are of two kinds, voluntar, which depends upon the free choice of some persons; and casual, which depends upon the casual event of that which cannot Naturally be foreknown. Amongst voluntar Conditions, these are not to be numbred, which consist in the mutual Obligations of the Creditor, which he is positively oblieged to perform, and so are not looked on by the Contracters, as an uncertain event in his choice; and therefore, though frequently such Obligations in mutual Contracts, are conceived by way of provision or condition, and so may stop the effect, or execution of such Obligations, till the Creditors part be performed; yet that is rather as the failzie, or delay of the mutual cause of the Obligation, then as the non-existence of the condition: and therefore, such Contracts may, and ordinarily do reserve execution, by Poynding, and Apprising, before the performance of these provisions; which executions are not null, but will be preferred by their dates, to others proceeding upon pure Obligations, or to a day, after the day is past, yea, the other Creditors cannot object the non-implement of the provisions, except they had interest, in so far as the fulfilling thereof would be to their behoove; which certainly they could do, if they were proper Conditions, as they can do, when the condition is casual, or when it is voluntar, not being a part of the Creditors mutual Obliegement.

In like manner, the end and intent of an Obligation, or the manner of performance thereof, is ordinarily exprest as a condition, though these be not real conditions, rendering the Obligation uncertain.

[Page] A condition is ofttimes implyed in an Obligation, though it be not exprest, as when a Tocher is promised; this tacit condition is implyed, if the Marriage hold, and the condition may either be exprest, or implyed, as relating to the Contracting, or to the performing of the Obligation; as if the Debitor said, on such conditions I shall become oblieged; which differeth from this, that I obliege my self to pay, or perform, when, or upon condition that such things shall exist; for in this case there is a present Contract, though the effect be uncertain: and therefore Arrestment, and Inhibition might be used thereupon: But in the former, the very ingagement is uncertain, as if one should promise to Titius, if he maried Maevia, that he should Contract with him, for such a Tocher, before such a Marriage, Contracted or Solemnized, neither Arrestment, nor Inhibition would be granted thereupon. An offer hath the like implyed condition of the other parties acceptance, and in that it differs from an absolute promise; so that if the acceptance be not adhibit presently, or within the time exprest in the offer; in which the other party hath Liberty to accept. There ariseth no Obligation, as was found, June, 25. 1664. Alexander Allan contra Mr. John Collier; and in mutual Contracts, the one party subscrybing, is not oblieged till the other subscribe, as being his acceptance: And a Cautioner subscribing, is not oblieged, unless the principal party subscribe, that being implyed as a tacit contradiction of his being Cautioner.

TITLE IV. Conjugal Obligations.

[Page]

1. Marriage a Divine Contract.

2. Whereby Marriage is formally constitute.

3. Dissolution of Marriage by Death.

4. Desertion and Adherence.

5. Jus Mariti.

6. The Husbands Obligations.

7. The power of the Husband by the Civil Law.

8. By the Custome of Neighbour-Nations.

9. By the Custome of Scotland.

10. The Wifes Escheat.

11. The Husbands concourse.

12. A Wifes Obligation null.

13. A Communion of Goods and Debts.

14. Donations betwixt Man and Wife revocable.

15. Dissolution of Marriage within the year.

16. Divorce.

17. Rights arising from the Dissolution of Marriage.

18. Priviledges of Wives.

THE first Obligations God put upon man toward man, were the Conjugal Obligations, which arose from the Constitution of Marriage before the Fall; from whence have arisen, Rights of the greatest consequence; as of the Husbands power over the Wife, and her Goods; the mutual society of Families, which is the only society immediatly Institute of God, in the Law of Nature; and from whence, is the power of Parents over Children; and oeconomical Government of Families, which of all other is the most absolute, and full, extending not only to the determination of Civil Rights, but to the punishment of all Crimes, till by the union of greater Civil Societies, many of these powers have been devolved upon the common Authority of the Societies; and therefore, these Obligations do deserve the first consideration.

[Page] 1. Though Marriage seem to be a voluntar Contract by ingagement, because the application of it is, and ought to be of the most free consent; and because in matters circumstantial, it is voluntary, as in the Succession of the Issue, and the Provision of the Wife and Children; yet, that Marriage it self and the Obligations thence arising, are Jure divino, it appears thus; First, Obligations arising from voluntar Ingagement, take their Rule and Substance from the will of Man, and may be framed and composed at his pleasure; but so cannot Marriage, wherein it is not in the power of the Parties, though of common consent, to alter any Substantial, as to make the Marriage for a time, or take the power over the Wife from the Husband, and place it in her or any other; or the right of Provision or Protection of the Wife, from the Husband, and so of all the rest; which evidently demonstrateth, that it [...]s not a Humane, but a Divine Contract.

2. That Marriage ariseth even from the Primitive Law of Nature, and that as it is the Conjunction of two single Persons; is evident not only from that natural Affection, which all sorts of Men in all places of the World (where no common Example nor Consent can reach) have unto a married Estate. But as the Lawers say, that it is founded in the common nature of Man, with other Creatures, who have a resemblance of it in themselves, and it is given for the very Example of the Natural Law, as contradistinct from the Law of Reason, and Law of Nations; for most part of the living Creatures live and converse in pairs, and keep the common Interest of their off-spring, as is clear in all Fowles, whose Wings have freed them from mans comptrol, and many of the Beasts of the Field: And it is like, all of them would be so inclined, if their natural Liberty were not restrained by Man, by pursuing such as are Wild, and making use of the Tame, as they may be most profitable, preserving most of the Female for Increase, and Destroying the Male.

3. The Affection of the Property and Chastity of Women, and Animosity and Jealousy that ariseth in Men, naturally upon the Breach thereof, doth evince, that by the Law of Nature, every Man ought to content himself with his own Wife, and Women not be common: for as no Man can indure the communication of his own, so it must necessarily follow, that he should not incroach upon others Property: and seing Nature holds not out a proportion betwixt the Male and the Female, whereby every man might appropriat more, it must therefore subsist in one; and so was the first Institution by God, and all the Posterior Directions in his Word are for a man, and his Wife, not his Wives; and as the man hath not power over his Body, but the Wife: so it were an absurd Inconsistency, if that power were in many, and so behoved to resolve in a management by the common consent of the Wives.

4. The Degrees in which Marriage is allowed or forbidden are, by divine Institution; for the next Degree collateral, is only forbidden; for of Asscendents and Descendents, there is properly no Degree, the great Grandmother, being in that regard as near as the Mother; and so the next collateral to all Ascendents and Descendents is in the same Degree with Brothers and Sisters, and Uncles and Aunts, Nephews and Nieces, are alike in the Propinquity of Blood, with these, and the great Grandmother's, Sister, with the Mothers Sister; else if these were different Degrees, there would many Degrees interveen betwixt a Person and his great Grand Aunt; But that there is a natural abhorrence of that Promiscuous Commixtion of Blood, it is commonly acknowledged over all the World, as to all Ascendents and Descendents. [Page] And as to the next Collaterals, the Word of God cleareth it, not to have been a Positive Law given to the Jews, but to have been a Common Law to the Gentiles also: and therefore, Lev. 18. where the Degrees of Marriage are exprest, and unlawful Commixtion forbidden, It is subjoyned, v. 24, 25. Defile not your selves in any of these things, for in all these the Nations are defiled, which I cast out before you, and the Land is defiled; therefore do I visit the Iniquity thereof upon it. But unless these Degrees of prohibite Marriage, were a part of the Law of Nature written in Man's heart, or a common positive Law known to the Nations; the Lord, who hath declared that he will judge men by that Law, which is known, would not so have judged the Caananites.

5. The Perpetuitie of Marriage is also evident, by our Saviour's Sentence against Arbitrary Divorce, which was permitted by the Law of Moses, for the hardness of that Peoples hearts; but the Lord cleareth up the Ancient Law of Nature, from the beginning it was not so; which sheweth the Perpetuity of that Law, and that it was before the Judicial Law; and therefore he concludeth, that whosoever putteth away his Wife, except for Fornication, is an Adulterer.

11. For understanding of these Conjugal Rights, it will be necessar, 1. To consider the Constitution of Marriage. 2. The Dissolution of it. 3. The Rights and Interests thence arising: For the first; Marriage is defined by Modestinus, to be the Conjunction of Man and Woman, to be Consorts for all their Life, with a Communication of Rights Divine and Humane, l. 1. ff. de ritu. nuptiarum; so the essence of it consists in the Conjugal Society; the special nature of which Society, appeareth by the state, Interest, and Terms that the married Persons have thereby.

It may be questioned, whether the Conjunction wherein Marriage consists, be a Conjunction of mindes by mutual consent to the married state; and that whether privatly or in the publick Solemnity; or whether rather it be, a Conjunction or Commixtion of Bodies. For clearing whereof, consider, that it is not every consent to the married state that makes Matrimony, but a consent de presenti, and not a promise de futuro Matrimonio; for this Promise is only the Espousals which are premised to Marriage, and that so solemn an Act might be with dew Deliberation; and therefore though as other Promises and Pactions, Espousals be naturally obligatorie and effectual also by the Canon Law, whereby the espoused Persons may be compelled to perfect the Marriage, unless there arise some eminent Discoverie of the Corruption or Pollution of either Party, or defect or Deformity, through Sickness or some other Accident. C.de literis extravag. de sponsalibus, & cap. 2. eodem, c. ult, de Conjug. yet by the Civil Law, there is place for either party to repent and renunce the Espousals, l. 1. Cod. de sponsalibus, which is also the custom of this Nation; for Marriage uses not to be pursued before Solemnization, r [...] integris, so that the matter it self consists not in the Promise, but in the present Consent, whereby they accept each other as Husband and Wife; whether that be by words expresly, or tacitly by marital Cohabitation, or Acknowledgment, or by natural Commixtion where there hath been a Promise or Espousals proceeding; for therein is presumed a conjugal Consent de present [...]

The publick Solemnity is a matter of Order, justly introduced by positive [Page] Law, for the certainty ofso important a Contract, but not essential to Marriage: thence arises only the distinction of publick and solemn, privat or clandestine Marriages, and though the Contraveeners may be justly punished, (as in some Nations, by the Exclusion of the Issue of such Marriages from Succession) yet the Marriage cannot be declared void, and annulled; and such exclusions seem very unequal against the innocent Children, But by our Custome, Cohabitation, and being commonly repute Man and Wife, validats the Marriage, and gives the wife right to her Terce, who cannot be excluded therefrom, if she were reputed a lawful Wife, and not questioned during the Husbands life, till the contrary be clearly decerned, Par. 1503. cap. 77. So also, a Contract of Marriage was found valid, against the Husbands Heir, though the Marriage was never solemnized in Kirk nor Congregation, Hope. t. Husband &c. William Barklay contra Anna Naper. The like found to exclude the bastardy of the Children, by the Father and Mothers, being repute Married, and keeping house and society together, for several years; Nicolson, de Agnoscendis liberis, Brok contra but the contrair was found, where it was positively proven, that the Defunct had another Wife, Ibid. Archibald Chirnside contra Isobel Grieve and John Williamson. So likewise, in the former case, a Contract of Marriage was found valid, and the Man thereby oblieged to Solemnize the Marriage, seing he had procreate Children with the Woman, and by his missives had acknowledged he had Married her, though by a Contract, posterior to the Contract of Marriage, she had renunced the same, Nicol. de sponsalibus, Barclay contra Janet Kelly; But where a Man by his Write had acknowledged, that such a Child was got under promise of Marriage, and promised to solemnize the same, yet the Lords, on the mans alledgance that the woman had born a Child to another, and her answer, that it behoved to be presumed his, would not sustain that presumption, without instructing their conversing together, medio tempore, January 31. 1665. Christian Barclay contra George Baptie. It was also found lately relevant, for validating a Contract of Marriage, sixteen years Cohabitation, and being repute Man and Wife, Elizabeth Grierson contra Laird of Craigdarroch.

As to the other point, though the commixtion of bodies seem necessar for the constitution of Affinity arising from Marriage; yet the opinion of the Canon Law is true, consensus, non coitus, facit Matrimonium; but this consent must specially relate to that Conjunction of Bodies, as being then in the consenters capacity, otherwise it is void; so the consent of persons naturally impotent, or of dubious Hermophradits, where the one Sex doth not [...] predomine, doth not make Marriage, and the common essentials of consent, must also here be observed, so that, who cannot consent, cannot Marry, as Idiots and furious Persons, neither they who have not the use of Reason, as Infants and those under age, who are not come to the use of diseretion, unless malitia suppleat aetatem, that is, when the person is within the years of Pupillarity, commonly established in Law, to be fourteen in Males, and twelve in Females; yet seing Marriage is an Obligation natural, and not annullable by positive Law; as to it, regard must be rather had, whether the parties be truely come to discretion and capacity, whereof commixtion of bodies is sufficient evidence: And this also is the sentence of the Canon Law, de illic. cap. 9. ult. de spons. Errors also in the Substantials, make void the consent, unless future consent superveen, as it did in Jacob, who supposed that he had Married, and received Rachel, but by mistake got Leah; yet was content to retain her, and serve for the other also. But Errors in qualities, or circumstances vitiat not, as if one supposing he had Married a Maid, or a chast Woman, had Married a Whore; So then, it is not the consent of Marriage, [Page] as it relateth to the procreation of Children that is requisite, for it may consist, though the Woman be far beyond that date; but it is the consent, whereby ariseth that Conjugal Society, which may have the conjunction of Bodies as well as of Minds, as the general end of the Institution of Marriage, is the solace and satisfaction of Man, For the Lord saw that it was not fit for him to be done, and therefore made him a help meet for him: Yet though this capacity should never be actuat, as it persons, both capable, should after Marriage live together, and it should be known or acknowledged, that all their lives they did abstain, yet were the Marriage [...], as to the Conjugal Rights on either paart. If it be asked, whether the consent of Parents be essential to Marriage? the common Sentence will resolve it, Multa impediunt matrimonium contrahendum, quae non dirimunt contractum, so that consent is necessary, necessitate praecepti, sed non necessitate medii; though by humane Constitution, such Marriages may be disalowed, and the Issue repute as unlawful, but the Marriage cannot be annulled, l. 11. de stat. hom. l. 13 §. 6. de Adult, by which Laws, not only the Issue of such Marriages are excluded from Succession, but the Marriage it self insinuat to be null, which humane Constitutions cannot reach, though the Magistrate or Minister, Celebrator of the Marriage, may refuse to proceed without consent of the Parents; as by the Law and Custom of Holland, Art. 3. Ord. Pol. It is statute, that before the Celebration of Marriage, there be three Proclamations in the Church, or in the Court; and that where the Parties are Minor, they be not married without consent of their Parents; and where they are both Major, Intimation must be made to the Parents, and if they appear not, their consent is presumed; and if they do appear and dissent, they must condescend upon the Reasons, that it may be cognosced whether they be sufficient or not: And if the Marriage do otherwayes proceed, they account it null. Marriage is also void and inconsistent, when contracted within the Degrees prescribed Levit. 18. whereby the next Degree Collateral is only prohibit, both in Consanguinity and Affinity, which makes those joyned in Affinity, in the same Degree, as being by Marriage one Flesh; neither can Marriage consist where either Party is married before: But the Exclusion of further Degrees by the Canon Law, as of Cousin-Germans, or of certain degrees in Affinity Ecclsieastick; or the prohibiting Marriage to these in sacris, are there unlawful Devices, which cannot alter this divine Contract, but become a Cheat, putting Parties in the Pop's power, to approve or disapprove as His Avarice or Interest leads: neither do the Civil Constitutions of Princes, annul or dissolve Marriage, whatever they may work as to the Interest of the married Persons, or their Succession, as were the Prohibitions of Marriage, between those of consular Dignity, and Plebeian Persons, between Tuttors and their Children, and Pupils: Yea, between Jews and Christians, for diversity of Religion cannot annul it.

2. The Dissolution of Marriage is only Natural by Death, Adultery, and Desertion, do not annul the Marriage, but are just occasions upon which the Persons injured may annul it, and be free; otherwayes if they please to continue, the Marriage remains valid. All do agree, that Adultery hath some Effect upon Marriage; the Canon Law doth not thereupon dissolve it, that the Party injured may be free to marry again, but only granteth Separation. But our Saviour's Precept cleareth the contrary; who in Relation to the Custom that then was of Divorce for light Causes, resolves, that puting away was not lawful, except in the Cases of Adultery, and so in that case approves the Divorce even as then used, Matth. 19. v. 9. It may be doubted, whether the Adulterer, after the Dissolution of the Marriage upon [Page] his default may marry again: But though Positive Law, as a Penalty upon Adulterers, may hinder their Marriage with the Adulteress or otherwise declare such Marriages, as to Succession and civil Effects, void; yet, can it not simply annul it; and as to any other person they may Marry. With us, Marriage betwixt the two Committers of Adultery, is declared null, and the Issue inhabilitat to succeed to their Parents, Parl. 1600. cap. 20. But otherwise, the person guilty may again marry.

The second ground of Dissolution of Marriage, is, wilful desertion, which is grounded upon the answer of the Apostle, 1 Cor. 7. 15. concerning the Marriages of Christians with Infidels, which he declares valide, unless the unbeliever depart; in which case, he declares, the Christian not to be under bondage, which cannot have any speciality to the party deserted, as a Christian; and therefore, must infer a general Rule, that all Married persons, wilfully deserted, are free; but this seems inconsistent with Christs resolution, making Adultery the only exception, which is easily cleared, by adverting, that Christs determination is not general of the dissolution of Marriage, but of putting away by divorce; and so concludes no more, but that the putting away of the wife is unlawful, unless for Adultery, but the wilful deserter is not put away, but goeth wilfully away; yet whether the person deserted, or put away, be simply free by the dissolution of the Marriage, or only freed from the bondage of adherence, is not clear from that Text, 1 Cor. 7. 15. For from Matth. 5. 32. and 19. 9. Luke 16. 18. It would appear, that by desertion, the Marriage is not dissolved, and that the person deserted may not marry again, because it is said, That whosoever marries her that is put away (or deserted) committeth Adultery.

By the Law of Scotland, dissolution of Marriage for non-adherence, or wilful desertion, is expresly ordered, Parl. 1573. cap. 55. That the deserter, after four years wilful desertion, without a reasonable cause, must be first pursued and decerned to adhere, and being thereupon denunced, and also, by the Church excommunicate, the Commissaries are warranded to proceed to divorce; but the absence will not be accounted a wilful desertion, if he be following any lawful imployment abroad, and content to accept and intertain his Wife, for she is oblieged to follow him.

3. The rights arising from Marriage, are the Jus Mariti, or conjugal power of the Husband over the Wife, her Person and Goods, and therewith by consequence, the obliegement for her debts. 2. His power, and the Wifes security, whereby, during the marriage she cannot obliege her self. 3. The Husbands obliegement to intertain the Wife, and provide for her after his death, and her interest in the Goods.

Jus Mariti, as a Term in our Law, doth signifie the right that the Husband hath in the Wifes Goods, yet it may well be extended to the power he hath over her person, which stands in that oeconomical power and authority, whereby the Husband is Lord, Head and Ruler over the Wife, by the express Ordinance of God, Gen. 3. 16. Where the Lord says to Eve, Thy desire shall be towards thy Husband, and he shall rule over thee; which, though it may seem as a penalty imposed upon her, for being first in the transgression, and so not to be of the Natural or Moral Law, which is perpetual; yet it is no more than a consequence of the Moral Law, whereby Marriage being Institute before the Fall, The Woman was made for the Man, and not the Man for the Woman: And therefore, in that Conjugal Society, being but of two, the determination of things indifferent, of their Interest, behooved to be in the Man, and he to have in so far the Precedency and Government of the Wife; but when through the Fall, the greatest measure of infirmity besel her, as being first in [Page] the transgression, whereby she became the weaker Vessel: there was need, not only of a determination in things free, but an exaction of duties, whereinto she became less knowing and willing: Therefore, from that Consequence, and not by any new Imposition, the Man became to have Dominion over her, and power to make her do these duties, which in her Innocency, she would have done of her own accord.

This power oeconomical, as hath been said before, did naturally comprehend all authority, till most of it was devolved upon Magistracy, yet by this power the Husband may still contain the Wife within the compass of the conjugal Society, and her abode and domicile followeth his, and he hath right to recover her person from any that would withdraw, or withhold her from him, except in the case of an allowed Separation, for his Injuries and Attrocities, whereby she might not be with him in security and safety.

From this power the Husband hath over the Wifes person, and Conjugal Society involved in the Nature of Marriage, arises the Husbands power and right to the Goods of the Wife, whereby, according to the nature of Society, there is a community of Goods betwixt the Married persons; which Society, having no determinate proportion in it, doth resolve into an equality; but so, that through the Husbands oeconomical power of Government, the administration, during the Marriage, of the whole, is alone in the Husband, whereby he having the sole administration and unaccountable, his power may rather seem to be a power of Property, having indeed all the Effects of Property, during the Conjugal Society, yet is no more than is exprest.

This right of the Husband in the Goods of the Wife, is so great, that hardly can it be avoided by the pactions of parties, whereby if any thing be reserved to the Wife, during the Marriage, to be peculiar and proper to her, excluding the Jus Mariti: Yet the very Right of Reservation becoming the Husbands, Jure Mariti, makes it elusory and ineffectual, as always running back upon the Husband himself, as Water thrown upon an higher ground, doth ever return; And therefore a Wife, before her Contract of Marriage, having disponed a part of her Joynture, and taken a Back-bond for imploying of it for the use of her future Spouse and Family joyntly, though the Husband by his Contract of Marriage, renunced his right thereto; yet he was found to have the power to mannage it, to the use of the Family, February the 9. 1667. Lord Collingtoun and Ratho contra Tennants of Innerteil, and Lady Collingtoun, nevertheless by private pactions, the interest and division of the Goods of Married persons, after the dissolution of the Marriage, may be according to their pleasure, as they agree: and Alimentary Provisions, in case of necessary Separation, are so personal to the Wife, that inhaerent ossibus, and recur not to the Husband or his Creditors.

Besides the Obligations of the married persons, which are naturally in the minds and affections of each to other, there is outwardly the Obligation of Co-habitation, or Adherence, of which formerly; and the Obligation of the Husband to Aliment, and provide for the Wife in all necessars, for her Life, Health and Ornament, according to their means and quality, to which he is naturally bound, though he had no means, but were to acquire the same, For he that provides not for his own Family, is worse than an Infidel; yet the Civil effect thereof, is only to give Aliment and Intertainment, according to the mans means and quality, and so he is civilly bound, quoad potest; hence it is, that the Aliment, or Furnishing of the Wife, is a Debt of her Husbands, not [Page] only for what is furnished by Merchants and others, hoc nomine, in the Husbands Life, but even her Mournings after his Death, if it be proper for her quality to have Mournings, burden the Executors of the Husband, and not the Wife, November 12. 1664. Lady Kirkaffie contra Cornelius Neilson. July 7. 1675. Agnes Wilkie contra Christian Morison. Jus Mariti, is a Legal Assignation to the Wifes moveable Rights, needing no other intimation, but the Marriage, and is preferable to any voluntar Right, prior to the Marriage, if not intimate before the Marriage, December 18. 1667. John Achinlek contra Mary Williamson and Patrick Gillespie.

The Roman Law hath exceedingly varied in this matter from the Natural Law; for with them, the Wife was not in potestate viri, but either in potestate Patris, or, sui Juris, and her Goods remained fully her own, unless they had been constitute by her in a Tocher, of which the Husband had the administration and profit, during the Marriage, ad sustinenda onera Matrimonii; and in which, after dissolution of Marriage, he had no interest, except by paction, de lucranda dote; and for security whereof, the Wife had donationes propter nuptias equivalent, only in dote estimata, the Husband had power to dispose of the Tocher, for the value to which it was estimate; all the other Goods of the Wife were Paraphernalia, whereof she had the sole Power and Right.

The Customs of most Nations, even where the Roman Law hath much weight, in this matter have returned to the natural course, as is observed by Cassaneus, ad consuetudines Burgundiae, tit. 4. And Duarenus, tit. ff. de nupt. in relation to the Custome of France, Wessenbecius, in parat. ad tit. ff. de ritu nuptiarum. And Covaruvias, Epitt. lib. 4. Decretal. part. 2. cap. 7. In reference to the Customs of the Germans, Spaniards, and most part of the Nations of Europe; Gudelinus, de Jure Noviss. sheweth the same to be the Custome of the Netherlands, in which, they do almost in every thing agree with our Customs, to which we return.

By the Custome of Scotland, the Wife is in the power of the Husband; and therefore, First, The Husband is Tutor and Curator to his Wife, and during her Minority, no other Tutor or Curator need to be conveened, or concur to Authorize; So it was decided, French contra French and Cranstoun, hop. tit. de minoribus: But on the contrair, the Wife is in no case conveenable, without calling the Husband; and though she be Married, during the dependance, the Husband must be cited upon Supplication, and the Process continued against him, for his interest; Spots. Husband and Wife, Margaeret Bailie contra Janet Robertson. And likewise, a Wife being charged upon her Bond, given before Marriage, but the Letters not being raised against her Husband, for his interest, they were found null by way of exception, Nic. Reverentia Maritalis, Relict of Robert Young contra Wachup. yet a Wife was found con veenable, without calling the Husband, he being twenty years out of the Countrey, and she repute Widow, June 19. 1663. Euphan Hay contra Elizabeth Corstorphin.

Yea, a Wifes Escheat, or Liferent, falls not upon any Horning execute against her, during the Marriage, because, being then under the power of her Husband, she hath no power of her self to pursue, suspend, or relaxe, Dury, February 16. 1633. Stuart contra Banner man, and this was found, though the Decreet was an ejection committed, both by man and Wife; yet where the Horning is upon a deed proper to the Wife, as to divide the Conjunct-fee Lands, Horning is valide, Nic. Reverentia Maritalis, Duff contra Edmonstoun, [Page] or where the Horning was upon a Delinquence, as on Laborrows, Hope, Husband and Wife, Lord Roxburgh contra Lady Orknay.

In like manner, a Wife cannot pursue or charge, without concourse of her Husband, and so Letters not raised at his instance, were reduced, though he concurred thereafter, Dury, July 27. 1631. Robert Hay contra Mr. John Rollo. The like Spots. Husband and Wife, Napeir contra Mr. Robert Kinloch, and Agnes Lial. The like in a Reduction of an Heritable Right, done by the Wifes Father on death bed, which was not sustained, unless the Husband had concurred, or had been called; in which case, if he refused concourse without just reason, the Lords would authorize the Wife to insist. July, 8. 1673. Christian Hacket contra Gordoun of Chapeltoun. But we must except from this Rule if the Husband were Inhabilitat, or forefaulted. Had. the 26. of March 1622. William Hamiltoun contra Stuart, or the Wife authorized by the Lords upon special consideration, the Husband refusing to concur, Dury, the 9. of January 1623. Marshel contra Marshel: Or that she were pursuing her Husband himself, against whom, ordinarily she hath no Action, except in singular cases, ut si vergat ad inopiam; or in case he had diverted from her, Dury, December 21. 1626. Lady Foules contra her Husband: Or if a Wife with concourse of her Friends, at whose instance, Execution was provided by her Contract, were pursuing reduction of a deed done by her Husband, in prejudice thereof, during her life. February, 12. 1663. Lockie contra Patoun: or that the Obligation in its own nature, require execution in the Husbands life, as an obliegement to Infeft the Wife in particular Lands; but if it be a general Obliegement, to imploy Money for her, or to Infeft her, &c. which the Husband may at any time of his life perform: the Wife will have no Action against him, neither will she get Inhibition upon supplication, unless the Lords grant the same upon knowledge, that the Husband is becoming in a worse condition, or that the Wife hath quite a present Infeftment for an Obligation of an other; in which case, the Lords granted Inhibition, July, 13. 1638. Lady Glenbervy contra her Husband. This delay, where a Term is not exprest, is upon consideration of Merchants, who ordinarily having no other means, than the Stock with which they trade, it would ruine them if they were necessitate to imploy it on security, so soon as they are married.

It is a Priviledge of Women amongst the Romans, per Senatus consultum velleianum, that the Obligations by which they became surety, or interceeded for others, were void. But our Custome hath inlarged that Priviledge so far, that a Wifes Obligation for Debt, or personal Obliegement, contracted during the Marriage, is null, even though the Bond were granted by her, and her Husband containing an Obliegement to Infeft the Creditor, in an Annualrent out of their Lands; and in this case the Bond as to the Wife, and an Apprising thereon, as to her Life-rent of these Lands was found null; But here there was no special Obliegement of Annualrent, or Wodset of the Wifes Life rent Lands, but generally out of both their Lands. Dury, March, 24. 1626. Greenlaw contra Gulloway. The like, Hope, Husband and Wife, Archibald Douglas of Tofts contra Mr. Robert Elphingstoun, and Susanna Hamiltoun. The like, Dury, January, 30. 1635. Mitchelson contra Moubray; in which case, the Bond being granted by the Man and Wife, and thereupon Apprising deduced, though she did Judicially ratifie it upon Oath, never to come in the contrair: yet the Bond and Infeftment, as to her Life-rent, was found null, seing there was nothing [Page] to instruct her Ratification, but the Act of an inferiour Court, whereof the warrand was not produced. But a Wifes Obligation with her Husband, conjunctly and severally, oblieging them to pay, and also to Infeft in an Annualrent, out of either of their Lands, found null, as to the Wife in the Obliegement to Pay, but not as to the Obliegement to Infeft, December, 15. 1665. Master John Ellies contra Keith. Neither was a Wife found lyable for furnishing to the House in her Husbands absence furth of the Countrey, which did only affect her Husband, Spots. Husband and Wife, John Loury contra Lady Louristoun. The like, January, 29. 1631. Porter contra Law. The like, though the cause of the Bond was Money, advanced for the Wifes necessar Aliment; for which, no Process was granted against her, till her Husband was first discussed, December. 22. 1629. Mr. David Artoun contra Lady Hackertoun: And also a Wifes Obligation, without consent of her Husband, found not to affect her but him, though she was not, praeposita Negotiis; but because she was Persona Illustris, and her Husband out of the Countrey, Hope, Husband and Wife. Mr. David Russel contra Earl of Argyle: but a Wifes Bond for necessar Habiliments for her Body, found to obliege her self, and not her Husbands Executors; and as to these, she may contract, Had. July, 6. 1610. Eustacius Wise contra Lady Hallyrudhouse; this must be understood, where the Wife has an Aliment constitute by her Husband, or other Right exempt from his Jus Mariti. And it was so lately found, in the case of Adam Garrns Merchant contra Elizabeth Arthur, December, 19. 1667. February, 23. 1672. John Neilson contra Arthur. But a Wifes account of Furniture to her Person, not being great, found valide against her Husband, being subscribed by the Wife, though she was minor, being Persona Illustris, February, 20. 1667. Andrew Littlejohn contra Duke and Dutchess of Munmouth.

This Priviledge of Wives was extended to Obligations, or Dispositions made by the Wife, though before compleating of the Marriage, being after Contract and Proclamation, whereupon Marriage followed, January, 29. 1633. [...] contra Brown. The like specially where the Proclamation was not only at the Husbands Paroch Church, but the Wifes, July, 8. 1623 Stewart contra Aitkin. The like of a Disposition in favours of the Wifes Children, after their Contract and one Proclamation, July, 5. 1611. Fletcher in Dundee contra Brown. Yet Wives Obligations relating to their Delinquence, are not void, but only such as relate to their Contracting. So a Wife was found oblieged to fulfil an Act of a Kirk Session, under a Penalty that she should forbear an other mans company, which was found, not to affect her Husbands Goods, but her own, Hope, Husband and Wife, John Bell contra Executors of James Hogg and the Kirk Session of St. Cuthberts. Here also are excepted, Obliegements relating to Dispositions of Lands, Annualrents or Liferents, of which hereafter.

13. As to the Husband and Wifes Interest in their Goods, by our Custome, without any voluntar Contract, there arises betwixt them a communion of all Moveables, except the Habiliments and Ornaments of the Wifes Body, which though they be superfluous, and the Husband insolvent, are not Arrestable for his Debts: the Husband hath the full and sole administration of all moveable Goods, belonging or accressing to the Wife, during the Marriage, and the Rents and Profits of Heretable Rights, as being moveable: And therefore, an Heretable Bond, found to belong to the Husband, Jure mariti, because he was married before the Term of Whitsonday, at which time it was payable, June, 15. 1627. Nicolson contra Lyell; and a sum was found to belong to the Executors of the first Husband, though the Term of Payment was after [Page] his Decease, and not to the Wife, or her second Husband. Also, a Legacy left to a Wife, was found to belong to her Husband, Hope, Legacies, Elizabeth Brown contra [...]. Likewise, a Husband found to have right to a Bond, blank in the Creditors name, which the Wife, during the Marriage, put in the hands of a third Party, who filled up his own name therein, though the Husband and Wife were voluntarly separate, February, 11. 1634. Drummond, contra Captain Rollo, except Aliments duely and competently provided for the Wife, which are not Arrestable for the Husbands Debt, November, 29. 1622. Thomas Edmonstoun contra Christian Kirkaldie, and Alexander Barclay. The like of an Aliment modified by Decreet Arbitral, betwixt the Husband and a third Party, though the cause thereof was founded upon the Husbands Right, March 27. 1627. Westnisbit contra Morison; yea, the Husband himself found to have no access to a Sum provided to a Wife by her Father for her Aliment, July 4. 1637. Tennant contra [...].

This communion of Goods, by our Custome, extendeth not to the Wifes Rights Heretable, as Lands, Annualrents, Heretable Bonds, nor to Liferents; for as to these, the Wife may obliege her self personally in Clauses, relative to such Rights, as Clauses to Infeft, Clauses of Warrandioe, and Clauses of Requisition of Sums, for which her Lands were Wodset by her, if the Wife be first, and principally bound with consent of her Huaband: but where the Wife and Husband were bound for Infeftment, in Lands belonging to the Wife, and both bound in the Requisition, yet thereby the Wife was not found oblieged, either for granting the Infeftment or in the Requisition, because it appeared that the Money was not borrowed for the Wifes use, December 19. 1626. Mathie contra Sibbald, other ways such Obliegements are effectual against the Wife. The like, Hope, Annualrent, Agnes [...] contra James [...], where a Wife was found lyable to pay an Annualrent, disponed by her and her Husband out of her [...]-Fee-Lands, even during the time they were in Ward. The like of an Annualrent disponed by a Wife and her Husband, for which both were personally oblieged, in respect she lifted the Rents of the Lands, out of which it was to be uplifted. Spots. Husband and Wife, Walter [...] contra Margaret Chisholm. The like of a Clause of Requisition, in a Contract of Wodset, granted by the Wife upon her Lands, stante matrimonia, Hope, Husband and Wife, Agnes Gordon contra Elizabeth Gordon. And this is the difference betwixt these and other Personal Obliegements of the Wife, stante matrimonio, which even though the Husband consent, are [...] and obliege her not: yea, a Renunciation of a Tenement by a Wife, without consent of her Husband, being absent, though he ratified it at his return, was found null, Spots. Husband and Wife Helen Melvil contra So that the Husbands Right, Jure Mariti, to the Rents and Annualrents of the Wifes Rights, which are not Alimentary, cannot be evacuate without the Husbands consent, though the Wife may dispose of the Right it self to take effect after the dissolution of the Marriage.

In Heretable Rights of Wives, Bonds bearing Annualrent, though without a clause of Infeftment, are comprehended; for these remain Heretable, [...] & relictum, by the Act of Parliament, 1661. cap. 32. And therefore, a provision by a Father to his Daughter, bearing Annualrent, five per cent, found not to fall under the Husbands [...] Mariti, June 28. 1665. James [...] against [...] Edgar, July 4. 1676. John [...] contra Bruce.

The Marriage without any Contract, is a legal Assignation to the Rents and [Page] Profits of the Wifes Lands, and other Heretable Rights, during the Marriage: so that without his consent, the Wife cannot alter the condition thereof, in prejudice of his Right, during the Marriage.

Jus Mariti is so effectual, as to the moveable Goods of the Wife, that though a Life-renter in her second Contract of Marriage, reserved a part of her Life-rent Lands, to be solely at her own disposel, and that the Husband in the same Contract of Marriage, renounced his Jus Mariti thereanent, yet that Renunciation was found to be his Jur. Mariti; and so the profits of her Life-rent were affected by his Creditors, it not being constitute as a formal and a proportional Aliment, as was found in the case of the Creditors of Mr. Andrew Hamiltoun, contra Lady Carberry his Wife.

From this Communion of Goods, it follows also, that there is a Communion of Debts, whereby the Husband is lyable for the Wifes Debt, though it should both exceed her and his Moveables, and the profit of the Wifes Land, or of her other Heretable Rights; but this was not found to hold in matter of wrong, or Criminal things; and so the Husband found not lyable for a Spuilzie, or wrongous Intromission committed by his Wife, without his knowledge or approbation, during the Marriage, February 2. 1628. Scot contra Katharine Banks and James Neil. The same is observed by Spots, Husband and Wife, inter eosdem; these were done, Stante Matrimonio, without the Husbands consent: And yet the Husband found lyable for the damnage of a Milne demolished by his Wife, as praeposita negotiis; and by his Domestick Servants, though he was out of the Countrey, Spots, Husband and Wife, Laird Ludqhairn contra Earl of Marishal. Neither was a Husband found lyable for the penalty of the contraveening the Act of a Kirk Session, ut supra. A Husband found lyable for his Interest, for his Wifes Tutor Compts, not only what she was lyable for, during her Widouity, but during the time of a former Husband, his Successor being always first discust, as to what was [...] in his time, March 28. 1629. Mathison contra Waristonn; yea, without the discussing of the Successors of the first Husband, primo loco, where the intromission was before both Marriages, but prejudice to the Defender, to pursue the Heirs of the first Husband as accords, February 18. 1663. Dumbar of Hemprig contra Lord Frazer. But a Husband was not found lyable for Furniture, given by Merchants to his Wife, without his consent, she having gone to London without his Warrand, except in so far as her ordinar expenses would have amounted to; if she had stayed at home, though her Husband had not Inhibite her, July 6. 1677. John Allan contra Earl and Countess of Southesk.

After Inhibition against Wives, the Husband is not lyable for any thing they Contract, except what is furnished suitable to their quality, and where the Husband cannot instruct that he sufficiently provided his Wife otherwayes, July the 25. 1676. [...] Campbel contra Laird of Abden. The like was found at the same time, concerning the Furniture of the Lady Monteith.

But this obliegement of the Husbands being only for his Interest, [...] Mariti, the Debt it self doth not properly become his; but only it may take effect against his Person and Goods, during the Marriage: but if that Interest were dissolved by his own, or his Wifes death, there will be no farther Process against him, or his Heirs, Nic. de reverentia Maritali, Campbel contra Dumbar. And though there was, Litis contestation, before the Wifes death, the Husband was found free; [...] he was ordained by Interloqutor, to find Caution, to pay what should be decerned, July 11. 1664. Dumbar of Hemprig contra Lord Frazer. So likeways, [Page] a Husband decerned with his Wife for his Interest, she dying before execution, he was free of the Debt, December 28. 1665. Dam Rachel Burnet contra Lepers. The like, where the Husband was holden as confest, upon refusing to give his Oath of Calumny, February 26. 1668. George Graham contra Grizel Touris, and Kelhead her Husband: so likewise, a Husband decerned with his Wife for his interest, having died before execution, his Successors were found free of thedebt, Hope, transferring, Francis Kinloch contra Dumbar: But the contrair was found, where the Husband was denunced upon the Decreet, and had sold his Wifes Portion of Land; Ibidem, Earl of Murray contra Lord St. Colmb. The like, where the Decreet against the Husband, after his Wifes decease, was only found effectual, in so far as might extend to his Wifes third part of his Moveables, February 7. 1629. Brown contra Dalmahoy. And a Husband was found lyable for his Wifes Debt, after her Death, in so far as might be extended to the benefit of her Life-rent Duties, resting at her Death, February 1. 1662. Sir James Cuninghame against Thomas Dalmahoy. And the Husband is always lyable for his Wifes Debt, even after her Death, in quantum est lucratus, which cannot be understood to be by every Benefit, or Tocher, Marriage being an onerous Contract, where a Tocher is given, ad sustinenda onera Matrimonii, and for the Wifes Provision by Law or Paction, after the Mans Death: And therefore, he can only be accounted, Lucratus, when the benefit he hath by his Wife, doth far exceed these, onera, December 23. 1665. Dam Rachel Burnet against Lepers. And even in case he be Lucratus, the Wifes Heretage must be first discust, January 23. 1678. Agnes Wilkie contra Stuart and Morison. A Husband being charged Summarily for his Interest, upon a Decreet obtained against his Wife, before the marriage, and denunced thereupon; yet not being undertaken by him, or affecting his Goods before his death, he was Liberat, March 20. 1627. Knowes contra Kneiland. The like, though not only Horning was used against the Husband, but Arrestment thereupon, January 23. 1678. Agnes Wilkie contra Stuart and Morison. But a Husband having given Bond of borrowed Money for his Wifes Furniture, was found lyable therefore after her Death, July 7. 1680. Slowan contra Lord Bargainie. But that the Husbands Lands, or Here table Rights, will be lyable for his Wifes Debt, there is neither Decision nor Ground for it; these not being in Communione bonorum. It is more dubious, and for any thing I know, undecided, Whether the Heritable Debt of the Wife will affect the Husband, Quoad mobilia; but seing it is a Communion of Goods only moveable, it should be also of Debts moveable, though in communi forma, as Tutors or Curators. So Husbands will be decerned generally for their Interest; yet with this difference, that Tutors and Curators will be lyable, in so far as they have the Pupils Means. But I never heard that there was distinctions, whether the Wifes Debt did exceed the third part of the Mans Moveables, which is her Proportion of the same; but indefinitely, it hatheffect against the Husbands Person by Caption, or his [...] by Poynding. But a Wifes Heretable Bonds, become not her Husbands, though uplifted by her, or made moveable by a Charge, during the Marriage, seing she then re-imployed the Money for Annualrent, February [...]. 1679. Alexander Cockburn contra George Burn.

14. These are the Interests of the Man and Wife, during the Marriage; but before we come to their Interests, after the dissolution thereof, it is to be considered, that by our Customes, Donations between Man and Wife, Stante Matrimonio, are Revocable by the giver, during Life; [Page] which our Custome hath taken from the Civil Law, where this Reason is rendered, Ne unituo amore se spolient; Thus a Donation betwixt a Man and his Wife, was found anulled by the Husbands Revocation upon Death-bed, subscribed by Nottars, because of his Infirmity, Hope, Husband and Wife, Earl of Angus contra Countess of Angus. And a Husband was allowed to recall a Bond granted to his Wife, bearing, that he thought it convenient, that they should live a part; and therefore oblieged him to pay a Sum yearly for her Aliment; albeit it bore also, that he should never quarrel, or recal the same, as importing a Renunciation of that Priviledge, February 6. 1666. Livingstoun contra Beg. Yea, a Donation by a Husband to his Wife, was found Revocked by a Posterior Right to his Children, though it was not a pure Donation, but in lieu of another Right, and quoad excessum only, seing it was notabilis excessus November 20. 1662. Children of Wolmet against Lady Wolmet. And un Infeftment, bearing Lands and a Miln, was found Revockable, as to the Miln, it not being exprest in the Wifes Contract, February 5. 1667. Countess of Home contra Hog: This was extended to a Wifes accepting of an Infe ftment in satisfaction of her Contract, February 12. 1663. Relict of George Morison contra his Heir. It is also Revockable, indirectly by the Husbands posterior Disposition of the Lands, formerly Disponed to his Wife, in Life-rent, July 16. 1622. John Murray of Lochmaiben contra Scot of Hayning. A Donation by Infeftment, granted by a Man to his Wife, beside her Contract, found Revocked by an Annualrent out of these Lands, granted to his Daughter, pro tanto, without mention of Revocation, December 15. 1674. Mr. Robert Kinloch contra Raith. It was also found effectually Revocked, by the Husbands submitting of the Right of the Land, wherein he had formerly gifted a Life-rent to his Wife, and a Decreet Arbitral, adjudging the same to another, Nic. de Donat. inter virum & uxorem; Viscount of Annandail contra Scot. But Donations by a man to his Wife, who had no former Provision, nor Contract of Marriage, found not Revockable, being in satisfaction of the Terce, due by the Marriage, March 25. 1635. Laird of Louristoun contra Lady Dunipace. The like, November. 22. 1664. Margaret Mcgill contra Ruthven of Gairn. But where the Husband granted Infeftment of all that he then had, there being no Contract of Marriage, And thereafter, a second Infeftment, both Stante Matrimonio; The first was sustained, being in place of a Contract of Marriage; but the second was found Revockable, 23. of November. 1664. Halyburtoun contra Porteous. And a provision to a Wife, having no Contract of Marriage, was found Revockable, in so far as it exceeded a Provision suitable to the Parties, 27. of July 1677. Short and Burnet contra Murrays. Yet the want of a Contract did not sustain a Donation by a Wife to her Husband, to whom she assigned an Heretable Bond, the Husband being naturally oblieged to provide for his Wife, and not the Wife for her Husband, December 15. 1676. Inglis of East-shield against Lowry of Blackwood. And an Assignation to an Heritable Bond, by a Wife to a third Party, but to the Husbands behoove, found Revockable by the Wife, after the Husbands death, even against the Husbands singular Successor, for causes onerous, the trust being proven by Write, June 17. 1677. Margaret Pearson contra Mclane. Yea a Donation by a Wife, by Assignation of her former Joynture, to her Husbands behoove, found Revockable, though there was no Contract, unless the Husband had given a remuneratory provision, January 22. 1673. Janet Watson contra Bruce. And a Wifes consent to a Contract of Wodset of her Life-rent Lands, with a back-tack to the Husband, only found valid as to the Creditor, [Page] but Revockable as to the Husband, in relation to the back-tack, declaring the same to belong to her for her Life-rent use, that she might injoy the superplus more than the Annualrent, June 28. 1673. Arnot contra Buta Donation by a Husband to his Wifes Children of a former Marriage, was not found Revockable, though done at his Wifes desire, January 15. 1669. Hamiltoun contra Banes. Nor by a Wife subscribing her Husbands Testament, by which her Life-rent Lands were provided to her Daughter, July 12. 1671. Marjory Murray contra Isobel Murray. Such Donations are also annulled by the Wifes Adultery and Divorce. As all Donations are Revockable for ingratitude, Hope, donatio inter virum & uxorem, Margaret Dowglas contra Aitoun. A Bond conceived to a Man and Wife and her Heirs, found a Donation by the Man, whose Means it was presumed to be, and Revockable by him after her death; and a Tack taken by him, to himself and his Wife in Life-rent, was found Revockable, by a posterior Tack thereof to himself and his brothers Son, December 21. 1638 Laird of Craigmiller contra Relict of Gawin [...], yet thereafter it was found in the same case, January 30. 1639. that in respect the [...] was set by a third person, and that it did not appear to be by the Mans [...], that the Back-tack to the Wife, was not Revockable. But a Donation betwixt Man and Wife, altering their Contract of Marriage, being done before the marriage it self, was not found Revockable, January 23. 1680. John Home contra John and George Homes; yea where the Donation did bear date before the Marriage, the Husbands Heir proving the Write antidated, and that it was truely after the Marriage; the Donation was therefore found Revockable, July 24. 1667. Earl of Dumfermling contra Earl of Callender.

15. To come to the Interest of the Husband and Wife, after the Dissolution of the Marriage, we must distinguish the Dissolution thereof, which falls by death, with in year and day from the solemnizing thereof, and that which is Dissolved thereafter; for by our Custome, this is singular, which is found no where else in the Neighbouring Nations, that if the Marriage Dissolve within year and day, after the Solemnizing thereof, all things done in Contemplation of the Marriage become void, and return to the Condition wherein they were before the same; and so the Tocher returns back to the Wife, or these from whom it came, and she hath no Benefite or any Interest, either in the Moveables or Heretables, either by Law or Contract provided to her: nor hath he any Interest in hers, unless there were a living Child born, which was heard cry or weep: in which case, Marriage hath the same effect, as to all intents and purposes, as if it indured beyond the year and this is extended to both the Marriage of Maids and Widows, July 23. 1634. Maxwel contra Harestones. And extended also to an Infeftment by a Husband to a Wife, though it had no relation to the Marriage, but was only presumed to be, hoc intuitu, November 16. 1633. Grant contra Grant, and not only extended to the Wife and Husband, and their Heirs, but to any other person concerned, Restitution being made, hincinde, of all done, [...] Matrimonii, June 8. 1610. Laird of Caddel contra Elizabeth Ross: yea, a Disposition by a Father to a Son of his Estate, in Contemplation of his Marriage, which was dissolved within year and day by the Wifes death, was found void; seing the Father persisted not therein, but Infeft his second Son, July 15. 1678. Lord Burley contra Laird of Fairny. And a Tocher payed within the year, was [...] to be repayed without any Deduction, for the Wifes intertainment, during the Marriage; but only for her Cloathes which were before the Marriage, and her Funeral Charges which was after the Marriage was Dissolved, February 23. 1681. Janet Gordoun contra Thomas Inglis. But Gifts given to the Married Persons, by the Friends of both, were divided equally, the [Page] Marriage being dissolved within year and day, January 14. 1679. Wauch contra Jamison. But if a living Child was born, the Marriage was found valide, though both Mother and Child died within the year, Spot. Husband and Wife, Stuart contra Irving. The reason why the Child must be heard cry, is to make certain its lively ripeness, and not to leave it to the conjecture of the Witnesses: and therefore, it sufficed not, though they did declare, that the Child was living immediately before the Birth, and appeared lively and full ripe when it was born, but that it was stifled in the Birth, as was found in the case of Sandelands and Thores; yet a Wifes Infeftment was found valid, till her Tocher was repayed, though the Marriage Dissolved within the year, July 20. 1664. Petrie contra Paul. But where a Marriage continued a year, and a part of the next day after the year, the Tocher was found not to return, Nam in favorabilibus dies, ceptus habetur pro completo, February 25. 1680. George Waddel contra George Salmond.

16. Marriage Dissolveth by Divorce, either upon wilful non-adherence, or wilful Desertion, or by Adultery; and the party injurer loseth all benefit, accrueing through the Marriage, as is expresly provided by the foresaid Act of Parliament, concerning non-adherence, 1533. cap. 55. But the Party injured hath the same benefit, as by the others Natural Death; as was found, March 21. 1637. Lady Manderstoun contra Laird of Rentoun. But if Divorce follow upon Impotency, all things return, hinc inde; because, in effect there was no Marriage, as was found, Earl of Eglintoun contra Lady Eglintoun.

17. By the Dissolution of Marriage, there ariseth to Married Persons, not only these Rights, which by voluntar Contract are Constitute to either, and which are not proper here: but also these, which by Law and Custome, are Competent without any special Convention, or Covenant; and these are either upon the part of the Husband, or more frequently upon the part of the Wife: To the Husband is Competent, the Life-rent of the Wifes Heretage; which, because it is peculiar unto these Nations, it is said to be the Courtesie of Scotland or England. To the Wife ariseth, her share of the Moveables, which is the half, where the Man hath no Children, in familia; and the third, where there are such, and her Terce, which is the third part of his Lands, during her Life. But of Reversions, Heretable Bonds, Dispositions, or Rights of Lands without Infeftment, and of Teinds, or Tacks, or Tenements within Burgh, the Relict hath no Terce. These Rights of Terce and Courtesie, fall in to be considered amongst the Feudal Rights; and the Relicts third, or half of Moveables, in the Succession of Moveables, wherein it is a Concomitant, and regulat according to that which is proper Succession, either of Children, or others; though as to the Wife, it be rather a Division of that Community of Goods Moveable, that was Competent to the Married Persons, during the Marriage, and therefore shall be insisted on no further here, but left to these places. And we shall proceed to the next kind of Obediential Obligations, and Natural Rights, which interveen betwixt Parents and Children.

Law and Custome hath favoured, and priviledged Wives in many cases, propter fragilitatem sexus, they are free from obliegements, for sums of Money, and from personal Execution, by Horning or Caption, if it be not for Criminal Causes, their Contracts of Marriage are preferable to other Personal Creditors, February 8. 1662. Thomas Crawford contra Earl of Murray; their share of their Husbands Moveables, is not burdened with the Husbands Heretable Debt, December 28. 1668. Margaret Mckenzie contra Robertsons. July 19. 1664. Elizabeth Scrimzour contra Murrays; yea, gratuitous, moveable Bonds granted by a Husband, payable at his death, whereby the whole Executry would be exhausted, [Page] and the Wife have no share, having no other provision; the same were not found to affect the Wifes share: But otherways, such Bonds granted in Leige Poustie, without fraud, were found to come off the hail Head, and not off the deads part only, December 8. 1675. Thomson contra Executors of Eleistoun. And a Wife was found not excluded from her share of her Husbands Moveables, by a gratuitous Disposition by her Husband to his Brother, of all sums that he should have at his death, January 10. 1679. Grant contra Grant. In like manner, the Infeftments and Provisions of Wives are effectual, although the Tocher, which is the mutual cause thereof, be not payed, she not being oblieged therefore her self, though the Contract bore, that the Tocher being payed it, should be imployed to the Wifes use, July 5. 1665. Mackie contra Stuart. The like, though the Contract bore, that the Husband should imploy the Tocher for the Wife, in Life-rent, albeit the Tocher was lost through the Fathers Insolvency, June 11. 1670. Margaret Hunter contra Creditors of John Peter. The like, though the Contract bore, that the Wife should have no benefit while the Tocher should be fully payed, if the Tocher could be recovered by the Husbands diligence, November 21. 1671. Mary Menzies contra John Corbet. On the same ground, a Contract of Marriage, bearing the one half of the Tocher to the Wife, failing Children, albeit conceived passive, and not that the Husband was to pay the same, or do diligence therefore; yet the Husband was found lyable to pay the half of the Tocher, although it was not recovered, unless he had done the diligence of a provident man, which was found implyed in his Duty and Trust as Husband, the Wife being in potestate viri, July 14. 1676. Jean Lockhart and Raploch her Spouse contra James Bonar. And though Husbands have no communion in the Habiliments and Ornaments of the Wife, which cannot be affected for his debt; yet she hath her share of the Habiliments of the Husband, which falls in his Executry; and he is oblieged to pay all Accompts for her Habiliments, suitable to her quality. But where the Wife had an Alimentary Provision for her Habiliments, Ornaments and her other Uses, the Husband having furnished them, and received that sum, was not found lyable to repay the same to her Executours, February 2. 1667. Executours of the Lady Piltoun contra Hay of Balhousie. Wives have not only a half, or third of their Husbands Moveables, when they survive, but have their Aliment till the next Term, after the Husbands death. Yea, a Wife was found to have right to the expenses of Child-bed, of a posthumus Child, born after the next Term, against the eldest Son, though he was not Heir, but having an universal Disposition of his Fathers means, which was very considerable: which Disposition was granted after the Posthumus Childs Conception, November 10. 1671. Thomas Hastie and Barbara Ker his Mother contra William Hastie. A Wife has also her Mournings, if her quality require it, out of her Husbands Executry, November 12. 1664. Nicolas Murray Lady Craigaffie contra Cornelius Neilson. July 7. 1675. Agnes Wilkie contra Christian Morison. And likewise, if the Wife predecease, her Executours have the half, or third of her Husbands Moveables, the best of every kind being set aside, as Heirship Moveables, though there could be no Heir for the time, the Husband being alive, December 8. 1668. Agnes Guidlet contra George Nairn.

TITLE V. Obligations between Parents and Children.

[Page]

1. Obligations betwixt Parents and Children, are Divine by the Law of Nature.

2. The Power of Parents over their Children:

3. In Infancy;

4. In Minority;

5. In Majority.

6. Oeconomical Government.

7. Provision of Children.

8. Obligations of Children to their Parents.

9. Aliment due to Parents.

10. Obligations mutual of Children.

11. Patria potestas, amongst the Romans.

12. Amongst other Nations especially, as lawful Administrations.

13. Forisfamiliation and Emancipation.

THAT there be Natural Obligations betwixt Parents and Children, not proceeding from the consent of either Party, or from the Constitution of any humane Law, but from the obedience Man oweth to his Maker, who hath Written this Law in the Hearts of Parents and Children, as to their Interests and Duties, with Capital Letters; Is evident by the common consent of all the Nations of the World, how Barbarous soever; though evil custome hath put out the Eyes of Natural Light in other things; yet in this, the Rays of the Sun of Righteousness are so direct, that their illumination cannot be extinguished. These Obligations are so firm, that in most things they cannot be taken off, nor discharged by Men; though Children would discharge their Parents of Natural Affection, Education, Provision, [Page] &c. Or Parents would free their Children of Reverence, Obsequiousness, and of Intertainment of Parents, not able to Intertain themselves: yet would these Obligations still be binding upon either. These Obligations are placed in the Common Nature that Man hath with other Animals, and so is given as an evident Instance of the Law of Nature, l. 2. ff. de justitia & jure.

We shall then consider what these are; And first, What Interest the Parents have in the Persons of their Children. Secondly, In what they are Naturally bound-to to their Children. Thirdly, What interest the Children have in the Goods of Parents. Fourthly, What they Naturally do owe to their Parents. Fifthly, what they are bound in to each other.

2. For the first, ere we can distinctly know the power Parents have over their Children, we must distinguish the Capacity and Ages of the Children, whereof there are three, Infancy, or Pupilarity; Minority, or less Age; and Majority, or full Age; So doth Aristotle distinguish, Polit. 1. cap. ult. Ethic. l. 4. cap. 3. l. 5. cap. 10. And after him. Grotius, de jure belli & pacis, l. 2. cap. 5.

3. Infancy is, when the Children are without Discretion, and then are wholly in the power of their Parents, who not only may, but must carry them whither, and keep them where they will; and must also breed and order them according to their capacities, means and qualities: And this is rather an Act of Dominion in the Parents, the Children being then capable of no Obligation; and therefore it cannot be received by them from the Parents as an Obligation, as it may thereafter be done, during the Childrens Minority, wherein there is a Natural Levity, for want of fixedness and experience, while the Light of Reason is but drawing towards its Meridian clearness.

4. It will not much be debated, but the direction of Children in their Minority, is naturally stated in their Parents; But the greatest Question will remain, of their full Age, when the Children become able to govern themselves, and their own Affairs: And as to that, it is the opinion of some, that it standeth alone, inpietate & reverentia, Steph.oeco.juris civilis, cap. 7. and Vinnius partitionum, l. 1. cap. 7. in principio, sheweth, that the Custome of Holland dissolveth the power of Fathers, by the Childrens age of 25.

5. Whatsoever may arise from the Custome of Nations, whereby the power of Parents over their Children, in their full Age is much diminished; yet by the Original and pure Law of Nature, not only the Tutory and Protection of Childrens Infancy with the Cure, and direction of their Minority, is in their Parents. But there is also an oeconomick Authority in the Father of the Family, over all his Children and Descendants remaining in his Family, whom he hath not Elocat by Marriage (which is also a Natural Bond) unto other Families, whereby the Females do naturally change their Families, and become under the power of another Family.

6. This is the only Natural Authority and Government, which had in it self all Authority, Publick, Private, Civil and Criminal, till by Humane Constitution, and Divine Approbation, most of that power is now devolved into Magistracy. This Power was not only before Magistracy, but even thereafter remained, with subordination thereto in most Nations, as Caesar de bello Gallico, lib. 2. Writes that among the Gauls and Belgae, Parents had the power of Life and Death. The like power had the Romans anciently, l. in suis haredibus, 11. ff. de liberis & posthumis, l. libertati, 10. Cod. de patria potestate. Aristotle [Page] testifieth the like of the Persians, lib. 8. Ethic. cap. 12. And by the Judicial Law, Deut. 21. vers. 18. The rebellious son, who obejed not the voice of his Father and Mother, was to be brought forth before the Elders of that place, and stoned to death, without other proof than the parents testimony; So that the sentence was the Parents, though the execution was to be publick. Such Authority was that of the Patriarchs, Abraham, Isaac and Jacob, who with Divine Approbation, made War, Peace and Confederacys, which are the publick and proper Rights of Magistracy, and Governed their own Families without any Authority derived from any other. And though Jacobs Family arose to that greatness, that in it were many Families, yet he remained the Father and Prince of them all; so that the several subordinat Families, had their subordinat Authority over their Wives and Children, and so their Children were bound in Obedience to them, but with the exception of their Superior Parents, to whom the first Obedience was due.

This Native Authority reacheth all Children, whether procreat of lawful Marriage or not, so that they be truely known to be Children, because the same Foundation, and common Principles and Duties, are in both, though they have not the same Interest in the Fathers Goods, in respect of that Community of Goods betwixt Man and Wife, and the Conjugal Society, even naturally, whence the Goods are derived into the Issue of the Lawful Marriage.

This Paternal Authority doth not necessarily carry the property and disposal of the Goods of the Children; but that they are capable of such by the Gift of their Parents, or any other ways, even in Infancy, and that they have the full Dominion and Administration thereof, in their full Age: And therefore, Bonds of Provision, by Fathers to Children, if delivered, are not Revockable, directly nor indirectly, by contracting Debts thereafter; And the delivery of such Bonds of Provision, makes them irrevockable, whether the delivery be to the Children, or to any other for their behoove (which behoove will be presumed, unless the Father express his mind at the delivery, that the Write is to be returned to himself, or depositate upon terms) and therefore, a Bond taken By a Father, in the name of his Brother, the Father obtaining an Assignation from him to his Daughter; the Bond was not found Revockable by the Father, being Registrate in the Brothers Name, November 20. 1667. Executours of Trotter contra Trotter. Childrens provisions by Bond, granted after a Testament, nominating them Executours, found not to import that they should have the Executry, if the Heir be oblieged to pay the Bonds of provision; but that the Bond being Moveables should first affect the Executry, February 22. 1677. Belfhes of Tofts contra Belshes. And a Father granting Bond to a Bairn, in satisfaction of her Portion natural, was not found thereby to apply that Bairns Portion natural to the Heir, Executour, or unlversal Legator, though they would be lyable for payment of the Bond; but to apply that Bairns share to the rest of the Bairns, who thereby will have the whole Bairns part, February 17. 1671. Mistris Katharine Mcgill against the Viscount of Oxford, for Bonds of provision, delivered in liege pousty, do, as other Debts, affect the whole Executry, and where all the Bairns had Bonds of provision, bearing in satisfaction, they had also their Bairns part of the Executry, July 16. 1678. Murrays contra Murrays. But Bairns provisions, payable at such a day, and not bearing the proportion of the deceasing to accress to the surviving the share of these Bairns, who dyed before that age, without Issue, was not found due, February 22. 1677. Belshes of Tosts contra Belshes. The delivery of Writes in other cases, is presumed from the date, if they be in the persons [Page] hands, in whose favours they are granted; but in competition with other Creditors, the delivery of Bonds of provision is not presumed to have been from the date, but that [...] be instructed by some evidence, as taking Seasing, Registration, or Witnesses, who saw the same in the hands of the Children, or others to their [...], and in that case they are valide, if there be no [...], or prejudice to Creditors, by latency or [...] and therefore Bonds of provision to Children, were reduced upon the eldest Sons Contract of Marriage, though [...], January 10. 1668. Laird of [...] his Brothers and Sisters. And a posteriour Tocher was preferred to a prior Assignation, to a Bairn in Family, unless the prior delivery were also proven, November 14. 1676. Major Ingles contra [...], June [...]. 1668. Johnstoun of [...] contra Isobel Arnold.

But from this paternal power, it follows, that the Parents may continue and keep their Children in their Families, and that they are oblieged to imploy their Service and Work, for the common interest of the Family, and what thence arises, is the Parents, not their own, which doth always indure, till by consent of the Parents, they become [...], whereby they may imploy their Work and Service for themselves alone.

Thus the interest of Parents in the Persons and Goods of their Children, by the Law of Nature, being cleared. As to the Obligations Natural of Parents toward their Children (beside their Obligations that stand, and are acted in the Mind and Affections, which the Law respecteth not, but these only, qua non mente, sed manu tenentur) the main Obligations are Education and Provision. The Education of Children consisteth not only in the Care and Intertainment of them, during Infancy; but especially in Breeding of them for some Calling and Imployment, according to their capacity and condition.

7. The duty of provision of Children, comprehends, not only their Aliment, and Intertainment in Meat, Cloaths, Medicine and Burial, which may be competent, during the Parents Life; but also competent provision after the Parents Death; for the Apostle saith, That he that careth not for his family, is worse then an Infidel, 1 Tim. 5. vers. 8. And in both, the ability of the Parent, and necessity of the Children is to be considered; for if the Children be [...] provided, aliunde, the Parents are not bound; and though the Children be necessitous, yet there must first be reserved for the Parents, that which is necessar for subsistence, so that when they are not able to intertain their Children, they may lawfully expose them to the mercy and charity of others. But a Father, though indigent, was decerned to receive his Son (having no Means or Calling) into his Family, or to pay him a modification, January 13. 1666. William Dick contra Sir Andrew Dick. But a Father was not found lyable to pay a Merchant for Furniture given to his Son, where he gave his Son an allowance in Money for his Cloaths, January [...]. 1672. High [...] contra Craufoord of Camlarg. Neither was a Father found lyable for his Daughters Bridel-Furniture to a Merchant, whom he prohibit to give them off; but the Daughter and her Husband, July [...]. 1672. [...] contra [...] and Gairn: and a Mother was found oblieged to receive her Children into Family (but for no other modification) though they were Noble Persons, there being none representing the Father, able to intertain them, February 23. 1666. Children of the Earl of Buchan contra the [...].

As to the Interest Children have in the Goods of their Parents, it is to be considered, either during the Parents Life, or after their Death; for the Interest they have after their Parents Death, it falleth in to be considered [Page] among the conveyances of Rights by Succession; but during the Parents Life they have no real Right of Dominion, or Property in the Parents Goods: for though the Parents be oblieged naturally, to Intertain and Educate their Children out of their Goods, yet that is but a personal Right, and intituleth not the Children to meddle with the Parents Goods, upon that pretence, as saith Solomon, Prov. 28. vers. 24. Who robbeth his Father and Mother, and sayeth it is no transgression, the same is the companion of a destroyer.

8. The Obligation of Children toward their Parents, consists mainly in their Obedience to them; and their duty to Aliment and Supply them in all their necessities, according to the Childrens ability: their Obedience to their Parents is much cleared from that Power and Authority their Parents have over them, of which we have spoken. For unto Authority, or power to Command, Subjection, or Obedience answers, as the Correlate; so that as the Parental Power was most in the Infancy of the Children, and least after their forisfamiliation; so are the duties of Obedience proportional: but after Emancipation, these duties are so far diminished, that little remaineth, except the Natural Reverence, Tenderness and Obsequiousness, that Children do still owe to their Parents, in due order; which, though it hath no civil remeeds, yet it remains a Natural Obligation, to observe the Parents commands, throughout their Posterity, as in that Nottour Example of the Rehabites, Jer. 35. is clear, where they observed their Fathers Commands, in a free thing, though inconvenient, viz. To drink no Wine, to build no houses, &c. and for their Obedience, the Lord promises, There should not be wanting a man of them to stand before the Lord for ever. But while they are in the Family, they are not only under the oeconomick Government of their Parents, in so far as is not devolved to the Magistrat; but specially they are bound to abide with their Parents, and to imploy their Service for their Parents, and the use of the Family, whereunto their Parents may compel them by their own proper Authority; and Parents have Action against all others, who shall hinder them to keep their Children with them, or lead them whether, and imploy them as they please.

9. The Obligation of Aliment, and Relief to Parents in necessity, is due, both by the Law of Nature, and hath in it also, that Remuneratory Obliligation, whereby Children ought to retribute to, and recompence their Parents for their Education and Intertainment; and though it be said, 2 Cor. 12, 14. That Children ought not to lay up for the Parents, but the Parents for the Children; yet it is to be understood, of that care, foresight and Providence that Parents ought to have, not only to provide things necessar for themselves, but for their Children also after them, which being an ordinary duty, ought to be in their thought and consideration; and is not incumbent to the Children, it being but rare and unexpected, that Parents necessities put them to expect relief from their Children; or else it is to be taken comparatively, that parents are rather to lay up for the Children, then Children for the Parents. Solons Law made the Children infamous, who did not Aliment their Parents. And Cicero in his Oration, de responsis aruspicum parentibus, nos primum natura constituit debitores, quos non alere nefarium est.

In these Natural Obligations of Aliment betwixt Parents and Children, the Order of Nature must be observed, that the nearest are first to be preferred, and the Paternal Line before the Maternal, as being in an other Family; for even the distinction of Families, and union thereof in the Paternal [Page] power, is natural, as before is said. From the same ground, Parents must first Aliment their Children in the Family, and amongst them that are Emancipat, the Males are preferable to the Females, passing by Marriage into other Families.

10. As to the Natural Obligation of Children amongst themselves, there is no doubt, but that there Naturally lye greater Obligations upon them, each to other, than the common Obligations betwixt man and man, which are not only greater in the measures and degrees, as to love them, assist them, support them, and supply their necessities the more, by how [...] degree of Blood they are bound to them than others, which is commonly acknowledged by all. But the Romans, and many other Nations have acknowledged, the Natural Obligations of Brothers and Sisters, to [...] each other; though our Custome hath not Authorized the same, unless the Brother were Heir to the Father in a competent Estate, and the remanent Children not at all provided; in which case, the Lords modified Aliment to them, January 24. 1663. the Children of Wedderlie contra his Heir. Aliment was also found due by a Brother to a Sister of a second Marriage (who had a Portion to be payed) at the age of fourteen, and no Annualrent or Aliment in the mean time, though they had a Mother on Life, [...] 11. 1663. Catharin Frazer contra Hugh Frazer. The like found due by an Heir Male, to Heirs of Line till their Marriage, seing their Portions bore no Annualrent, January 8. 1663. Lady Otter contra Laird of Otter. November 12. 1664. Daughters of Balmanno contra Heir-male thereof. It is also an Natural Obligation upon Children, or Kinsfolk descending from one common Stock, to defend, and have the Tuition of the Pupilarity of that Race, which is incumbent ordinarily to the next degree in that same Family; and this is the natural rise of Tutors, of which in the next Title.

11. The Romans did no more diminish the Conjugal Interests and Obligations, competent by Nature (as is before shown) then they have exceeded the Law of Nature, in the interests betwixt Parents and Children; for thereby the Parents power is so great, that no Nation hath the like, Institut. de patria potestate, §. 2. it being almost Dominical, and the Children as Servants, l. placet. 99. ff. de acquirenda haered. the Father had also the power of Life and Death, l. ult. Cod. de patria potestate, l. [...] 11. ff. de liberis & posthumis; They had power also to sell their Children unto Servitude. This was the ancient Roman Law, whereof the austerity was by little and little corrected, by the recent Law, so that both in Servants and Children, it was taken off, and this power [...] to cases of extream necessity, l. 2. Cod. de patribus qui filios. Children were permitted also to have Goods of their own, which were called, peculia; in which they were as free, and had all their Rights and Actions competent as others, but with these Restrictions, whereby the Right of the Father, in the Goods of the Children, was much abaited; For in the peculia, which the Son acquired by Arms, or liberal Arts, the Father had no power, which was called, peculium castrense, vel quasi castrense, l. 2. ff. ad. [...]. Maced. of other Goods which befell the Children, or were acquired, and came not from the Father, which were therefore called Adventitious, the Father had the Usufruct and Administration; but not the Property or Power of Alienation, l. 2. Cod. de bonis maternis, only in [...], which came from the Father, he had full Right and Property, and [Page] all permitted but to the Son, was to make use of, and mannage it for the Fathers Advantage.

In these peculia, Children were as Fathers of Families, by recent Law, l. 1. filius familias. 39. ff. de oblig. yea, even the ususruct ceased in Goods given, or left to the Children, excluding the Parents, nov. 117. in principio. 2. Next, where any thing was given, or left to both [...]. 3. When the Goods came by the Fathers fault, as when he did unjustly Divorce with the Mother, Nov. 117. de haered. cap. 10.

12. The Custome of the Neighbouring Nations do follow more closely the Natural Law, as the Custome of France, and the Netherlands, as is recorded by Gudel. de jure Nov. cap. 13. And Mathias Stephanus, [...] the like of the Customes of Germany, oecon. juris civilis, lib. 2. cap. 67. §. 4. The Custome of this Nation also keepeth close, to what is expressed before of the Natural Law, as to the Interests and Obligations of Parents and Children, and thereby Aliments are frequently decerned to Children, to be payed by their Fathers, if they expell them from their Families, and that not only by the Act of Parliament, providing Aliment to Heirs of Land, to be payed by the Liferenters; but a Father, though his Son had no Lands, was found conveenable, super Jure naturae alendi [...], July 21. 1636. Laird of Ramorney contra Law. So also by our Custome, a Father is Tutor of Law to his Sons being Pupils: and therefore, a Father was found lyable to the Son for Annualrent of his Mothers third of Moveables, remaining in the Fathers Hands, February 4. 1665. Beg contra Beg. But a Father was not found oblieged for Annualrent of a Legacy belonging to his Son, uplifted by him, seing he Alimented the Son, December 15. 1668. Margaret Winram contra Mr. James Ellies. A Father is also Curatour to his Children, specially when in his Family, unless other Curatours be chosen by his consent; and so a Father discharging the Rent of his Sons Lands, set by the Father, though he was only Life-renter, and the Son, the Pupil-Fiar, was found valid, for years after the Fathers Decease, in respect he was lawful Administrator, young Rosyth contra his Tennants. But a Father being poor, was not allowed to lift his Sons Money, without finding Caution to make it forth-coming, February 12. 1636. Givan contra Richardson. Neither might a Father, being lapsis bonis, assign a Tack, acquired by him to his Son, though he might uplift the Duties, as Administrator, January 29. 1629. Lands contra Dowglas. So deeds done by such Minors, without their Fathers consent, as lawful Administrator, were found null, George Stuart contra Home of Rentoun.

After Pupilarity, a Father is no more Tutor to his Children, and so might not discharge for his Daughter, being past Pupilarity, but only consent with her as Curatour, June 26. 1610. John Forrest contra Forrest. A Father is lawful Administratour, both as Tutour and Curatour honorarie, of himself, without any Cognition or Solemnity, and is not lyable for omission, neither is he exclusive of other Curatours. But deeds done without a fathers consent by a Son, were found null, albeit the Son resided not in his Family, but followed the Law, having no Calling or Patrimony to maintain himself, but living on his Fathers Charges; neither was his Fathers Subscribing with him, found a sufficient Authorizing of him, seing he Subscribed with his Father, as Cautioner for [Page] him, December 7: 1666. Sir George Mckenzie contra Mr. John Fairholme.

13. As to the Fathers power, to keep his Children within his Family, and to apply their work for his use, though controversies in that point have seldom been moved, but the matter transacted by consent: It is not to be doubted, but that Children may be compelled to remain with their Parents, and to imploy their Service for their use, even after their Majority, unless they be foris-familiat by Marriage, or by Education in a distinct Calling from their Parents, unless their Parents deal unnaturally with them, either by Attrocity, or unwillingness to provide them with a competent Marriage, in due time, and with means suitable to their Condition, for that obliegement to provide for them, would be a ground of exception against them, if he would unjustly detain them in these cases; or if the Father countenance, or allow the Children to live by themselves, and to mannage their own Affairs apart, from whence his tacit consent to their Emancipation, may be inferred; in which cases also, Zas. 19. in lib. utrum turp. &c. De verb. oblig. And, Math. Steph. oecon. juris civilis, lib. 2. cap. 1. doth declare, that the Consuetude of Germany is the same with our Customes before expressed. The English account Children to be Emancipat, so soon as they passe their Minority, Cowell. Institut. jure Anglicani. Tit. 12. §. 4.

TITLE VI. Obligations of Tutors and Curators, Pupils Minor, and persons Interdicted.

[Page]

1. The rise of Tutory in the Law of Nature.

2. Order of Tutory by the Law of Nature.

3. The Naturall Obligation of Tutors.

4. Pupils Obligations to their Tutors.

5. Kinds of Tutors by the Common Law.

6. Tutors Testamentar.

7. Tutors Testamentar exclude all others.

8. Tutors of Law, who.

9. How Tutors of Law are entered?

10. The time within which they must enter.

11. Tutors Dative.

12. Pro-tutors.

13. Factors for Tutors.

14. Con-tutors.

15. Tutors custody of the Pupils Person.

16. Tutors Authorizing their Pupils.

17. Tutors, or their Factors Rights, relating to the Pupils, accress to them.

18. Tutors can only do necessary, not free arbitrary deeds, but may not sell Lands, sine authoritate Judicis.

19. Tutors are lyable for Annualrent for their Pupils means.

20. Tutors are conveenable with their Pupils, and lyable, in quantum intus habent.

21. Tutors Accompts.

22. Tutors are lyable for exact diligence, both for intromission and omission.

23. Tutors are lyable, in solidum.

24. Tutory, how finished.

25. Tutors of Idiots and furious Persons.

26. Gesta Tutorum accrescunt Pupillis.

27. Removing of suspect Tutors.

28. Duty of Pupils to their Tutors.

29. Rise of Curators.

30. Curators, ad lites & Negotia.

31. Minors may at their option, choose, or not choose their Curators.

32. Minors deeds, having Curators, without their consent are ipso jure, null, [Page] nisi in quantum [...]erantur.

33. Curators consent, not requisite to latter Wills.

34. Restitution of Minors upon enorme Lesione.

35. Minor non tenetur. placitare super haereditatem paternam.

36. Differences betwixt Tutors and Curators.

37. Duty of Curators.

38. Curators, or Interdictors for Prodigals, or lavish Persons.

39. Interdictors constitute, causa cognita.

40. Interdiction by Parents consent.

41. Publication and Registration of Interdictions.

42. Interdictions only extend to Heretable Rights, not Moveables, not to Personal Executions.

43. Interdictions are only Competent by way of Reduction.

44. Interdictions cannot be taken off, but by Authority of a Judge.

TUTORS and Curators, succeded in the place of Parents, and their Obligations have a near resemblance; and therefore, shall be here fitly subjoyned, though in the constitution, and duties of Tutors and Curators, the Positive Law predomineth; yet, that without any Positive Law, or Contract, there is a duty of Tuition, and Protection of Orphans, and specially upon these, who by relation of Blood, are their nearest Kinsmen, and in place of their Parents, it will appear by what ensueth; and what is superadded, either by the consent of parties, in Curators, or by the Law, in Tutors, with the condition and interest of Pupils and Minors, cannot conveniently be separated. If there were no Positive Law, the natural infirmity of Pupilage, would not want its natural remedies provided by Him, who is the Father of the fatherless, and layeth his Obediential Obligations upon these, whom, by the Law Written in their hearts, he hath bound to the performance of these Duties, as is before shown. There is a Common Obediential, or Natural Obligation upon all Men, of Love, Mercy, and relief of the distressed, among whom Infants and Pupils, who have no discretion, and cannot at all Preserve, or Govern themselves, are the first. It hath been also shown, that there is a more special Obligation put upon those of one Blood, one Family, from one common Parent, to help and support each other, and that in order.

2. The first and nearest degree, is first, and most oblieged; hence ariseth that orderly and comely natural substitution of Tutors, for the preservation of Pupils: first, the Fathers Tutory and lawful Administration, whereof we have spoken already; and these failing by death, or incapacity, the nearest degree of Agnats are in the place of Parents, and are all joyntly bound to this natural Duty, unless the Parents, by their Parental power, have appointed, and ordained others whom they trust, to undertake that work.

[Page] And lastly, the common Obligation that lyeth upon people, hath devolved upon the Magistrate, as representing them, the duty of being, or appointing Tutors for Pupils; hence doth arise the distinction of Tutors, in Testamentar, constitute by the Parent in his Testament, legittime appointed by the Law, which is of the nearest Agnats, and dative, which are ordained by the King.

3. The Natural Obligations of these Tutors to their Pupils, are first, to preserve their persons, and defend them against injuries and prejudices; and therefore, are they named Tutors, quasi tuitores, l. 1. § 1. ff. de tutelis. 2. To Aliment them out of the Pupils own Means, according to the condition thereof; and to Educate them for a station in the Common-wealth, according to their quality and capacity. 3. To mannage their Affairs with such diligence, as provident men use in their own Affairs, that nothing may be lost, but every thing improven to the best advantage; in all which, they are not to exerce voluntary Acts of Dominion, at their choise, as disposing of what is secure; but only necessar Acts, for the preservation and recovery of what will, or may perish, and for improving the profits of it. 4. They are bound to give an accompt, and restore to the Pupil what is his own, so soon as he attains to the Age of discretion.

4. And on the other part, the Pupil is oblieged to the Tutor, by the obediential Bond of Remuneration, or recompense of one good deed for an other, to make up to the Tutors whatsoever is wanting to them, through their faithful Administration: This is all the substance of the Interests and Obligations of Tutors and Pupils, which the positive Law doth no more but declare, apply, and ascertain, by the form of entring that Office, the security for performance of it, the fixed time of indurance thereof, which naturally is the Age of Discretion, in some sooner, in some later, in some never: But for certainties cause, positive Law determines a particular year, in which, for the most part, Discretion cometh.

That there are such Interests and Obligations, even naturally, the Light of Nature will so easily go along, that it will rather need Consideration, than Confirmation, the grounds thereof being commonly acknowledged, and accustomed by all Men, who are led by Reason, and it is so insinuate by the ordinar Term of Law, whereby these Obligations are called, quasi ex contractu, as arising from no Contract betwixt the Tutor, and the Infant, or Pupil, as not capable of Contracting, and yet are not simply by the constitution of Law; and therefore, these Obligations, not being by the will of Man, must needs be Obediential Obligations, by the will of God.

The Romans have in this matter keeped clearly and clossely by the Law of Nature; and therefore, our Customes have keeped as near by them, and so have the Customes of other Nations; So sayes Gudelinus, de jure noviss. l. 10. cap. 8. §. ff. that the Custome of France and Netherlands, hath very little altered in this from the Roman Law; we shall therefore interweave the Civil Law and our Customes, that it may appear how far they do agree, and differ, and how they do quadrat to the Law of Nature, following this order; 1. What kind of Tutors they be, and what order of the same. 2. What the Tutors Duties are in their Entry, Administration, and Accompts. 3. How Tutories end. 4. The Pupils Obligation to them therefore. And last, of that Resemblance that Curatours and Minors have Tutors and Pupils.

5. As to the first, there be three kinds of Tutors, by the Civil Law, and our Custome (befide that of the Father, who is called for distinctions sake, [Page] lawful Administratour, of which formerly) The first is, Tutor Testamentar, or nominate. The second, is the Tutor of Law. And the third is, the Tutor Dative, all which follow in course, in the same order.

6. A Tutor Testamentar, by the Civil Law, behoved to be either named in the Testament, or Codicills confirmed by Testament, l. 3. ff. de testamentaria tutela, and could only be given to such as were in patria potestate, §. 3. Inst. de tutelis. But by our Custome, a Father may nominate Tutors to his Children, in any writ he pleases, but it is of a Testamentary nature, always ambulatory and mutable, during his Life; a Grand-father cannot name Tutors to his Oyes, because his Son being Emancipat by Marriage, they are not in his Paternal Power; Neither can a Mother, or Grand-mother, who have also no such power; but any person that gives or dispones any thing to a Pupil, may in that Disposition name Tutors, who are not properly such, but only have the trust and charge of that thing disponed, and as to it, exclude all other Tutors, which taketh place, because that nomination is a quality and condition in that Donation, November 17. 1627. Fleming contra Brown. January 31. 1665. Kirktouns contra Laird of Hunthill.

7. A Tutor Testamentar requires no preparatory solemnity to capacitate him to Act, but the very nomination it self is sufficient, and if it be in a Testament, it is valide, though the Testament be never confirmed, or be rejected by the Executors; and so there needs no making of Faith, or finding Caution, because it is presumed, the Father that did name him, did sufficiently know his faithfulness and fitness: and the Confirmation of a Testament, bearing, that a Tutor nominate, accepted, and made faith, was not found to instruct his acceptance, with out the principal Act subscribed by him were produced, or Acts of Administration proven, though it was thirty seven years since the confirmation, January 31. 1665. Rutherfords contra Laird of Hunthil. Neither was a Tutory found instructed by a Discharge, as Tutor Testamentar, it being evident by the Testament, that he was only overseer, June 10. 1665. Swintoun contra Notman. But a Write under the Tutors hand, designing him Tutor, found to instruct, unless the contrair were proven by production of the Tutory, December 2. 1668. Mr. Alexander Seatoun Advocat contra Seatoun of Menzies. And a Tutor nominat with other two, who accepted not, was only found lyable from the time of his acceptance, by acting as Tutor, and not for what was lost before, although there was a considerable Legacy left to him in the Testament; and that shortly after the Defuncts Death, he Confirmed himself, qua legatar, and had inspection of the Defuncts Writes, and subscribed an Inventar thereof, whereof the Testament was one, yet did not act as Tutor for three years after; but he was not found to have Right to the Legacy, not having followed the Defuncts Will, by accepting the Tutory at first, February 2. 1675. Margaret Scrimzeor contra Wedderburn of Kingennie: But where the condition of the Tutor nominate, appeared otherways than when he was nominate, Action was found sustainable at the Pupils Goodsirs Instance, to cause him find Caution, if the Overseers thought fit, Nic. rem pupuli Salvam fore, Thomas Foules contra Alexander Mcmath. Neither needed there any making of an Inventar of the Pupils Goods, as was prescribed in the Civil Law, Nov. 72. l. ult. Authen. quod nunc generale l. de curat. furiosi. by which it is clear, that all Tutors did make faith, de fideli, Administratione; they behooved also to find Caution, l. tutores, 24. C. de Administratione tut. and they behooved to make Inventar, l. 7. Tutor. qui 7. ff. de Administratione, tut. l. tutores C. eodem. But now, by the late Act of Parliament, 1672. Cap. 2. all Tutors e'r they can act, must [Page] make Inventar of the Pupils Means, with advice and consent of the nearest of Kin on both sides, and deliver to them, doubles signed, or in their absence, leave them with the Clerk, to be delivered to them, according to the order prescribed in the Act.

8. A Tutor Testamentar, is ever preferred to a Tutor of Law or Dative, even though the Tutor nominat forbear to act for seven years; and that a Tutor Dative was nominate, and in possession of the custody of the Pupils Person, December 17. 1631. [...] contra Oliphant; or though the Tutor nominate, had ceased six years, and was Curator to a party, against whom the Pupil had an Action or Process; seing in both cases, no detriment could be shown by his forbearance, July 6. 1627. Campbel contra Campbel. The like, where the Tutor nominate had abstained seven years, and yet was preferred to the custody of the Pupils person (here the Pupil had no means to be Administrat) Spots. de tutel. Irving contra Irving.

If there be no Tutor nominate, there is place for Tutors of Law, who ordinarily are these who have the benefite of Succession in the Pupils Estate; and so by the Roman Law, all the Agnats of the nearest degree, as they were Heirs, so were they also Tutors, by the Law of the twelve Tables, l. 5. & 6. ff. de legit. tut. and so after the Succession was extended, as well to the Cognats as to the Agnats, with the benefite thereof, the burden also of the Tutory was extended, Nov. 118. cap. 5. And with us, upon the same ground, as the prerogative of Primogeniture, hath given the Succession, not to the whole next degree of Agnats, but to the eldest Male, and his Issue; so the Tutor of Law is only one, viz. the nearest Agnat or Kinsman on the Fathers side, of twenty five years of age, Par. 1474. cap. 51. where it is expresly declared, that though the Tutor of Law be ordinarily Heir, yet not always; for though the Pupil have a younger Brother, who is immediat Agnat, yet the nearest Agnat of twenty five years old, will be his Tutor, passing by all others within that age.

9. The Tutor of Law is servded, upon a Brief Directed out of the Chancellary, by an Inquest, as appears by the foresaid Act of Parliament; but the Brief may be directed to, and served by, any Judge ordinar, though the Pupil live not within the Jurisdiction, March 8. 1636. William Stuart contra Agnes Henderson. Tutors of Law before they Act, must find Caution, rem pupuli, salvam fore, which though it be a ground to compel them to find Caution, or exclude them from authorising, or acting for the Pupil, till they find Caution; yet it did not anull their office, or prefer a Dative to them, so soon as they find Caution, though the Dative had already found Caution, June 29. 1632. Irwing contra Elsick.

10. The Tutor of Law must serve himself within year and day, from the time that he is in a capacity to be Tutor, either counting from the Defuncts death, or from the Birth of the Pupil, if posthumus, or the ceasing of a just impediment; so that after the Marriage of a Tutrix Testamentar, place was found for a year, for the Tutor of Law to serve himself, before a Dative had access, July 15. 1631. Grant contra Grant. But there seems no prefixed time to the Tutor of Law to serve himself to the Tutory of an Idiot; and therefore, the nearest Agnat, as lawful Tutor, was preferred to a Tutor Dative, though he had made faith, and found Caution; and though the Service was not till five years after the Idiots Majority, February 22. 1628. Calquhun contra Wardrop. It was also found, that a Tutory Dative, did not hinder the service of a Tutor of Law to an Idiot, quandocun (que) January 21. 1663. Stuarts [Page]contra Spreul; because, by the Act of Parliament, 1585. Tutors to Idiots must beserved by an Inquest, cognoscing the Idiotry, Par. 1475. cap. 66. Par. 1585. cap. 18.

11. Where there is no Tutor nominat, nor the Tutor of Law claimeth right within the year, there is place for a Tutor Dative, which, though by diverse Municipal Customs, may be Constitute by the Ordinar Magistrate of the place, yet is most fitly Constitute by the Supream Magistrate; and so with us, is given by the King, in Exchequer; and by the late Act of Exchequer, 1672. It is appointed, That before Constituting of any Tutor Dative, the Pupils nearest friends on both sides, shall be cited, that they may offer and inform, concerning the fittest persons to be Tutor: Tutors may be given to strangers Pupils, in so far as concerns their Lands in Scotland, December 17. 1627. Fleming contra Brown. The like, Spots. de tut. Donaldson contra Skiltoun. In the nomination of Tutors Dative, though it be in the Arbitriment of the King, to choise whom he thinks fit, yet he will have regard to the Interest of the Pupil, to give a Tutor, either who was nominat by the Father, but not Legally; or who was nominat by the Mother, or Grand-mother, though having no Legal Power, or the nearest of Kin, though they have neglected to serve within the year; but of all these, he may take the best of such as offer, or are willing: Seing with us, all Tutors are free to accept, or refuse, yea, and may renounce, not having intrometted with the Pupils Means, though several Actions were pursued in their names as Tutors, Spots. de tut. Duff contra Mr. William Chalmer. But Tutory being a publict Office, it could not be refused among the Romans, unless the Tutor had excuses allowed of the Law, Tit. de excus. tut. ff. per totum.

Tutors Dative must both make faith, de fideli Administratione, and find Caution; the sufficiency whereof, is in the Magistrates trust. And among the Romans, an ordinar, or inferiour Magistrate or his Heirs, were lyable, pro dolo aut lata culpa; if the Caution taken by them, was not found sufficient, Tit. ff. de Magistratu conveniendo; but not the greater Magistrates, as the Pretor, or President, who, through the eminency of their Office, could not so particularly know, but were necessitat to trust to the relation of others, l. 1. ff. Tit. eodem; and so it is with us: but the Datives not making faith, or finding Caution, though his office there to compel him, or repell him from authorizing, or acting; yet it doth not annual his Office, or work to his profite, as hath been said of the Tutor of Law.

12. These that act as Tutors, not knowing but that they are such, or otherways fraudulently knowing they are not such, are therefore called Protutors, and are lyable for all the Duties of real Tutors, during the time of their acting, and by the civil Law, they were lyable to make up his Interest, whom by fraud they had deceived, by acting as Tutors, Tit. ff. quod falso tut. whence it follows, that such actings were void; but if the person had been long holden, and repute Tutor, the deed would be sustained, unless annulled, because of the Pupils Lesion; there hath no Decision occurred with us, to shew whether Pro-tutors are oblieged for their intromission only, or also for their omission: but a case lately occurring, the Lords thought, that upon some few Acts, this would not be inferred, but upon an universal Acting, or express, under the name of Tutor; but decided not, till they heard the parties, in praesentia; whereupon, after long debate, they found, that an Overseer, acting under the name of Tutor (but by a false designation, contrair the Testament) should be lyable only for such kinds of things, and for the Annualrents thereof, as he intrometted with, for seing he had no Law, or Custome [Page] regulating the case, the Defender could be only condemned according to equity; but they declared, by an Act of Sederunt, that whosoever in time coming, medled with Pupils Means or Minors, as Pro-tutors, or Pro-curators, should be lyable from henceforth, as Tutors or Curators, for intromission and omission, June 10. 1665. Swintoun contra Notman.

13. Tutors do use ordinarily, to name Factors, who do not exoner the Tutors of any of their Obligations, but both the Tutors and they, as the Tutors, are lyable to the Pupils therein, if they be Factors generally, March 28. 1635. Laird of Ludqhuairn contra Laird of Haddo, July 18. 1635. Edmonstoun contra Edmonstoun.

14. If there be more Tutors nominat, or Dative, and no quorum exprest, if some of them die, the Office is not void, but the rest of them may act, and so it was found in Tutors nominat, Hope Executours, Stuart contra Kirkwood and Moor. The like, though some of the Tutors accepted not, Hope Tutors Ruthven contra Ibid. George Faside contra Edmonstoun. February 14. 1672. Mr. John Eleis contra Mr. John Scot. But a Tutory to two, bearing to them joyntly, was found void by the death of either, January 17. 1671. Drummond of Ricartoun contra Feuars of Bothkennet. And where there are many Tutors nominat, they may be either with, or without a quorum, and either definitely, or by a distinct division; in which case, each are but lyable for their own division, l. 2. Cod. de dividen. tut.

15. As to the duties of Tutors, they are alike in them all; and the first is the custody of the Pupils Person, wherein a Tutor was preferred to the Pupils Mother, offering to entertain him gratis, though the person nearest to succeed was Married upon the Tutors Sister, here the Tutor was nominat, and the Mother Married, July 4. 1629. Laird of Longshaw contra Moor. The like, where both the Tutor and the Mother offered to Aliment the Pupil gratis; but the Mothers second Husband had Apprized the Pupils Lands, and the Pupil was a Lass only of five years old, February ult. 1632. Gordoun contra Corsan. A Tutor was found to have the custody of his Pupil (who was an Heretrix) and not her Mother, though she offered to entertain her gratis, being Married to a second Husband, February 5. 1675. Foullartoun contra Lady Boyne. Yea, a Tutor obtained his Pupils Person, to be removed from her Mother, though Unmarried, at the Pupils age of eleven years, albeit the Pupil was Valitudinary, and she was appointed to remain with one of her Fathers Friends, to the effect that she might not be influenced as to her Marriage, by her Mother, or her Friends, February 6. 1666. Laird of Dury contra Lady Dury. But if the Tutor be immediately to succeed to the Pupil, he hath not the custody of his person, which is to be with his Mother, or some other person, at the Arbitriment of the Lords, and a modification for the Pupils Aliment, according to his Means, Nic. ubi. pupulli. Mary Foulis contra Mcmath; but if there be any other immediate Successour, though the Tutor was next, he had the custody of the Pupils Person, Ibid. Forrester contra Smith. Of old, Tutors were excluded by the Donators of Ward, from custody of the Ward Pupils person, January 15. 1549. Laird of Achnames contra Laird of Elphingstoun and Lethingtoun. March 16. 1565. Weir contra Lockart. And July 1566. George Weir contra Laird of Lee. Spots. hic. Hamiltoun contra Laird of Gaustoun. Since, the Tutor and the Pupils Mother, having license from him, were preferred to the custody of the Pupils Person, to the Donator of his Ward, Nic. ubi pupulli morari, Mr. James Chalmers contra Elizabeth Houstoun.

[Page] The next duty of Tutors, is, to authorize the Pupil in Actions of Law, which, though it be done ordinarily by all the Tutors, when they are more, yet one of three was admitted to authorize a Pupil, in a pursuit against the other two, to accept or renounce, though they were all named jointly, March 8. 1628. Moor and Thomson contra Kincaid.

Tutors or their Factors, are presumed to do that to the behove of the Pupil, which they ought to do; and though it be done, proprio nomine, it accresceth to the Pupil, July 18. 1635. Edmonstoun contra Edmonstoun; and so a Tack of the Pupils Rents, taken by the Tutors Factor to himself, and his Wife in Liferent, was found to accress to the Pupil, except as to the Wifes Liferent-lands, March 28. 1632. Laird of Ludquharn contra Laird of Haddo, this is presumed, prasumptione juris; so that the Narrative bearing another clause is not respected: and therefore, a Tutor acquiring a Discharge, or Assignation of an Annualrent due by the Pupil to his Mother, the same was found to accress to the Pupil, though it bore love and favour, and for the Tutors pains, and discharging the Office, March 15. 1629. White contra Dowglas. Hope, Tutors, Duer contra Duer. Neither hath the Tutor ordinarily Action against the Pupil, till his Office end, and then he may pursue as a stranger, Hope, de Minoribus, Nasmith contra Nasmith: likewise, he may Apprize the Pupils Lands for his own debt, the Pupil having other Tutors, Hope, de haeredibus, White contra Calderwood. So a Tutrix nominat, sine qua non, was admitted to pursue a Registration of her Contract of Marriage against her Pupil, there being more Tutors nominat, and she having renounced her Office, though she had acted by subscribing deeds not hurtful to the Pupil, July 30. 1625. Lady Stanyhill contra her Son.

18. Tutors may only do necessar deeds for their Pupils, either such as the Pupil is oblieged to do, as payment of his debts, which the Tutor may do willingly, without compulsion of Law, or otherwise, deeds necessar for mannaging of his Estate, and setting of his Lands, or labouring the same, uplifting his Rents and Annualrents, uplifting the Sums that are not secured; carrying on any Work which was left to the Pupil, which cannot otherwise be disposed of: but Tutors cannot sell the Lands or Heretable Rights of their Minors, without an interveening Decreet of a Judge, Tit. ff. de rebus eorum qui sub tutela, &c. And any such Alienation is null, without the Cognition aforesaid, which must be, by calling the Creditors of the Pupil, and his nearest Friends, to hear and see it found, that there is a necessity to sell the whole, or a part of his Heretable Rights, and that the rate thereof may be determined; in which it must appear, that the Pupils debt cannot otherways be satisfied. The Law allows the like, in the case of the Pupils Aliment, which cannot be afforded otherways; Alienations so made, are not easily reduceable, or the Pupil or Minor restored against the same, if the true cause hath been known to the Judge, but not so, if that hath been latent, either dolo or lata culpa, l. 11. Cod. de praed. minor non alien. And therefore, a Tutors Assignation of his Sons and Pupils Mails and Duties, for the Tutors own debt, was found null by exception, even at the Pupils Tennants Instance, Spots. Assignation, Lands contra Lands; yet a Tutors ratification of a reduceable Decreet given against his Minor, was found valide, though voluntar, being in re antiqua, Spots. Tutors, Earl of Kinghorn contra George Strang.

19. Tutors and Pro-tutors are lyable for Annualrents of their Pupils Moneys, which they are oblieged to make profitable, in so far as they are either liquid Sums, that they had, in specie, or which the Tutors took up, which was [Page] made up of their Pupils Moveables, or Rents of Lands, after a Term, in Money Rent, and a year, in Victual, from the Term of payment, in so far as it is not imployed for their own use, or profitably for paying of their Debts or Annualrents, Alimenting them, or other uses necessar, according to the ancient Law of the Romans, which oblieged the Tutor, after he had the Money two Moneths in his hands; but the Novel Constitutions, Novel. 72. cap. 6. de administrat. pecun. pupilli, &c. it is left to the Arbitriment of the Tutor, either to keep the Pupils Money by him, or to imploy it for profite: but it is not so by our Custome, Annualrent is due, even after the Office is extinct by Marriage, the Tutrix having continued her intromission, though there were other Tutors, July 17. 1630. Vallange contra Kincaid, but not for Annual of the Pupils Annualrent, though the Tutor received the same, and they were great, July 18. 1629. Nasmith contra Nasmith. But it was lately found, that a Tutor by his Office and Diligence, was oblieged to lift and imploy the Pupils Annualrents of sums in secure hands, once in his Tutory, and so pay Annual for the Annualrents of his Pupils Sums, omitted to be uplifted by him, but only from the expiring of the Tutory, January 27. 1665. Mr. William Kintor Advocat contra John Boid. So a Tutor was found lyable for the Annualrent of his Pupils Annualrent, within a year after his acceptance, but not for the current Annualrent, during the Tutory, he leaving the same imployed for Annualrent, at the Ishe thereof, February 27. 1673. Isobel Dowglas contra John Gray. A Tutors Heir being Minor, found not lyable, but only for Annual after the intenting of the Cause, the pursuer being silent twenty five years, February 22. 1634. Davidson contra Jack. Neither was the Heir found lyable for Annualrent, where the Father died during his Tutory, Hope, de haered. Graham contra Crichtoun. January 21. 1665. Kintor contra Boyd.

20. Tutors are lyable for their Minors, and must be conveened with them by their Creditors, for their interest, and are also decerned with them for their interest; upon which Decreets, personal execution is competent against Tutors, for any deed prestable by them, by their Office; for example, he may be compelled to receive a Vassal, whom the Pupils Predecessour was oblieged to receive; or grant a Tack of Lands, or a Charter, or Seasing, where there hath been a Disposition before; but in Decreets for payment of liquid Sums, Execution cannot be made against the Means of Tutors, unless they be specially decerned, to make forth-coming so much of the Pupils Means, as they have in their hands, for satisfying of the Debt, in whole or in part; which, though it be oft done by a second Process, yet may be a distinct member of the first, or by way of special Charge, in the discussing of a Suspension, raised by the Tutor against Creditors, on that or other grounds. But the Tutors oath was not sustained, to prove against the Pupil, an agreement made by the Defunct, though there were concurrent probabilities, and testificates, December 11. 1664. Eleis contra Eleis; yet the Tutors Oath was sustained against the Pupil, as to the Tutors intromission, in name of the Pupil, that being factum proprium, oblieging also himself, and yet he was not holden as confest, as being a party, but was compelled to Depone by Caption, June 27. 1665. Mr. Walter Cant contra James Loch.

21. The last duty of Tutors, is to make an accompt, and to restore, and refound, wherein they will be lyable to accompt, and satisfie for the Pupils whole Means and Estate, not only for their Intromission, but for their Omission, and for such diligence as they use in their own Affairs, which seems sufficient in Tutors Testamentar, seing the Office is gratuitous, and free, and not [Page] sought by them, but in Tutors of Law and Dative, who ordinarily seek the Office, and offer themselves, both the diligence accustomed by provident men, and such as they use in their own Affairs, may be justly required.

By the Law, all Tutors were lyable, pro dolo culpa & negligentia, l. 33. de Administratione & periculo tutorum, &c.

22. That Tutors are lyable, not only for what they did intromet, but what they might have intrometted with by diligence, and particularly of Rents of the Pupils Lands, wherein his Predecessors died, infeft and in possession, though the Pupil himself was not infeft, was found January 26. 1628. Commissar of Dunkel contra Abercromby. Yet a Tutrix found only lyable for her intromission, in respect she continued but some Moneths, and the place where the Minors Goods were, was infected with the Plague, Hope, de tutoribus, William contra Allan Cathcart; neither was a Tutor found lyable for a Sum due to the Pupil, as not doing diligence by Horning and Caption for uplifting thereof, unless it were alledged, that by diligence he might have recovered it, and that the Debitor was become worse, July 2. 1628. Hamiltoun contra Hamiltoun. The like, where the Tutor offered to prove by the Neighbourhead, that the Debitor during his Tutory, was repute and holden insolvent, February 6. 1623. Watson contra Watson.

23. Contutors, both by the Civil Law and our Custome, are lyable, in solidum, and so some of them were decerned for the whole, though the rest were not conveened, February 22. 1634. Davidson contra Jack; they were also found lyable, in solidum, though they had divided the Tutory among themselves; but if the same were divided by the Testatour, or a Judge, the Tutors are only lyable for their share, and not for the rest, unless they have by Fraud and supine negligence, omitted to pursue the other suspect Tutors to be removed, l. 2. Cod. de dividenda tutela. The benefit of the order of discussing, competent of the Law, whereby the Tutors who did Administrate, were only lyable for their parts, primo loco, if the rest were solvendo, l. 3. C. de dividenda tutela, and that they should be first discust, who had Administrate and intrometted before them, who had neglected or forborn, Ibid. These, our Custome followeth not; yet a Tutor was not found to have Interest, to cause the Con-tutors find Caution to warrand him for their acting without him, or against his mind where they did out-vote him, or else to quite the Tutory, but was left to his ordinary course, to remove them if they malversed, June 27. 1672. Mr. James Stirling contra his Con-tutors.

Tutory is finished, First, by death either of Tutor or Pupil. Secondly, By the Marriage of a Tutrix Testamentar, which no provision, even of the Testator can dispense with. Thirdly, By the Tutors renouncing the Office; after which, though he were Tutor Testamentar, he cannot resume the Office, July 6. 1627. Campbel contra Campbel; but forbearance for six or seven years doth not extinguish the Office of a Tutor Testamentar, by the former Decisions. The like, December 17. 1631. Auchterlonie contra Oliphant. Fourthly, By Fury, Lethargy, or any natural defect of the Tutor, rendring him unable to exercise his Office. Fifthly, And most ordinarily, by the Pupils running his Pupilarity, which in Men is fourteen years, and in Women twelve. But if the Tutors continue to act till Majority, they are lyable as Curators; yet the express Appointment of the Defunct, that the Tutors continue Curators, cannot extend the Tutory after Pupilarity, or hinder Election of Curators, February 6. 1633. Harper contra Hamiltoun.

Tutors or Curators appointed to furious Persons, their Office ceaseth, when [Page] the fury fully ceaseth; for though they have Lucide Intervals, in which, acts done by them, without their Tutors, are valide; yet their Tutory ceaseth not, as to the Acts done in their Furiosity.

25. The Tutory appointed to Idiots and Furious Persons, is prescribed by Act of Parliament, 1585. cap. 18. Whereby the nearest Agnats or Kinsmen of Natural Fools, Idiots, or Furious Persons, should be served, received, and preferred to their Tutory and Curatory, according to the Common Law; where, by the Common Law, the Civil Law is understood, and though the Act seems only to hold out Tutors of Law, where any are served; yet seing it is according to the disposition of the Civil Law, it excludes not Tutors Testamentar, during such persons Pupilarity, nor Tutors Dative, if the nearest Agnat serve not: but ordinarily the Tutors of Idiots, are the Tutors of Law. This Act by Custome is extended to Deaf and Dumb Persons, though they be not expressed who have Tutors in the same manner, albeit they have sufficient Judgement, since they cannot act by it.

26. When Tutory is ended, whatsoever the Tutor Acted in name of the Pupil, the Pupil hath thereupon Action, as if it had been done by himself, l. 2. ff. quando ex facto tutaris, so whatever was decerned against the Tutor, hoc nomine, ceaseth when the Tutory is ended, l. fin. C. de per. tut. and the Action is competent against the Pupil; as likewise, if the Pupil be advantaged by the Fraud of the Tutor, he may be therefore conveened, l. 3. ff. quando ex facto tutoris.

27. Lastly, Tutory ceaseth by the Action of removing suspect Tutors, which is a popular Action competent to any, l. 1. §: 6. ff. 3. Inst. de susp. tut. but ordinarily, it is done by the Overseers, Mothers, or Friends of the Pupil, or by the other Tutors: the grounds thereof, are not only his Malversation: and it was found a Malversation that the Tutor had not made Inventar, conform to the late Act of Parliament, July 7. 1680. Mr. Alexander Gibson contra Lord Dunkel and Sir James Thomson; but any thing incident, or appearing to weaken his trust, as if he become insolvent, or his Cautioner become such.

After Tutory is ended, the Tutor hath no Action against his Pupil, ante redditas rationes, till he make his Accompts, July 24. 1662. Mr. James Cranstoun contra Earl of Wintoun: Neither hath the Tutors Assignay, Action against the Pupil before the Tutor Compts be made, albeit Assigned to a Liquid Sum, unless the Assignay had found Caution for the Tutor, January 24. 1662. Mr. James Ramsay contra Earl of Wintoun. Neither for the same reason had the Tutors Assignay, Action against the Pupil as Heir to his Father, though it was ten years since the Pupilarity past, July 7. 1676. Spence contra Scot. But a Tutor was not found lyable for the Services he got of the Pupils Tennants in kind, January 11. 1668. Grant contra Grant. Yea, a Tutor having counted, and given Bond for the Ballance, being charged with other Articles, though these were not instantly Liquidat, yet the Extract of a Decreet upon the Bond was stopped for a time, till the additional Articles should be closed, but the Bond was not reduced, as being in confinio minoris aetatis, & anteredditas rationes, December 5. 1671. Mr. George Scot contra Mr. John Elleis. In the Tutors Accounts, it was a sufficient instruction of an Article of the Charge, a Bond due to the Defunct, produced by the Pupil: Nor was the Tutor liberat, upon alledging he knew not of it, but it was presumed to have been in the Charter Chist, unless the Tutor could instruct, that he had made search of the Charter Chist, and neither found this Bond, nor any Inventar relating thereto; but the Tutor was found lyable, though the Sum was lost by the Debitors becoming Insolvent during the Tutory, [Page] June 24. 1680. William Cleiland contra Laird of Lamingtoun. Neither did a Tutor get any further allowance for his Pupils Maintainance, then the Annualrent of his Stock, though he expended more, November 17. 1680. William Sandelands contra Patrick Tailziefer.

28. The Reciprocal Duty of Pupils to Tutors after their Tutory is ended, is to restore and make up to them whatsoever they wared out profitably, or is so wanting to them by that Office, wherein the Expences of obtaining the Tutory it self, will be a part, Nic. de tut. Charters contra Mcmillan. But Tutory being a Free Gratuitous Office, the Pupils are not lyable to their Tutors for any Allowance, Sallary, or Satisfaction for their Pains, but only for their Expences, Nic. de tut. Tutors of Bucleuch contra Earl of Bucleuch.

29. Curatory hath such a resemblance with Tutory, that though the constitution of Curators be not of the Law of Nature, which leaveth all persons of Discretion free, but of Positive Law, whereby a way is provided for the Levity and Facility of Minors; yet to shun repetition, it will be most proper here to annex that Office, and the Obligations therefrom, arising betwixt Curators and Minors; and in these, we shall touch the difference betwixt Tutors and Curatours, supposing the rest as common to both, which is chiefly in these points.

30. First, In the Election and Constitution of Curatours, which is done by way of Process, at the Instance of the Minor, before any Judge ordinary whatsomever, whereby he citeth two or three of his nearest Kinsmen, on both sides, upon nine days warning, to hear Curatours chosen, Parliament 1555. cap. 35. and all others having interest, generally at the Mercat Cross, to hear and sec, Curatours decerned to him, and it is in his option whom to choose, as it is in their option also to accept, or refuse, he may also make any number a quorum, or adject auy condition he thinks fit in their Election, and the parties compearing, must accept and make Faith, de fideli administratione, and find Caution; Yet where some of the Curators Elected, made not Faith, but all finding Caution, the Curatory was found valid, Hope, Curators Paterson contra Wishart; their Acceptation must be by Subscribing the Act of Curatory, specially, if the Election be in an Inferiour Court; for want whereof, an Act of Curatory before the Bailiffs, was found null, Hope, Curatory, Sibbald contra Hay and Lindsay. Curatours also may be chosen by Procuratours, without the Minors presence, so that the Procuratorie expresse the Curatours Names, Hope, Curatours, Marquess of Hamiltoun contra his Curatours; yea, being done in England, according to the Custome there, it is sufficient to Authorize the Minors Here, Hope, tut. Posso contra Nasmith. Though the Minor may choose Curatours when he pleaseth, yet may he not choose Rebels unrelaxed, if it be objected, and verified at the Election by his Friends, July 4. 1629. Corbet of Arbel contra

31. Curatours are of two kinds, ad lites, and ad negotia; the former are appointed for Authorizing Judicially in Process: the other are mainly for Extrajudicial Affairs; Curatours, ad lites, are so far necessary, that they must be given by the Judge ordinar, before whom any Action is pursued, for Authorizing of the Minors, either Passive or Active; and they will be given upon the desire of the other party. Their Office seems to reach no further, than to Faithfulness and Diligence in the Processes, whereunto they are Elected. There are sometimes, Curatours named to Pupils, to supply the defect of their Tutors, as if their Tutour be concerned, or be absent or uncapable to Act for a time. These, though for a distinction from Tutors, they be [Page] called Curatours, yet their Office, pro tempore, is of the same nature with Tutors.

32. Curatours, ad Negotia, are free, and in the Minors option, in so far, that a Son being Minor, and choosing Curators without the Fathers consent, but with consent of his Mothers Father, the Curators were preferred to the Father as lawful Administratour; but here the Father was known to be a weak Person, and to have Controversies with his Son, Nic. de tut. Laird of Barganie contra his Son. And Curatours must be freely chosen, that though the Minors Father named his Tutor expresly to continue till the Pupils Majority, their Office was found not to hinder the Minors to choose Curatours, or to disown his Tutors after his Pupilarity, February 6. 1633. Harper contra Hamiltoun. Minors having chosen no Curators, are in the same condition; for extrajudicial Acts allone, as if they had Curatours; in either case, the deeds are revocable, and reduceable upon enorm Laesion.

33. But if once they choose Curators, all deeds done by them, without consent of their Curatours, are eo ipso, null by exception, without necessity, to [...] Lesion, December 9. 1632. Maxwel contra Earl of Nithisdail, and that so exactly, that the Minority was counted, de momento in momentum, though the Minor wanted only twelve houres of twenty one years, June 26. 1624. Drummond contra Laird of Cunningham-head; and this extended to a Judicial Act, whereby the Minor Acted himself Cautioner, Hope de Minoribus, Paterson contra Wishart: and extended also to a Minors service, without consent of Curatours, and that by exception, without instructing Lesion, Spots. de mino. Simpson contra Laird of Balgane, and to a Tack taken by the Minor without consent of Curatours, Hope, de Minoribus, Seaton contra Laird of Caskiben, and extended to deeds done by Minors in their Fathers Family, without their Fathers consent; and so it was found, that a Minors Bond Subscribed Cautioner, with, and for his Father, was null, and that his Father, as lawful Administratour, could not Authorize him to be Cautioner for himself; here the Minor was a Student at Law, but intertained by his Father, and not forisfamiltat, December 7. 1666. Sir George [...] contra Fairholme. December 25. 1667. inter eosdem, yet the deed was sustained, being a Bond of borrowed Money, the Creditor proving by Witnesses, that the Sum was converted for the Minors use profitably, December 21. 1629. Gordoun contra Earl of Galloway; this is according to that [...] ground of Equity, nemo debet ex alieno damno lucrari; hence follows, Minor tenetur in quantum locupletior factus; but though there was some onerous Cause of Minors deeds, yet unless it were liquid, as delivery of Money, it is not receiveable by way of exception, or reply, but only is reserved to the Creditor to pursue, as Accords, and the Minors deed found void notwithstanding, December 19. 1632. Maxwel contra Earl of Nithisdail: but this was not extended to necessar Furnishing of Cloathes, taken on without consent of Curatours, which was sustained by reply, February 5. 1631. John Inglis contra Executours of John Sharp.

34. The Civil Law seems not to extend the consent of Curators, as necessary to concur with the Minor, making his latter Will, but only to deeds among the living; because Law hath rejected all ties and hinderances of full Liberty, in Testaments of Defuncts in the disposal of their Goods; and therefore, if a Minor having Curators, do in his Testament say quaestionem Curatoribus meis, [...] faciat eam nam ipse tractavi; in that case, Curatours are lyable for Restitution of what they have of the Minors Goods by Fraud, [Page] but not for a compleat Diligence, l. 20. §. 1. ff. de liberatione legata. And by our Custome, Minors having Curatours, may Test without their consent; and therefore a Minor, making his Curator his Executour, and universal Legatar though the Minor was with the Curator, when he Tested and Died shortly after, and his nearest Relations were not acquainted, whom he had named in a former Testament, it was sustained here no threats nor importunity was alledged, November 30. 1680. Stevinson contra Allans.

There are other two Priviledges of Minors which cannot be so conveniently spoken to, as in this place; the one is, that Minors are restored against Deeds done by them in their Minority, to their Enorme Lesion. The other is, Minor non tenetur placitare super haereditate Paterna.

As to the first, Minority and Lesion, are the ordinary ground of Reduction; but because they are facti, and abide Probation, they are not receivable by exception, if he who pursues the Minor, can instantly instruct his Pursuit; but if he take a Term to prove, the Minor may take the same Term to prove his Minority, which doth not acknowledge the Libel, or free the Pursuer from Probation thereof: Or if the Minoritie be instantly verified, as sometimes it is by sight of the Minors Person.

There is no difference as to the Restitution of Minors, though the Deed be done with consent of Curators; nor did it exclude a Minor, because his pretended Curators had received the Money in question, and so were liable to the Minor for misimploying it, as behaving themselves as Curatours, upon pretence that his Lesion could not be known, till they were discust, they not being in this Process, July 2. 1667. Lord Blantyre contra Walkinshaw.

But this Remeid is not competent for every small Lesion, but it must be Enorm, which is, in Arbitrio Judicis.

Neither is a Minor restored against Lesion, which falls not by Levitie, but by Accident; as by Ship-wrack, the Minor being a Trading Merchant, Hope, de Minoribus, William Edgar contra Executours of Edward Edgar: neither because he was bound conjunctly and severally for ware, with another Merchant, who was in society with him in Trading, June 20. 1678. George Galbraith contra Patrick Lesly, because Trading Merchants, and others exercising Trade, requiring peculiar skill, capacity and understanding, are held rather to design to deceive, then to be deceived, as was found, in the case of a Nottar Publick, July 14. 1636. Gardner contra Chalmers.

Neither was a Minor restored upon his judicial Confession upon Oath, upon point of Fact, and swearing never to come in the contrair, November 28. 1626. Mr. Thomas Hope and Mr. Thomas Nicolson contra Mr. James Nicolson. Neither was a Minor restored against his Promise upon Oath, to quite twentie Chalder of Victual, provided to him by his Contract of Marriage, as not lesed by keeping his Oath, which is conform to the Authentick Sacramenta puberum, November 1626. Sir Robert Hepburn contra Sir John Scatoun. And it was found relevant against Restitution of a Minor, of a Bond granted for a Debt of his Fathers, whom he Represented not, that he swore to perform the same, February 10. 1672. Mr. George Wauch contra Bailzie of Dunraget. But a Minor hath not the priviledge to reduce a Disposition of Land, without Authority of a Judge, as in the case of Pupils, unless he also alledge Lesion, February 2. 1630. Sir John Hamiltoun contra John Sharp. The like, [Page] though the Minor had no Curatours, December 13. 1666. Janet [...] contra Stevenson. Neither is Restitution competent, unless Reduction be intented within the age of twenty five compleat; for with us, Majority comes at the age of twentie one compleat; and there are four years allowed to Minors to intent Reductions, which therefore are called, Anni utiles Nicolson, de Minoribus, James Goodlet contra Doctor Austine and others. Laird: of Craigie contra Dunbar.

A Minor was restored against his Contract of Marriage, wherein he was oblieged to Infeft his first born Son in Fee of his whole Estate, which was very considerable, having gotten but ten thousand Merks of Tocher, March 7. 1623. Laird of Barganie contra his Son. The like, where a Minor getting but a thousand Merks of Tocher, provided five thousand Merks to his Wifes Father, in case of no Succession, but not restored against that part of his Contract, providing all his Means acquired, and to be acquired in Liserent to his Wife, June 4. 1632. Alexanderi Donaldson contra And a Minor Woman was restored against the Exorbitancies of her Contract of Marriage, November 22. 1674. Margaret Mcgill contra Riven of Gairn; but here, she was only restored to a suitable Liferent, but not against that provision in her Contract, providing her Lands and Sums to the Heirs of the Marriage, [...] failzieing, to the Mans Heirs. The like, as to the Heirs of a Woman, who had Land worth twelve hundred Merks yearly, the Husband being of a more honourable Birth, Nicolson, de Minoribus, Slemen contra Ker. The like, where the Wife Disponed her Lands to her Husband, whose means were altogether unanswerable, Spots. Husband, Fleming contra Mr. Robert Hog.

Minors are also restored against Judicial Acts to their Lesion, as against a Decreet of Exoneration of his Tutors, with concourse of his Curatours, before the Lords, in foro contradictorio, December 1. 1638. William Stuart contra Robert Stuart, Hope, universal and lucrative Successour, Knows contra Knows and Watson, and against a Defence proponed by an Advocat, without special mandat, which did homologat a Deed in Minority, February 14. 1677. Duke and Dutchess of Bucleuch contra Earl of Tweeadale, In which case, it was found, that accepting an illiquid Right, for a Liquid, was no Enorm Lesion inferring Restitution.

But Restitution is excluded, Si monor se majorem dixerit, Nam deceptis, non decipientibus jura subveniunt; as where the Minors Bond bore expresly, that he was Major, and that the Creditor knew not he was Minor by his Aspect, or otherways; nor did fraudfully induce him to insert his Majority, February 23. 1665. Kennedy of Achtifardel contra Weir; It is also eleided, if it be proven, that the Deed in question was profitable, as that the Sum in question was wared upon the Minor for Meat and Cloathes, though his Father gave him a sufficient Allowance, seing he was then abroad from his Father, Hope, Minority, Hendry Creich contra Hendry Walker. It is also eleided by Deeds of Homologation, after Majority, July 14. 1636. Gaindner contra Chalmers. The like, though the Annualrent was payed upon a Charge, July 30. 1630. Johnstoun contra Hope.

But where Majority was alledged against a Minors Restitution, neither party was preferred in Probation, but Witnesses allowed, hinc inde, February 20. 1668. Farquhar of Tonley contra Gordoun.

But Lesion needs not be proven by the Minor, granting Bonds of borrowed Money, for the misapplication is presumed, unless the contrary be proven.

[Page] This priviledge is not only competent to the Minor himself, but to his Heir, who if he were Minor, may reduce the Deed done in his Prodecessours Minority, during the time of the Heirs Minority; and also, during so much of the quadriennium utile, competent to the Defunct Minor, as rested the time of his Death. But he cannot claim both the rest of his Predecessours quadriennium, and his own quadriennium, after his Majority, but only the rest of his Predecessours quadriennium, March 14. 1628. [...] contra Barron of Brughtoun; whence it is consequent, that if the Heir Succeeding be Major, and quarrel his Predecessours Deed, as in Minority, he hath quadriennium utile, to intent Reduction, except in so far of that quadriennium as was past before his Predecessours Death; but he hath not the time of his Predecessours Minority, which was peculiar, and only personal to himself, but only the quadriennium utile, competent after Majority, which the Law hath allowed, as a competent time to search out and raise Reduction of Deeds done in Minority; yet if a Deed were fraudulently keeped up and concealed, during the quadriennium utile, it might be reduceable, ex capite fraudis.

Minority and Lesion was also found relevant at the Instance of a Minors Creditors, seing the Minor, intra annos utiles, had intented Reduction; Nicolson, de temporibus in integrum restitutionis, Sir John Hamiltoun contra Mr. John Sharp and others. But the Priviledge of Restitution is not competent to Minors upon Revocation, unless they intent Reduction, & declarator intra annos utiles, which was found to hold in the Kings Revocations, as to Lands not annexed, Spots. Revocation, Pringle contra Ker.

This other Priviledge of a Minor, is, quod non tenetur, placitare super. haereditate paterna; which, though it be not peremptorium causae, delaying only pursuit, till Majority; yet there is no necessity to verifie it instantly, but a term will be granted to prove the same, February 24. 1676. Heleson Kello contra Alexander Kinneir.

The priviledge is introduced in favours of Minors, that they be not put out of their Fathers Heretage, whereof he died in peaceable Possession; for though their Priviledge of Restitution might recover such Rights by Reduction, yet the Minor would lose the Fruits and Profits, medio tempore, and untill their Rights were produced, and made clear in Reduction, which might be of great importance to them; for if a Minor of a Year old were dispossest of his Fathers Inheritance, he would lose at least twenty years Fruits of it; and therefore, the Law hath introduced this priviledge in favours of Minors, besides the priviledge of Restitution, wherein Minors are not in contradistinctione, to Pupils: But the priviledge is chiefly competent to Pupils; And though it bear only, de haereditate Paterna; yet thereby Minors succeeding immediatly to their Grand Father, or other Predecessour, who died in Possession, It is not like the priviledge would be denyed to them, though I have not found it controverted or determined; seing the Law, under the name of Father; doth ordinarily comprehend Grand-father, Great-grand-father, and all Predecessours in direct Line, who come all under the Designation of Forefathers, as all Successours in the right Line, come under the name of Children.

But the Law indulgeth this favour only as to the Heretage of Fathers; and therefore, neither the style nor custome hath extended it to Collateral Succession, as to Brothers or Uncles, wherein Minors, if they be excluded, can only be restored by Minority and Lesion, so soon as their Predecessours, or Authors Rights can be found.

[Page] Neither was ever this priviledge extended further, than to Minors in possession of the Heretage of their Fore-fathers, who died in peaceable and lawful possession, and to whom the Minor immediatly succeeded; for there is no priviledge to Possession, Vi, clam, aut praecario; though Law or Custome hath not determined, how long Possession of the Defunct is required, to exclude Clandestine or Momentany Possession; but the continued Possession of the Defunct with his Author, may be accounted sufficient, or the Defuncts Possession by a Liferenter, whose right is granted by him, or reserved in his right, but not to the Possession of singular Successours, by redeemable Rights, as Wodsetters or Apprizers; Neither hath there been any exception made of the pursuits, at the instance of Minors against Minors, as being both priviledged; there being no parity in recovering, and retaining Possession; but where a Minor was put from Possession by a Decreet of Removing, obtained by a Minor from Lands, wherein her Father and her self were Infeft, and in Possession, she was not excluded to reduce that Decreet of Removing, upon the Minority of the other Minor, whose Father died not in Possession, June 18. 1680. Sara Leyel contra Dons.

This Priviledge will not only exclude Possessory Judgements, such as Removings, or Mails and Duties, but also Declarators or Reductions; as to which, it hath been variously decided, whether it should stop certification, contra non producta, especially in the case of Improbation; and though it cannot exclude Improbation, where the Writes are produced, or where they are in the hands of the Minors, and his Tutors and Curatours, if that shall appear by their Write or Oath: Yet where the Minor produced his Fathers Infeftment, and proved his Fathers Possession, he was found obliged to produce no farther, January 31. 1665. Heleson Kello contra Pringle and the Laird of Wedderburn, so that it cannot defend simply against Production: But if it could not defend against Production of any further, but the Fathers Infeftment, and that certification in Improbations would be granted in all other Rights, if these certifications should take effect, the priviledge might be wholly Evacuat; and if they should take no effect till Majority, certifications in Improbations should not be granted, being hardly Reducible, even though in absence. And though it was not sustained against Production in a Reduction, November 27. 1678. Guthry contra Laird of Guthry; yet in that case, the Minors Right was only an Appryzing at his Fathers instance, upon which his Father was never Infeft.

This being a Feudal Priviledge, whereof there is no mention or foundation in the Civil Law, it is only competent to Minors, whose Fathers were in Possession by vertue of Infeftment, as in the former case of Appryzing, or where the Father had a Disposition without Possession, January 31. 1665. Heleson Kello contra Pringle. But the want of Infeftment of the Fathers Author, was not found relevant, January 18. 1667. Barbara Chapman contra John White.

Neither will this Priviledge exclude the Fathers obliegement, to denude himself of the Infeftment in question, Spots. Minor, John Hamiltoun contra For there there is no Competition of Rights, but implement of an obliegement; and so it was not sustained in a Reduction upon a Clause, irritant in a few, Hope, de monoribus contra Mitchel: Neither to exclude Reductions ob non solutum Canonem, by the Father, though the few contained no conventional Clause irritant, February 20. 1633. Lennox contra [...]: neither did it exclude the Probation of the Tenor of a Charter, which might exclude the Minors Right, February 15. 1628. Master of Jedburgh contra Earl of Home, albeit it would exclude Process upon that Charter.

Neither doth it exclude Processes in relation to Marches, Perambulation, or [Page] vision of Lands, July 27. 1675. Robertson of Inveray contra Gilbert Stuart. Neither did it exclude the nullity of a Disposition by a Wife to her Husband, dying within the year, February 15. 1678. Mary Gordoun and her Spouse contra Captain Robert Maxwel.

But the Priviledge was found, not only competent to defend Minors in their Property, but in their Commonty, Hope, de Minoribus, contra Mitchel.

where reasons of Reduction are probable by Witnesses, so that the Probation may perish by delay, Witnesses are always received to remain, in retentis, January 31. 1665. Kello contra Pringle. February 15. 1678. Mary Gordoun and her Spouse contra Captain Robert Maxwel.

where the Interest of Minor is not the Chief Right, but a Majors Right, whereby the Minors would fall in consequence, the Process doth proceed, but the Minor is held as not called, November 25. 1624. Hamiltoun contra Matheson. Spots. Minors, Hamiltoun contra Chrysty. Or where a Major Liferenter is called with a Minor fiar, the Process proceeds against the Liferenter; but the Minor is as not called, March 21. 1628. Alexander Bamanno contra Zule. July 5. 1665. James Borthwick contra Janet Skein. This Priviledge is not relevant against the faults of the Father, or his Authors, as to his Possession or Right; and therefore, it will not defend against Forefaulture of the Fathers Authour, whereby the Fathers Right fell in consequence, Spots. Minor, James [...] contra Galstoun. Neither against Recognition, February 19. 1662. Lady Carnagy contra Lord Cranburn. Neither will it defend against the Superiour, or his Donator, pursuing for any Casuality of his Superiority.

35. Curatours differ in their Office from Tutors, mainly in this, that Tutors are given chiefly for the Pupils Person; but Curatours are given for the right Managing of their Goods and Affairs. Secondly, Tutors act for, and in name of their Pupils, who, in their Pupilarity have no discretion; but Curatours cannot, and are only oblieged by their Office, to authorize their Minors, and act with them, by consenting to their deeds; For instance, Curatours cannot discharge for their Minors, but only consent to their Minors Discharge; and so Fathers, after their Childrens Pupilarity, June 26. 1610. Forrester contra Forrester. January 9. 1675. Mckintosh contra Frazer of Strichen.

36. Their duty is to see to the Minors Affairs, that they get not detriment, and so they must answer, not only for the deeds, whereunto they consent; but for their omission, and for any detriment the Minor suffereth by their negligence; and therefore a Curator was found lyable for Intromission and Omission, albeit the Act of of Curatory, did not bear, that he compeared and did find Caution, seing he accepted thereafter, by Subscribing a Write with the Minor, as his Curatour, which was found to obliege him, from the time of the acceptance, November 18. 1671. Charles Calsie contra James Elleis. But Curatours continuing to uplift their Minors Rent, after Majority, were found not lyable for Omissions these years, unless they had a distinct Factory continued, per tacitam reconventionem, Ibidem; and therefore, they must not only be Councellours to the Minors, showing them what they ought to do, and requiring them to do the same; but specially, they must cause them constitute Factors, and grant Procuratories to persons, for uplifting their Money, whether it be the Stock of that which may be in hazard, or Annualrent, or Rents; and to grant Procuratories for pursuing their Actions, and putting them to Execution, for [Page] seing they must be countable, they must not suffer the Minor to have his own Goods, and his own Money in his own hand, lest he lose and mispend them; these Procuratories may be given to some of themselves, and in many things, their very Office includes a Procuratory, being less then Curatory; but though they may intromet with the Pupils Means themselves, yet they are not oblieged to be Servants or Factors, but may authorize such, being lyable always, that they acted therein profitably; but if the Minor will not authorize such, nor do these deeds needful and profitable for his Affairs, the Curatours may crave to be exonered; so they may also do, if he meddle with his own Means, and will not be Restrained, or if any of the other Curatours act unprofitably, or without consent of the rest, the Curatours must do diligence to remove them, as suspect and malversant: Curatours are to recover that which was unwarrantably meddled with; otherways, they are lyable, not only for their own omissions, or intromissions, but for the other Curatours, and so are all lyable, in solidum, as hath been said of Tutors, February 11. 1630. Guthrie contra Guthrie; and they are lyable for Annualrent of Minors Means, as Tutors are, February 24. 1627. Francis Guthrie contra Guthrie; Yea, their Heirs, though Minors for the time, after expiring of the Tutory, Ibid. Where the Curatours Heir are found liable for the Annualrent of a Sum consigned to the Minor: But Curatours expresly chosen with a quorum, and with this condition, that they should be only oblieged for deeds, whereunto they consented, and be free of omissions, were so approven by the Lords, during their Office; and though the Minor acted deeds very prejudicial with any other quorum, yet the rest were not freed, nor acquited of their Office, as not being in hazard by these deeds, Nic. de tut. Clerkingtoun and Scots Tarbet contra Earl of Bucleuch and his other Curatours. But where the Act of Curatory bore, that the Curatours were named jointlie, or three of them to be a quorum, two only accepting the Curatorie, was found null, January 25. 1672. Sir James Ramsay contra Maxwel. But where they were not named jointly, the death of one did not anul the Curatory, January 4. 1666. Fairfowl contra Binning. And though there be a quorum constitute, all the Curatours are lyable for diligence; and if any quorum Act hurtfullie, they must crave them to be removed, and what they have so done, to be restored; and Curators are not simplie liable for all their Pupils Means, which may be lost without their fault, neither to do diligence in all cases, but where diligence might be profitable, as hath been said of Tutors. Curatours being Elected by Authority of a Judge, cannot be liberate by the Minors consent. Neither did a Decreet against a Minor, on his consent, liberate Curatours from their Office, July 21. 1664. Scot of Broad-meadows contra Scot of Thirlestoun.

37. Curatours are appointed in the Law, not only for that ordinary Levitie and Weakness, incident to Minority, which therefore runs only to twentie one years compleat, at which time, by our Custome, Minoritie endeth; but also, in case of known or conspicuous Levitie, though after Majoritie: such were the Curatours of Prodigals, to whom, as to Furious Persons, Curatours were Constitute, their nearest Agnats; instead of this, our Custome hath Interdictions, whereby Persons acknowledgeing their own Weakness and Levitie, and readiness to hurt themselves; do therefore bind themselves, that they shall not Act without the consent of these Persons, Interdictors therein mentioned, who thereby become as Curatours, though they be not oblieged for Intromission, or Omission, but [Page] only to consent with the Persons Interdicted, and for their Fraud and fault in consenting.

38. Interdictions are most fitly made, Judiciallie upon Cognition of the Cause; by which, after trial, that the Person craving to be Interdicted, acknowledging his own lavishness and prodigality, Interdictors are appointed by the Judge competent, and that either, at the Instance of the Partie himself, or of his Friends; Yea, the Lords, ex proprio motu, did Interdict a Person, who was evidently Lavish, and had thrice made opposite Rights of the same Subject, and that Incidenter, in an other Process, where his Levitie did so appear, February 17. 1681. William Robertson contra Gray of Shivis. That this is the genuine Way of Interdictions, is clear by the Narrative of the Act of Parliament, 1581. cap. 118. And therefore, an Interdiction was Reduced, only because it was done, sine causa cognita, Hope, Interdictions, John Robertson contra [...] but there has not been a just ground for the Interdiction alledged and instructed.

39. The more ordinar way of Interdictions, is of consent, whereby the person Interdicted, acknowledging his own Lavishness, doth, by a Write under his hand, Interdict himself, and this is Reduceable, if the Narrative was not true; but the person Interdicted, was prudent and provident, December 20. 1622. Campbel contra Laird of Glenurchy. And December 4. 1623. Geichan contra Hay and Davidson. The like, thought by the Lords, but came not to a Decision, February 12. 1633. Forbes contra Forbes. Interdictions use also to be in the way of Obligation, not to contract Debts, or Dispone Lands, without consent of such Persons, and Inhibition Registrate thereupon, which was sustained, though not in the ordinar stile of Interdiction; the person oblieged being known unsufficient to mannage his own Affairs through Levity or Prodigality, November 10. 1676. Stuart contra Hay of Gourdie. But a Bond bearing, that a Man should not Sell or Dispone, without consent of his Wife, on the Narrative of his Facilitie, whereon Inhibition was used, found not to be valide as an Interdiction, as inconsistent, binding a Man to the Direction of his Wife, but that it was only valide to secure the Wifes own Interest, by an Aliment, according to her Quality, as an Inhibition, February 27. 1663. Laird of Miltoun contra Lady Miltoun.

40. Interdictions must be Published at the Mercat Cross of the Head Burgh of the Shire, where the party dwells, and within fourty days after Publication, the same, with the Executions thereof, must be Registrate by the Sheriff Clerk of that Shire, in the Register of Interdictions, and Inhibitions, within the Shire; the Interdiction must be also Registrate, in the Register of Inhibitions of any other Shire where the Lands of the Interdicted Person lie; otherwise, if it be not Published, it is absolutely null, and hath no effect to Lands or Heretable Rights in any other Shire, unless it be also Registrate there, Parliament 1581. cap. 118. Yet it needs not be intimat to the party interdicted, Decemb. 11. 1622. Hendry Seatoun contra Mr. Alexander Elleis.

41. The Effect of Interdictions by Custome, is retrenched only to the Preservation of Heretable Rights, and doth not extend to Moveables, or personal Execution against the Person Interdicted, so that he may Dispone his Moveables, or upon any Personal Bond granted by him, his Moveables may be Poinded, Arrested, and made forthcoming, and his Person Incarcerate, though the stile of Interdiction doth expreslie Prohibite Alienation of Moveables, July 11. 1634. Bruce contra Forbes. June 20. 1671. Thomas Crawford contra James Haliburtoun: He may thereupon be also Denunced, [Page] though thereby the Liferent fall in prejudice of the Heretage, December 7. and February 8. 1610. Hay of Bruntfield contra his Father and Sisters. And December 21. 1610. Lady Broksmouth contra Relict of Gilbert Wauchop. But it hath Effect in favours of the Heir of the Interdicted Person, that neither his Heritage can be Affected upon any obligation, granted by his Predecessors, after interdiction; neither any Personal Execution, by Caption and Horning against him, as would have been against his Predecessor: but such Bonds will take effect against the Heir, as medling with the Heirship Moveables, or other Moveables of the Defunct; the reason wherefore Moveables are excepted, both from Inhibitions and Interdictions, is, because they are of less moment, and the Traffick of them must be current and free; and therefore, these remeids being but by Positive Law, and not by Natural Equity (by which the Ingagement, or Disposition of any Person, having the use of Reason, is Effectual, though Lavish) Positive Law Prohibiteth, and voideth such only, as to Heretage, as being of the greatest Importance; in which, even a Tack to a kindly Tennant, set without consent of the Interdictours, was found null, Hope, Interdict. Douglass contra Cranstoun. But Interdiction can only extend to Lands, lying within the Jurisdiction where it was Published and Registrate, but to no other Lands or Moveables, February 11. 1662. David Ramsay of Torbain contra Mcclellan. Interdictions do not make void all posterior obligations, but only such where there is Lesion; and therefore, where there is a just and onerous Cause, the obligation or deed is good, though without consent of the Interdictours, July 29. 1624. Laird of Collingtoun contra Hall. November 10. 1676. Stuart contra Hay of Gourdy.

42. The remeid by Interdictions, is only by Reduction, and not by Exception, or Suspension, March 17. 1630. John Sempel contra Doby. January 22. 1631. Hardy contra Mccalla. Yet Interdiction is sustained by way of reply, seing the pursuer thereby doth only delay himself, February 18. 1662. Robert Lockart contra William Kennedy. It is a competent ground of Reduction, at the instance of the Interdicted Person, his Assignays or Heirs: and it is also competent at the Instance of the Interdictours, without consent of the Person Interdicted, December 21. 1610. Lady Broksmouth contra Relict of Gilbert Wauchop.

43. Interdictions cannot be taken off by consent of the Interdictours, or Interdicted Persons, though they should renounce or discharge them; but only by the Act of a Judge competent, finding the grounds thereof, either not true, or otherways, that the Person Interdicted is come to a more stable deportment, Hope, Interdict. George Anderson contra Interdictours of William Craig, December 4. 1623. Gichan contra Hay and Davidson, which is to be understood of Inderdictions, laid on by Authority of a Judge, causa cognita.

TITLE VII. Restitution.

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1. Restitution of other mens Goods, a Natural Obligation:

2. Restitution is not solely an effect of Property.

3. Restitution of things straying, or waith and lost.

4. Restitution of things, bona fide, acquired, not from the right Owner.

5. Restitution of things recovered from Theeves, Pirats and Robbers.

6. Restitution not competent of things recovered from publick Enemies.

7. Restitution of things, quae cadunt in non causam, causa data & non secuta.

8. No Restitution of things given, ob turpem causam.

9. Restitution of indebite soluta.

10. Restitution reacheth also the fruits not consumed.

11. Restitution is grounded on having, and that ceasing without fault, the obligation of Restitution ceaseth.

12. Bonae fidei possessor facit fructus consumptos suos.

13. Restitution by Heirs.

14. From Restitution arises the Action of Exhibition and Delivery.

15. Thence arises division of things common without Society.

1. THE Obligations whereby men are holden to restore the proper Goods of others, are placed here among Natural or Obediential Obligations; because they are not by Contract or consent, neither have they their Original from Positive Law; for though there were no Positive Law, these Obligations would be binding, and they are Obligatory among persons, who are not subject to one Positive Law; and therefore, seing they are not Obligatory, by the Will or Law of man, of necessity they must have their Original from the Authority and Command of God, and that obedience we owe thereto, by the Law written in our hearts.

[Page] We are not here to speak of the Obligations of Restitution, which are by any voluntar ingagement, or which are by Delinquence; but of these only, whereby that which is anothers coming in our power, without his purpose to gift it to us, and yet, without our fault, ought to be Restored, as things straying, or found, or recovered from Pirats, Thieves, &c. or bought, bona fide, or the like.

2. Restitution of things belonging to others; may seem to be an effect of Property, whence cometh the right of vindication or repitition of any thing; but beside the real Action, the Proprietar hath to take or recover what is his own, which doth not directly concern any other person, and so being no personal right, hath no correspondent Obligation upon the have of that which is an others, to restore it. There is a personal Right, which is a power in the Owner to demand it, not only when it is in the possession of the haver, but if he bath fraudfully put it away; and yet it is his once, having it that oblieges him, and his fraudulent away-putting, though it be a Delinquence, yet it gave not the rise to the Obligation, but only continues it in the same condition, as if he yet had it; so in that case, his obligation is more palpable, for vindication of the thing, where it is not, cannot take place properly. The learned Grotius, de jure belli, l. 2. cap. 10. maketh such obligations as arise from Dominion and Property, to be by tacit consent, or Contract, whereby the Nations, who have agreed to appropriat things common to men, have thereby also tacitly agreed, that each man should restore what is the property of an other; yet this will not hold, if we consider, that though for the most part, property be by consent; yet in many things it is without consent of the simple Law of Nature, as things which have their specification from their owner, his skill and industry, and others, as will appear in its own place; and therefore, it is most just and sure, to attribute such obligations to the Law of God written in our hearts, rather than unto any other conjecture of supposed consent. To this agreeth the Roman Law, which holdeth these obligations not to be ex contractu, sed quasi ex contractu; neither doth account them obligations, ex lege, and if they were of tacit consent, these obligations were ex contractu.

3. There is many ways by which the things of others may come to our hands, without our fault or Delinquence; As first, things straying, concerning which, the Lord hath ordained, Deut. 22. vers. 1, 2, 3. To bring again unto their brethren that which went astray, and if he were not near, to keep it till he sought after it, and then restore it; and to do so with all things lost by him, wherein there seemeth something to be admixed of Positive Law, as the taking of it home to him, or keeping of it for his Brother; whereas the simple Natural Obligation of Restitution, oblieges to no duty of Custody, or pains, but only not to conceal that which is an others, and to restore it, when demanded; and such is the Custome of Scotland, that waith or straying Goods must be proclaimed, and intimate to be waith; and if the owner make them appear to be his, he may have them, satisfying for what was wared upon them, for their preservation, as Orass, &c. And if none appear within such a time, Custome hath added, that waith or strayed Goods become publick, and escheat to the King, or others to whom he hath disponed, or committed that power; and this intimation is so far requisite, that if the Goods be medled with, or disposed of otherways, it is Theft; but though the publication maketh the Goods publick, and the medling therewith to be without fault, so that if there do never any owner [Page] appear; the things do become really and absolutely publick, and they do not become the Possessours by that ancient Law, quod nullius est sit occupantis, which takes place amongst us, in things which were never known to have an owner, as Pearles or Stones, found on the Shore, and many others; but therefrom are excepted waith Goods, and Goods by Shipwrack, which become escheat as publick. Secondly, Things lost, of which we see the rule for Israel, Deut. 22. How far they may be possessed without Delinquence; in these, our Custome agrees with the Roman Law, and other Nations, except in the Matter of waith and wrack Goods, of which before; that such things being not concealed, may remain with the possessours, and if none claim, they become their own, and they may dispose of them, if they cannot be conveniently preserved without hazard.

4. Thirdly, Things belonging to others, coming to our hands without Delinquence, when we acquire, bona fide, either the property, use, or security thereof, by pledge or depositation; in which cases, we are bound to restore to the owner, though thereby we lose what we gave, except in some cases, wherein Positive Law secures the buyer, and leaves the owner to seek the seller.

This Restitution takes place, notwithstanding any obliegement in the contrair; and we have an excellent species in Law, l. bona fide, 31. ff. § 1. depositi, a Robber, depositat with Seius, that which he spoiled or robbed from Mevius, to which is Seius oblieged to restore, if he look only upon his ingagement, truely to the Robber, but if upon the whole matter, certainly to Mevius; for the Precept of Law is, to render every thing to the owner; and therefore, no promise or ingagement can here prevail against the natural obligation of Restitution, because that being natural and indispensible, the Ingagement, whether ignorantly or willingly made, to Restore that which the Ingager knows to be anothers, is a Delinquence, inferring punishment for ingadging, but no obliegement to perform; so also, he who ignorantly takes in custody, or pledge, that which is his own, though thereby he promise to Restore it, yet his obligation being by errour in the substance of the Contract, makes it void, and he may retain or recover it as his own.

5. Fourthly, things recovered from Thieves, Robbers, or Pirats, are lyable to this obligation of Restitution, wherein these things may be lawfully detained for the expenses and labour in recovery, especially if the labour was undertaken of purpose, to recover such things, and if it was but by accident, the recoverer projecting some other thing, the satisfaction is due, as a remuneration of the trouble and pains which it might have cost the owner in the recovery, which, with the expenses following thereon, being saved to him; he ought to recompense the profit accressing to him, to the Authour thereof.

The doubt remaineth greater, whether what Enemies having Possest, being recovered by a Nation or Party, ought not to be Restored to their proper owners of that Nation who bore the equal expense of the War, and who being any way ingaged in that Quarrel, cannot but acknowledge the War of their Enemies to be unjust; and therefore, as to these things, I think, that Equity would require Restitution upon satisfaction, and gratification of the favour received, which ought to take place, unless by the peculiar Customs of Nations, it hath been otherways agreed, which may alter, or derogat [Page] from this Common Law; and therefore, David recovering back his Wife and his Spoill from his Enemies, delivered every man his own, vid. Tit. 12. Rights real, §. 43.

7. Fifthly, The duty of Restitution extendeth to these things, quae cadunt in non causam, which coming warrantably to our hands, and without any paction of Restitution, yet if the cause cease, by which they become ours, there superveeneth the Obligation of Restitution of them, whence are the condictions in Law, ob non causam, and, causa data, causa non secuta, which have this natural ground; and of which, there are innumerable instances, as all things that become in the possession of either party, in Contemplation of Marriage; the Marriage, which is the cause, failing to be accomplished, the interest of either party ceaseth, and either must Restore.

8. But there is not the same ground for things given for an unjust cause, ob turpem causam; in which, the will of the owner, and his purpose to transfer the property is effectual, though his motive was not good; but Positive Law doth sometimes obviat the inconveniency, by such Donations, and makes them void, and either to Return, or become Caduciary and Escheat. As for these things which are attained by force or fear, they have their original from Delinquence, and comes not under this Consideration.

9. Sixthly, Restitution extendeth to indebite soluta, when any party through errour, delivereth or payeth that which he supposeth due, or belongeth to an other, if thereafter it appear, that it was not due to that other, he who received it, is oblieged to restore, and yet not by Paction or Contract; therefore the Law calleth this promutuum, vel quasi mutuum, having in it the same Natural Obligation, which mutuum or Loan, hath by voluntar ingagement; but here, Positive Law, for utility and quietness sake, excepteth transactions, which are properly such, and which are of two sorts, the one Extrajudicial, when in any matter doubtful and debateable, either party to shun their hazard, and trouble of a Legal Decision, is willing to transact and agree, so as thereby they may quite, or abate part of what they claim as their Right, and so they renounce all future question, upon any appearing of Right, either Judicially or Extra-judicially; and therefore, what either quitteth to other of their Rights, is due, for the same cause, and hath in it, either expresly or implicitely, that that Transaction shall not be Ransacted upon any thing that shall accidentally appear thereafter, (Fraud only as the common exception in all Humane Actions, being excepted) and therefore, such things, though they appear not to be the havers, are not to be Restored. The other Transaction is Judicial by Litiscontestation, when any cause in difference is put upon the Oath of the party, or other Probation, and particular diets for that effect assigned, wherein, if either party fail, he loseth what is put thereupon by his implicit consent, and when the right of any thing is referred to the havers Oath, and he sweareth it to be his own, though thereafter it may be made palpably appear, not to be so, yet it will not be Restored, because of the owners reference, implying that condition, that he shall stand to the Oath, without questioning right or wrong, because an Oath is an end of all Controversie, though the swearer may be punished as a wilful perjurer: And thus, most of things that become ours, by Sentences and Decreets of Judges, are not lyable to Restitution, upon any subsequent Question. There is this exception against indebite solutum, that it cannot be repeated, when the Creditor gets that which is due to him, though not due [Page] by that party who payed the same, l. 2. C. de condictione indebiti, l. 44. ff. eodem, which was not found when the payment was made to an Executor Creditor, pursuing upon his Confirmation, and before Sentence obtaining payment from the Debitors Heir, who was decerned to refound upon a Discharge of the Debt, granted to the Defunct Debitor, whereby it appeared the Debt was not truely due, but twice payed, January 10. 1673. Sir James Ramsay contra Robertsons.

10. Under Restitution do fall, not only the things of others, but their Natural Birth, and Fruits extant, not consumed, bona fide, which are accounted as parts of the things, being accessory thereto, and belonging to the same owner, but industrial and artificial profits in so far as such as arise from the havers industry, and not from the thing, fall not under Restitution, if separate.

11. In all these, the Obligation of Restitution is formally founded upon the having of things of others in our power; and therefore, that ceasing, the Obligation also ceaseth, as he who did, bona fide, buy that which did belong to an other, if while he hath it, it appeareth to be that others, he must Restore it without expectation of the price he gave for it; but as to that, he must take himself to his warrandice (expresse or implyed) to the seller, but if bona fide, he have sold it before he be questioned, he is free, and not oblieged to Restore it, though in so far as he is profited in receiving more for it, than he gave, he be lyable by the Obligation of Remuneration or Recompence, of which anone. And as to the Fruits of that which is an others, the Obligation of Restitution, takes only place against the haver, where they are extant; and therefore, where they are neglected, or being reaped, have perished; yea, where they are consumed by the havers making use of them, the Obligation of Restitution takes no place, though the Obligation of Recompense hath place, in so far only, as by such Fruits, the haver conceiving them to be his own, is gainer, and in better condition, than if he had not had them; but if he have increased his spending, bona fide, because of his having he is free, under his profiting comes his paying of his Debts, or even his Benificence, where it appears he would have gifted, whether such a thing had come to his hand or not; for in either case he is Locupsetior, and must recompence; so that if he hath sold or delivered that which was an others, and which came to him without price, he is not oblieged to Restore the thing, but to recompence what he hath inriched himself by the price, and that without any question of the proportionable value of it to the thing.

12. In the Enjoyments of Fruits, the Positive Law of the Romans, and of this, and most other Nations hath not only owned what is before said of Restoring, no more then that by which the haver hath profited; but have extended this much further, for utility and common quietness sake, that bonae fidei, possessor facit fructus perceptos, & consumptos suos, whereby what Fruits he who hath possessed, bona fide, hath consumed, though he have profited, and been inriched thereby, he is not oblieged to restore the same, which doth much secure and quiet mens Enjoyments, that they may freely use and enjoy that, which, bona fide, they have; and to shun the hazard of their ruine, by answering for the bygone Fruits, or their great vexation in clearing, whether they be inriched thereby or not.

Amongst these Obligations, neither by Contract nor Delinquence, are commonly accompted the Obligations, which are incident to these who enter Heirs, or are Successours to others, whereby they are oblieged to perform all their Predecessours Obligations, and satisfie their Debts, in such manner as in [Page] Law is prescribed, and yet it is not by their own ingagement, nor by their fault, but by their fact of entering Heirs. Such also are the Obligations upon Executors, to satisfie the Children, and Relict, Legatars, or Debitors of Defuncts, by, or for whom they are intrusted, and indeed the Restitution of the Relicts part, is properly such; as also, the Legatars to whom the Right by the Legacy is transmitted ofttimes of peculiar things; the giving also to Children, or nearest of Kin, is a Restitution, because the property of the Defuncts Goods, by his Will, expressed or presumed, is transmitted to them after his death; but for payment of the Defuncts Debts, they are not properly by Restitution, because the Debitor had no property in the Goods, but an Obligation upon the Person, and they arise either from that Natural Obligation, that lyes upon Children from their Parents ingagement, of which before: Or by the Naturall Obligation of Remuneration or Recompence, by which these Successours, in so far as they are profited by the Succession of the Defunct, they must satisfie or recompence, and the Positive Law in some cases makes them lyable simply; yet in Equity they are lyable, in so far as they are gainers, secundum vires haereditatis.

13. In the Restitution of the Goods of others, though the ground thereof be the having of that which is to be Restored; yet if the haver cease to have through his own Fraud, his Delinquence therein oblieges him to Reparation, as if he still had it, according to the Maxime of Law, pro possessore habetur qui dolo desiit possidere, and this extendeth not only to the thing it self, which he must Restore, though he hath fraudently put it away, or at least the value of it; but also it extends to the Fruits which he hath injoyed, mala fide; and after he knew and had intimat to him the Right of another, so that such Fruits must be Restored, though the enjoyer become not the richer thereby.

14. From the right of Restitution, ariseth the Action of Exhibition and Delivery; The Exhibition is but preparatory to the Delivery, that thereby the thing in question may be known to the Parties, Judge and Witnesses; and therefore, majori inest minus, he that hath right to crave Delivery, hath much more right to crave the Production, or the Inspection. This Action may be Institute concerning any moveable things that can be conveyed before a Judge, or his Delegats, as if the question were of a Horse, if he be extant, he may be fitly craved to be Exhibit, that the Witnesses may be in the clearer capacity to Depone, to whom he doth belong; but the ordinary subject of this Action, is Exhibition and Delivery of Writes, wherein the Tenor and Stile of the Action is, that the Defender hath, or had, or fraudfully put away the thing in question, his having is probable by Witnesses, and relates not unto the time of Probation, but unto the time of the Citation; for, if after it the Defender had the thing in question, he ought to have acknowledged it; and if he have justly or necessarily put it away, or wanted it, he ought to have pleaded that as a defence, which therefore would exeem the Pursuer from Probation of the Libel, as being acknowledged by the defence, and so being omitted, and the Pursuer proving his Libel, the exception is not competent, but the Defender is accompted as a fraudful away-putter after Citation; so that this Defence, that the Writes in question were given to be Registrate, and were burnt in the Tolbooth, was found relevant and probable by the Members of Court, January 12. 1610. Patrick Home contra Wilson.

There is a second Member in this Action, to wit, that the Defender at any time before the Citation, had the Writes in question, and fraudulently put them [Page] away, and is therefore repute as haver of them, both these Members must be proven; for it will not be sufficient to prove that the Defender had the Writes before the Citation; but it also must be proven, that he fraudfully put them away; which therefore being a matter of Fraud, concerning the mind and purpose, is not probable by Witnesses, but by Write, or Oath of Party, November 17. 1627. John Inglis contra Gilbert Kirkwood. 30 of January 1629. Captain Crawford contra Laird of Lamingtoun. Yet if Fraud otherways appear, Witnesses will be admitted to prove the having before Citation, that the haver may instruct that he warrantably put the same away, July 14. 1666. Fountain and Brown contra Maxwel of Netheryet. But Witnesses, will not be admitted to prove the delivery of any Write by the granter thereof, whether it be Bond or Assignation, as being, Chyrographum apud debitorem repertum presumitur solutum, which was sustained, as to an Assignation in the hands of the granters Son, who did his Affairs: and Witnesses were not admitted to prove that the same was delivered to the Son, as Agent for the Pursuer, December 14. 1666. Anna Fairly contra the Executors of Sir William Dick. This presumption is stronger in relation to Bonds, which are most ordinarily taken away, by retiring the same without taking Discharge; and therefore, being found in the Hands of the Debitor, or his Heir, they are presumed to be satisfied and retired; or being in the hands of a Cautioner, if it appear by his Oath, or other Evidence, that he got the Bond from the Principal Debitor, to take his name from it, June 26. 1623. Carmichael contra Hay of Munktoun, otherways the presumption would not hold by the Bonds, being found in the hands of a Cautioner, or of an Executor, for whom simple retiring of the Bond, will not be sufficient without Discharge or Assignation. Exhibition and Delivery is competent to any party in whose favours a Write is conceived, without necessity to prove that it was delivered, for that is presumed, if the Write be out of the granters hand, so that the granter is necessitat to prove, that the Writ was depositat upon terms not performed; or that it was lent, lost, Stollen, or passed otherways from him, then by delivery: for prevention of which, the English custome is good, that the Write bears, not only Signed and Sealed, but delivered before the Witnesses. But seing with us, delivery is presumed, it is ordinarily required, that the granter of the Write be called in the Exhibition, that he may be heard to propone any thing, that may take off the presumption; yet this will not be necessary in recovering Securities of Land, or other real Rights, especially if the Pursuer be in Possession. But in several cases, Writes are effectual without Delivery; As First, Writes granted by Parents in favours of their Children, November 11. 1624. Bairns of Eldersly contra his Heir. Secondly, Mutual Contracts or Minuts, June penult. 1625. Valence contra Crawford. Thirdly, Writes bearing a Clause, dispensing with Delivery. Fourthly, By Reservation of the granters Liferent, and power to Dispone, June 19. 1668. Agnes Hadden and Mary Lauder contra Shoarswood. The like was found lately in a Disposition of some Ackers of Land to Thomas Kincaid Chyrurgian. Fifthly, An Assignation taken by a Debitor in name of his Creditor, for his Creditors releif, as Cautioner for him, intimat by the Debitor, was found effectual without delivery, January 18. 1677. Dick of Grange contra Oliphant of Gask, February 24. 1680. John Mclurg contra William Blackwood. The like was found, where the Debitor took a Bond in name of his Creditor, which was presumed to be for that Creditors satisfaction security, and not in trust, and not affectable by Arrestment, for the Procurers Debt, before it was delivered, July 12. 1677. Mr. John Bain contra Mcmillan. But where the Bond was taken blank, and Arrestment laid on, before it was filled up with the Creditors name, or delivered to him, the Arrester was preferred, February 27. 1678. [Page] Campbel and Cunninghame contra Mr. John Bain and Mcmillan. Delivery is not presumed of Bonds of provision, to Children in the Family, in competition with Creditors, though their Debts be posterior to the dates of the Bonds of Provision, unless the delivery thereof be proven, anterior to the Debt, otherwise Creditors would be most unsecure by Parents, making large Bonds of Provision, which they ordinarily keep by them, which will not be extended to Bonds taken from Debitors in the names of Children, or wherein they are substitute, these not being latent, but known to the Debitor; but the simple proving the having of Writes, after Citation, is sufficient to infer the Conclusion, unless the lawful Cause be alledged in the Defence and proven, and the having of Writes, though of great importance, is probable by Witnesses.

15. Under the Obligation of Restitution, is comprehended the Obligation of Division, whereby what we possess in common with others, or indistinct from that which they possess, we are naturally oblieged to divide it with them, whensoever they desire to quite that Communion, for thereby we Restore what is their own, and we are not oblieged thereto by any Contract or Delinquence; It is true, the Contract for Society includeth the obliegement to divide, after the Society is ended; but Communion falleth many times, where there is no Society or Contract, as by Succession, Legacy, Gift, &c. Hence arise these three Actions, frequent in the Roman Law, mainly, because Heretage did then befall to the nearest degree of Agnats, as now it doth not, viz. Actio familiae Hersiscundae, Actio de communi dividendo, & Actio de finibus regundis. The first is the division of that which falls by Succession. The second, for division of that which is otherwise common. The third, for distinction, or clearing the marches of Contiguous Grounds. In these, either Party might be Pursuer, and he is held to be pursuer, who did first provoke to Judgement; but because they do chiefly concern Immoveable or Ground Rights, we shall say no more here of them.

TITLE VIII. Recompence.

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1. Recompence, or Remuneration, a Natural Obligation.

2. Obligatione Negotiorum Gestorum.

3. Actio directa & contraria de Negotiis gestis.

4. The Diligence of Negotiators.

5. The Natural Obliegement to Recompence, in quantum locupletiores facti sumus.

6. Actio de in rem verso.

7. Relief due to these who satisfie Obligations, whereby more Persons are lyable, in eosdem.

1. THE Obligation of Remuneration, or Recompence, is that Bond of the Law of Nature, oblieging to do one good deed for another, and it comprehends, First, all Obligations of Gratitude, which are generally acknowledged by all Nations, and the breach thereof is abhorred, si ingratum dixeris, omnia dixeris; yet because the complaints of Ingratitude, are so frequent and unclear, every one esteeming highly of the demerit of his own Actions; therefore most of them are laid aside, without any legal remedy; for that which is done, animo donandi, though it doth induce an Obligation upon the mind and affection of the receiver to be thankful; yet doth not bind to the like liberality, in case of necessity, but in few cases; as a Master, gifting Liberty upon this ground, did put an Obligation upon the Servant, who thereby became free: Whence also arose that Right of Patronage, of which before. But that is rather by a Positive Law, and tacit consent, as a Condition implyed in the Gift: So also in every Gift, there is a correspondent Duty of Gratitude; and therefore, by ingratitude the Donation becomes void and returns: But the matter is more clear when the Good Deed is done, not animo donandi, but of purpose, to obliege the Receiver [Page] of the Benefite to Recompence. Such are Obligations, Negotiorum Gestorum: And generally the Obligations of Recompence, of what we are profited by the damnage of others, without their purpose to Gift; or as the Law expresseth, in quantum locupletiores facti sumus ex damno alterius; It is a Rule in Law, Donatio non presumitur; and therefore, whatsoever is done, if it can receive any other construction then Donation, it is constructed accordingly. Whence ariseth that other Rule of Law, Debitor non praesumitur donare; So that any deed done by the Debitor, is either presumed to be in Security, or in Satisfaction of his Debt; as if he assign his Creditor to any thing due to him, or Dispone any thing to him, it is understood to be in Security or Payment, unless the Deed express to be a Donation, or done for love and favour; yea, Trust is rather presumed than Donation, as if a man take a Bond, Assignation, Disposition, or other Right in another Mans name; it is held to be a trust, he may force that other to denude himself, if he was not Creditor to the Acquirer; yet these Rules have their Limitations; As first, Bonds, Assignations, or other Rights, in the names of Children, unforisfamiliat, unprovided, are presumed to be Donations, because of the Parents Natural Affection, and Natural Obligation to provide Children, which was extended to some Goods and Money of a small value, delivered by a rich Brother who wanted Children, to his Brother who was no Merchant, which was presumed to be animo donandi, and was not imputed in part of an Annual Legacy, left thereafter by that rich Brother to the other, November 13. 1679. Anderson contra Anderson; yea, an Assignation to ones nearest of Kin, Mortis causa, was found a Donation, and not in satisfaction of a Debt due to that Party, June 16. 1665. Crookshank contra Crookshank. And Bonds of Provision to Children, are not Interpret in satisfaction of prior Bonds, but to be a further Addition; and so are any other Rights taken in name of Children, especially if unforisfamiliat: yet a Tocher in a Contract of Marriage, was found to be in satisfaction of all former Provision, though it did not so express, June 29. 1680. Francis Young contra Pape and Vauns. And Aliment to Children, is ordinarily interpret to be, ex pietate, and not to obliege, as was found in the case of a Mother, where the Children had no considerable Estate, February 2. 1672. Captain Guthry contra the Laird of Mckerstoun and his Brother. The like, though the Mother was Married, Alimenting her Daughter, who was appearand Heir to her Father, though she renounced to be Heir, July 16. 1667. Hamiltoun contra Simontoun. The like was found in the Mothers Father, Alimenting his Oye, July 21. 1665. Laird of Ludquharn contra Laird of Giht. And in the case of a Grand-mother, Alimenting her Oye in the Fathers Life, till she require the Father to take her home, January 11. 1681. Janet Gordoun contra Janet Lesly. Yet Aliment by a Sisters Husband, who was also Debitor, was not found to be a Donation, seing it began in Minority, and was continued after, though without paction, February 11. 1681. Margaret Spence contra Foulis of Ratho. And in all cases, Aliment or Intertainment given to any person without paction, is presumed a Donation, if the person was Major, and capable to make agreement. But Intertainment to Minors or weak persons, doth ever infer Recompence, according to the true value of the Benefit received. And in the case of these who are in use to furnish Provisions for Money, the presumption ceaseth, and Recompence is due. In like manner, where more persons are bound for the same Debt, when any one payeth the whole Debt, or more than his share, Recompence by way of relief, is due, although there be no Clause of relief; and generally, the delivery of any thing is not presumed to be a Donation, but for Recompence, or Loan. And so though the delivery of Victual to an ordinary Buyer, or seller of Victual, was found to [Page] infer the ordinary price, though no agreement or price was proven, unless the receiver instruct another cause of the delivery, June 15. 1677. David Home contra Jamison.

2. Likeways the Obligation betwixt Negotiators, and these to whose behove they Negotiat, tying to Recompence, what others without our Command, Knowledge, or Presence, have necessarily, or profitably done for carrying on of our Affairs, these Deeds must be done without Command, or Commission; otherways they come in the nature of the Contract, Mandat or Commission; yea, what is done in our presence, with our Knowledge, in our Affairs, is repute, as with our tacit Consent and Commission, Nam qui tacet, consentire videtur; These must also be done for the carrying on of our Affairs; For Negotiators cannot begin any new Business, but only carry on that which is begun, and they must be necessarily or profitably done; otherwise he hath his Labour for his Pains, and he that set him on Work must pay him his Expenses. And last, though these Deeds may be done without our Knowledge or Consent; yet may they not be contrary to our Will and Command; for such obtruders can expect no Recompence, L: Final. C. de negotiis gestis; though no Positive Law hinder, we may be liable even to such, in quantum facti sumus locupletivres. But the obliegement to Negotiators is greater; for, if they do that which is necessary or profitable, for carrying on our Affairs, though by some accident, that Affair may perish, or miscarry, and we no richer, but it may be poorer, yet are we oblieged. The ground of these Obligations, is, because it is frequent for men to go abroad upon their Affairs, supposing quickly to return, and leave no Mandat for managing of them; and yet being detained from them beyond expectation, they may be easily lost; For instance, some Redemptions must be peremptor, and the failer therein hath a great inconvenience; or the perfecting of some great Bargain, a great part whereof is already done; and the not perfecting the rest, loseth the whole; or the management of any work of great profit, that for want of some pains or expenses might be lost. These who interpose themselves in such cases, do necessarily and profitably for the good of the absent, and so are under no Delinquence, neither are they presumed to gift their pains and expenses, nor have they any Conventional Obligation upon their part: And yet though there were no Positive Law for it, the very Light of Nature would teach, it ought to be Recompenced; and therefore, can be no other then an Obediential, or Natural Obligation, by the Authority of God, and our obedience to him, Grotius, l. 2. Cap. 10. de Jure Belli §. 8. doth not own this Obligation as Natural, but as arising, Ex lege civili nullum enim (saith he) habet eorum fundamentorum, ex quibus natura Obligationem inducit; but the contrary appeareth, not only from what is said, but by the Testimony of the Law it self, which reckons the Obligations, Negotiorum Gestorum; not amongst Contracts, or Obligations, or Actions, ex lege; but amongst these which are, ex quasi contractu.

That this Obligation is effectual, if it be profitably carryed on, though the success answer not, is acknowledged in Law, and set forth by an excellent Species, by Ulpian, l. 10. §. 1. F. de negotiis gestis; It justifieth (saith he) if the Negotiator did profitably act, although the Affair had not the effect; as if he had Cured a sick Servant, if not with standing the Cure, the Servant died, he hath this Action.

3. From this Obligation there arise Mutual Actions, the one direct, whereby [Page] he whose Affair is managed, craveth Accompt, and Restitution of the Negotiator, and Reparation of what he hath done amiss; and the contrair Action to the Negotiator, whereby he craveth Recompence, and Satisfaction of what he hath profitably expended, and for his labour and pains, but the Action is valid on either part, whether intended, directe, or utiliter, l. Actio ff. 47. de negotiis gestis.

4. The Negotiator is holden, not only to answer for Fraud, but, pro culpae levi, for his fault, though light; yea, if any other Negotiator offered, whom he excluded for the lightest, he may be made also to follow forth his Negotiation, according to that Precept, Susceptum perfice munus; but this, and the exactness of diligence, is induced by Positive Law; Equity leaving the Negotiator free, if he hath acted profitably, though he might have acted more profitably, in making his Party lyable to him according to his acting.

5. The other Obligation of Recompence, is, for that whereby we are inriched by anothers Means, without purpose of Donation, which is only presumed in few Cases, even he who mala fide, buildeth upon another Mans Ground, or repaireth unnecessarly his House, is not presumed to do it, animo donandi, but hath Recompence by the owner, in quantum lucratus, l. 38. ff. de haereditatis petitione. This Remuneration is a most Natural Obligation, as Cicero, l. 3. de officiis, Sayeth, that it is against Nature, for a man, of anothers damnage, to increase his profite: And again, Justice suffers not that with the spoil of others, we should augment our riches; and therefore, this is a common exception in all Positive Laws, that every one should be holden, in quantum locupletior factus sit. So Pupils, though they cannot obliege themselves by Contract, yet if they receive that which is anothers, they are lyable to Recompence, in quantum locupletiores facti, l. sed mihi ff. commodati. Minors also, though by Positive Law, they are not lyable for what they borrow, and receive, and mispend, yet they are lyable, in quantum locupletiores facti sunt.

6. Hence arises the Action in Law, de in rem verso; whereby whatsoever turneth to the profite of any, makes him thereby lyable, though without any ingagement of his own. We are inriched, either by Accession, of Gain, or Prevention of loss: Whence is the Obligation of Contribution, for making up Goods, thrown out to lighten Ships, whereby Shipwrack, and the loss of all is prevented, Lege Rodia de jactu, ff. l. 2. by which, whatsoever is thrown out to lighten a Ship, for preventing Shipwrack, is to be satisfied by the Contribution, of all who enjoy that common benefite of Safety from Shipwrack, proportionally according to the value of what is thereby saved. wherein the owners of the Ship, bear their share, l. 2. §. 2. eodem, wherein not only Jewels, though of small weight, but even the Clothes and Rings of Passengers, bear a share, Ibidem, and the Master of the Ship may detain their Goods till their share be payed, l. 2. §. 1. codem; which holds also, when there is hazard of Naufrage, by entering a shallow River, or Port, if a part of the Goods be put in a Boat, and perish, the value thereof is to be satisfied by Contribution. Contribution is also made, for what is payed for Redemption of Ships from Pirats, which is not extended to things taken away by Pirats, or Robbers out of Ships, l. 2. §. 3. eodem. This, Lex Rodia, is now become a Law of Nations, as commonly received by all, for its expediency to prevent Shipwrack, and to incourage Merchants to throw out their Goods, seing thereby they will but bear their share of the [Page] loss. But this Law is not Declaratory of pure Equity, and doth hold by Custome; otherways, what any Party doth for his own profite, though it have a consequential advantage to others, it will not obliege them to bear a share of the Expenses, nor will it be interpret as, Negotium [...]; for, he who improves aright, though it becomes simply void, and other Right beside his be preferreds, yet he was doing his own business, not theirs, and can claim no share from them of his Expenses. It was found, that to evite Captor by a Privateer, a Skipper having by consent of some Merchants aboard, and of the Company, made a hole in the Bottom of the Ship, that he might run near the Shoar at a Creik, and opening the hole, make the Ship so far sink, that she could not be carryed off by the Privateer; yet that Privateer having reached her near the Shoar, but before the hole was opened, and having agreed for a Ransome, for which the Merchants Contributed, the Ship having been Wracked five days after by a Storm, which she might have prevented, by going off before the Storm arose, the Merchants and Passengers, were not found lyable for Contribution of their shares for the loss of the Ship, July 15. 1680. Lesly and Millars contra Logan, Weir, and others.

7. From the natural Obligation of Recompence, doth arise the Obligation of Relief, whereby when many persons are oblieged, in solidum, and thereby lyable, conjunctly and severally, payment or satisfaction made by one, for more then his own share, doth obliege all the rest, pro rata, although there be no conventional Clause of relief, nor any Law nor Statute, but the natural Obligation of Recompence; for he who payed, not only for himself, but for others, is not presumed to do it, animo donandi, as was found in the Case of Co-principals, June 19. 1662. Mr. John Wallace contra Forks. June 28. 1665. [...] contra Anderson. It was so found before, as was observed by Haddingtoun, [...] contra Hunter. And upon the same ground, Relief is competent amongst Cautioners, without Clause of Relief, because the payment of one liberats all, June 27. 1675. Monteith contra Roger. Yea, Relief was found competent to a Cautioner, who in a new Bond of Corroboration, had ingaged for the Debt, with the Principal, and that against the Cautioners in the first Bond, though he had no Assignation to the Clause of Relief, granted to the first Cautioners, Spots. Cautioners, Lubra contra david Vauns. The same must hold in Con-tutors, Co-curators, and wherever more Debitors are lyable, in solidum, for the same Debt or deed.

TITLE IX. Reparation where, of Delinquences and Damnage thence arising.

[Page]

1. The Obligation of Reparation of Damnages by Delinquence, a Natural Obligation.

2. Delinquence infers the Obligation of Punishment, and Reparation of the Injured.

3. Damnage Described.

4. Kinds of Delinquence.

5. Concurrers in Delinquence, how lyable.

6. Special kinds of Delinquences by our Customes.

7. Assythment.

8. Extertion, vi majori & metus causa.

9. Circumvention by Fraud, dolo malo.

10. The Edict, de dolo malo.

11. Circumvention rarely inferred by witnesses.

12. Simulation,

13. Collusion.

14. The effect of Fraud, as to the party Contracting.

15. Deeds done, in fraudem Creditorum, contrair the Act of Parliament, 1621. anent Bankrupts.

16. The Nature of Spuilzie.

17. The Title of Possession.

18. Oath, in litem, in Spulzies.

19. Spuilzie eleided by any colourable Title, Warrand, or, bona sides.

20. Spulzie eleided by voluntar Delivery.

21. By lawful Poynding.

22. Replyes against Poynding.

23. Spuilzie eleided by Restitution within twenty four hours.

24. Prescription of Spuilzies.

25. Intrusion and Ejection described and distinguisbed.

26. Ejection propper to the Natural Possessour.

27. Exceptions against Ejections.

28. Mollestation.

29. Breach of Arrestment and Deforcement.

30. Contravention.

[Page] AMONGST Obligations Obediential, we have placed these, which are by Delinquence, because they arise without any Convention, Consent, or Contract, either particularly, or by vertue of any Positive Law; and therefore, they must needs have their Original from the Authority and Will of God, and of our Obedience due thereto; for, though they do proceed from our Fact, and from our Will, whence that Fact is voluntarly committed, yet it is not from our Contracting Will; and therefore, these Obligations do not receive their measure, or extent by our will.

1. That Obligations of Delinquence, are introduced by the Law of Nature, the Suffrage of all Men, and all Nations will evince, who do every where acknowledge the Reparation of Damnages, and Punishment of Crimes, and Injuries, as having by Nature, a clear Evidence, and sharp Sense thereof; and thereupon, can without Reluctancy, concur with the Magistrate in the Punishment of Citizens, and of Enemies by the sword.

But it may be doubted, how the Law of Nature, which is perpetual, and had place chiefly in Innocency, can prescribe any thing in relation to Delinquency, or Malifice, which was not to be found in that condition. This will be easily cleared, if it be considered, that though Man was made in the state of Innocency; yet had he a natural Instability, for which God did warn and arm him; and though the Principal, and direct Law of Nature, did teach Man, to love his Neighbour as himself; yet he could not but by consequence know (though he had stood in Innocency, as do the Angels) that any who acted against that Royal Law of Love, by doing evil to his Neighbour, and taking away from him that which is his, ought to Repair him, and to be lyable to Divine Justice, which is that Certification, which God put upon his Natural Law, as he did more expresly upon the forbidden Fruit, morte morieris.

2. An Obligation of Delinquence, is then, that whereunto Injury, or Malifice doth obliege, as the meritorious cause thereof, as the Will of God thereupon is the efficient cause; and it is twofold, either that which relateth to God, or that which relateth to Man; the former is the Obligation of Punishment, Pain, or Penalty; for unto God, there can properly no Reparation be made by the Creature, whose duty and service is due to him: so that to him the Creature is oblieged to underly the Punishment. In reference to Man is, the Obligation of Reparing his Damnage, putting him in as good condition as he was in before the Injury, and this only is Mans part for himself; for the inflicting of Punishment is for God, in so far as it is Authorized, or allowed by him: but it is not for, or from Man of himself, Revenge is mine, and I will repay, saith the Lord: For, as hath been said before, an Obligation in the Debitor, hath a correspondent power of exaction in the Creditor, which is the personal Right. So in Delinquence, the power of [Page] exaction of Reparation of his Damnage, is Mans for himself: but the power of exacting Punishment, is in God; and, as for him, or [...] it is [...] to Man; it is but a Ministerial Power, and not Dispensible at [...] pleasure, and hath an Obligation, whereby Man [...] bound to God, for doing his duty therein: Though Positive Law, and [...] of [...], and in some things, the Positive Law of God it self, may [...] a [...], and imploy it for the proper use of the Injured; yet it is not a proper punishment, that hath its force by Paction, or Positive Law, and nor by the Law of Nature. The Obligation to Punishment, arising from [...], and Mans Power, and duty to inflict the same, is a publick Right; which, though naturally did concern every man, yet it is now with Divine approbation, for most part devolved upon Publick Authority, which is said, Rom. 13. [...] 3, 4. To be a terrour to evil doers, and not to bear the sword in vain; for be [...] the Minister of God, a Revenger, to execute wrath upon him that [...]: by which it is clear, that the Magistrate, as he Executeth Revenge, doth [...] not of, or for himself; nor for, or from the people, as their proper Right or power of exaction; but therein as he is the Minister of God, he doth [...] for, and from God, even though his Authority and Commission, were not immediatly from God, but from Man; yet he stands in the place of these Men to God, to Execute that Revenge, which they themselves are naturally oblieged unto. But how far Mans Natural Duties, or the Magistrats, in the Punishment of Crimes reacheth, the Lines of the Law of Nature, are become dark in many Points. It is manifest, and agreed by all, that though in all Damnages done to man, there are also Punishments which may be inflicted by God: yet, where the matter is chiefly Mans Interest, and so Repairable to him; none will think, that it is a duty in all of these cases, to inflict vengeance on such; neither doth any own a Power, and necessity to inflict Punishments for Mans Spiritual Delinquence, standing in his Mind and Affection, as for want of Love, and Confidence, Hope, &c. In somethings also, the power of Punishment is no less evident, even when there can be no Reparation to man, as in that general Precept, of equal Crimes and Punishments, Life for Life, Eye for Eye, Tooth for Tooth, &c. But there are many middle Crimes, that are much more unclear, wherein the Word of God, even in the Judicial Law, is an excellent Light; for we may safely conclude, that it would be no Injustice or Intrusion, for man to vindicate these Crimes for the Lord, which-himself gave order to Revenge. But our purpose being here, only to insist in private Rights, we shall not follow these, nor the many [...] Questions that rise on that matter; but shall return to the private Rights of Men, arising to them by Delinquence, by exacting Reparation of their Damnages inferred thereby.

3. Damnage is called, damnum a [...]; because it [...], or taketh away something from an other, which of Right he had. The Greeks for the like reason, call it [...] by which Man hath less then he had. It is not every Damnage that raiseth this Obligation; for, some Damnages may be just, as these which are inflicted by way of Punishment; and others may have their Reparation arising from Contracts, whereby, though a Delinquence may arise, in non-performance of the Contract; yet the Original Cause of the Obligation is the Contract. Some also arise from deeds or things, the nonperformance whereof is also a Delinquence, as in the Obligations of Restitution and Recompence: but here are only understood, Obligations which Originally arise from Delinquences, as the first Cause thereof.

[Page] 4. Delinquence in the Romon Law, is reduced into these four, furtum, rapina, damnum, injuria; all which are separate from the publick Crimes, wherein we shall not insist, but follow Delinquences privat, and Obligations and Actions thence arising, as they are known by the Terms in our Law, in so far as they use to be civilly prosecute; for though in publick Crimes, which are Criminally pursued, there is competent Reparation, either from the Nature of the Crime, or from Law or Custome; yet that is incident unto a publick Right, and not ordinar, it shall in general suffice here to consider, that according to several Rights and Injoyments, our Damnages and Delinquencies, may be esteemed.

As first, our Life, and Members, and Health; which, though they be inesteemable, and can have no Price, yet there are therewith incident Damnages, and that either lucrum cessans, ceasing gain; or damnum emergens, loss. So the Life of any being taken away, the Damnage of these who were intertained, and maintained by his Life, as his Wife and Children, may be Repared. So likewise, the loss any man hath by the expenses of his Cure, or the loss of his Labour, and Industry in his Affairs, is also Reparable.

Next to our Life, is our Liberty, and the Delinquences against it, are Restraint and Constraint; though Liberty it self be inesteemable, yet the Damnages sustained through these Delinquences, are Reparable.

The third is Fame, Reputation and Honour, which is also in some way Reparable; First, by making up the Damnage that is inferred in Mens Goods, by the hurt of then Fame, whereby their Gain ceaseth, in that being repute such Persons, they are disinabled for their Affairs; as if a Merchant be called a Bankrupt, it may not only hinder his Traffique, but make all his Creditors fall upon him suddenly to his ruine: so if a Man be called a Cheater, Deceiver, or the like, it disables him to mannage his Affairs, Men being unwilling to medle with such. And if a Man being about to Marry, be called Impotent, or to be infected with any noisom Disease, he may be Demnified in his Match and Tocher: such Actions upon Injurious Words, as they may relate to Damnage and Means, are frequent and curious among the English; but with us, there is little of it accustomed to be pursued, though we own the same Grounds, and would proceed to the same effects with them, if questioned. Secondly, Damnage in Fame or Honour, is Repaired by Homage, acknowledgement, or Ignominy put upon the Delinquent. Thirdly, By equivalent Honour, and Vindication of the Injured. Slander is competent to be Judged by Commissars; and therefore, a Decreet of the Commissars of Edinburgh, upon a pursuit for Slander and Defamation, decerning the Slanderer to make acknowledgement of the Injury before the Congregation, and to pay an hundred Pounds Scots to the Party, and as much to the Poor, was sustained by the Lords, February 5. 1669. James Deans contra Alexander Bothwel.

The Fourth Interest that may be Damnified, is our Content, Delight, or Satisfaction; and especially by the singular Affection to, or our opinion of, the value or worth of any thing that owners have: in which consideration it is said, that every thing is to every Man as he esteemeth it, and though this be not the Intrinsick Value of the thing, nor the common Rate of it in the accompt of Men, but praetium affectionis, the Rate that the affection of the owner puts upon it; yet, that being free to him, and his Right, his Damnage therein ought to be Repaired, according to the value himself, [Page] esteemed the thing taken from him worth: on this Ground, in most Actions in the Civil Law, wherein there is force, or Attrocious Injury, Reparation is to be made, according to the reasonable estimation of the injured; and therefore, he hath, juramentum in litem, his Oath to declare how much he accounted himself damnified; the exorbitancy whereof, might have been taxed by the Judge: but otherways, though his estimation be much above the common value, it were receivable. This hath also place with us, as in Actions of Spuilzie, &c. and other Delinquences by violence.

The last Damnage is in Goods and Possession, the Redress whereof, is more clear, because the things themselves are more valuable and esteemable. In all Reparations, the Natural Fruits and Profits of the thing taken away, come in as part thereof: and in many cases, the Industrial Fruits and Profits, which the owner might have had, at least used to make thereof.

Reparation is either by Restitution of the same thing, in the same case, that it would have been in, if it had remained with the owner, and this is most exact: or, where that cannot be, by giving the like value, or that which is nearest to make up the Damnage, according to the desire of the Damnified; and if none be found fitter, Reparation must be made in Money, which is the common token of exchange, and hath in it the value of every thing esteemable.

5. In the Reparation of Delinquences, it would be considered, when many have a hand in it, who come in to be lyable, and how far; for in some cases, the Delinquence is committed by one principally, and others are but accessory: in other cases the Delinquence is equally and principally committed by more, though unto these also, there may be accessories.

Accession to Delinquence, is either Anterior, Concomitant, or Posterior to the Delinquence it self: Anterior, is either by Counsel, Instigation, or Provocation, or by Connivance, in foreknowing, and not hindering these whom they might, or ought to have stopped; and that either specially, in relation to one singular Delinquence, or generally, in knowing and not restraining, the common and known inclination of the actors towards Delinquences of that kind; as when a Master keeps outragious and pernicicious Servants, or Beasts; and therefore, in many cases, even by Natural Equity, the Master is lyable for the Damnage done by his Beast, as is clearly resolved in the Judicial Law, in the case of the pushing oxe, which if it was accustomed that he pushed before-times, the owner is lyable for the damnage thereof, as being oblieged to restrain: but if not, he is free. So the like may be said of Mastives, and other Dogs, if they be accustomed to assault Men, their Goods, or Cattel, and be not destroyed, or restrained, their owner is lyable.

Hence also is that Famous Edict of the Pretor, in the Roman Law, Nuntae caupones stabularii, quod salvum fore receperunt nisi restituant in eos judicium dabo, by which the Masters of Taverns, Stables, or Ships, are lyable for Restitution (of what is brought in upon the account of their Imployments) of the Damnages that may be sustained by their Servants, or any other that shall happen to be there for the time.

Concomitant Accession is, when the Accessories are not equally concurrent in the Act, but countenance, or otherways assist, abett, cherish, praise, or connive at the Delinquence. Posterior Accession, is by Ratihabition, Approbation, [Page] Praise, [...] Defence, or Support of the [...], in order to the [...] all these [...] in our Law, [...] [...] and Part.

As to the Question then, who of these co-operants are oblieged, and how far? First, It is clear, that where the Delinquence is committed by many alike, there all of them are lyable alike; but whether in equity they be all lyable, in solidum, or for the whole Reparation, it is not so [...]. Positive Law hath made them all lyable, in solidum, for the repressing such concurrences, and that the injured be not put to the trouble of seeking in by parts, from the several Delinquents; yet Equity would rather lay the Reparation of every Mans part upon himself; and in case of his not being found Solvent or sufficient, upon the rest, making up with all the trouble of obtaining Reparation from many, by refounding the expences in obtaining thereof, and the labour and pains, and content of the injured. As to the Obligation of Punishment, of many concurring Delinquents, if an Army, or a part of it in a Mutiny, all shoot at on Person, if he be killed, it would not be thought just, for that ones life, to take the lives of all; and therefore, because it cannot be known whose Ball killed the man, it is accustomed, and not without good ground, by lot, to single out who are to suffer, and the rest are free; from whence it may be gathered, as in the Punishment, so in Reparation, fellow Delinquents, socii criminis, are to concur in the Reparation, as they concurred in the Action; though, as hath been said, Positive Law doth well to make all lyable, in solidum; yet so, that the satisfaction of one or more, liberats the rest. Secondly, As to the Accessory Delinquents, though Delinquents by Command, be numbered among them, yet (as we say) he doeth, that causeth do; therefore such are propper Efficients, though mediat; and therefore, no less lyable then Concurrents.

Thirdly, Other Accessories, albeit by Positive Law, they are [...] all, or many of them, made lyable, in solidum; yet as we have said of Concurrents, in Equity they are lyable; but according to the influence they had in the Delinquence: but in these, the Obligation may be much more to the Punishment, where the Will comes in to be considered with the Act, then in the Reparation, where the damnage (which is the outward and more conspicuous thing) is mainly considered; but in these we shall insist no further, but come to the Obligations by Delinquence, which are civilly cognoscible by our Custome, according to their known Names and Titles in Law: which, though they do rather signifie the Act or Actions, whereby such Obligations are incurred, or prosecute, then the Obligations themselves, yet will they be sufficient to hold out both.

6. These are either general, having no particular Name or Designation, and such are pursued under the general Names of Damnage and Interest, which hath as many Branches and Specialities, as there can be valuable and reparable damnages; besides these of a special Name and Nature, which are chiefly these, Assythment, Extortion, Circumvention, Spuilzie, Intrusion, Ejection, Molestation, breach of Arrestments, Deforcement, Contravention.

7. Assythment, as it signifies the Reparation made, so it insinuats the Obligation to Repair Damnage sustained by Slaughter, Mutilation, or other Injuries in the Members, or health of the Body; but it is chiefly pursued by the Wife, or Bairns, or nearest of Kin, of Parties slain. In other cases, it is competent to the Party mutilat or hurt, or otherways prejudged by the Muti| [Page] the mutilation, or hurt; and though the private Interest be only for Reparation of Damnage and loss, yet our Custome applyeth much of that, which is paenal therein to the Injured; and therefore, consideration is had of the Ability and Estate of the Offender, and the Assythment is accordingly modified, all Circumstances being considered, and that either against the Principal Offender, or the Accessories: So was it found in the pursuit, at the Instance of Patrick and Isobel Greers, for the Assythment and Slaughter of their Brother against Thomas Horn Baxter, Nic. de siccariis, this Action was so favourable, that it was sustained, though there was no particular quantity of Damnage libelled, but the same referred to the Lords, Spots. Summonds and Libel; and though it was pursued by one of many Brethren, his part was decerned, reserving the Right of the rest, January 8. 1577. Ker contra

Yea, it was sustained, at the instance of some of the Kin, though not of the nearest degree, and though there were not some concurring of the four Branches of the slain, it is a sufficient proof in this Action, if the Defender have taken Remission, as was found in the case of Greer. And the like is observed, January 25. 1611. Drew contra Home in Montrose, where the Defender was not freed, though he had an acknowledgement under the Defuncts hand, and that he was cause of the wound, and therefore quit the wrong. Assythment is a Priviledged Action, as recent Spulzie, Par. 1528. cap. 7.

8. Extortion signifies the Act of Force, or other mean of fear, whereby a Person is compelled to do that, which of their proper inclination, they would not have done. It doth also imply the Obligation of the Injurer to the Injured, to Repair his loss and damnage by such Acts; things so done, are said to be done, vi majori, or metus causa, by force or fear; deeds or obligations extorted, are in their own nature and equity, efficacious, because they have truely the consent or act of the will, by which such Rights are constitute; and therefore, the Romans had no civil remeid in their ancient Law for such, till the Edict of the Pretor, quod metus causa gestum erat ratum non habebo, l. 1. ff. quod metus causa; but by that Edict, and the Custome of this and other Nations, such Deeds and Obligations, as are by force and fear, are made utterly void, though in equity, the effect almost would be the same; for seing the Delinquence done by Extortion, oblieges to Reparation; if any should be pursued upon an extorted Obligation, he would have the exception of Compensation upon the obliegement of Reparation, and so might also by Action, obtain such Obligation, or other Right to be anulled.

This Edict was not Competent upon every force or fear, but first, it behoved to be unlawful, l. 3. §. 1. ff. quod metus causa. Secondly, Such as might befal a constant man, as of Life, l. 6, 7, 8, 9. ff. l. 9. C. eodem, or torment of the Body, l. 4. C. eodem, or of bondage, l. 8. §. 1. ff. eodem, or the loss of Estate, l. 9. ff. quod metus causa, or infamy or disgrace, l. 8. §. 2. ff. eodem, or of bonds and prison, l. 22. ff. eodem: but only unlawful and private, and not publick Imprisonment, l. 3. §. 1. ff. eodem, it was not Competent upon reverential fear, l. 8. ff. l. 6. C. eodem: nor upon fear contracted upon power, and dignity, d. l. 6. nor of threats, l. 9. C. eodem, except they were from powerful persons, l. 23. §. 1. quod metus causa. The effect of the Edict was, being pursued within a year, unless Reparation was made before Sentence, the Party was condemned in the quadruple, and the penalty was triple, and applyed to the Injured, and after the year simple Reparation, l. 14. §. 1. ff. eodem. Our Customs go much along with the course of the Civil Law in this, but [Page] so, as not bound thereby, respecting most when the true Reciprocal Cause of the Obligation or Deed, is Force or Fear, not being vain or foolish Fear. And it is competent ordinarily by way of Action, or sometimes by exception, Spots. Exceptions, Tennants of Cockburns-path contra the Earl of Home, it was eleided by a Judicial Ratification of the Deed upon Oath, July 4. 1642. Agnes Graham contra Anthony Balvaird. Extortion is more easily sustained in deeds of weaker persons; and therefore, Extortion was found relevant to reduce a Disposition, by a facile weak person, who was apprehended by the purchaser upon a Caption of a third party, and detained by his Servants and Officers, and not by Messengers, and keeped latent in obscure Houses, and carried from Place to Place in the Night, till he subscribed a Disposition of his whole Estate, for a cause not near the third of its value, albeit there was produced a cancelled minute to the same effect, with the Disposition in question, wherein the two Actors of the Force, were Witnesses insert; but the Disponers name, nor no part of it was to be seen, but a lacerat place, as if it had been cancelled, without any anterior adminicle to astruct the truth of it, January 10. 1677. Sir Archibald Stuart of Castlemilk contra Sir John Whitefoord and the Duke of Hamiltoun. Extortion falls most to be contraverted in deeds done by Wives; and therefore, when the deed is extreamly to their prejudice, and to the behove of their Husbands, it is presumed as done, ex reverentia maritali. Thus a Wifes Discharge of her whole Contract, was found null, without alledging any Compulsion, January 9. 1623. Marshel contra Marshel: But ordinarily, Marital reverence is not sufficient, though the Husband were vir foerox, and was thereafter Divorced, Hope, Husband and Wife, Hepburn contra Nasmith. In the case of Wives Dispositions, or consent to their Husbands Disposition, it was found relevant to reduce the same, that the Wife, at the time of the subscribing, before the Witnesses declared that she was compelled, providing that a third party, a stranger to the Husbands fault, were restored, Nicol. de his quae vi, Lady Cockpen contra Laird of Conheath. It was also found relevant, to reduce a Wifes consent to her Husbands Disposition; because, before he had beaten, menaced, and extruded her for not consenting: But in this case, it being alledged, that the Wife appeared well content at the subscription, Witnesses were examined, hinc inde ex officio, for tryal of the truth June 27. 1632. Cassie contra Fleming. But where a Husband was proven to be, vir foerox, and that he did threaten his Wife to do the deed in question, and that she appeared to the Witnesses, unwilling the time of the subscription, it was found relevant, June 24. 1664. Woodhead contra Barbara Nairn. But a Wife subscribing her Husbands Testament, containing provisions prejudicial to her Contract of Marriage, was not reponed, as having done it, ex reverentia maritali, at her Husbands desire, who was moribundus, he having lien long sick, and she having married within a year thereafter, and the deed done to her only Daughter, January 24. 1674. Marjory Murray and Michael Jaffray contra Isobel Murray. Upon the like ground, Extortion will be the more easily presumed, and sustained in the deeds of the persons, who are weak and infirm of Judgement or Courage, then of these who are Knowing and Confident, and more easily in Deeds and Obligations gratuitous and free, then in such as are for an Onerous Cause, which will not easily be anulled, unless manifest Lesion do appear, or that the compulsion be very evident. Yet the Resignation of the Earldome of Mortoun in the hands of King James the fifth, was reduced, because the Resigner was then imprisoned by the King, without any visible cause, and was discharged the same day he made the Resignation, Sinclar, April, 12. 1543. Earl of Mortoun contra the Queen. Metus was sustained [Page] to reduce a Bond granted by a party, because he was taken by Caption, being sick, January 22. 1667. Mr. John Mair contra Stuart of Shambelly. It was also sustained, to reduce a Bond, granted by two Sons, for freeing their Father, who was taken by a Caption, though the Charge was suspended, he being carryed to the hills, and Menaced on his Life, though the Sons got abatement, and so there appeared a Transaction, December 8. 1671. Mcnish contra Spalding and Farquherson.

9. Circumvention signifieth the Act of Fraud, whereby a person is induced to a Deed or Obligation by deceit, it is called dolus malus, and it must needs be the cause of the Obligation or Deed, and so not be known to the party induced, before it can have any legal effect; for he who knoweth the snare, cannot be said to be insnared, but to insnare himself; and though deceit were used, yet where it was not deceit that was the cause of the Obligation or Deed, but the parties proper motion, inclination, or an equivalent cause, Onerous, it infers not Circumvention; so neither doth error, nor mistake, though it be the cause of the Obligation or Deed, and be very prejudicial to the erring party; and though if it had been fraudulently induced by the other party, it would have been sufficient; yet not being so, there is no Circumvention, and the Deed is valid, unless the error be in the Substantials of the deed, and then there is no true consent, and the deed is null, as if one Married Sempronia, supposing she were Maevia; the Marriage hath no further progress (but by subsequent consent) and it is void; but if he Married Sempronia, supposing her to be a Virgin, rich or well natured, which were the inductives to his consent, though he be mistaken therein, seing it is not in the Substantials, the Contract is valid, but if the error or mistake, which gave the cause to the Contract, were by Machination, Project or Indeavour of any other then the party errant, it would be Circumvention, l. 2. §. 1. & 2. ff. de doli mali & metus exceptione, so that there is nothing more frequently to be adverted, then whether the error be through the parties own fault, or through the deceit of an other; and therefore errore lapsus and dolo circumventus are distinct defects in deeds.

10. The Roman Pretor, among other perpetual Edicts, did give this of fraud, quae dolo malo facta esse dicuntur, si de his rebus alia actio non erit, & justa causa videbitur judicium dabo, l. 1. §. 1. ff. de dolo malo. This Edict was competent, either by way of Action or Exception, l. finali, ff. eodem; and in hatred of Fraud, these who were condemned of this action became infamous, l. ff. de his qui notantur infamia; and therefore, as the Edict expresses it, it was not competent, if there was any other more favourable remeid: neither was it competent for a very small sum, not exceeding two Crowns, l. 9. §. finali, ff. de dolo malo: neither was it competent to Children against their Parents, nor to the Vulgar against these of consular Dignity, nor to vile persons, against those of an orderly life, l. 11. ff. eodem. It was also personal, and reached no further then the person committing the Fraud, and not in rem, reaching the thing, if lawfully it came to any other not partaking of the Fraud, dolus authoris non nocet successori, l. 4. §. 27. C. de doli mali & metus exceptione nisi in causa lucrativa Ibidem, so that the deed done thereby, was not rendered null, as in Extortion. But Reparation given to the injured, to the single value only, Infamy being a sufficient penalty, but according to the estimation, by the Oath, in litem, of the party injured, l. 18. ff. eodem, & tit. ff. & Cod. de in litem jurando.

The Romans had also their actio redhibitoria & quanti minoris, whereby the [Page] deceived might obtain, what damnage they had by the Fraud, or might thereby anull the bargain. And where Lesion was very great, Fraud was presumed, as when the price exceeded the double value of the Ware: but they did not consider small differences betwixt the Ware and price, which would have raised multitudes of Debates, hurtful to Trade, the design whereof, is to gain; and therefore, nothing to induce a moderate gain was questionable: as when Merchants set out their Ware, or though they should falsely assert, it cost them so much, and others had given them so much, or that the Ware was fashionable or good; there was no civil remeid, unless the damnage were considerable. In which sense only it is true, in comercio licet decipere; because, though it be not simply lawful, yet it is against no Civil Law. But the Sophistication of Ware, or concealing of the insufficiency thereof, was held Fraudulent and Reparable, actione redhibitoria aut quanti minoris.

We have the more fully summed up the Sentence of the Civil Law, in the matter of Fraud, because it is most equitable and expedient; and therefore, is generally followed by our Custome, which regardeth not inconsiderable damnages in Traffique, that it may be current and secure, for nothing is more prejudicial to Trade, then to be easily involved in pleas, which diverts Merchants from their Trade, and frequently marres their gain, and sometimes their credit; therefore we allow not the quarrelling of Bargains upon presumed Fraud, ex re ipsa, although that which is bought be within the half of the just price, if there be not sophistication, or latent insufficiency, which we exactly consider, because it is destructive to Trade, Vide tit. 10. §. 14, & 15.

11. Fraud is not to be presumed, but must be proven, and is always competent to be proven by the Oath or Write of the Party committing the Fraud, when the question is betwixt himself and the Party prejudged, whereby it may be proven, that he designed to deceive, or that he did such Acts from whence Fraud is presumed, which by his Oath he may qualifie, what he did, and why he did it, and if there be a probable construction, that the deeds done were not to deceive, Fraud will not be thence presumed, and will hardly be presumed in a person of intire Fame and honest Life, but much more easily in these who have been found to Defraud, or are so reputed: And it being ordinar for Parties to alledge contrary or different Circumstances, to infer or exclude Fraud; therefore the Lords do neither give the benefit or burden of Probation to the one Party, but do state the points of moment alledged, or what others they think fit for clearing the truth, and allow either Party to prove, where their alledgeances are not contrary; and where they are contrary, there are abstract Queries stated, as to which, either Party may adduce such an equal number of Witnesses as is prescribed, as whether a Write was read at the signing, and what the condition of the Parties then were; for the not reading of a Write at subscribing, will not alone infer Fraud, because it might have been read before; yea, it was not sustained to be proven by Witnesses, that a Write was not read at subscribing, though there was great Lesion to the subscriber, in favours of his Curator, sine quo non, within six Moneths after his Majority, ante redditas rationes. And that a Wodset was commoned, yet the Write bore an irredeemable Disposition, July 4. 1635. Laird of Monymusk contra Laird Lesly. But these Circumstances would have been certainly relevant by the Oath of Party, or Write. Neither was Witnesses admitted to prove Circumvention, in causing a Testator give Warrand to a Nottar to subscribe a Testament unread, of a Tenor, [...] to what the Testator expressed, Hope, Testament, nearest of Kin of the Lady Innerleith[Page]contra her Executors. Neither were Witnesses admitted to prove the Fraud of a Debitor, retiring a Bond from a Person, whose Name was only in trust for another, to whom the Debitor had payed Annualrent, July 4. 1622. Barckley contra Cuningham. But where the deeds alledged can have no fair construction, but do infer Fraud, Witnesses are receivable, as in a Collusion betwixt a Creditor and Debitor, whom the Creditor brought home from abroad, that he might prevent the diligence of an other Creditor, who had denunced that Debitors Lands to be Apprized, upon sixty days: but upon return of the Debitor, this Creditor denunced upon fifteen days, and so did first Apprize: yet the first Denunciation and last Apprysing was preferred, Hope, de dolo, Sir Hendry Wardlaw contra Thomas Dalyel. And the Liferent Escheat of a Vassal was excluded, because the Superior, upon whose Horning it fell, had taken payment of the Debt, and had not acquainted the Vassal that he was Denunced, that he might have relaxed within the year, as was found in the same case, Ibidem. Though this case and that of latent insufficiency, be rather, lata culpa quae dolo equiparatur, for the difference betwixt dolus & lata culpa, is, that dole est magis animi, and oftentimes by Positive Acts, and lata culpa, is rather facti, and oftentimes by Omission of that which the Party is oblieged to show. A Discharge was found null, as to an Assigney, to a Bond granted by one Brother to another, the Discharge being of the same date with the Bond, which could have no construction, but that the Brother by assigning the Bond might deceive, December 4. 1665. Thomson contra Henderson. And a Discharge by a Son to his Father, of a Sum provided to him by his Contract of Marriage, without satisfaction, But upon agreement betwixt the Father and the Son, the time of the Contract, that the Sum in the Contract should be Discharged gratis, was found fraudulent and null, as to the Sons Creditors, who Traded with him, even after the Discharge, January 21. 1680. Isobel Caddel contra John Raith. And a Liferent by a Husband to his Wife, of his whole Estate, providing she disponed the half to the Children of the Marriage, was found fraudulent, as to that half, and the Creditors of the Husband preferred to the Children therein, December 23. 1679. John Erskin contra Carnagies and Smith. But where the Liferent was but suitable to the Parties, a clause therein, that so much of it should be applyed for the Aliment of the Children, that clause was not found fraudulent, in prejudice of the Husbands Creditors, but was sustained to the Children, it flowing only from the Mother, November 16. 1668. Wat contra Russel.

12. Under Fraud, Simulation and Collusion are comprehended; Simulation occurs mainly in two cases, in Dispositions, retenta possessione; for although the Disposition be delivered, and that there be Instruments of delivery of the Goods Disponed: yet if the natural Possession be retained, the Disposition is presumed simulat, and others affecting the things disponed by Legal Diligence, or by natural Possession are preferred.

Simulation in Gifts of Escheat and Liferent, are very frequent and easily presumed, retenta possessione, Vide Tit. 25. §. 12.

13. Collusion occurs chiefly, when the Debitor or common Authour opposes some Creditors, and concurs with others, that these may attain the first compleat Diligences, which imports direct Fraud: or if he oppose one, though he do not concur with an other, but only not oppose that other, his opposition is holden as Fraudulent.

14. Fraud gives remeid by Reparation, to all that are damnified thereby, [Page] against the Actor of the Fraud, either by anulling of the Contract, or other deed elicit or induced by Fraud, or by making up the damnage sustained by the Fraud, at the option of the injured, and so Fraud was sustained at the instance of a Seller, to anull a Bargain of sale of Wines, delivered to a Skipper, upon the Buyers order; because the time of that order, the Buyer knew himself to be insolvent, which might appear by his Books: and though the Wines were Arrested by a Creditor of the Buyers, in the Ship, and a Decreet for making forth-coming recovered; yet the Wines were ordained to be restored to the Seller, December 22. 1680. Magnus Prince contra Peter Pallet.

15. Reparation of Fraud, is not only competent to the Party defrauded, but also to his Creditors, or Assignays, for which the Romans had a peculiar remeid, Per actionem Paulianam, for anulling all deeds, in fraudem Creditorum: in imitation whereof, the Lords of Session made an Act of Sederunt, in July, 1620. against unlawful Dispositions and Alienations, made by Dyvers and Bankrupts, which was Ratified by Act of Parliament, 1621. cap. 18. By this Act of Sederunt, the Lords declare, that according to the Power given to them to set down Orders for Administration of Justice, meaning to follow and practise the good and commendable Laws, Civil and Canon, made against Fraudful Alienations, in prejudice of Creditors, against the Authors and Partakers of such Fraud, that they wil Decern all Alienations, Dispositions, Assignations and Translations, made by the debitor of any of his Lands, Teinds, Reversions, Actions, Debts, or Goods whatsomever, to any conjunct and confident Person, without true, just and necessary Causes, and without a just price, really payed, the same being done after contracting of lawful Debts, to have been from the beginning null, by way of Action or Exception, without further Declarator, but prejudice to purchasers of the Bankrupts Lands and Goods, for just and competent Prices, or in satisfaction of their lawful Debts, from the Interposed Persons: But the Receiver of the Price from the Buyer, shall be holden to make it forthcoming to the Creditors: and it shall be sufficient to prove by Write, or Oath of the Receiver of the Disposition from the Bankrupt, that the same was made without a true and just Cause, or that the Lands and Goods being sold by him that bought them from the Dyver, that the most part of the Price was converted, or to be converted to the Bankrupts profit and use: And in case the Bankrupt, or interposed Person, shall make any voluntar Payment, or Right to any Person, he shall be holden to make the same forthcoming to the Creditor, having used the first lawful Diligence, and he shall be preferred to the Concreditor, who being posterior to him in diligence, hath obtained payment by the partial favour of the Debitor, or his interposed Confident; and shall recover from the said Creditor, what he hath so obtained: But what the interposed Person hath payed, or assigned to the Bankrupts lawful Creditor, before preferable diligence done by others, shall be allowed to him, and he shall be lyable to make forthcoming the rest of the price: Yea, the saids Bankrupts, and interposed Persons, and all others who shall give Counsel and Assistance, in devising and practizing the Fraud, shall be holden infamous, incapable of Honour, Dignity, or Office, or to be Witnesses, or Assyzers.

This excellent Statute hath been cleared by Limitations and Extentions, in multitudes of Decisions, occurring since, relating to defrauding of Creditors, which being of the greatest importance for Publick Good and Security. We shall distinctly and in order, hold forth the several Cases that have been decided in this matter.

[Page] First then, though the Statute be only in favours of anterior Creditors, for anulling posterior Deeds; yet it is not exclusive of other Remeids, for anulling Deeds done in defraud of Creditors, though contracting after these Deeds, where Fraud in the design doth evidently appear, whereof we have now instanced several Decisions. So a Bond granted by a Father to a Son, forisfamiliat, payable after the Fathers Death, was Reduced at the Instance of the Fathers posterior Creditors, continuing Traffick with him; February 1669. Pott contra Pollock. And a Bond payable only by the granters Heir, if he had no Heir of his own Body, was Reduced as Fraudulent, January, 24. 1677. Blair of Ardblair contra Wilson. And a Disposition of Lands, purchased by a Merchant to his Son, was found Affectable for the Debts of Merchants Strangers, who began to Trade with the Father before the Disposition, and continued after, even as to the posterior Debts, seing the Father continued still to act as Proprietar, though by his Compt Book, it appeared he knew himself to be Insolvent: And though the Sons Infeftment was publick and Registrat, which stranger Merchants were not oblieged to know, July 2. 1673. Street and Jackson contra Masson. Yea, an Infeftment by a Father to his eldest Son, an Infant was reduced at the Instance of posterior Creditors his neighbours; where the Seasing was Registrat, seing the Register was carried out of the Countrey, and the Father continued to act, not as Liferenter, but as Proprietar, December 4. 1673. Reid of Bullochmyle contra Reid of Daldillin. And generally, Latent Rights amongst confident persons, are reduceable by posterior Creditors: But the Liferent of the whole Conquest of a Merchant, provided in a Contract of Marriage to his Wife, being an ordinary Clause, was not found fraudulent, February 10. 1674. Marion Gray contra the Son and Creditors of her Husband.

Secondly, though this Statute bears all Alienations, without Cause onerous, in prejudice of prior Creditors to be null, ab initio, and without declarator by exception, or reply: Yet Custome hath found this inconsistent with the nature of Infeftments, which cannot be reduced, till they be first produced, and all the Authors called, which cannot be by way of exception, but by action. But a Disposition of Moveables was found anullable by reply, November 18. 1669. Henderson contra Henderson. June 18. 1671. Bower contra Lady Couper. And likeways, a profitable Tack, February 6. 1662. Doctor Hay contra Marjory Jamison. Neither are the receivers of such Alienations comptable for the profits, ab initio, till they be put, in mala fide, by the pursuites of anterior Creditors, whose Rights they are not presumed to know, till they be produced, and found preferable.

Thirdly, Though the Title of this Statute, and much of the Body of it be against the Alienations of Bankrupts, in prejudice of their Creditors: yet the Statutory part declares against all Alienations to any conjunct or confident person, without a just price, being in prejudice of anterior Creditors to be anulled, which hath always been extended, not only to Dispositions of Bankrupts, made to confident persons, but to any person without a competent price, or equivalent cause onerous; and therefore, such gratuitous Deeds are reduceable by anterior Creditors, though the granter was not then Bankrupt, as a broken Merchant flying: But if he were before, or did by these fraudulent Deeds become insolvent, Hope, Usury, Pringle contra Ker. February 16. 1628. Kilgour contra Thomson. January 17. 1632. Skeen contra Belstoun. Yea, if thereby his Estate cannot afford ready Satisfaction or Security, as being incumbred with many Appryzings, or Adjudications, though [Page] the Reversions may be equivalent to all his Debt: Yet anterior Creditors may reduce gratuitous deeds done by such persons, being more fit that anterior Creditors should be preferred, and the obtainers of these gratuitous Rights should be put to recur upon the Reversions, by their warrandice, February 10. 1665. Lady Craig contra Lord Lour.

But there is nothing in this Statute, or by Custome, to anull any gratuitous deed in favours of Wives, Children or Strangers, if at the time of the granting and delivery thereof, the granter had an Estate sufficient for these, and all his Debts unaffected by Appryzing, Adjudication, or Arrestment. Neither will Inhibition suffice, nor Apprizing, or Arrestment for small Sums, to be a ground for this Reduction.

Competent provisions to Wives or Husbands, are not accompted gratuitous, but onerous, ad sustinenda onera Matrimonij, and for mutual Provisions: But if exorbitant, they will be lyable, in quantum locupletiores facti, December 23. 1661. Dam Rachel Burnet contra Lepers. Neither are Provisions or Gifts to Children anullable by anterior Creditors, if the granter had then a visible Estate, sufficient for these, and all his Debts, as was found in a provision by a Father to his Son, by his Contract of Marriage, though the Son received the Tocher, June 22. 1680. Grant of Cairnhauch Contra Grant of Elshes. November 10. 1680. Mckel contra Jamison and Wilson. Yea, the Portions of Children were not excluded by prior Creditors, their Father having then a sufficient visible Estate, though ex eventu, it proved insufficient, by running on of Annuals, and Accumulations of Appryzings, December 11. 1679. Creditors of Muswall contra Children of Nuswald. June 30. 1675. Clerk contra Stuart and Williamson. And so a Disposition by a Grand-Father to his Oye, was not annulled by Anterior Creditors, March 6. 1632. Laird of Grantoun contra Ker.

Fourthly, Though this Statute requires a just price, it did not anull a Disposition, though a prior Creditor offered a greater price, if the price received was the ordinary Rate of the Countrey; and though there was a personal Reversion to the Disponers eldest Son only, January 16. 1677. Earl of Glencairn contra John Brishane. The like, where the pursuer had obtained a prior minute of Sale, for a greater price; yet it did not reduce a posterior Infeftment purchased, bonafide, though for a lesser price, being competent, July 18. 1677. Murray of Kilor contra Drummond of Machanie.

Fifthly, Though the Statute mentions only the anulling of Dispositions, &c. yet it is ordinarly extended to Bonds, or obliegements, whereupon Appryzing, Adjudication, or Arrestment follow.

Sixthly, Though Dispositions or other Rights be, fore equivalent Causes Onerous: yet by the posterior part of the Statute, they are accompted fraudulent and reducible, if the Bankrupt, or the interposed person in Trust, do by voluntar gratification, prefer one Creditor to another, who hath done more timeous and lawful diligence: where by, Bankrupt, is not only to be understood a notour Bankrupt, but any person insolvent, or by the preference becoming insolvent, or who hath not a sufficient visible inaffected Estate, for his other Creditors. But where a Debitor of an intear Estate, pays his lawful Creditor, or satisfies him by Dispositions, or Assignations, neither the Tenor nor Extention of the Statute reacheth these Cases; albeit there be inchoat and incompleat Diligence, at the Instance of other Creditors.

[Page] Seventhly, Where that Clause of the Statute bears the annulling of Deeds done in gratification, or preference of one Creditor to another, who hath done more timeous Diligence by Inhibition, Horning, Arrestment, Compryzing, or other lawful mean, duly to affect the Dyvers Lands, or Goods, or Price thereof; the meaning is, that when these Diligences are not compleat, but Inchoat, and the Creditor is, in cursu diligentiae; the Debitor or his Trustee, cannot prevent the course of that Diligence, by preferring another Creditor, doing less Diligence: For, if the meaning were, of Appryzing, perfected by Infeftment, or Arrestment, by Decreet, to make forthcoming, there needed not this remeid; for these Diligences being compleat, would exclude any other posterior Disposition or Diligence: Yea, Inhibition, if the Executions were compleat and Registrat, would of it self be effectual to Reduce, ex capite inhibitionis: But if these Diligences be only Inchoat, as if the Inhibitor had begun his Execution; but had not compleated it at all the Mercat Crosses requisite, any Disposition, Infeftment, or other real Right made to another Creditor, medio tempore, less vigilent, is anullable thereby, December 15. 1665. and February 27. 1667. Mr. John Eleis contra Keith and Wishart. Or if Lands be Denunced to be Appryzed, or Summonds of Adjudication be execute, Rights thereafter made to other Creditors doing less Diligence, in cursu diligentiae, with the first, are thereby reducible, although done before the Decreet of Apprysing or Infeftment: But Inhibition, Apprysing, or Adjudication Inchoat, have no effect as to Moveable Rights, not being as the Statute requires, Diligences duely to affect that subject. Neither doth the laying on of Arrestment affect Heretable Rights, and so cannot hinder the Debitor to Dispone these to lawful Creditors, doing less Diligence: But Horning is a Diligence, relating both to the Moveable Estate, by single Escheat, and the Heretable Estate, by Liferent Escheat; and therefore, after the Charge of Horning it is effectual, February 12. 1675. Veach contra the Executors of Ker and Pallat. July 18. 1677. Murray of Kilor contra Drummond of Machany. January 25. 1681. Bathgate contra Bogil. It hath not been yet cleared by practice, if insisting in Processes for constituting Debts, be comprehended under other lawful means, duely to affect the Debitors Lands or Goods.

But this Statute will not [...] Dispositions, or other Rights made in favours of these persons, who have used the most effectual Diligence, duely to affect the Subject, because this prevents Expences, prejudicial both to the Debitor and Con-creditors, and is not contrary this Statute.

Neither will Dispositions, or other Rights for equivalent Causes Onerous, made to Creditors, be anulled, if not done, in cursu diligentiae; but if the Con-creditor insist not in his Inchoat Dillgence, till it be compleat, he hath not the benefit of the Statute, vigilantibus, non dormientibus jura subveniunt; and therefore, a Disposition was not Reduced at the Instance of a Creditor, who had Appryzed before the Disposition, but for several years had neither obtained Infeftment, nor charged the Superior, February 8. 1681. John Neilson contra Ross of Pittendreich. But how long this negligence must be to exclude it, must necessarily be, in arbitrio judicis.

But this Clause of the Statute will not anull Dispositions made to buyers, for a just price payed, where the price was not an anterior Debt due to the buyer; for there, there is not preference of one Creditor to another, but a lawful Bargain in Commerce, where the buyer neither doth, nor can know Inchoat Diligences, but only such as are compleat and Registrat, except in [Page] the case where the Subject becomes Litigious, which is not to be extended to every diligence, in prejudice of Puchasers of Lands, whereby Rights would become very uncertain, especially when Irredeemable Rights are purchased; but against the purchasing of Bonds, Annualrents, or Wodsets, it may be more extended as in the former case, February 8. 1681. Neilson contra Ross of Pittendreich. This Defence was also sustained, that the Disposition was for a price payed, and for no anterior Debt. And in the former case, Bathgate contra Bogil, the Disposition after Horning, though it was in the terms of sale, was only anulled, because it was granted for anterior Debts, due to the buyer.

Fraud is no vitium reale, affecting the Subject, but only the committer of the Fraud, and these who are partakers of the Fraud, as is clear by this Statute, bearing an exception of lawful Purchasers, not partakers of the Fraud. But where the Right purchased, hath evidence of Fraud in it self, the Purchaser, though for a just price payed, is thereby partaker of the Fraud, and so may be excluded, as if the Right acquired bore, for love and favour: or if it be betwixt conjunct persons, the Purchaser must instruct the Cause Onerous; as when the Right purchased was from one Brother to another, December 28. 1679. Gordoun of [...] contra Ferguson of Keroch. January 24. 1680. Andrew Crawford contra James Ker.

Eightly, Though the manner of Probation by this Statute, be by the Oath of the Purchaser, or Write: Yet the Narrative of such Rights, being betwixt conjunct Persons, albeit it bear Causes Onerous; must be otherways astructed, wherein Witnesses, and other Exidences will be received, which is not only sustained. As to Dispositions by Parents to Children, but by Brothers and Sisters to Brothers, or to Good-Brothers and Good-Sisters: yet not to two persons Marrying two Sisters, or two Brothers, where there is but affinitas affinitatis: It hath also been extended to Uncle and Nephew, where other Circumstances concurred, January 18. 1678. Kinloch of Gourdy contra Mr. George Blair. December 18. 1673. Creditors of Tarsapy contra Laird of Kinsans.

The like effect is in Rights, acquired in name of Children in the Family, who have no visible Estate, for these are held fraudulent, and may be affected for the Fathers Debt, as hath been frequently decided.

This Case only remains, whither a notour Bankrupt may prefer one Creditor to another, though neither have done Diligence. The Tenor of the Statute favours the Negative, annulling Alienations by Bankrupts, not being for an equivalent and necessar Cause; and therefore, it is not safe to purchase from such, even by buying.

16. Spuilzie is the taking away of Moveables without consent of the Owner, or Order of Law, oblieging to Restitution of the things taken away, with all possible profits, or Reparation thereof, according to the estimation of the Injured, made by his juramentum in litem. Thus things Stollen or Robbed, though they might be Criminally pursued, as Thest or Robbery: Yet may they be civily pursued as a Spuilzie.

Spuilzie, inurit labem realem, whereby the Goods may be recovered from Purchasers, bona fide, November 21. 1677. James Key contra Leonard Carnagy and others. The profit of things Spuilzied, are called violent profits; because they are not such ordinary profits, as the Persons Spuilzied used to make [Page] of the Goods, but such as he might have made thereof. Where the things Spuilzied have profits, as Horse, Oxen, or other Cattel, and Instruments, or other Tools; but Corns and the like have no profits. The violent profits of a Horse Spuilzied in Labouring time, was modified to five Shilling Scots, per diem, February 28. 1668. Lord Justice Clerk contra Home of Lenthil: but the modification depends much upon the violence, and attrocity of the Spuilzie.

17. In Spuilzies, the Pursuer needs no other Title but Possession, from whence, in Moveables a Right is presumed; and therefore, Spuilzie of Goods in Coffers was sustained upon the Pursuers having the Keys, and the Defenders breaking up the Coffers, not being done by Parents or Masters, July 25. 1676. Rachel Maxwel contra Mr. Hugh Maxwel and Marion Maxwel. A Relict in Possession was admitted to pursue a Spuilzie of Corns, Sowen and Reaped by her Husband, though not Comfirmed by her, July 26. 1626. Janet Russel contra Spuilzies must be by unlawful medling, or accession thereto; and therefore, it was found relevantly Lybelled, that the Goods Spuilzied were immediatly received into the Defenders House, January 26. 1628. Earl of Roxburgh contra Laird of Lugtoun. The like was found, that it was Spuilzie in the case of accession; because the Defender received the Spuilzied Goods, that night in his Byres, December 2. 1609. contra Dennistoun. Yet a Spuilzie was not sustained against a Person as accessory, who being charged by the Messenger, did Appryze the Goods upon the Ground, though in other Solemnities the Poynding was illegal, for which he was not answerable, Hope, Spuilzie, Patrick Butter contra Alexander Gordoun. But where the Pursuer transacted with one of the Parties guilty for good deed, all the rest were freed, though he may freely pass or forbear the Pursuit of any of them, June 20. 1611. Dowglas contra Leich and Jamison. Yea, Sums were proven payed by Witnesses, which was found sufficient. The like found by a Discharge to one of the Parties, though it bore not Satisfaction, Hope, Spuilzie, Mr. John Dowglas contra Young, though the Discharge did bear, but prejudice of the Spuilzie against the rest.

18. In Spuilzie, the Fact being proven or acknowledged, as to some particulars libelled, the Pursuers Oath will be admitted to prove the rest of the Libel, though consisting of divers Kinds of things, March 8. 1628. Brown contra Murray.

19. Spuilzie is elided, if the Deed was warrantably done, at least, bona fide, by a collourable Title, as by Custome, and so the Spuilzie of a Horse was elided, because he was medled with, as being carrying Corn out of the Thirle to another Miln, according to the Custome of the Countrey, whereby the Horse is forefaulted to the Master of the Miln, and the Corn to the Miller, January 22. 1635. Menzies contra but not eleided by a Disposition of the Goods Libelled, for relief, being medled with, brevi manu, seing Distress was not instructed, July 19. 1633. Kirkwood contra Ferguson, so where there was a Disposition, and Instrument of Possession, albeit the Disposition was, omnium bonorum, and Possession retained for two year, yet it was found sufficient, contra spolium, especially, seing there was no violence used in attaining real Possession of the Goods, January 29. 1662. Halbert Irving contra Mccairtnay. And the Spuilzie of a Horse was eleided, because the Pursuer having committed Hamsucken, and Slaughter, was taken by the Defender with a Horse, as being Bailzie of the Barrony where he did it, January 8. 1611. John Bailie contra Lord Torphichen. And a Spuilzie of Corns was eleided by the Defenders entring in Possession of the Corns upon the [Page] Ground, whereupon the Corns were growing, Hope, Spuilzie, Elliot contra Lord Bucleuch. It was also eleided as to a Messenger, because he Poynded the Goods, Libelled by vertue of Letters of Poynding, directed against the Pursuer, unwarrantably raised, because there was no conclusion in the Decreet against him, March 4. 1628. Scot contra Catharin Banks. The like, if the Defender meddle with Goods by a Title or Warrand from any other Party to whom they belonged; And though this be contrary the Libel, it will be sufficient: And if either Party alledge Right, the most pregnant will be preferred: And it was found sufficient to evite Spuilzie, because the Defender bought the Horse in question from the Pursuers Son, who had ridden upon him to several Mercats, as his own Horse, by the space of nineteen days, Nic. hic. Ross contra Stuart.

20. The second exception in Spuilzies, is voluntar delivery, which was sustained, though it seemed contrair the Libel, Spotswood, Spuilzie, Margaret Cunninghame contra Peter Mcculloch, Nic. de. vi. bon. rapt. Russel contra Lord Ross.

21. The third exception against Spuilzie, is, that the Goods Libelled were lawfully Poynded, for though the Decreet, whereupon the Poynding was, should be reduced for want of formality; Yet it will not be a Spuilzie, unless it proceeded, mala fide, or, spreta authoritate judicis, as when a Decreet proceeded, and was used after Advocation, intimated to the Party, though the Inferiour Judge refused to receive, or record it Judicially, or when the Debt contained in the Decreet, was throughly satisfied before the Poynding, Spots. Spuilzie, contra Brown. But the exception of Poynding will be elided by this reply, that the Pursuer offered the sum Poynded for the time of the Poynding, when the Poynded Goods were offered.

22. The most ordinar Reply against Poynding, is that the Goods were not Poyndable, as being Pleugh Goods, which are not Poyndable the time of Pleughing the Ground, if there be any other Goods upon the Ground sufficient for paying the Debt, according to the Act of Parliament, 1503. cap. 98. Nic. de. vi. bon. rapt. Hepburn contra Binning. And Morison contra Fordice. And it was found sufficient, that there were other Goods upon the Ground, without necessity to alledge, that they were the Debitors proper Goods; or that the Goods Poynded were then in Labour, being two or three days before in the Pleugh, December 10. 1631. Gibson contra Corsbie. Yea, Poynding of Plough-goods was found a Spuilzie, being done in the ordinary time of Plowing, though the Goods were not yoked that year, because of Frost, June 7. 1678. Wood contra Stuart. There is an other Reply against Poynding, that the Goods Poynded were not the Debitors, but an other offered to depone they were his, or that this offer was made by his Warrand, or by his Servant, but it is not enough that this offer was made by these who had no direct, or presumed Commission, July 6. 1666. Corbet contra Stirling. This offer must be made before the solemnity of Poynding be ended, but was not sustained, being offered about an hour after, to give summar Restitution July 9. 1675. Cots contra Harper: But this Oath will not exclude Probation, that the Goods were the Debitors, or anothers by way of declarator, that thereafter they might be affected by Poynding, but is only like an Oath of Calumny, that in possessorio hinders Poyncing.

23. The last exception against Spuilzie, is Restitution of the Goods Spuilzied within twenty four hours, re integra, it was also eleided by Restitution of the Goods within fourty eight hours, they being accepted, and keeped [Page] by the pursuer, Nic. de vi. bon. rapt. Sym. contra Ambross; but not eleided by Restitution within twenty four hours, not being re integra, the Spuilzied Horse his back being broken by the Spuilzier, Nic. Ibid. Robert Knows contra Joseph Lermont: Neither eleided by Restitution within four or five days, before which, the pursuit was intented; and here the Spuilziers Brother had taken away the Goods shortly after Restitution, January 12. 1610. contra Forrester.

24. There is also a common exception against Spuilzies upon prescription of three years, they not being pursued within that space, after the committing thereof, and that by express Statute, Par. 1579. cap. 51. But this prescription is only against the Spuilzie as such, so that it taketh away the Priviledge thereof, as to the violent profits, & juramentum in litem; yet may it thereafter be pursued, as wrongous intromission, for Restitution only; and if many be pursued, they are not lyable, in solidum, but equally, unless a greater Intromission of some of them be proven, January 17. 1668. Captain Strachen contra George Morison, which also is competent in many Cases, where Spuilzie is either not sustainable, or eleidable in its Atrocity, as a Spuilzie, nam levis exceptioexcusat a spolio, and yet action for Restitution remains: And sometimes the Spuilzie may be restricted thereto, if the Pursuer please, before [...], so to do; or otherways he hath therefore a several action, as if Spuilzie be pursued, and an exception of lawful Poynding admitted to be proven, the Defender will be assoilzied from the Spuilzie, even though the Decreet, whereupon the Poynding proceeded, be reduced for informality; and yet he will have a several action for Restitution, which may be also decerned in the Action of Spuilzie. But Spuilzie is not eleided by Masters of the Ground, their bringing back the Goods of their Tennants, by vertue of their Hypotheck, ex intervallo, February 9. 1676. Park contra Cockburn of Roslin. Neither was the Spuilzie of a Horse eleided, because he was found in the skaith, and was offered back within fourty eight hours, upon payment of the skaith, unless he had been put in a Poind-fold, or safe place, having Water, Grass, or Fodder; And that by the Sentence of a Judge the skaith had been estimate, and the Horse Poynded therefore, February 10. 1676. Duncan contra Kids. December 2. 1679. Mr. John Beaton contra Home. So spuilzie was not eleided upon alledging the Pursuer had Spuilzied, or recept as much of the Defenders Goods, by the Act 112. Par. 7. & Act 16. Par. 10. King James 6. unless the Pursuer had been a broken man, and notorious Thief, of a Clan who could not be reached by the ordinary course of Law, July 23. 1678. James Baird contra Parochioners of Fivie.

25. Intrusion and Ejection, are Delinquences in Lands and Immoveables, as Spuilzie is in Moveables, and they differ in this, that Intrusion is the enter ing in Possession, being for the time void, without consent of the Parties Interressed, or Order of Law: But Ejection, as its Etymon intimats, is not only the unwarrantable entring in Lands, but the casting out violently, of the then Possessor: In this there is violence, in the other wrong, but no violence in the entry, though it be a violent detention: And in either case, the Injured must be at least repute in Possession: But as the Possession must begin by some bodily Act, it may be continued alone by the Act of the Mind, willing, or affecting the Possession, which is conjectured or presumed from Circumstances; for, if it be but a short time since the Possessour did corporally possess, and nothing appear that he hath relinquished his Possession, or his Affection thereto ceased; then he is still Possessor, and is so presumed, because of his interest; [Page] but if his abstinence be total, or long, that he hath retained nothing, as Keys, or keeping of Doors closs, then the Possession is holden as [...]: And he who enters by a real or colourable Title, is no Intruder, and cannot be Extruded, but by Warning, and Process of [...]; and therefore, though Intrusion be said to be in the void Possession, it is only meaned; as to corporal Possession, there being still a presumed possession animo on the part of the injured In other things, Intrusion and Ejection do in all things agree, Ejection must be pursued within three years, Pa. 1579. cap. 81. which is extended to Intrusion by these words of the Statute, That Eject and others of that Nature, be pursued within three years, after committing thereof, February 2. 1610. [...] of Craighall contra

26. Ejection is only competent to the natural Possessors, Possessing by themselves, their Hinds and Cottars; but not to an Heretor for Ejection of his Tennants, unless the Tennants concur, November 26. 1626. [...] contra Bruce. Hope, Ejection, Margaret Cunninghame contra Peter [...]. Hence it is, that Intrusion or Ejection is not committed, but by entering in natural Possession; or at least, by out-putting, or in-putting of Tennants: For though Possessours invert their Masters Possession, and pay their Rents to another, this will not infer against them Intrusion or Ejection: But in both these cases, there are other remeids in Law, by removing, or action for Mails and Duties, which is competent against Intrometters: though Ejection and Intrusion prescrive by this Statute, yet it is only as such, for taking away of its singular Priviledges, viz. the violent profits; for though they be not pursued within three years, yet they are competent, being libelled, and restricted to Restitution of Possession, and for the ordinary profits; and in this they differ from Removing, which cannot be pursued but upon Warning fourty days preceeding Whitsonday: But these may be pursued at any time, without Warning, March 16. 1627. Walter Hay contra Mark Ker. Spots. Ejection, James Mowat contra James Davidson. July 15. 1626. Mcphedrick contra [...]. Yet where the pursuers Title was only an Assignation to a years Tack, though he restricted the Ejection to the Possession, and the ordinary profits, the same was not sustained, in respect the years Tack was long before expired, and was only sustained for Damnage and Interest, in not possessing his years Tack, during the time, and for the profits thereof during that year, December 17. 1631. Lord Lowdoun contra Laird of Capringtoun. Ejection and Intrusion are founded, especialy upon Possession, and the Pursuer needs not dispute his Right, neither his Entering in Possession, which, though it were Vitious; yet if it be continued by a considerable space, and the [...] being then ejected, he will not be excluded, by alledging his entry was vitious, as if he had entered in the vice of a Tennent, removed by the Defender: Yea, after the death of the Person Ejected, the Action was sustained at the instance of his appearand Heir, upon condition he Infeft himself before, Extracting Nicol. de haeredibus, Blair contra Mathie. As also Ejection was sustained at the Instance of Infants, whose Father died in Possession, and had an old Infeftment, albeit a Decreet of Removing was obtained against the Mother, they not being called; nor was the Ejecter allowed, in hoc [...], to dispute the Infants Right: But spoliatus was found instantly to be restored to Possession, February 19. 1663. Scot contra Earl of Home.

27. Ejection or Intrusion, are excluded, by alledging the Pursuer relinquished the Possession, or did voluntarly Remove; especially, if he be the [...] Tennant, July 2. 1678. Laird of [...] contra [...] [Page] which must be proven by Write, or Oath of Party, if there be no matters of Fact, from whence the Dereliction doth evidently appear, as transporting of the Parties Goods, June 19. 1634. Collonel Ruthven contra Gairn. This was also found proven by Instrument, and the Witnesses insert, though the Pursuer Libelled Violence, contrair to the Instrument, Hope, Ejection, Cunninghame contra Mcculloch. And also found proven by a Renunciation, attested by an Act of the Defenders Court, and other Circumstances, Hope, Ejection, Laird of Monyntusk contra his Tennants. The like upon voluntary Removing and Renuncing in the Pursuers Masters Court, June 15. 1610. Brown contra [...] It was also found probable by Witnesses, viz. that the Keys were delivered, though the Pursuer offered to prove Violence, Nicol. de vi. bon. rapt. Home contra Dickson. And it was elided by voluntar Removing, or Renuncing, after the Defenders entry. But Ejection was not elided by a personal obliegement, to Possess the Ejector, or a Decreet Arbitral; seing the entry thereto was not by order of Law, or consent to Possess, Spots. Arbiter, Wood contra Scot.

Violent Profits in Ejection and Intrusion within Burgh, are ordinarly sustained for the double Mail: But in Landward, the violent Profits are accompted by the quantity of the Seed the Land can Sow, and the Increase such Land can Yield, deducing the Expences of Seed and Labourage, and the profits the sums can yield which the Land can hold, wherein are comprehended the Calf, and Milk of Cows; and the Wool, Lamb, and Milk of Sheep, deducing the Expences of hirding.

In Ejection and Intrusion, the Defender must find Caution for his violent Profits at the first term after Litiscontestation; or otherways, Decreet is to be given against him, Parl. 1594. cap. 217.

Succeeding in the Vice; is a kind of Intrusion, but because it is ordinarly consequent upon Removing, it is spoken to, Title Tacks.

28. Molestation is the troubling of Possession, chiefly in and about Marches of Lands, whereby the Party Injurer is oblieged to refound the Damnage to the Party injured; and the Marches being cognosced, he will be decerned to desist, and cease from troubling in time coming, whereupon all Execution Personal is competent. It is also competent when Possession is troubled otherways, and there is no special remeid at the Heretors Instance, as upon taking away the Tennants Corns upon the Marches, November 30. 1596. Laird of Dalgety contra the Constable of Dundee: This is ordinarly a Mutual action, and Probation allowed hinc inde, for it is the same with the Roman Action finium regundorum; and in case of further trouble, Lawborrows and Contraventions will be sustained, after the Marches are cognosced, which otherways can have no effect while the Marches and Possession are dubious. The Process whereby Molestation is determined, is called a Cognition, the whole course whereof is clearly ordered, and set down by the Statute of Session, ratified in Parl. 1587. cap. 42. whereby it is clear, that Molestations were of old decided by Sheriffs, Bailiffs of Regalities, and other Judges ordinar, where the Lands lay, by the determination of an Assize or Inquest of the best and worthiest of the Countrey, and they may be still so pursued, but if before the Session; the Lords are not to hear and determine the cause themselves, but to remit the same to the Judges ordinar, or in case they be suspect, to name others, as Judges delegat for that Act, except only in those Molestations, [Page] which do concern the Lords of Session, which are to be heard and determined before themselves: The said Judges ordinar, or delegat, are first to hear Parties Debate, and to make Litiscontestation, and so much thereof as is found probable by Witnesse, is to be done by an Inquest, the most part whereof is to be Landed-men, worth three hundred Merks of Rent and above, in the Paroch where the Lands lay, or failing them, in the next adjacent Paroches, as is fully set forth in the said Statute. In these Cognitions; the Superior must be called in all the dyets of Process, Hope, cog. Calden contra Purvess of Corfindie. And if the Cognition be pursued by a Liferenter, [...]or others, the Heretor must be called, or otherways the Cognition is null, Ibid. Lord Lothian contra Traquair.

29. Breach of Arrestment, and Deforcement, are by our Law and Custome in all things Equiparat, both being violations of Legal Acts; and concerning both, it is Statute, Par. 1581. cap. 117. That breakers of Arrestment, or the Deforcers of Poinding, or any other Legal Execution, shall Escheat all their whole Moveables, and the Party injured shall be first payed of his Debt and Damnages, for which he shall have ready Execution against the Injurer, which is further extended, Par. 1592. cap. 150. That the one half of the Escheat of the Moveables shall belong to the Party Injured, if the executer of the Process, or Letters, be deforced or molested in the execution, which yet shal stand as a valid execution, which must be understood in executions of summonds, or Charges of Horning though the latter act be more favourable to the injured; yet being in his favour, he may make use of the first, which wil infer a personal obliegement upon the Deforcer, or breaker of Arrestment, to pay the Sums due to the Injured, whereupon the Arrestment, or Execution did proceed, with the Damnage and Interest, July 25. 1633. Mitchel contra Laws and Stuart. The like was found in the Deforcement of a Caption, and that the Pursuers having insisted Criminally, ad vindi I am publicam, did not hinder him to insist civilly for privat interest, December 13. 1672. Murray contra French of Frenchland, which takes no place where the Arrestment is not for Debt, but upon conraverted Rights and Possession, which hinders not continuation of Possession, but only Innovation, as when Tennants continue to pay contraverted Ferms to the former Possessor, June 10. 1579. Kings Advocat and Kirkaldy contra Tennants: Or the taking away Corn sown upon contraverted Ground, the first year by the sower, July 30. 1566. Seaton contra Tennants of William Foulis. Neither is it competent against any, but those to whom intimation of the Arrestment, or Citation thereon was made, Ibid. February 1574. Dawson contra Bairdie.

Deforcement of a Poynding was elided, because the same was not done in lawful time of day, but before the Sun, but not elided because the goods were attested to pertain to another party, whose oath had been made thereon the time of the poinding; neither when keeped on the Ground for the Masters Rent, by his Servants, seing they exprest not that cause, nor craved not security therefore, from the Poynder, February 1. 1628. Laird of Halkertoun contra Kadie and Grieves: But if it had been expresly for the Rents resting, it would not infer Deforcement, if such were truely resting. Neither did resistance of poynding of Plough-Goods in Labouring time, where there were other Goods sufficient, infer Deforcement, February last, 1561. Abbot of Kilwinning contra Tennants: stopping of poynding by the Master of the Groundor Landlord of an House, for that years Rent, infered not Deforcement, December. 7. 1630. Dick contra Lands; or that he hindred entry, unless there were special Warrant in the Letters to make open Doors.

30. Contravention as it signifies any Act done against Lawborrows, so it [Page] implys the Obligation of the Contraveener and the personal Right, which the user of the Lawborrows hath thereby, and likewise the Action, by which it is pursued. For the uptaking of all, it must be considered what Lawborrows are, which the word it self insinuats to be Caution, found to do nothing but by order of Law; for a Burrow or Burgh in our ancient Language, is a Cautioner, and Lawborrows is Caution to keep the Law; the reason hereof is, the safety and security of the people, who in equity have no more then the Reparation of the Damnage they sustain through Delinquences, or illegal Acts: But to prevent such, and terrifie evil doers, a greater penalty then Reparation is appointed, according to the Quality and Estate of the Injurer Par. 1593. cap. 166. The half of the Penalty is applyed to the Injured, and the other half is Publick. Par. 1581. cap. 117. By the Narrative of which Statute, it is clear, that before Lawborrows were granted, only for safety against bodily harm, in the persons of the Complainers; yet for the reason therein expressed, the same was extended, that the Complainers, their Wives, Bairns, [...] and Servants, shall be harmless and skaithless in their Bodies, Lands, Tacks, Possessions, Goods and Gear, and no ways molested or troubled therein, by the persons complained on, nor no others of their causing, sending, hounding out, ressetting, command, assistance and ratihabition, whom they may stop, or let, directly or indirectly, otherways then by order of Law, or Justice; By the same Statute it is also evident, that Lawborrows are granted upon the supplication of parties fearing harm, who without citing the other party, but making Faith upon their Complaint, have Letters of Horning, summarly to Charge the party complained on, to find Caution, ut supra; and if Caution be found, the Action of Contravention doth proceed upon, and conform to the Act of Caution: but if obedience be not given, the Complainer may proceed to Denunciation or Caption; but the Contravention will proceed, though there be no Caution found, but only a Charge upon the Letters, without Denunciation, unless the Charge be suspended, as uses to be done, when the penalty charged for is exorbitant, and not conform to the act of Parliament, January 8. 1628. John Semple contra Cunninghame.

Contravention may proceed upon any Delinquence, according to the Tenor of the Act of Caution, or Letters of Lawborrows, which, though very comprehensive, yet is not extended to Acts done without Order of Law, being matters of inconsiderable moment, as the Tilling up of some Furrows in a March, the same being offered to be laid down, and the Damnage to be repaired, Nic. hic, Nicolson contra Hay. Neither is it sustained upon any illegal deed, when the matter of Right was dubious, as in matters of Molestation, before the Cognition, or before that the Marches be clear, Spots. contravention, Laird of Balcaskie contra Florence Strang.

Neither upon a deed done by a colourable Title, though afterward reduced, as entering in Possession by a null Decreet, Hope, hic, George Moorhead contra Laird of Barskub. Neither upon Pasturing upon Bounds contraverted, or where there was no violence, nor unlawfulness in Pasturage, upon clear Marches, July 14. 1626. Laird of Grange contra Lesly. Neither upon a deed of Spuilzie against the pursuers Tennant, not complaining, though the Lawborrows bears, Men-tennants and Servants to be harmless, which was esteemed, stilus curiae, January 28. 1632. Grant contra Grant, and February 9. 1633. Lindsay contra Dennistoun. Neither was it sustained upon Deeds done by the Defenders Tennants, without alledging Command or Ratihabition, unless the Deeds be manifest, or known to their Masters, as in conveening dayly, and cutting anothers [Page] Woods, July 9. 1611. Vauns contra Laird of Balnagown. Neither upon Deeds done by Servants without Warrand, unless they be menial Servants, Hope, bic, John Galbraith contra William Anderson: Yet Contravention was sustained, upon hurt done to the Pursuers servant, though he was then Rebel, being afterwards relaxed, Hope, Horning, Bruce of Clackmannan contra Bruce. It was also sustained upon attempts of injury, though there was no hurt, as a stroke on the Cloathes, and one offer to strike with a Whinger, December 21. 1609. Greenyards contra Clackmannan. And also upon a violent troubling the Pursuer, without Order of Law, though without Damnage, Spots. hic. Laird of Balcaskie contra Florence Strang. It is also sustained upon a Delinquence, though there be another Action competent therefore, as for Molestation, November 29. 1609. Dundass contra Cuming of Ironside: Or for violent Possession after Warning, Hope, de actionibus, Cuthbert Cunninghame contra But if the other ordinar Action was insisted in, and Decreet obtained, Contravention also cannot be pursued, though the other were offered to be renounced, Hope, contro. Johnstoun contra Sir John Charters.

Contravention was elided by granting a Factory after the Deeds Lybelled to do the like, reserving only Damnage and Interest, February, 19. 1633. Dennistoun contra Lindsay. Contravention on several Deeds sustained, separatim toties quoties: And against many Contraveeners, Contraveening in one Act; but in such cases the Lords will modifie and lesten the Penalty, within the Rate of the Act of Parliament, Novemb. 29. [...]. Dundass contra Cuming of Ironside. Nic. contro. Sir John Scot contra Barns. Contravention is not found pursuable before any inferiour Judge, otherways the Decreet thereof will be null by exception, July 6. 1611. Kennedy Taylzeor contra Kennedy of Garriehorn: Yet it was sustained, where the matter was small, and the parties poor, March 12. 1622. Blair contra Marshel. In Contraventions, the Kings Advocat must concur for the Kings Interest, but he cannot insist alone, as when the private party hath discharged the Deeds, even after the intenting of the cause, Hope, entro. Forrest contra Malcolme Turnbul.

TITLE X. Obligations Conventional, by Promise, Paction and Contract.

[Page]

1. The Original of Conventional Obligations.

2. The Acts of the Will, Desire, Resolution and Ingagement, and their Effects.

3. Pollicitation or Offer, and its Effects.

4. Promise.

5. Contracts in favours of third parties valid.

6. Pactions, and how Words are Obligatory.

7. Naked Pactions.

8. Pactum corvinum.

9. Locus penitentiae.

10. Promises and Pactions are morally Obligatory, by Canon Law and our Customes.

11. Kinds of Contracts amongst the Romans, with the Exception, de non numerata pecunia, and Homologation.

12. Distinction of Contracts according to the matter.

13. Common Requisits to Contracts.

14. Permutative Contracts, and the Equality to be keeped in them.

15. Latent insufficiency altereth Contracts.

16. How far Mutual Contracts are effectual to Assignays, without performing the Cedents part.

17. Loan comprehendeth, mutuum and commodatum.

18. In mutuo transfertur Dominium, Senatus consultum Macedonianum, & Velleianum.

20. Mutuum can only be in Fungibles and Quantities.

21. Specialities, in mutuo, and Bills of Exchange, mutuum strict juris.

[Page] 23. Commodatum described.

24. Borrowers diligence.

25. Precarium.

26. Commodatum, how ended.

27. Actions arising from Commodatum.

28. Mandatum, or Commission.

29. The Terms of Mandats.

30. Acceptance of the Mandatar.

31. Mandats in things lawful.

32. Acceptance must be freely.

33. Mandats are personal.

34. How far Mandatars may intrust others.

35. Mandats are Ambulatory, and Revockable by the Mandant.

36. Mandatars must perform, in forma specifica.

37. Mandatars Diligence.

38. The Obligations of Mandatars.

39. Kinds of Mandats.

40. Tacit Mandats.

41. More Mandatars, how far they may Act severally.

42. Whether joynt Mandatars are lyable, in solidum.

43. The Effects of general Mandats.

44. What is special in Offices amongst Mandats.

45. Specialities of Trust amongst Mandats.

46. Obligations of Exercitors.

47. Obligations of Institors.

48. The nature of Custody, or depositum.

49. Diligence of Depositars.

50. Nautae caupones stabularij.

51. Depositation of Writes.

52. Sequestration.

53. Consignation and Trust.

54. Depositation admits no Compensation.

55. But admits Retention.

56. Joint Depositars, how far lyable.

57. The Nature of Pledge, or pignus.

58. Specialities in Pledges.

59. How Pledges may become Irredeemable.

60. Clauses irritant in Pledges.

61. Hypothecation of the Cropt or Goods for the Rent.

62. Hypothecation of the Teinds, for the Teind-Duty or Stipend.

63. Exchange and Sale, wherein they agree and differ.

64. What things are lyable to sale, and of buying of Pleas, by the Members of the Colledge of Justice.

65. Effect of Earnest.

66. Reversion of things sold.

67. Clauses irritant, or resolutive in sale.

68. Knowledge of Acquirers of an anterior incompleat Right, how Effectual.

69. After sale, before delivery, to whom the thing perisheth.

70. Location described, and compared with Sale.

71. Whether sterility frees from the Pension.

72. The effect of Vastation.

73. Location is personal, and ceaseth with the Constituents Right.

74. Usury, or Annualrent of Money.

75. Annualrent due by Law, without Paction.

[Page] 76. The Conductors Obligation.

77. The Locators Obligation.

78. The effect of Society.

79. The matter of Society.

80. The nature of Society, and equaquality therein.

81. The power of the Partners in Society.

82. How Society ceaseth.

83. Partners acting severally, how these things accress to the Society.

84. Diligence of Partners.

85. Contracts mediat and immediat.

86. Kinds of Cautioners.

87. Cautioners how far lyable.

88. Cautioners for Executors.

89. Cautioners for Tutors and Curators.

90. Cautioners for the Factors in Camphire.

91. Cautioners for loosing Arrestments.

92. Cautioners are lyable according by the Oath of the Principals.

93. Cautioners as law will.

94. When the Cautioners are lyable, and the Principal not.

95. Cautioners, when lyable, in solidum.

96. Relief of Cautioners.

97. Effects of promissary Oaths.

98. Delay.

99. Interest.

100. Profite of performance.

101. Time of performance.

102. Place of performance.

103. Maner of performance.

FROM Obligations Obediential, flowing from the Will of God; Order leads us over to Obligations Conventional, arising from the Will of Man, whereby our own Will tyeth us in that, wherein God hath left us free; for as Obligations Obediential descend from the Principle of Obedience to God, and have their Rise and Reason from his Soveraign Power to Command, and our absolute obliegement to Obey; so in his gracious goodness, in the greatest part, he hath left us free, and hath given power to none to exact, or compel us: Yet so as he hath given that liberty in our power, that we may give it up to others, or restrain and ingage it, whereby God oblieges us to performance, by mediation of our own will; yet such Obligations, as to their Original, are Conventional, not Obediential.

Conventional Obligations do arise from our Will and Consent; for as in the beginning hath been shown, the Will is the only Faculty constituting Rights, whether real or personal; for it is the will of the owner, that naturally transferreth Right from him to the acquirer: So in personal Rights, that freedom we have of disposal of our selves, our actions, and things which naturally is in us, is by our ingagement, placed in another, and so ingagement [Page] is a diminution of freedom, and constituting of power in another, whereby he may restrain, or constrain to the doing or performing of that whereof we have given him power of exaction, as in the Debitor, it is the Debitors duty or necessity to perform; but it is not every act of the will that raiseth an Obligation, or power of exaction; and therefore, that it may appear, what act of it is Obligatory,

2. We must distinguish three acts in the will, Desire, Resolution and Ingagement; desire is a tendency or inclination of the will towards its object, and it is the first motion thereof, which is not sufficient to constitute a Right; neither is resolution (which is a determinate purpose to do that which is desired) efficacious; because, whatsoever is resolved or purposed, may be without fault altered, unless by accident the matter be necessar, or that the resolution be holden forth to assure others: the alteration whereof, without evident ground, importeth levity and inconstancy, and sometimes deceit and unfaithfulness: but still resolution is but an act of the will with it self, as deliberation is of the understanding, acting with it self; and it is unquestionable, nothing can be oblieged to it self, though it be oblieged to God, or an other in relation to it self; and therefore, if a party should express a resolution, to give unto, or bestow upon an other any thing, though that resolution related to the good of an other; yet it is not Obligatory, nor can that other compel the resolver to perform, though it were never so fully cleared, or confirmed by word or write. It was found, that a resolution exprest both by word and write, in favours of near relations, did infer no Obligation, February 27. 1673. Mr. John Kincaid contra Mr. Alexander Dickson. It remaineth then, that the only act of the will, which is efficacious, is that, whereby the will conferreth or stateth a power of exaction in an other, and thereby becomes ingaged to that other to perform.

3. Again, we must distinguish betwixt Promise, Pollicitation, or Offer, Paction and Contract; the difference amongst which, is this, that the Obligatory act of the will, is sometime absolute and pure, and sometime conditional, wherein the condition relates either unto the obligation it self, or to the performance, such are the ordinar conditional Obligations; which, though they be presently (upon the granting thereof) binding, and cannot be recalled; yet they are only to be performed, and have effect when the condition shall be existent, but when the condition is relating to the constituting of the Obligation, then the very Obligation it self is pendent, till the condition be purified, and till then it is no Obligation; as when any offer or tender is made, there is implyed a Condition, that before it become Obligatory, the party to whom it is offered, mustaccept; and therefore, an offer by a Son, to pay a Debt due by his Mother, if it were made known to be accepted at such a time, and in such a place, found not Obligator after the Mothers death, unless it had been so accepted, June 24. 1664. Alexander Allan contra Mr. John Collier. So then, an offer accepted is a Contract, because it is the deed of two, the offerer and accepter.

4. But a Promise is that which is simple and pure, and hath not implyed as a Condition, in its being the acceptance of another, in this Grotius differeth, de jure belli l. 2. C. 11. §, 14. holding, that acceptance is necessar to every Conventional Obligation in equity, without consideration of positive Law; and to prevent that obvious objection, that Promises are made to Absents, Infants, Idiots, or persons not yet born, who cannot accept; and therefore, such Obligations should [Page] ever be Revockable, till their acceptation, which in some of them can never be: he answereth, that the Civil Law withholdeth, that such offers cannot be revocked, until these be in such capacity, as to accept or refuse; though promises now be commonly held Obligatory, the Canon Law having taken off the exception of the Civil Law, de nudo pacto; It is true, if he in whose favours they are made, accept not, they become void, not by the Negative none acceptance, but by the contrair rejection: for as the will of the Promiser constitutes a Right in the other; so the others will by renouncing, and, rejecting that Right, avoids it, and makes it return. This also quadrats with the nature of a Right, which consisteth in a faculty or power, which may be in these, who exerce no act of will about it, nor know not of it, so Infants truely have right as well as men, though they do not know, nor cannot exerce it themselves: Promises with us are not probable by Witness, though within an hundred Pounds, July 3. 1668. James Donaldson contra Harrower. February 9. 1672. William [...] contra Thomas Robertson. The like was found of a Promise ingaging for a Party, who bought Goods, not being a partner in the bargain; for promises, when parts of bargains about Moveables, are probable by Witnesses, June 19. 1672. John Deuar contra Thomas Brown.

5. It is likewise the opinion of Molina, cap. 263. and it quadrats to our Customes; that when parties Contract, if there be any Article in favour of a third party, at any time, & jus quaesitum tertio, it cannot be recalled by both the Contracters, but he may compel either of them to exhibite the Contract, and thereupon the oblieged may be compelled to perform. So a Promise, though gratuitous, made in favours of a third party, that party, albeit not present, nor accepting, was found to have Right thereby, November 25. 1609. Achinmoutie contra Hay. Promises dependent upon acceptance, may either be made by way of offer, or when the promise requires some things to to be done on the part of him to whom it is made, not as a condition annexed only to the performance, for then the promise is presently Obligatory, though the Effect be suspended, till the condition exist; but if the condition be so meant, or exprest, that it must preceed the Obligation it self, as in mutual Contracts, the one party subscribing, is not oblieged untill the other also subscribe, or that the other partie accept or consent. And so a Contract being Registrat, was found orderly proceeded, though he who Registrated it had not subscribed, seing at the discussing he did summarly consent to the Registration thereof against himself, February 9. 1627. Mcduff contra Mcculloch. Hence is our vulgar distinction betwixt Obligations and Contracts, the former being only where the Obligation is [...] on the one part; the other where the Obligation is [...] an Obligation on both parts.

6. Pactum, or a Paction, in the Law is defined, duorum pluriumve in idem placitum consensus at (que) conventio, l. 1. ff. de pactis, it is the consent of two or more parties, to some things to be performed by either of them; for it is not a consent in their opinions, but a consent in their wills, to obliege any of them; and it is much to be considered, whether the consent be given, animo obligandi, to obliege, for the same words will sometime be interpret as obligator, and sometimes not according to the circumstances, as if it be jestingly or merrily exprest, whatsoever the words be, there is no obligation; because thereby it appears there is no mind to obliege; or if the words be in Affairs, or Negotiations, they are interpret obligator, though they express no obligation but a Futurition, which otherways would import no more then a resolution, as Titius is to give Mevius an hundred Crowns in any matter of Negotiation, [Page] would be obligator; but otherways would be no more, but an expression of Titius his purpose, so to do; yet because it is inward and unknown, it must be taken by the words or other signs, so if the words be clearly obligator and serious, no pretence, that there was no purpose to obliege, will take place, if the promise be pendent upon acceptation, and no more then an offer, it is imperfect and ambulatory, and in the power of the offerer, till acceptance, and if he died before acceptance, it is revocked as a Commission or Mandat, which necessarly imports acceptance, expires by the Mandators death, morte mandatoris perit mandatum, so acceptance cannot be by any third party, unless he have Warrand for that effect; and so if a promise be made by one to another, in favour of a third, importing the acceptance of that third, it is pendent and revockable by these contracters, till the third accept.

7. The Romans, that they might have clear proof of Pactions and Agreements, would second none with their civil Authority, but such as had a solemnity of words, by way of stipulation, whereby the one party going before, by an Interrogation, other party closed by an answer conform, which was both clear to the Parties and Witness; or otherways, unless there were the intervention of some deed, or thing beside the consent, or that it were a Contract allowed of the Law, or such other paction as it specially confirmeth; without all which, it was called nudum pactum inefficax ad agendum. We shall not insist in these, because the common Custome of Nations hath refiled therefrom, following rather the Canon Law, by which every paction produceth action, omne verbum de ore fideli cadit in debitum, C. 1. & 3. de pactis. And so observeth Guidilinus, de jure, Nov. l. 3. cap. 5. §. ust. and Corvinus de pactis, we have a special Statute of Session, November 27. 1592. acknowledging all pactions and promises as effectual: So it hath been ever decided since, January 14. 1631. Sharp contra Sharp.

8. And even pactum corvinum de haereditate viventis, is found binding, though among the most odious, July 6. 1630. Mr. James Aikenhead contra Both we l. But, pactum de quota litis, whether it be a naked Paction or Promise, or a mutual Contract, is rejected both by the Civil Law and our Custome, whereby Advocats, in place of their Honorary, take a share of the profit of the Plea, to prevent the stirring up, and too much eagerness in Pleas, which was extended to an Agent or Writer, if he had made such a Paction before, or during the Plea, but not after all Plea was ended, having given Bond to an appear and Heir, to denude himself of a Right he had acquired for Sums of Money, getting his expenses, and a fourth part for his pains and hazard, February 24. 1675. Catharine Home contra Mr. Archibald Nisbit Writer. Yea, an Advocat taking Assignation to a part of a Plea, it was found, pactum de quota litis, and Process was thereby excluded, though proponed by the Debitor, and not by the party with whom the Paction was made, but it was not found probable by that parties Oath alone, as being but one Witness, June 23. 1680. Edward Ruthven contra Mr. William Weir.

Pactions for Money played, or other Prize played at Games of Fortoun, such as Cards, Dice, &c. found valid as to the Debitor, but the excress to be consigned for the use of the poor, if it exceed an hundred Merk, by the Act of Par. 1621. cap. 14. Nevember 12. 1668. Patrick Park contra Nicol Somervel. Instead of the remeids of Stipulation, the inconveniences that rejected naked Paction among the Romans, are remeided with us by this means.

9. First, If the matter be of great Moment, and which requireth to its perfection, solemnity in Write; all such Agreements, Promises and Pactions [Page] are accounted imperfect, and not Obligator, untill Write be subscribed, such as Dispositions of Lands, and Heretable Rights, Tacks, Rentals, and Assignations to Writs, &c. In all which, there is locus penitentiae, even after the agreement, and either party may resile till the Write be subscribed and delivered. It was so found, though the buyer by a missive Letter, wrote, that he thought he would not be able to furnish the Money, but that he would not pass from the communing, seing there was no minute nor obligation otherways, January 20. 1663. Sir Robert Montgomery of Skermorly contra John Brown. So was it also sound, that a Cautioner subscribing a Bond, might resile before it was delivered by him, though it was subscribed, and delivered by the Principal and other Cautioners before, March 5. 1628. Megil contra Thenilstoun. The like of a Disposition subscribed, and left in the Writers hand to frame a Charter by, and a promise made after to abide by it, seing there was no delivery to the party, nor to the Writer to be given to him, Laird of Innerleith contra Byres. The like of a bargain of Land, agreed upon by Word, some things being done by the buyer in contemplation thereof, being restored, October 5. 1628. Oliphant contra Monorgan. The like in a Tack for years, which was found to endure but one year, though the Tacks-man was thereby in Possession, January 24. 1630. Lowry contra Ker. July 16. 1636. Keith contra his Tennents. Yet a verbal Tack for a year, found not to be past from, seing the Tennant was thereby in Possession, and had been warned, Hope, Process, John Adamson contra John Fullartoun. Neither was it found competent to pass from a verbal Rental, where the Grassoum was payed, Nicol. de migrando, Angus contra Mckie. Neither to pass from a Rental delivered to the Chamberlain, to be given to the Tennants upon payment of the Grassoums, in so far as concerned these Tennants, who had payed a part of their Grassoums, Nic. Removing, Eglintoun contra his Tennants. Neither was place found to resile from a Transaction verbal, seing a considerable part of the Soum Transacted for, was satisfied, February 25. 1679. Kings Advocat contra Earl of Nithisdale. Neither is there locus poenitentiae in pactis liberatoriis, where any Right is past from or restricted, and no new Right to be made, December 5. 1661. Hellen Hepburn contra Sir James Hamiltoun of Orbistoun. The like in restricting an Annualrent, to a part of Lands affected therewith, February 8. 1666. Ker contra Hunter, locus poenitentiae was found competent to a defender, who produced a Right granted by the Charger, with a blank Assignation to instruct compensation, which he got up before it was delivered to the Charger, or any Decreet thereon; and no minut of the Decreet being extant, the suspender was found, in tuto, to make use of the Right compensed on, December 9. 1674. Lord Balmerino contra the Tennants of Northberwick, and Creditors of Sir William Dick. Yea, locus poenitentiae, was found competent to resile from a bargain, which might have been valid without Write, because it was expresly agreed to be redacted in Write, January 12. 1676. Robert Campbel contra Robert Dowglas. The other remedy we have in stead of Stipulation, is that by a Statute of Par. 1579. cap. 80. all Writes of great importance, are to be subscribed by the party, or by two Nottars and four Witnesses, wherein custome hath interpret matters of importance to be that which exceeds an hundred Pound Scots, and it is so far extended, that in matters where Writes may, and uses to be adhibit, probation is not admitted by Witnesses, but only by Oath of party or Write; by these remeids very necessarly introduced, the inconveniencies foresaid are sufficiently caveat.

10. But to inquire whether Promises or naked Paction, are morally Obligatory [Page] by the Law of Nature, few do contravert; yet Conanus, l. 1. C. 6. l. 5. C. 9. holdeth, that Promises or naked Pactions, where there is no equivalent Cause Onerous interveening, do morally produce no Obligation or Action, though in congruity or decency, it be fit to perform, least it be an argument of Levity, against which, there is not only the Testimony of the Canon Law, which insinuats an anterior Reason to its own position; but also the Civil Law l. 1. ff. de pactis, there is nothing so congruous to humane trust, as to perform what is agreed among them; and the Edict, de constituta pecunia, saith, it is suitable to natural Equity, and saith farther, that he is debitor by the Law of Nature, who must pay by the Law of Nations, whose faith we have followed, l. cumamplius, ff. de regulis juris, but especially, this is confirmed by the Law of God, Prov. 6. 1. If thou be surety for a friend, if thou hast stricken thy hand with a stranger, thou art taken with the words of thy mouth, and the performance of words is acknowledged, a part of Gods righteousness, Nehemiah 9. vers. 8. Hebrews 10. vers. 23. where it is acknowledged a part of Gods faithfulness. And if Promises were not morally oblieging, they could have no effect, but by Positive Law (which is no more it self then a publick Paction, laborans eodem morbo) and then all Pactions and Agreements among Nations would be ineffectual, and all Commerce and Society among men should be destroyed, Pactions, Contracts, Covenants and Agreements, are Synonimous Terms, both in themselves, and according to the recent Customes of this and other Nations; so that it will be unnecessar to trace the many subtilties and differences amongst Pactions and Contracts in the Roman Law.

11. This much only in a word, their Contracts were of four kinds, either perfected by Things, Words, Write, or sole consent. Contracts by intervention of things, remain naked Pactions, ineffectual, until something be given or done by either party to other; such are all these Contracts, which are called innominat, which have not a special Name and Nature, acknowledged in the Law; and therefore, obliege not by sole consent, but the giving or doing of the one party only, obliegeth the other, as Permutation, Excambion, or Exchange, when either a thing is given for another, or a thing is given for a Deed, Work, or Use, or one Deed or Work is done for another, for the which, the Law hath no special Name; and therefore, names them, do ut des, do ut facias, facio ut facias.

Amongst real Contracts, the Law numbereth matuum and commodatum, (for which, we have but the one name of Loan) Depositation or Custody, Pignus or Pledge, of which anone.

Contracts perfected by words are stipulations, which being wholly out of use, we shall say no more of them, then that before is hinted. The third kind of Contracts is these, which have their force by Write; and therefore, are called, Chyrographa. The hand Write, or Subscription of the Debitor, by which, he acknowledges the receipt of so much Money, either in borrowing, or Tocher, and accordingly is oblieged to pay at his day, or at the dissolution of the Marriage; these Writes for the space of two years after their date and delivery, do not prove the recept of the Money, as they express; but during that time, if the Creditor pursue thereupon, he must prove the delivery of the Money: and the Law presumes, that the Write was given, spe numerandaepecuniae, upon hope of delivery of the Money, but after the two years, it presumes the Money to be delivered; and therefore, [Page] then the Write is [...], and is the cause of the Obligation; whether the Money was delivered or not, after which, the Debitor could not prove the not delivery of the Money, even by the Oath of the Creditor, l. in contractibus, ff. de non numerata pecunia, but this is also changed with us, and with the Neighbour Nations, as Baldimius testifieth, ad titulum, Just. de lit. oblig. And Boetius, de consuetudine, tit. de jurisdic. And Rebuffus, ad proximum, const. Reg. gloss. 5. num. 59. So now the Custome is, that the Write is not the Substance of the Obligation, but is only a Probation of the Promise; though in some case it be a necessar solemnity, till which, the parties may resile, as hath been formerly showen: But the Write being subscribed and delivered, proves from its date, and is valide, unless it be improven, yet so, as it admitteth contrair Probation by the Creditors Oath or Write, though the Write bear the numeration of Money, and do expresly renounce the exception of not numerate Money.

The last kind of Contracts are these, which are by sole consent, as are the Contracts of Sale, Location, or Hyring, Society, and Mandat or Commission; but not only now these, but all other Promises and Pactions are valide Contracts, by sole consent, except where Write is requisite, as is before expressed, and this consent may be either express by Word, Write, or Fact, by doing Deeds importing consent, which therefore is called Homologation, whereof acceptance of any Right is a special kind, and it takes place in many cases, but it cannot take place unless it be proven, or presumed that the Homologator knew the Right; and therefore, a Bond drawen in name of several Apprizers, to communicate their Rights, and subscribed by some, found not Homologat by one who subscribed not, seing it appeared not that he knew thereof, though de facto, he concurred in pursuits with these Apprizers to exclude other Rights, July 6. 1661. Telfair contra Maxtoun and Cunninghame. Neither doth Homologation take place, where the Deed done may be attribute to another cause, and so possessing Lands, whereof there was an Infeftment granted, in satisfaction of a Wifes Contract, was not inferred, where she was appearand Heir to another person Infeft, December 12. 1665. Christian Barns contra Helen Young. But such an Infeftment was found Homologat by seven years Possession, and setting several Tacks, as Liferenter, though there was a general obliegement to Infeft the Wife in Lands of such a value, none being exprest, though it was not instructed that the warrand of the Seasing was ever known to the woman, and only generally mentioned in the Band, but her knowledge was presumed after so many Acts, November 14. 1665. Barbara Skein and Mr. David Thores contra Sir Andrew Ramsay. Neither was a Debt found Homologate by payment on a Decreet, being pronounced by the English Officers, before Law was patent, July 24. 1661. Jack contra Fiddes. Neither doth payment of one Article of a Decret Arbitral, Homologate others of a different Nature, November 22. 1662. Pringle contra Dune. Homologation of a Fathers Legacy, as to his Children, was inferred by his Relicts Confirming the Testament without Protestation, not to aprove that Legacy, February 19. 1663. Bessie Muir contra Jean Stirling. But where a Relict in the Confirmation, Protested not to prejudge her own Right, by a provision contained in the Testament, in favours of her Daughter, it was not found to Homologate the same, July 12. 1671. Marjory Murray contra Isobel Murray. Homologation of a Fewars Right, not inferred by acceptance of two years Duty, after declarator of the nullity, further then that no more could be demanded for these two years, June 6. 1666. Earl of Cassils contra Sir Andrew Agnew. Neither did the payment of some years Annualrent [Page] Homologat a Decret of Poinding the Ground, as being an Act necessary to shun Poinding of the Tennants, February 9. 1672. Cockburn of Piltoun contra Halyburtoun and Burnet. Neither did a Ministers receiving a Tack Duty of Teinds, hinder him to reduce the Tack thereafter, as being without consent of the Patron, February 27. 1668. Mr. William Chalmer contra Wood of Balbegno. Neither did the payment of Annualrent after Majority, by a Minor Cautioner, paying with the Principals Money, and taking Discharge to him only, hinder the Minor to Reduce, February 14. 1668. Sir George Mckenzie contra Mr. John Fairholme. Neither the payment of Annualrent to an indigent Sister, after Majority, exclude Reduction upon Minority, but Registrating the Contract after Majority, without Charge or Execution, was found to infer Homologation, June 28. 1671. Helen Homecontra Rentoun Justice Clerk. Neither did the Confirming of a Sum as Moveable, hinder the Confirmer to recover it as Heretable, June 28. 1672. Kilgour contra Menzies. December 23. 1673. Mitchel contra Mitchel. Neither doth the granting of a Precept of Seasing on obedience, import acknowledgement of Right, or exclude Reduction, and Improbation, December 20. 1662. Mochrum contra Myretoun and Airiolland. Neither was a Decret found Homologat by taking Discharge, and giving a Bond without abatement, which might import transaction, the granter being in the Messengers hands, under Caption, July 3. 1668. Thomas Row contra Andrew Houston. Neither was Homologation of the truth of a Debt, inferred by granting Bond by a Party in Prison, for not finding Caution, Judicatum solvi, February 18. 1680. Mr. Andrew Burnet contra John Ewing. Neither did allowance to a Tennant in his Rent of Annualrent payed by him, exclude Reduction of the Bond on Minority, though the allowance was after Majority, December 14. 1675. James Moodie contra Mcintosh. Neither accepting a Bond joyntly with another, did Homologate the Right of that other, February 1. 1676. Veich contra Ker and Pallat.

Consent may be adhibit by signes, as the borrowing of a Watch by a sign made by the borrowers hand, was found to obliege him to restore, though another instantly borrowed it that same way from him; nor was the first lenders silence in an Act so subite, interpret a consent to the second loan, July 3. 1662. Lord Couper contra Lord Pitsligo. But a Dumb man subscribing a Discharge, was not found to infer his consent, in favours of his Sister, seing he knew not what it imported, July 9. 1663. Hamiltoun contra [...]. Neither was consent to a March inferred by the one Heretors building a Dyke, and anothers silence for a time, January 8. 1663. Patrick Nicol contra Sir Alexander Hope. Neither was the knowledge and silence of a Husband, found to infer his consent to his future Spouse, renuncing a part of her jointure, after Proclamation, and yet going on in the Marriage, January 5 1666. Lady Bute and her Husband contra Sheriff of Bute. And albeit consent to the Contents of a Write, is not always inferred from subscribing as a witness; yet in some cases it is, when the consent relates not to the Tenor, but to the time of subscribing, as an Heirs subscribing as a witness to a Write on death bed, June 25. 1663. Stuart of Ascock contra Stuart of Arnholm. But the consent of a Party to a Decret, was not found probable by the Decret, without a warrant under the Consenters hand, seing it appeared that the minut of the Decret, on the judicial consent was not instantly written, but long after, and it was no ordinar point in Process consented to, but a transaction of a special Nature, July 24. 1661. Laird of Buchannan contra L. Collonel Osburn, but one of the parties having offered Implement by Instrument, [...] [Page] by the Witnesses insert, was not suffered to quarrel his consent, as not under his hand, February 4. 1671. Lowrie contra Gibson. But consent was not found to be inferred by subscribing Witness, as to the Contents of the Writ, February 1. 1676. Veich contra Ker and Pallat. Yea, though the Write did bear the Witness to be Cautioner, unless it were proven by the Witnesses insert, that the Write was fully Read to that Witness before he subscribed, July 26. 1672. Mr. Airthur Gordoun contra Menzies.

12. All Pactions and Contracts, being now equally efficacious, may according to their subject matter be taken up thus; they are either meerly gratuitous, as he who oblieges himself to bestow a Horse, is thereby bound, But there is no Obligation on the other; but if the Donation be perfected by a present tradition of the thing Gifted, there is no Obligation contracted on either hand; or next the Obligation is gratuitous on the one part as Loan, which is either by the free lending of things, consistent in number, measure, and weight, which the Law regardeth as a quantity, without regard to the individual body or thing, such being commonly of equal value, according to their quantities, these are called Fungibles, as Money, Corn, Wine, either where the Loan is expresly, or implicitly, for the delivery of the like quantities, though not the same very thing. Or otherways, it is the lending the use of a particular thing, to be delivered again, the same in substance, the former is called mutuum, the latter commodatum, in both, if the thing lent be not delivered, this will be effectual to cause it be delivered, though it be gratuitous, if it be in the lenders power; but on the part of the borrower, it is onerous, for he is oblieged, either to restore the same body, or the same quantity. Such also is Commission or Mandat, whereby the Mandatar doth freely undertake, and is oblieged, susceptum perficere munus, and that freely; but he is onerously oblieged to restore, what by the Mandat he hath from the Mandator, as the Mandator is oblieged to refound him his Interest and Expences. Such also is the Contract of Custody. Or Depositum, which is a kind of Commission, whereby the Depositar undertakes the Custody of the thing depositate. Pledge is also a kind of Commission, whereby the thing impledged is given to a Creditor for his security, that he may detain; and in case of not payment, he may sell it and pay himself.

The other Contracts are such as are Onerous on both parts, and Obligator on both parts, and in them there is also always, quid pro quo, according to the nature and intent of these Contracts, observing in them an equality of the deeds or things to be done or given on either part, as not being of their nature, or of the direct purpose of the parties gratuitous, or donative; for uptaking of these, we must consider, that all that can come in these Obligations, is either something to be given, or the use or fruit of something, or the labour, work, or deeds of Persons: and among things, special consideration is had of Money, which is the common token of Exchange; and therefore, there are special Contracts in relation to it, different from the Exchange of other things: So then, all these Permutative Contracts, are either of things for things, as are Permutation, Excambion, Barter, &c. Or of things for numbered Money, and that is sale, or Money for Money, as by Bill of Exchange.

Secondly, Profite, use, fruit, or work, may be either exchanged with things, and this hath no proper name, but is called in Law, facio ut des; or otherways may be exchanged for the like use, profite, or work, neither had this a [Page] proper name, but is called facio ut facias: But if the use and profite of things, deeds or industry of persons, be exchanged for Money, or other Fugibles, it is called Location, and Conduction.

And Lastly, If the Contract be not to Exchange totally things, use, or work for the like, but to communicate them together, where there is an Exchange in part, there arises the Contract of Society; in which, sometimes Money or things, by the Society are communicate, and the property constitute in the Society without division; or sometime the use of things, or Money, are by the Society communicat on the one part, and the substance of Money on the other, so that the property of the ones Money remains his own, and the profite becomes common; or there may be communication of work with Money, or work with work, though these be the most ordinar Contracts among men, yet there be as many varieties as the conjunction or variety of these things, in the various use or humours of men can make up, as the contract of Assurance: where Money or things are given, for the hazard of any thing that is in danger, whether it be Goods or Persons. We shall only then touch the common requisites, First of all Contracts, and next the specialities of the prime, unto which Law or Custome hath given a special Nature, that by the very naming of the Contract and Agreement, therein all the Obligations interests and consequences thence arising, are known commonly and presumed, and as effectual as if they were all exprest, without necessity, to dispute precisely, what Reason and Equity will conclude, from the nature of what is done or said. This seems to be the only profitable distinction betwixt Contracts nominate and innominate; for in all Contracts, not only that which is exprest must be performed, but that which is necessarly consequent and implyed, but in nominate Contracts, Law hath determined these implications; we shall therefore speak specially of the Contracts of Loan, Commission, Custody, Pledge, Excambion, Sale, Location and Contracts, Usurary and Society. Transaction may well be numbered amongst mutual onerous Contracts, for thereby either party quiteth a part of what he claims, for shunning the hazard and expences of Law, which being an useful mean to terminat Pleas, the Law of this and most Nations observe the same unviolably, and will not admit the recalling thereof, upon any thing can be pretended from new discovery of the parties Rights, as finding of Writes or Witnesse; but if nothing be abated, there is no Transaction; and therefore, a Bond for a sum, for which the party was under Caption, being without any abatement, was found no Transaction, July 13. 1668. Thomas Rew contra Houstoun. Neither was payment made, pendente processu, without abatement found a Transaction, January 8. 1673. Sir James Ramsay contra Robison. Neither was Transaction inferred by granting a Bond for Accompts, for which the granter of the Bond was Arrested, unless a lesser sum had been accepted, then what was claimed by the Accompts; here the instructinos of the Accompts were not given up, nor a Discharge thereof, but an obliegement to give a general Discharge upon payment of the Sum contained in the Bond, February 18. 1680. Mr. Andrew Burnet contra John Ewing.

13. For the common requisites and properties of Contracts, First, They must be deeds of the rational appetitte or will, which, as we have said, can only constitute Rights; therefore the consent of Infants can work nothing, because they have not the use of Reason; and though equity keepeth not one time for the attainment of Reason, but takes it as soon as truely it is, which in some is much sooner, and in some much later; yet Positive Law, [Page] following that which is most ordinary for stabilities sake, fixes it at the end of Pupilarity, which in men is fourteen, and in women twelve years of age; so neither Infants, Idiots, nor Furious Persons, except in their lucide Intervals, can contract: This is to be cognosced by an Inquest, upon a Brief of the Chancellary, called the Brief of Idiotry, which is mainly for appointing the nearest Agnat to be Tutor to such: And the deeds of Idiots are not only void after this Inquest, but after their Idiotry, or Furiosity, when ever it began, which therefore must be cognosced, yet it was sustained by Reduction without a Brief, at the furious persons instance, Convalescing, February 21. 1531. Elizabeth Alexander contra Kinneir. And at the Instance of the Furious Persons Heir, for anulling an Assignation, July 28. 1638. James Loch contra William Dyke. But it was not found competent by exception, Spots Idiots, Crawford contra Kinneir. Furiosity taketh away the Escheat of these, as selfmurtherers, being then Furious, Hope, horning, Robert Ripeth contra William Wauchop.

Secondly, These also, who through Fear or Drunkenness, or Disease, have not for the time, the use of Reason, do not Contract.

Thirdly, These who erre in the Substantials of what is done, contract not; we shall not here debate of the effect of Extortion, Error or Circumvention, what influence they have upon Contracts, but refer that to the former Title. These who are Deaf or Dumb may Contract, if they have the use of Reason, if it appear they understood what was done, and exprest their consent, by their ordinary known signs.

And Last, Positive Law for Utilities sake, hath disabled Minors, having Curators, to Contract without their consent. Like unto these are Persons Interdicted, of which before, this much for requisite in the persons Contracting.

Secondly, In the Act of Contracting, it must be of purpose to obliege, either really or presumptively, and so must be serious, so that what is exprest in jest or scorn, makes no Contract.

Thirdly, In the matter of Contracts it is requisite, that it be of things in our power in their kind; and so Contracts of impossibilities are void; and Contracts in things unlawful are also void; but though the particular thing be not in our power, and be not manifestly impossible, the Contract is obligator; and albeit it cannot obtain its effect, upon that thing it is effectual for the equivalent, as damnage and interest, Contracts may interveen where there interceeds a Natural and Obediential Obligation, where it hath this use to declare and express the Natural Obligation to avoid debate thereupon: But the proper matter of Contracts, are things free, and the declaration or acknowledgement of necessar duties may be free, though the duty it self be necessar, yet where Obediential and Conventional Obligations are concurring, they are both Obligator.

14. It is the property of permutative Contracts, that the purpose of the Contracters is to keep an equality in the worth and value of the things, fruit or works interchanged, the value is regulate according to the common esteem and custome of men in every place, and its liquidat or known by Money, or some fungible like unto Money, as Suggar and Tobacco in the American Islands, for Money being the common token of Exchange; and therefore, having virtually in it all things, they are accounted better or worse, or equal, according to the common rate of the place, as they are worth in Money for [Page] the time, the prime grounds of this common estimate are necessity, utility, and delectation, whether it be real or imaginary, as Plin. lib. 9. cap. 55. Margaritis pretium luxuria fecit, such is the value of Portraits, Tulips, or other Flowers, upon which, in some places, a far greater rate hath been put, then any usefulness thereof would allow; hence it is that the rate of things does frequently change, as the necessity or esteem of them changeth, and the more they abound, the easier is their rate.

But the question is here, whether in these Contracts there be a moral necessity to keep an exact equality, that whosoever, ex post facto, shall be found to have made an unequal Bargain, the advantager ought to repair the loser: in this the Romans did not notice every inequality, but that which was enorm, above the half of the just value, which our Custome alloweth not, June 23. 1669. Robert Farie contra James Inglis. And the opinion of Grotius, de jure belli, l. 2. cap. 12. Is for the affirmative upon this ground, chiefly that the purpose of the Contracters is to give one thing for an other of equal value, without purpose to gift on either hand; yet the contrair opinion is more probable in some cases, wherein, though it be the purpose of the parties, to interchange things of equal value, without Donation; yet that equality hath no determinate or certain rule, but their own opinions: for as is said before, the special affection and opinion of the owner, is a peice of his interest and injoyment; and if the thing be taken from him unwarrantably, and cannot be restored, the Reparation is not according to the common rate, but secundum pretium affectionis, according to the value the owner had of it; and if that owner sell it for the rate he thought it worth, it would be thought no less then cousenage, for the buyer to offer but what others thought it worth, if then the particular value or esteem be the first rule in such Contracts, when both parties being free, do agree upon such a rate, there is here no Donation, but a particular Estimation, wherewith either ought to rest satisfied: It is true, where there is no rate agreed upon, the common rate must be the rule, but it cannot always be a rule, seing the publick rate doth but arise from the private rate, otherways rates should never change, except where by publick Authority they are determinate, which is but seldome: But ordinarly the change of rates begins at particular persons, and the second Contracters use for a patern the first; and the fuller the example be, the stronger it is untill it become common; and therefore, it is safest to conclude with the Law, l. si voluntate, C. de resin. vend. which saith, this is the substance of buying and selling, that the buyer having a purpose to buy cheap, and the seller to sell dear, they come to this Contract, and after many debates, the seller by little and little diminishing what he sought, and the buyer adding to what he offered, at last they agree to a certain price, or as Seneca says, l. 6. de beneficiis, cap. 15. It is no matter what the rate be, seing it is agreed between the buyer and the seller, for he that buyes well, owes nothing to the seller; therefore, the equality required in these Contracts cannot be in any other rate then the parties agree on; but in other things, this equality ought to be observed, as in any Penalty adjected, or Clauses irritant, which therefore ought to be, and are reduced to the just interest, what ever the parties agreement be: So then, seing Promises and Contracts are morally binding, permutative Contracts must also be such, else they should not bind by vertue of the consent, but by reason of the matter; but in them as in all others, if any party hath disadvantage by Fraud or Guile, it ought to be repared, but not by vertue of the Contract, but from the Obligation arising from that Delinquence, and so unjust ballances are an abomination to the Lord, because of the deceit thence arising: as also, [Page] false Money, and insufficient Ware, by any latent insufficiency or defect, which was not obvious and easily perceivable by the acquirer, in which case, there can be no presumption of Fraud, his eye is his merchant; but in others, according to the Sentence of Ambrose, in Contracts, saith he, even the defects of the things which are sold, ought to be laid open, and unless the seller intimate the same, there is competent to the buyer an action of Fraud; so also, if the buyer take advantage of the ignorance and simplicity of the seller, and where there is no alteration of the common rate, nor ground thereof asketh or craveth more if it be not deceit, at least it is against Charity: so is it when ware is keeped up till pinching necessity, which raiseth extream dearth, or when some special necessity of an acquirer, puts him so upon the mercy of the Disponer, that he may take a price, even above that which himself accounts the thing worth, in such cases, there is the violation of the Natural Obligation of Charity, whereby men are bound in some cases, to Gift freely to the necessity of others; but frequently we are oblieged to exchange what our necessity may spare, to supply others necessity for the like which they may spare, and so without injury, in case of necessity, men may be compelled to sell that which is their own.

15. This agreeth with our Custome, by which only a latent insufficiency of the Goods and Ware, at the time of the sale and delivery, is sufficient to abate or take down of the price, but not unless when the unsufficiency appeared, the thing bought be offered to be restored (if it be not carryed abroad before the insufficiency appear) after which, retention is accompted an acquiescence in, and Homologation of the Contract: So no other then the latent insufficiency of Wines, as being mixed with Peary, &c. is relevant to liberate from a Bond granted for the price thereof. But the insufficiency of a Horse was not sustained to liberate from the price, he not being offered when that appeared, January 9. 1629. Brown contra Mr. James Nicolson. Insufficiency of Skins received upon trust, was found only probable by the Oath of the seller, after the buyer had sold them again, July 7. 1675. Patton contra Lockhart.

16. Before we come to the special Contracts, this question which is of much importance in practice, would be resolved, whether in mutual or reciprocal Contracts, a party Contracter, or his Assignay, can obtain implement of the Articles of the Contract in his favour, till he fulfill or cause to be fulfilled the other part: Our Decisions have been exceeding various in this matter; for clearing whereof, several cases must be distinguished; First, In the case of the Contracters themselves, and in that, either the mutual obliegements are conceived conditionally, that the one part being performed, or upon the performance thereof, the other part shall be performed, or where the obliegements are not conceived conditionally, yet they are properly mutual Causes, each of other. The obliegement to deliver the Ware, and to pay the price in permutation, the things exchanged, and mutual obliegements for delivery thereof, are the mutual causes each of other, in Location, the use of that which is set for hire, and the hire are the mutual Causes, and so are the Obligations, hinc inde, otherways, the Obliegements are not the proper Causes each of other, but either wholly different matters, which are frequently accumulate in the same Contracts; or the one, but the occasion and motive, and not the proper cause of the other: The case of Assignays must be considered in all these.

[Page] For the first, The Civil Law is for the Negative, that in reciprocal Contracts, neither party can have effectual Action, except he perform the whole Contract on his part. As to the first member of the first case, there is no question, but when the mutual obliegements are conceived conditionally, he that demands the one part, must perform the other. As to the other member when the Obliegments are mutual causes each of other expresly, when the Contract bears, for the which causes; or when by the nature of the thing; appeareth so to be: It is most consonant to reason, to the Civil Law an our Practice, that neither party should obtain implement of the obliegement to him, till he fulfil the obliegements by him, it was so found, July 27. [...] Laird of Keirs contra Mr. James Marjoribanks Leidingtoun. November [...] 1565. James Crichtoun contra Marion Crichtoun. July 1581. Lord [...] contra Provost of Lincluden, where the reason is rendered, because it is [...] data & non sequuta, till he who craves implement fulfil his own part, [...] though it be ordinarly understood, when the cause of the Obligationaltogether faileth; yet upon the same ground, so long as the cause is suspended, or delayed on the one part; the effect is also to be delayed on the other. But in Contracts, wherein the Obliegements are not the proper Causes each of other; the one part hath effect before the other be fulfilled, and the same is only reserved or declared not to be prejudged by way of Action or Charge, Sinclar, February 19. 1548. Laird of Ker contra Panter. December 1563. Earl of Glencairn contra Commendator of Kilwinning.

As to the second case, whether an Assignay Charging or Pursuing upon a mutual Contract, be in any better case then the Cedent, or can crave implement, till the Cedents part be performed, the difficulty is here, that if Assiggnays be cloged with the obliegements of the Cedent, it will marr Commerce, and render such Contracts ineffectual, as to summar execution, and so Obliegements therein for Liquid sums of Money, might not be Poinded or Apprized for, nor any Execution valid thereupon; but this will not follow, for though these Executions be summarly used, they will stand valide, only the effect will be suspended, till the other part be performed: But the Assignay having no title whereby to compel his Cedent to perform his part; therefore the other Contracter must either be decerned to assign his part of the Contract to the Assignay to the other part, that thereupon he may insist for performance; and that before the Extract of his Decreet, or rather execution may be sisted, except as to Adjudication for his security, till he procure implement of his Cedents part; or otherways, that he find Caution, that the other Contracter using diligence against his Cedent for performance, that the Assignay shall make up what shall be wanting to him, as was done in the case betwixt William Cunningham contra John Ross, wherein an Assignay Charging upon a Contract for the price of Lands; by which Contract his Cedent was oblieged to cause the Tennants pay certain bygone Ferms; therefore the Assignay was ordained to find Caution for satisfying of these Ferms against the Cedent, February 15. 1627. William Cunninghame contra John Ross. Hope, Contracts, Laird of Rentoun contra Robert Dowglas. And though a Donatar was found to have Right to the price of Lands, due by a Contract, though the Rebel had not performed his part of the Contract, Hope, Cessio bonorum, Balfour contra Futhy, there was nothing alledged of the insolvency of the Cedent: But a Donatar pursuing for the price of Fews, the Fewers were assoilzied from the Declarator, till the Donatar obtained the Fews to be perfected; here it was known, the Donatar was in trust for the Rebel who was in power to perform, January [Page] 28. 1673. Lord Lyon contra Arthur Forbes. But there can be no reason that the one part of the mutual Cause should be effectual without the other, for if the Cedents Back-bond apart would affect the Assignay, much more when it is in the same Contract; yea, though the matter proceed not by way of Contract, but by Bonds apart; if thereby it appear, that these Bonds are mutual Causes one of another, the effect should be the same, and though there be no more to prove that they are mutual Causes, but that they are of the same date, and before the same Witnesses, the Lords will readily examine the Witnesses insert, ex officio, whether they be mutual Causes each of other; and therefore, where a Bond apart did bear, that the Creditor should ratifie a Disposition of the same date, at his Majority, under a great penalty. A Bond granted apart to that party of that same date, being Assigned, the Assignay was found to have no power to lift the principal sum, till the Cedent ratified at his Majority, or were past his anni utiles, without Reduction, November 14. 1628. Cunninghame contra Cunninghame. The like was found, as to Writes of the same date, with a Contract anent the same matter, though not mentioned in the Contract, Hope, Contract, Duncrub contra Chapman: But if in Contracts or mutual Bonds, the mutual obliegements have different terms of performance: a pursuit upon the one part will not be stoped by not performance of the other part, while the term agreed for the performance is not come, November 28. 1676. Sir David Carmichael of Basmedy contra Dempster of Pitliver.

17. To come now to particulars according to the order proposed, Loan comprehendeth both the Contracts in the Law, called mutuum, and commodatum; by the former, a thing Fungible is freely given, for the like to be restored in the same kind and quantity, though not the same individual. A Fungible is that which is estimate according to the quantity, and is not easily decernable, nor noticed in the individual or particular body, but only in the like quantity of the same kind, the chief of which is Money, where ordinarly the extrinsick value and common rate is regarded, without respect to the matter, and so what is borrowed in Gold may be payed in Silver, according to the common rate of the place, unless it be otherways contracted: such also are Wine, Oil and Grain, wherein the quantity is ever respected in the same kind, as in the loan of Wines, payment must be had, not only by the Wine of the same Countrey, but if there be any difference by the Wine of the same place of the Countrey, and so of all the rest; for it is never accompted a quantity, where there can be other differences remarked: these Fungibles have no fruit or use, if they be retained; and therefore, the end of the Contract and purpose of the Contracters is, that the property thereof shall pass to the borrower from the lender, and may be by him alienate; and thence is its name, for mutuum est quasi de meo tuum, l. 2. ff. de rebus creditis: Salmasius alone denyes this, holding that the intent of this Contract, non est transferredominium, but to give the use, and that the alienation falls of accident, because Law makes no difference of quantities of the same kind; so that if Money be found, Restitution may be made without any Contract, though not in the same Money, but in the like, wherein there is no consent, and so can be no alienation.

18. Yet the common opinion holds, that the purpose of the Contracters is to alienate, because they know without it there can be no use: And if a Fungible be not lent to that purpose, but only to be detained, as in some cases it may, as Money to make a show with, to appear rich, or to make a simulate [Page] Consignation; there the borrower without injury, could not alienate, and he who findeth, unwarrantably alienateth his Neighbours Money, and may be compelled, not only to render the like in current Money, but to render the same Species and pieces of Money. So he who hath the custody of Money, if he medle with it he commits Theft by the Law; hence it follows, that the whole peril of the thing lent, after delivery, is the borrowers, ejus est periculum eujus est dominium, so that Money or any other Fungible thing lent, though it were immediatly taken away by force, or destroyed by accident, the borrower is oblieged to pay.

The transmission of the Property of things lent mutuo, is so necessary, that without it, it cannot consist; and if a paction or condition be adjected, though with interposition of a Stipulation, that the thing lent shall not be alienable, it destroys the Contract, and trans-changes it into commodatum.

It is not here fit to repeat the general requisites of mutuum, common to other Contracts, as that it must be done by an act of the Will, with Understanding, and so is impeded by Errot in the substance of the Contract, and cannot be effectual by Infants, Furious Persons; nor by the Civil Law could it be done by Prodigals, which we notice not, unless they be interdicted: Neither by Minors having Curators, without their consent. Nor can they who have not the Right of Property lend, except by Commission, because they cannot transmit more then they have; mutuum may be constitute by such as can Contract effectually, having all the former requifites of the lender.

19. And the Civil Law had this exception further, per Senatus. Consultum [...], prohibiting and annulling lending to sons in the Family, which our Custom owneth not, and looketh to Sons at most, but under the priviledge of Minors, if within age; and if they contract, without their Fathers consent, who is their lawful Administrator, their deed is anullable, unless it be of small Importance wherein they use to Negotiat.

Our Custome in stead of the Senatus. Consultum Velleyanium, in favours of Women, whereby they could not interpose as Cautioners, or any ways be Surety for others, hath indulged the favour to Wives, that while they are Married, they cannot effectually obliege themselves, otherways then in reference to their Lands, of which formerly, Title Conjugal Obligations.

20. Because of the matter, things cannot fall under mutuum, which cannot be [...], and which are not properly Fungibles (as Money, Corn, Wine, Oyl) and I doubt not, but Oxen, Kine, and Sheep, are mutuable, as is ordinary in Steelbow-Goods; which are delivered to the Tennant with the Land, for the like number and kind at his removal.

21. As to the specialities of mutuum, First, It is not Contracted without delivery of the thing lent, and it hath very little, either by the Civil Law or our Customes, as a nominat Contract, but what is competent by the Obligation of Restitution, or Recompence; and therefore, promutuum per indebitum, where there is no Contract, is equiparat to mutuum, for the like, not only in kind, but in value, must be repayed, though nothing be exprest therefore. As he who lent so much Wine, is not oblieged to accept the same kind of Wine, but also of the same value, as if he lent old Wine, he is not oblieged to take new, which is accompted worse. l. 3. ff. de rebus creditis, and this [Page] is rather by that equivalence, due in Recompence, then by any tacite Paction, understood to be implied in this Contract. And it were more convenient for Commerce, that there should be understood a contrary Paction, that being repayed in the same kind, there should be no debate of the equivalent value, which leaves a perpetual incertitude in all such Contracts, raising ever a quarrel, that the repayment is not as good as the thing lent, as there is difference of the goodness of Wines in the same Countrey, yea, the same field; likewise there is a difference in kinds of Money, Silver or Gold, and in the Intrinsick and the Extrinsick Value, wherein the common opinion is, that not only the Extrinsick, but Intrinsick Value is to be respected, that the same weight and species of Money must be repayed. But none make difference of Gold or Silver, not allayed; and all reject Copper or Layed-Money, our Custome was to have repayment in the same Intrinsick Value, as appears, Par. 1451. cap. 36. Par. 1457. cap. 19. Par. 1555. cap. 37. But that was well altered by a posterior Custome, allowing the current Coin for the time, by the Extrinsick Value to be sufficient, in all Redemptions, much more in personal Contracts, which is most convenient, seing Money is regarded as the Token of Exchange, and as a Fungible, not as a body; and it is not to be supposed, that if the lender had keeped his Money from the present borrower, that he would have lost the profite of it, to keep it up till the Extrinsick Value might change to his advantage; or that the borrower was to keep it by him, but to make present use of it; for which cause we notice not the Intrinsick Value, even as it was at the Term of payment.

22. The Civil Law gives so little to mutuum, by the Nature of the Contract, that it is amongst the Contracts stricti juris, where nothing is understood but what is expressed, or necessarly consequent therefrom. And therefore, there is no Annual or Profite, due in mutuo; yea, though it be expressed by Paction, it will not suffice by the Civil Law, unless it be by Stipulation; we allow not profite, in mutuo, unless it be so agreed upon, which may be by paction, even ex intervallo; in which case it retains the name of mutuum, though it be rather Locatione of the use of the Fungible, for the Annual, as a competent hire, and so we shall speak to Annualrents, not here, but in Location; yet the Law did allow to mutuum, that any thing might be transchanged in a Fungible, as the price thereof, and that Fungible constitute, in mutuum, which is equivalent, as if the Fungible had been really delivered, l. 11. ff. de rebus creditis. And any Contract is easily changed, in mutuum per fictionem braevis manus, as if all these alterations had been actually made. But if it were but acknowledged, per Chyrographum, that Money was delivered, the exception, de non numerata pecunia, was competent. With us the transmission from any other cause is sufficient, and the acknowledgement of the receipt of Money proves, unless the contrair be proven by Write or Oath.

The ordinary way of mutuum amongst Merchants, is by Bills of Exchange, or Letters of Credite, which have several specialities, which arise from the Nature of these Acts, and from Custome, especially these common Customes of Merchants, observed in Cities of greatest Trade, in the Neighbouring Nations. The Nature and ordinary Tenor of these Bills of Exchange is, that the drawer of the Bill orders such a Merchant, or his correspondent, to pay the sum contained in the Bill upon sight, or at such certain time, or at useance, and that for value received, wherein there is implied a Mandat to the Correspondent, and an obliegement upon the Drawer of the Bill, to make [Page] that Mandat effectual, wherein mutuum is implied, if the value received by him be numerate Money, or of any other Cause, such as delivery of Ware; there is in it, fictio braevis manus, as if the Ware were sold to the drawer of the Bill, and the sum in the Bill were the price received, and delivered again in Loan; there useth two or three Bills to be drawn for the same sum, which do bear, to be the first, second, and third Bill, and the payment of any one satisfies all: the fixed form by Custome, of making use of these Bills, is by presenting them to him upon whom they are drawn, and if he accept the Bill, he Writes thereupon, accepts, which if it be simplie, he becomes liable in the Terms, and at the time mentioned in the Bill: But sometimes the accepter doth qualifie his Acceptance, which the Creditor by the Bill may refuse; and require either simple acceptance, or may Protest for Non-acceptance; but if he suffer the Acceptance to be qualified, it imports his consent, and he cannot Protest for Non-acceptance, as if the Acceptance be to a longer day, then what is contained in the Bill: Or if it bear Acceptance, if provisions come betwixt and the day; or if Ware or Bills in hand do raise the sum. At or after the day, the Bill is again presented, and if payment be not then made, the Creditor in the Bill Protests for not payment, and both these Protestations must be by Instrument of a Nottar, either for Non-acceptance, or not Payment: Which Instruments with the Bill, make sufficient Probation, both against the Drawer of the Bill, and against him upon whom it was Drawn; and neither Witnesses, nor the Oath of Party will be sufficient to supplie the Protest: So that the Instrument or Protest, is not only a Proof, but a Solemnity requisite. These Protests may be taken against him upon whom they were drawn, either personally, or at his Dwelling-house, which was sustained, though before presenting of the Bill, the party upon whom it was drawn was dead, July 3. 1664. Hugh Kennedy contra George Hutcheson.

Upon Bills so Protested, the Creditor in the Bill hath Action, both against him upon whom the Bill was drawn, if through his fault, he hath either refused to accept, or to pay, and so if he had Provisions in his hand, he will be decerned to pay; and if without Provisions, he accept and pay, the drawer of the Bill becomes his Debitor, ex mutuo, or ex mandato.

The Creditor in the Bill may also return upon the drawer of the Bill, who will be Decerned to pay the sum, with the damnage the Creditor hath sustained through its being Protested, wherein will be comprehended the Expenses of the Pursuit against the Correspondent, and the profite the Creditor in the Bill might have made, if according to it, he had received his Money, which will differ in several persons and cases; as if the Creditor in the Bill be not a Merchant; the ordinary damnage will be the Exchange, that is the rate ordinarly given at that time, for answering Money from the place, at which the Bill was drawn, to the place to which it was direct; but if the Creditor in the Bill was a Merchant, and was to Trade with the sum in the place, to which the Bill was direct, he hath also no more but Exchange; but if he was to Trade in any other place, before he returned to the place where the Bill was drawn, he will not only get Exchange, but Re-exchange, as being damnified in the profite of his Ware that he was to buy, at the place to which he was bound, from that place to which the Bill was direct, for the Ware he was to buy there, and for the loss of his profite of the Ware he was to buy at the second prot: but though there might be further progress in his Traffick, his damnage is no further extended, then to Exchange and Reexchange; and in all, the Oath of the Creditor in the Bill, concerning his [Page] design with the Bill, must be sufficient Probation, and is Taxable. As all Oaths in litem are, when they appear Exorbitant, if the Bill of Exchange be unsatisfied by an interveening accident, which the drawer could not prevent, the damnage will be modified or taken off; as in the former case, the Correspondent upon whom the Bill was drawn, dying before the day of payment, the Creditor in the Bill having Protested at his Dwelling-house, and not insisting against his Successors, but returning against the drawer, he got no Exchange or Re-exchange; yet certainly, the drawer of the Bill being hereby oblieged to deliver the Money, at the place to which the Bill was directed, it had been no stretch to give him Exchange.

But if the Correspondent upon whom the Bill is drawn, Break, or become Insolvent, full damange will be due by the drawer, whose part it was to have his Money in secure hands, unless the Correspondents Insolvency, be by the delay, or fault of the Creditor in the Bill; for though there be no determinate time at which he is oblieged to present it, yet conveniency and ordinary diligence is implyed; but if the delay sall by an accident, though the Correspondent break before the Bill be presented, or payed, the drawer of the Bill will be lyable for the value received, but for no damnage, July 1. 1676. Doctor Wallace contra Simson.

These Bills of Exchange are Probative, though they neither have Witnesses, nor be Holograph, by the Custome of Merchants, because of the exuberant trust among them, and because they do not ly over as other Securities, but come quickly to be questioned, if they be not satisfied. Yea, a Bill of Exchange by a Drover, neither having subscription of his Name, nor initial Letters thereof, but a mark, at which the Writer of the Bill Wrote, this is the mark of the drawer of the Bill, the Writer and several Witnesses being Examined, ex officio, and deponing, that it was the Drovers Custome to mark Bills thus, which he readily payed, though of greater sums then this, which was an hundred Pound Sterling, and one Witness deponing that he saw him set to the mark to this Bill, the Bill was sustained.

Bills of Exchange are also transmitted without any formal Assignation, or Intimation, by a Note upon the Bill it self, ordering it to be payed to such another.

Bills or Precepts, not being amongst Merchants, or in re mercatoria, import only warrandice upon the drawer, and give action against the person upon whom they are drawn, but neither require the Solemnities, nor have the Priviledge or Effects of Bills of Exchange, but have only the Effect of Assignations from the drawer upon him upon whom they are drawn.

Letters of Credit among Merchants, are equiparate to Bills of Exchange in some cases, but in others they are but Cautionary for other Merchants, in whose favours they are granted; and therefore, a Merchants Letters of Credite, to honour another Merchants Bills, was only found effectual, as to such Bills as were accepted and payed; and whereof repayment was not made, and advertisement given to the Writer of the Letters, of the particular Bills not payed in due time, before the other Merchant became Insolvent, January 17. 1581. John Ewing Merchant in London, contra Mr. Andrew Burnet.

This is also singular, in mutuo, by the Law, that though thereby Contracts [Page] cannot be made, per tertium; yet delivery by the Lenders Debitor to the Borrower, is holden sufficient, l. 15. ff. de rebus Cred.

23. The other kind of Loan is called Commodatum quasi commodo datum, and it is a Contract whereby the use of any thing is freely given to be restored, the same without Deterioration, if it be not freely lent, but for a hire, it is Location; if the like be restored, it is mutuum; but if it be lost thorow the commodatars fault, or otherways deteriorat, the value must be restored, either as it was estimate by the parties before hand, which changeth not its Nature, because the price, though estimate, cannot be offered but in case of loss, or Deterioration, sine dole, if there be no estimation, then the estimation is to be according to the rate of the thing lent, at the time and place appointed in the Contract, or as it was worth the time of the Sentence: But Restitution must be made without Deterioration, except such as necessarily follows the use for which it was lent: as Cloathes lent may be worn, and Cattel lent become older; or if a Horse be lent for a long Journey, and therefore become leaner, without the borrowers fault, he is not oblieged to make up the same, l. fin. ff. Commodati; but all other Deteriorations must be made up, it must be lent for use, that it may differ from Depositation, that admits of no use, but Custody.

This Contract may be celebrate amongst all that have the common requisites of Contracting; yea, if the lender have the Possession, he may lend, though he have no property; and Servitudes and Habitation may be lent: And though the lender have neither Right nor Possession lawful, the Law saith, l. si servus ff. Commodati, that this Contract hath Effect, which is only to be understood that the Action, Commodati, is competent, but not as to all Effects; for the borrower cannot effectually detain the thing lent to his day, or any fruit thereof, seing the lender had no Title.

All things may be lent that can have an use without Consumption of their Substance, and so Fungibles cannot be accommodat, unless they be given, ad pompam, as Money lent, to seem Rich, or to make a simulate offer or Consignation.

24. As to the diligence due by the borrower, the case must be distinguished; for some things may be accommodate only for the behove of the lender, as he who lends Cloathes, or instruments to his Servants for his own use and honour; sometimes to both the lender and borrowers use, and of test to the borrowers use alone; in all cases, the borrower is holden, de dolo: Yea, no paction can be valid in the contrary, as against good manners; in no case is the borrower oblieged for any Accident, as Death, Naufrage, Burning, unless he hath undertaken that hazard, either expresly or tacitely, in commodato estimato, which imports that if the thing perish, it is lost to the borrower, and he must pay the price, l. 5. §. 3. ff commodati: For as in dote estimata, so in commodato estimato, it is in the Debitors option, whether to restore the thing it self intire, or the price to which it is estimate; but if the Estimation be only in the case of the deterioration, or loss, it doth no more but save Questions as to the value, and is not commodatum estimatum, as was found, November 17. 1668. betwixt the Town of Arbroth and Montrose: Or that the borrower hath applyed the Loan to another use, then it was lent for; in which case it perisheth to him; yea, he committeth Theft in that misapplication, l. 18. ff. commodati: But in the first case, the borrower is only holden for the grossest faults and negligence; in the second, for ordinar faults, culpa [Page]levi; in the last for the lightest fault, and is oblieged for such diligence, as the most prudent use in their affairs, l. 5. ff. commodati.

25. Precarium is a kind of commodatum, differing in this, that Commodatum hath a determinat time, either expresly when the use of a thing is given to such a day, or such an use, which importeth a time, as lending a Book to Copy, must infer so much time as may do it, lending a Horse to ride a Journey, must import a competent time. But precarium is expresly lent, to be recalled at the lenders pleasure, and if nothing be exprest, it is presumed in Law, commodatum, during the use granted, unless there be no special use exprest, and then it is esteemed precarium, because there can be no time consequent upon general use.

26. Commodatum is ended by the ending of the special use, for which it is granted, or the time prefixed, or by Revocation if it be precarius, or by the perishing of the matter lent, but precarium is not finished by the death of the lender, till his Heir recall it: But it is finished by the death of the borrower, unless it be otherwise agreed.

27. From Commodatum arise two Actions, the direct, whereby the Lender may call for the thing lent; and the contrary, whereby the borrower may call for his expenses, wared out necessarly, or profitably on the thing lent, more then is necessary to preserve it in the case it was lent, which he may use by way of exception, to have retention till these be satisfied.

28. Commission is called in Law, Mandatum, either because it useth to be exprest by way of Command, or Precept, though this be special in a Precept, that most Mandats are free, and may be refused; but Precepts may not, when the party upon whom they are drawn, hath provision from the drawer: Or otherwise, it is called mandatum quasi de manu datum, because it is given out of the hand, or the management of the Mandant, into the trust of the Mandatar. The requisites of this Contract, must be, first, a Desire, Warrand, or Order, upon the part of the Mandant to the Mandatar, to do some Affair, to the behove of the Mandant only, or of the Mandant and Mandatar, as to mannage that which they have in common, or to the behove of a third party only, or of a third party and the Mandatar, or of the three jointly; for if to the behove of the Mandatar only, it inferreth no obligation, but either is a meer Counsel, in whatsoever terms it be exprest; as if Maevius desire or command Titius, not to imploy his Money upon Annualrent, but to buy Land therewith, or particularly to buy such Land, there ariseth thence no Obligation: It is true in Crimes, such desires may infer punishment; but no Obligation in favours of the party desired: Or when a Commission is granted only to the behove of the Receiver, it transmitteth a Right to him, and no Obligation upon him. So personal Rights are transmitted by Assignations, which are Procuratories, but to the Procurators own behove; such are also Precepts for taking Seasiue or Possession.

29. As to the Terms in which Mandats or Commissions are expressed, if it be any way to the behove of the Mandant, there is no difference what the Expression be, unless the words be, Mendicatorie, importing the desire of a Donation; but if it be only to the behove of the Mandatar, or of a third Party, or both, without any behove of the Mandant, then it must be considered, whether the words import only a Counsel, that the Mandatar do [Page] such a thing upon his own accompt; in which case there is no Contract, nor Obligation, unless it appear that it was upon the Mandants accompt, or a third parties.

30. The second requisite is the Consent or Acceptance of the Mandatar, which compleateth this Contract, which is perfected by sole Consent, and may be either by word or deed, from whence the warrand of the Mandant, and acceptance of the Mandatar may be inferred, or by any other sign, as by pointing with the hand, or beckning with the head: And albeit it was free to accept or consent, yet it is obligatory and necessary to perform, unless re integra, the Mandatar renounce, so that the Mandator be not hindered in obtaining thereafter another Mandatar.

31. The third requisite in a Mandat is, that it be in relation to a thing lawful to be done, for it cannot reach to what is already done; and being in a matter unlawful, albeit it be accepted, it oblieges not the accepter to perform; and if it be performed, it oblieges not the Mandant to make up the Mandatars damnage: But in this as in other things unlawful, albeit both parties be in the fault, Potior est conditio possidentis, he who is actually free of the loss, hath the advantage.

32. The last requisite in Mandats, is that the acceptance must be free, not only in so far as the Mandatar may freely accept or refuse, whereby a proper and voluntary Mandat differs from a necessary Command or Precept, which is no proper Mandat, because it is not inferred by consent, but also in so far as acceptance must be gratuitous; otherwise the Contract thence arising, is not Mandat, but Location: Yet Honoraries, or Sallaries, for performing of things, having no proper Price nor Estimation, alter not the Nature of this Contract, as the Sallaries or Honoraries of Physicians for procuring of Health, which hath no Price; or of Judges or Advocates, for giving or procuring of Justice.

33. It is implyed in the Nature of Mandats, that it is personal, depending upon the singular choice of the Mandant, which he hath made of the Mandatars Person; and therefore it is neither continued in the Heir of the Mandant, or of the Mandatar; but morte mandatoris perimitur mandatum, which holdeth also upon the death of the Mandatar; for this Contract arising from a singular affection or friendship betwixt both, the removal of either resolves that Tye: So that in Delegation, which is a Mandat by the Creditor to his Debitor, to pay the Debt to the Creditor of his Creditor, it was found to cease by the Death of the Creditor Mandant; and that a Letter written by him to his Debitor to pay his Creditor, was no Warrand to pay, after the Debitor knew that his Creditor the Mandator was dead, February 2. 1628. Executors of the Laird of Duffus contra Forrester: But here there is an exception, fi res non sit integra, if the matter of the Mandat be not intire, but that the Mandatar hath entered upon, and performed a part of his Commission; for in that case it continueth after the death of either party; It hath also the exception, bonae fidei, if the Mandatar perform the Mandat, though after the Mandators death, if he knew not that he was dead, albeit the matter was intire at the time of his death.

In General or Complex Mandats, the performance of a part doth not continue [Page] all the several members of different natures of the Mandat, but only that particular whereof a part is done.

34. Here there ariseth a question, whether a Mandatar may intrust another person, or sub-commit his Mandat, wherein the Civil law, and most of the Doctors are in the Affirmative: But the Nature of the Contract inferreth the Contrary, which ought to take place, unless Law or Custome were opposite, which is not with us. The Reasons for the Negative are pregnant; First, Because the singular and personal fitness of the Mandatar is chosen by the Mandator, and so cannot without his consent be altered. Secondly, It is a common Ground, that which belongeth not to Heirs, much less to Assignays or Substitutes. Thirdly, It is a common Brockard, delegatus non potest delegare, especially in the matters of Jurisdiction, which the Doctors acknowledge, but say that it is introduced by the Law, against the Nature of this Contract: But they should rather say, that the power of sub-committing in extrajudicials, is so introduced.

It is true, the Reasons foresaid fail in some cases, as if the Mandat be of a Nature so Common, that there is no distinction of the fitness of persons; as Precepts of Seasine, which are therefore directed blank, that any persons Name indifferently may be filled up: Or if the Mandat be so general, that it cannot be all performed by one.

35. It is also consequent from the Nature of this Contract, that it is Ambulatory, and Revockable at the pleasure of the Mandator, even though it bear a definit Term; because that being introduced in favours of the Mandator, it cannot hinder him, cuique licet juri pro se introducto renunciare, which holdeth not, when the Mandat is partly to the Mandators own behove; for then the interest not being wholly the Mandatars, he cannot alter the time agreed upon without consent of the Mandatar: Yea, if the Mandat be wholly to the behove of the Mandatar, it may, and frequently is Irrevockable, and containeth a Clause, de rato, as is ordinary in Assignations, and Procuratories of Resignation, and Precepts of Seasine, bearing them to be an Irrevockable Power and Warrand.

36. The Obligation arising from Mandat, is chiefly upon the part of the Mandatar, to perform his undertaking, wherein he is oblieged to follow the Tenor of his Commission, in forma specifica, in so far as it is special and express, wherein if he transgresse, some of the ancient Lawers denyed him repetition of his expences, not only as to the excrescence above his Commission, but for all, as having received Commission to buy such a Field, for one thousand Crowns, he had bought it for one thousand two hundred, he should have Repetition of nothing: But Proculus thought that he should have Action for the part in the Commission; which, as the more benign opinion, Justinian followeth, l. sed proculus, 4. ff. mandati, where the Mandat is not special, it must be performed, secundum arbitrium boni viri.

37. As to the Diligence whereunto Mandatars are oblieged, the Doctors are of divers opinions; the Law inclineth most, that Mandatars are oblieged for the exactest Diligence, and for the lightest Fault: But by the Nature of the Contract, Mandatars, seing their undertakings are gratuitous, they ought to be but lyable for such Diligence as they use in their own Affairs; and the Mandatar ought to impute it to himself, that he made not choice of a [Page] more diligent person, which our Custome followeth, Nicol. Mandats, David Crawford contra Katharine Alexander. And a Commission to receive Money abroad, was found to infer no Diligence, Earl of Weims contra Sr. William Thomson. The like of a Commission to a buyer, to Infeft the seller and himself, and to do all other things necessary for his Security, December 16. 1668. Sir Alexander Frazer contra Alexander Keith.

The Obligation upon the part of the Mandator, is to Refound to the Mandatar his damnage and expense, and to keep him harmles; but this extends not unto casual damnages, as if the Mandatar were spoiled in the way, or suffered Shipwrack in going about the Execution of the Mandat, l. 26. inter causas, §. 6. non omnia, ff. Mandati, but this is to be limited, unless the Mandat do specially require Concomitant hazard, as if a Mandatar be sent through a place where there are Forces of Enemies, Robbers, or Pyrats, commonly known to haunt the place, by which he must pass.

38. To come unto the special kinds of Mandats, they are either express, or tacit, to one Mandatar, or more, generall, or special, to be performed in the name of the Mandatar, for the Mandators behove, or in the name of the Mandator: As also, amongst Mandats are comprehended the Commissions of Institors, and Exercitors, and all Precepts, Procuratories, Assignations, and Delegations.

39. A tacit Mandat, is that which is inferred by signs, and is not exprest by words, as he who is present and suffereth another to mannage his Affairs without contradiction, gives thereby a tacit Mandat, l. qui patitur, 18. l. qui fide alterius, 53. ff. mandati; for in this, qui tacet consentire videtur. So he who whispereth his Servant in the Ear, if he immediatly Kill or Wound any Person present, is presumed to give Command to the Servant so to do; if there was capital Enimity betwixt him and that person before. In like manner, the giving of Evidents or Writes; yea, which is more, the having of these, though the giving appear not, it is presumed to Constitute Procurators, as is evident in the having a Precept of Seasine, which is sufficient without any other power given to the Bailzie, or Acturnay. And Advocats are presumed to have Warrands from Parties for whom they compear, without producing any Mandat; not only upon production of the Parties Evidents, or alledgeances, special in Points of Fact; which if wanting, the compearance of Procurators in inferiour Courts, is held as without Warrand, and the Decreet as in absence; But even without these, if Advocats do no more but appear, and take a day to produce Parties to give their Oathes. A Wife having her Husbands Band in her hand, Impignorating it for an hundred Pounds, the Impignoration was found valide against the Husband, the Wifes Warrand being presumed by her having the Bond, February 4. 1665. Paterson contra Pringle. And the Warrand of a Servants taking off Furniture for his Master, and giving Receipt in Name of his Master, and for his use, found not to obliege the Servant to pay, or instruct his Warrand, which was presumed to be known to the Merchant, unless the Servant had otherways imployed the Furnishing, November 17. 1665. Howison contra Cockburn. And a Warrand was inferred, by the presence of him who had Commission to do, and hindred not, February 23. 1667. Lord Rentoun contra Lambertoun. And a Warrand of a Factor or Agent, for Charging and Denuncing a Daughter, And her Husband upon a Bond granted to her Mother, was presumed from having the Bond, December 23. 1673. Thomas Dalmahoy contra Lord Almond.

[Page] 40. Mandats given to more Persons, may be either to each, or some of them severally, by divers Warrands, or to more by the same Warrand, whereupon these Questions arise; First, When there are many Mandatars joyntly, Whether they must all necessarly joyn before they can Act, so that if one should die, the Commission is void? Or whether it be understood to the Survivers, Or to the plurality of them? Secondly, Whether Mandatars be all lyable, in solidum, or but prorata.

As to the First Question, If many Mandatars be Constitute severally, or with a quorum, or Plurality exprest, there is no debate; but if otherwise, the case is very doubtful, and there be pregnant Reasons and Testimonies upon both parts, but this seemeth to prevail as the general Rule, that Mandats joyntly given, can only be joyntly execute;

First, Because by the Nature of this Contract, the personal and singular fitness and industry of Mandatars is chosen; and therefore, this being a special trust, when it is given to many, it is presumed, that the Constituent trusts them all joyntly, and not a part of them.

Secondly, A Mandat given to ten, cannot be regularly understood, given to any lesser number, or given to Titius, Seius, and Maevius, that it is given to any two of them: It may be objected, that where there are many Executors or Tutors, without mentioning a quorum, the death of one makes it not to cease, Hope, Executors, Stuart contra Kirkwood and Moor: Or the death or non-acceptance of some of them, Ibid. Ruthven [...] contra George Fauside contra Edmonstuon; and therefore, this being the most important Trust, the like must hold in all other cases. It is answered, that the parity holds not; for the deeds of Defuncts in their latter will are always extended, that the Act may stand: But in Contracts it is contrary, that words are interpret more strictly; and in this case the difference is clear, that a Mandator, inter vivos, giving power, it is strictly to be Interpret; because the Power failing, returns from the Mandatars to the Mandator himself: But a Power given by a Defunct in Contemplation of death, cannot return; and therefore the Defunct is presumed to prefer all the persons nominate, to any other that may fall by course of Law.

But this Rule, as it is founded upon the singularity of the Choice, it faileth, and must be limited, where that ground ceaseth, and is preponderat: As First, If the deed to be done, be common and ordinary; there, not only the plurality, but any of the Mandatars will suffice; so any of more Curators may authorize a Minor.

Secondly, If the thing to be done, be to the advantage of the Constituent, and hath not a considerable hazard or power to infer his disadvantage; as if a Commission being begun to many, of things which admit no delay, it may be done by any part of the Mandatars, and they will have actionem mandati, and not only negotiorum gestorum. So Ambastadours sent to Solemnize a Marriage, or receive a Crown, though some of them should die, or disassent, unquestionably the plurality might proceed. But it wold not be so in a Treaty for Marriage or Peace; much less for surrendering a Kingdom, City, or Fort; and therefore, it cannot always be thought that a plurality is understood, though not exprest.

[Page] Thirdly, In cases necessary, where matters may not be delayed, plurality is always understood, as in Commissions for Jurisdictions ordinary.

Fourthly, Where the consuetude of the place, or of the Mandator himself, useth to allow a plurality, there it is understood, though not exprest.

41. As to the other Question, where more Mandatars are Constitute severally, they are no doubt lyable, in solidum, because they are Constitute, in solidum: But when they are Constitute jointly, or added, the doubt remaineth; for the Affirmative, There is First, The Authority of the Civil Law, l. creditor mandatorem, §. duobus, ff. mandati.

42. Secondly, Albeit the Obligation of Many, for payment of a quantity, make them lyable but prorata; Yet where it is a Fact, they are lyable, in solidum. And so Tutors and Curators are lyable severally, in solidum: But Executors are not, because their duty is to pay, secundum vires lnventarij; and therefore, in rigore juris, Mandatars being malversant, or grosly negligent, are liable, in solidum, if they may act severally, especially in Acts indivisible.

43. General Mandats do occasion the most debates in this Contract; for there is much more clearness where the Mandat is special, which useth to be distinguished in determinate, when both matter and manner are special, and indeterminat, when the matter is special, but the manner is not specified; in the former the precise Tenor of the Commission must be followed; and yet if any part thereof be, or become unprofitable, and evidently and considerably hurtful, the Mandatar in the latter case may safely, and in the former case, must necessarly do what is best, secundum arbitrium boni viri, and must do the like in all indeterminat Mandats: But the great Question is, how far general Mandats may be extended, and in what cases they are not effectual: But there is necessarly required special Mandats, which refer to the pleasure, choice, or opinion of the Mandatar, as if it have a Clause, cum libera aut plena administratione, or the like: Or where that is wanting, the Doctors enumerate multitudes of cases, whereunto general Mandats are not to be extended;

First, In the Contracting of Marriage no general Mandat, albeit, cum libera &. is sufficient, because the affection and choice of the person is singular, and incommunicable. And albeit Abrahams Commission for Eleazar, to take a Wife for his Son of his Kindred, was valide, though not special, as to the person; yet the case was singular, there being so few Families that worshipped the true God, to choice upon. But recenter Customes require it to be special, even as to the person, as well as to the Family.

Secondly, No general Mandat, though cum libera, can be extended to any thing that may import a Fault or Crime.

Thirdly, No general Mandat can reach to Donations, or meer Liberality, and yet doth not hinder gratifications for Services done, or upon the expectation that the receiver may probably be induced thereby, to do matters of importance, as the Gifts of Ambassadours, or Generals, are not only valide as to the receivers, but as to the Mandators, if there was probable reason.

Fourthly, General Mandats extend not to Alienation of Immoveables, but that must be specially exprest.

[Page]

Fifthly, General Mandats extend not to Submissions or Transactions, nor to insist in any Action Criminal or Famous, or to anull that which is specially done by the Constituent, or to dispose of that which was specially reserved before, either by Law or deed, as regalia, or things peculiarly reserved to Princes.

Sixthly, A special Mandat is required, to enter any party Heir to any Predecessour. The Civil Law numbered, additionem haereditatis inter actus legitimos, and so excluded even a special Mandat therein: But our Customes allow the same. But because Heirs are lyable, in solidum, to all the Predecessors Debts; therefore a special Mandat is necessary.

Seventhly, Wherein the general Mandats, some things are specially exprest, the generality is not extended to cases of greater importance, then these exprest.

44. Amongst Mandats are all Offices, which do ever imply a condition resolutive upon committing Faults; but not such as are light Faults, or of negligence; but they must be Atrocious, at least of knowledge and importance; upon this ground it was, that the Town of Edinburgh having deposed their Town Clerk from his Office which he had, ad vitam, The Sentence was sustained, if the Fault were found of the Clerks knowledge, and of importance, and that it was not enough that no hurt followed, and that he was willing to make it up, February 14. 1665. Town of Edinburgh contra Sir William Thomson.

But an Office of a Sheriff Clerk, was not found extinct by his being at the Horn for a Debt, or being sometimes out of the Countrey, having power of Deputation, February 6. 1666. Arch-Bishop of Glasgow contra Commissar Clerk of Dumsreis. The Office of a Commissar doth also import, as a necessary condition, that the Commissar be qualified to discharge the Office in his own person, though he have Deputs, seing he must answer for, and over-rule his Deputs, February 14. 1666. Arch. Bishop of Glasgow contra Commissar of Glasgow. Where it was also found, that by the Commissars instructions, they must reside in the place of the Commissariot, under the pain of Deprivation, notwithstanding the common Custome in the contrary, which only excuseth from bygone Faults.

45. Trust is also amongst Mandats or Commissions, though it may be referred to Depositation, seing the Right is in custody of the person intrusted. Mandatars in the Law could not obliege the Mandator, or directly acquire to him; but they could only obliege themselves, and acquire to themselves, and thereafter transmit to the Mandators; and that because in most Contracts, thereby the person Contracter behoved immediatly to Act, and no person interposed, which our Customes regardeth not; and therefore Mandatars may act in their own names: In which case, the Right, whether real or personal, standeth in their person, as he who by Commission acquireth Lands, or Goods, in his own name, the real Right thereof is in his Person, and there lies an Obligation upon him, if he was Commissionat to transmit them to his Constituent; but he may also Acquire, Transact, or Contract in name of the Constituent: In which case, the real Rights stands immediatly in the Person of the Mandator, and the Obligation constitutes him Creditor: and there is no Obligation betwixt the Mandatar and the third Party. Nor is the Mandatar oblieged to instruct that he had Commission, but that is upon his hazard who acted with him, unless the contrary be proven by his Oath or Write; and [Page] therefore a Servant, though by a Ticket, he acknowledged he had taken off such Furniture for his Masters use, was not found oblieged to pay or to instruct his Warrand, especially after his Masters death; but the Warrand was presumed as known to the Merchand, November 17. 1665. Howison contra Cockburn. Trust in the Right of Lands, Sums, or Goods, to the behove of another, doth frequently occur; and because Fraud is ordinarly in it, it is not only probable by Write or Oath of the Trustié, but Witnesses are examined, ex officio, to find out the Truth, February 22. 1665. Viscount of Kingstoun conira Collonel Fullertoun. February 6. 1669. Rule contra Rule. February 24. 1669. Earl of Annandale contra Young. June 19. 1669. Scot contra Langtoun. And Trust was found probable by presumptions only, January 12. 1666. Executors of William Stevinson contra James Crawford. January 22. 1673. Janet Watson contra Mr. [...] Bruce. But it was not found proven by a Declaration upon Deathbed, in prejudice of the Heir, November 26. 1674. William [...] contra Stirling of Airdoch. But a person intrusted in a Disposition of Lands, having componed for the Intrusters Debts, was found to have no Interest to burden the Intruster, with more then what he truely payed out, November 15. 1667. James Maxwel contra Adam Maxwel. Neither was a person intrusted for payment of the Intrusters Creditors, found to have power to prefer them to the more timeous Diligence of others, by Inhibition, or Apprizing, though only done against the Intruster, July 24. 1669. Crawford contra Anderson. And a person receiving Money to buy Goods for another, but having bought and received them in his own name, without mention of the Truster, the property thereof was found to be in the person intrusted, and his Creditors Arresting, were preferred, January 24. [...]. [...] contra Robertson and Fleming. Yet Trust in Sums, or Personal Rights, after the death of the Person intrusted, was found not necessary to be Confirmed, as in bonis [...], of the Intrusted Person; but that the Trust might be proven against the Debitor, and the nearest of Kin of the Person Intrusted, June 9. 1669. William Streit contra Home of Bruntfield. But Trust in an Infeftment of Annualrent, found not to make the Person Intrusted lyable for omission, but only for Intromission, December 18. 1666. Charles Cass contra Mr. John Wat. The like in an Assignation in Trust, which was not found to infer an obliegment to do Diligence, if the Assignay was not required, either to do diligence, or denude: But he having transferred without Warrand, was found lyable for the sum, albeit he offered to procure a Reposition, July 18. 1672. Janet Watson contra Mr. Walter Bruce. And an Assignay in Trust, that the sum might be included in his Appryzing, giving Back-Bond to be comptable in case of payment, having disponed the Appryzing without reservation, was found lyable for so much of the sum intrusted, as might have been recovered, January 5. 1575. Earl of Northesk contra Laird of Pitarro.

Trust was inferred by a Grand-Fathers delivering of a Disposition, conceived in favours of his Grand-Child, the Disponer at the delivery, having not exprest the terms of the Trust, or his design, and having recalled and received back the Disposition, and Disponed the half of the Lands therein, to another; it was thence found, that the Disposition was not absolute, and irrevockable, but was intrusted to that third Party, to be recalled if the Disponer pleased; or otherways to be delivered to the Oye, January 25. 1677. Janet Ker contra Niman Ker. When Trust is referred to parties Oath, whether such a Right standing in their person, be in Trust to the behove of another, they use commonly to Depone, that it is to their own behove, which being found dubious and fallacious, what the meaning of such words were, special [Page] Interrogators are allowed to expiscat the truth: And parties use to Reexamined thereupon, as whether the Deponents meaning by these words, that the Right was to his own behove, and not to anothers, was only that he gave no Promise or Back-Bond, to apply the Right or Benefite thereof, in whole or in part to another: Or whether the true meaning of the design was, that the other put him upon acquiring that Right, being a Gift of Non-entry of Lands, bought by that other, so that the whole benefite should not be applyed to the acquirer himself; for it was not presumable, that he would put another upon taking Gift of Non-entry of the Lands himself had bought, to be made use of to the full extent, which being so acknowledged, the Gift was found so far to the behove of the buyer, that the seller by the warrandice, should pay no more for the Non-entry, then the acquirer of the Non-entry gave truly for it, seing the buyer had communed with the Superior, and brought the Non-entry to the same rate, and then put his Couzin-German to acquire it, February 2. 1681. Master of Balmerino contra Laird of Pourie. Upon the same ground a Donatar of a Liferent Escheat being examined, whether it was to the behove of his Good-brother, having deponed, that it was to his own behove, he dying before he was re-examined, his Oath was interpret only, that he had given no Back-bond or Promise in favours of his Goodbrother; and therefore pregnant presumptions of the Trust were inferred, in that the Brother only was concerned in that Liferent, that he managed, and was at all the expenses of the Process, that the Donatars Successors never owned, nor confirmed the Benefite of the Gift, February 11. 1679. Forbes of Balvenie contra Laird of Boyn.

46. The Law for utility of Commerce, did against the common Rules foresaid, constitute an Obligation upon Exercitors, by the Deed or Contract of the Masters of the Ships. An Exercitor is he to whom the profite of Vessels or Ships, whether upon the Sea, Rivers or Lakes belongeth, whether he be owner of the Ship, or have only hired the same; the Master of the Ship is he that hath the command thereof, who therefore may Contract and borrow Money for Reparation of the Ship, or out-rigging thereof; or for the intertainment of the Mariners, or any other thing for the use of the Voyage. And thereby not only the Master Contracter, but the Exercitor who constitute him is lyable: Yea, if the Master substitute another Master, his ingagement also obliegeth the Exercitor; so that whosoever he be that Contracts with him, who for the time officiats as Master, obliegeth the Exercitor, in what was borrowed for the use of the Ship, Company, or Voyage. And there seems no necessity of showing a Commission, but the exercing of the Office is sufficient; and thereby the Ship and out-rigging may be hypothecat and affected: Yea, if there be many Exercitors, they are all lyable, in solidum; and if there be many Masters, the Contract of one of them obliegeth the Exercitors, unless it be expresly provided, they cannot Contract but jointly, which must appear by their Commission: Neither needs he who Contracts with the Master, instruct that the Money borrowed, was actually imployed for the use of the Ship, Company, or Voyage, but this much he must make appear, that when he lent the Money there was such need of it, albeit he be not oblieged to take notice whether the Master misimployed it or not, because the Exercitor should have looked whom he trusted. If the Master be constitute with power to buy Ware, and load the Ship, the prepositor is lyable to these who Contract with him, upon that accompt; but this is not presumed upon acting as Master, unless his Commission appear, and the Masters other Contracts obleige not the Exercitors, albeit their fault do, by the Edict, nautae [Page]caupones stabularij, all which is clear from the Title ff. de exercitoria actione per totum, and is generally in vigour.

47. After the similitude of the Exercitory Action, the Pretor by the perpetual Edict, did introduce the Institory Action, where by the Contracts of Institors in relation to that wherein they were intrusted, their prepositors are oblieged, as Exercitors are as to Maritime maters; so Prepositors are correspondent in Trafficque at Land. And Institors are these who are intrusted in such Affairs, corresponding to the Masters of Ships; such Institorsare these who are intrusted with keeping of Shops, buying or selling of Ware keeping of Cash for Exchange, such as are sent abroad to buy Ware. And these who are intrusted with the labourage of any Field, or any other like business. And it is alike of whatsoever Sex or Age they be, though even they be Pupils who cannot obliege themselves; or Minors who have the [...], yet both do effectually obliege their Prepositors: And it there [...] more Prepositors, they are lyable, in solidum. But such Obligations reach no further, then for what is Contracted for the use of the Affair wherein they are intrusted: Neither are the Prepositors oblieged, if they have intimate to the party Contracter, not to Contract with their Institors: But if they Contract bona fide, albeit the Institor be limit, and prohibit to Contract; In such cases, the Creditors Contracting, bona fide, with them, are secure. All which appeareth, Title de instit. actione ff. per totum.

48. Custody is called in the Law Depositum, or Commendatum, to which we have no suitable Term; but this Contract is most fitly exprest by the duty and obligation thereof, which is to keep or preserve that which is given in Custody, and it is here subjoined to mandat, because indeed it is a kind of it, for the Lawers do not so much notice the accuracy of Logical Divisions, whereby no member can comprehend another, as the usual Terms known in Law; and therefore, handle mandatum, depositum & pignus, severally, though all of them be truly Mandats; and therefore, also Depositum may be fitly defined, to be a Mandat or Commission, given and undertaken, to keep and preserve something belonging to the mandator, or some third party; and therefore, whatsoever hath been before said of Mandats, must be here understood of Custody, and needs not be repeated, except what is speciall in Custody.

49. The Civil Law maketh a difference in the diligence of Mandatars and Depositars, that these are lyable only for Fraud, where of alone the Pretors Edict makes mention, l. 1. § 1. ff. depositi, l. 23. ff de regulis juris, l. 20. ff. depositi, where by the Depositar, though he loss the thing Depositate, without Fraud is free, but it is extended to lata culpa, the grossest fault quae dolo aequiparatur in jure, l. quod nerva, 32. ff. depositi, where the diligence opposite to grossest faults, is excellently described, by such diligence as men ordinarly do, or the Depositar doth in his own Affairs; But Mandatars are lyable for the lightest fault; yet as is shown before, that is by the constitution of the Civil Law, and not by the Nature of the Mandat, for surely the reason and ground of the diligence of both is alike, as being gratuitous, and at the free choice of the Constituent, who therefore should demand no more in either case, but such diligence as the person intrusted useth, or men ordinarly do in their own Affairs, unless it be otherways agreed, or that the Depositar hath procured the Custody when others offered, l. 1. §. 35. ff. depositi, or that he have any Honorary or Sallary therefore, which may be consistent here, or in other Mandats, when [Page] in the meaning of the Parties, it is not an equivalent satisfaction to the benefite received, which ordinarly is not esteemable, as the Sallaries of Medicines for the preservation of Health, or Life, and curing any Member; or of Judges, or Lawers for the doing or procuring of Justice; and therefore, is called a Honorary, and the Contract is esteemed notwithstanding free; or in Depositations, made in case of Naufrage, Fire, Tumult, or falling of Houses, where the positive Law giveth the double in case of denyal of the thing Depositat, in commiseration of these cases for the publick Good, l. 1. ff. depositi; but these cases must be evident, and the only causes of the Contract, l. 1. §. 3. ff. depositi.

Hence it followeth, that Depositars are not lyable for light faults, or the perishing or deterioration of the thing depositat by casuality or accident; yet it may be questioned, if the Depositar delay, and not redeliver, whether in that case he is lyable to make it good. The same question is also in Mandats, and the Law is for the affirmative in this, and all other cases, unless the thing after the delay would have the same way perished, if it had been restored, l. 5. ff. de rebus creditis, l. 12. §. 3. ff. depositi, where the Depositars peril is, per judicium acceptum; the reason whereof, is rendered, because if the thing had been restored, the owner might have sold it, and so though it had perished, he had been no loser, yet this is partly penal, and the Adequat Ground of it must be by the Obligation of Reparation, of the damnage sustained by that Delinquence, in not restoring the thing Depositat to its owner when required; and therefore, it is to be measured according to the true interest, and though possibly the owner might have sold it before it had perished; yet unless there had been a known occasion or offer to have bought, or purchased it, at the time of the remaining of it after delay, equity would not conclude the making up of what had so perished, in this we are not bounded with any positive Law or Custome; and therefore, Equity in it with us may take place, and we are not severe in diligence of Mandatars, as appears from the former Paragraph, neither yet in Custody; and therefore, a person having received Money in keeping, and it being demanded, he did declare that it was sent with his own to Dundee for safety, and that the owner might have it there for sending for; and thereafter, Dundee being taken and plundered, he was liberat, giving his Oath that the Money he got in keeping was lost there, July 19. 1662. Fiddes contra Jack. And a Horse being put in the Park of Halyroodbouse for Grassing, though he was lost; the Keeper was found free, because there was a Placat on the entry of the Park, that the Horse to be put there was upon their Masters peril, though this Horse was delivered to a Servant, who said nothing of the Placat, November 16. 1667. Whitehead of Park contra John Straitoun.

50. In the Civil Law there is a Depositation of special Nature, Institute by the Edict, Nautae caupones stabularij, quod cujusque salvum fore reciperunt nisi restituant in eos judicium dabo, l. 1. ff. eodem.

By this Edict, Positive Law for utilities sake, hath appointed, that the Custody of the Goods of the Passengers in Ships, or Voyagers in Inns, or in Stables, shall be far extended beyond the Nature of Depositation, which obliegeth only for Fraud, or Supine Negligence, them who have expresly Contracted for their own fact: But this Edict, for publick utilities sake extendeth it, First, To the Restitution of the Goods of Passengers, and Voyagers, and Reparation of any loss or injury done by the Mariners, or Servants [Page] of the Inn or Stable, l. 1. §. 8. eodem. Whereas by the Common Law, before that Edict, in this and other such cases there is no such obliegement, much less are persons now oblieged for their hired Servants Fact or Fault, except where they are specially intrusted by them: But because the theft and loss of such Goods is very ordinary in Ships, Inns and Stables before, this Edict was introduced for the security of Travellers, l. 1. §. eodem.

Secondly, The Edict extends this obliegement, even to the damnage sustained by other Passengers or Voyagers of the Ship, Inn or Stable; for the which, the Master of the Ship, Inn-keeper, or Keeper of the Stable, could be no way oblieged, but by vertue of this Edict.

Thirdly, They were made liable for the loss or theft of such things absolutely, from which they were free by no diligence, but were not liable for accident or force.

By Nautae in the Edict, are understood not the Mariners, but the Exercitors or Owners of the Ship, to whom the profit belongs, and so the Master of the Inn or Stable; and by the Statute they are only liable for that, quod salvum fore reciperunt, that which they received in Custody, either by themselves, or such others as they intrusted, to admit Passengers or Voyagers, their Goods and Horses, l. 1. §. 2. eodem, whether the same be Ware, Cloathes, Cloag-bags and other Furnishing for Passengers or Voyagers, or the Furniture of Horses in Stables, l. 1. §. 6. eodem, or whether other things brought in, the more common opinion is, albeit the things brought in were neither known or shown to the Master of the Ship, Inn or Stable, they are liable for restitution l. 1. §. 8. eodem. And if any thing be wanting, the party loser hath, jur amentum in litem, and is not oblieged to show what is in his Clog-bag, Pockets, &c. Gloss. ibid. The Reason of all which is rendered, l. 1. ibidem, because it is in the Master of the Ships option, to receive such persons or not, and consequently, if he doubt of their Trust, in case they alledge any thing wanting, he may refuse them access unless they show what they have, otherways he is presumed to trust their Oath, without which, this Benefite would be useless: They are also not only liable for what is received and entered in the Ship or Inn; but also, if it be expresly received for that end else where, by these having power, and if it be lost before it be entered in the Ship, as on the Shoar, l. 3. ibid. Neither are these persons liberate, by bidding each man look to his own Goods, unless the Passengers consent, l. 7. eodem, but their silence will not import their consent, when they are entered, and in their Passage; yet if it should be so exprest before, or at their entrie, when it is free to them to enter or not, such silence would sufficientlie infer consent. Neither are they free, though the Passenger take the Key of the Chamber or Chest himself, which is but propter majorem securitatem, and not to liberate their obleigment, especially seing they may have other Keys which the Passenger cannot know.

This excellent Edict being but Positive, will be effectual with us only in so far as the common Customes of Nations have owned it, especially in maritime matters, betwixt us and other Nations, or in so far as our own Custome hath received it at home; but the evident expediencie of it cannot but make it acceptable any where, where the least respect is had to the Civil Law; it was found therefore, that the Master of the Ship was lyable for the Goods loaded therein, being burned by the fault of the Mariners, after they came [Page] to the Road, and he desired them to take their Goods ashoar; which some did, yet that was not respected, being very late, and not convenient time for all to disload, as was lately found, Bain contra Peter Nairn. It was likeways lately found, that a Passenger losing his Money out of his Clog-bag, the Inn-keeper, was lyable therefore, and the Fact being proven of his having a Clog-bag at his entry, he had his Oath in litem, for the particulars, contra Stuart in Whitehorn.

A Skipper was found lyable for the damnage of Ware by the spouting of the Pomp, although the Ship was tight at the lousing, and that the owner of the Ware was on Board, and had put the Ware near the Pomp, that it might not be found easily by Capers, seing there was no extraordinary accident by stress of Weather, November 7. 1677. Thomas Loury contra George Angus. The like was found by the damnage of Ware by the Sea Water, though the Ship was repaired in the Port, and the damnage was befallen by a Leck, struck up in that same Road, after the Reparation, seing there was no extraordinary stress of Weather, or other accident that could not be prevented, July 24. 1680. Colline Lawmont contra Hendry Boswel.

Depositation of Writes fall most frequently in question, by which the Depositar is trusted with the keeping of the Writes, and the delivery thereof, according to the terms of Depositation, express, or presumed; the terms presumed are, that the Depositar should give back the Write to the Deponent, if he require it, and if not, to the person in whose favours it bears to be granted, as was found in the case, Ker contra Kers, January 25. 1677. in the case of a Disposition of a Tenement, by a Grand-father to his Oye, meerly gratuitous, given to a third party, without expressing any Terms of Depositation: But if the terms be exprest, they are to be faithfully observed by the Depositar, who is trusted, and which are always probable by his Oath, if they be not in Write, signed by the Deponent; in which case, the Oath of the Depositar cannot be received against the Deponents Write, or even besides the same; and therefore, a Depositars Oath was not found receivable, to prove that the Deponent passed from the Write Depositat, and ordained it to be cancelled, February 24. 1675. Charles Cowan contra James Ramsay. But the Depositars Oath will not prove that the Write was Depositat; but the Oath or Write of the granter, because delivery, is presumed, unless the contrair be proven by the Oath, or Write of him in whose favour the Write is conceived.

Under Custody is contained Sequestration, whether of consent, where any thing Litigious or contraverse is intrusted in the hand of a third party, till the Rights and Poslessions of the pretenders be cleared, or by authority of a Judge, which is a part of Judicial Process, of which hereafter.

53. Consignation is also a kind of Custody, whereby the Consigner Depositats in the Consignatars hands, the sum or thing which is refused by the Creditor, to the Creditors behove, therein the Consignatar is but the Interposed person, either by consent, as it is frequently provided by Clauses of Consignation, or by Law; and the Contract of Custody standeth betwixt the Creditor and the Consignatar, by which he is oblieged to keep, and restore to the Creditor, and thereby the Debitor orderly Consigning is liberat, and is not oblieged to uplift Sums Consigned from the Consignatar, and make them forthcoming to the Creditor, unless the Consignation be simulat, and taken up again by the [Page] Consigner, and where the Law condescends on consignatars, the Consigner is liberate, and not lyable for the Consignatars sufficiency, or faithfulness, as where Consignations are to be legally in the hands of the Clerk of the Bills; yet if the Consignation hath not been orderly, but by the fault of the Consigner, if the publick Consignatar prove Insolvent, the peril is the Consigner.

In Conventional Obligations, where the choyce of the Consignatar is in the Consigner, the Consignation is upon the peril of the Consigner, if the Consignatar was Insolvent, which uses ordinarly to be exprest, but if it were not, it is implyed.

Trust is also a kind of Depositation, whereby the thing intrusted is in the custody of the person intrusted, to the behove of the intruster, and the property of the thing intrusted, be it Land or Moveables, is in the person of the Intrusted, else it is not proper Trust; so if it be transmitted to singular Successors, acquiring bona fide, they are secure, and the Trusty is only lyable personally upon the Trust; but such Trusts being of Importance, albeit Write useth not to be adhibite in them, they are not ordinarly proven but by Write, or Oath of Party; yet Witnesses were used, ex officio, and trust of an Assignation found proven thereby, February 22. 1665. Viscount of Kingstoun contra Collonel Fullertoun. And a Bond being in Trust to an other parties behove, was found proven by presumptions, January 12. 1666. Executors of William Stevinson contra James Crawford.

54. This is singular in the Law of Depositation, that there is no exception of compensation competent against it, l. pen. C. depositi, which Donellus and most Interpreters account to be introduced only by Justinian, and was not so before, nor by the Nature of this Contract, nor by Equity: But the contrary appeareth, because the very intent and Nature of this Contract is, that the thing Depositate must be keeped and restored whensoever demanded, yea, though it had a Term, yet unless there were a Sallery, or some Interest in the Keeper, it may be demanded whensoever, because the Term is in favours of the Deponent, not of the Depositar, whom it bindeth during that time, and so it may be renounced whensoever by the Deponer, cuique licet juri pro se introducto renunciare; and therefore it is the nature of this Contract, that the thing Depositate should be restored upon demand, and his accepting thereof so, is a tacit quiting of any objection in the contrary, but the convincing reason is that compensation is only in things of the same nature and liquid. But in Depositation, the Dominion & Possession of the thing remaineth in the Deponent, though it be numerate Money Consigned, and to medle with it is unwarrantable, and accounted in Law theft, as being contrect atio rei alienae; and therefore, that being a thing cannot be compensed with mutuum, where the property and dominion is in the borrower, and but a personal Obligation to repay, which cannot be compensed with a body or quantity, the property whereof is not alienat. The like therefore holdeth in Money found, or any other way in the detainers hands, without right to the property of it; yet if two Depositars were in question of that same kind of thing, as both of money, the Law allows compensation in that case.

55. The question is also moved here, whether the thing Depositat may be detained for the necessary and profitable expenses wared upon it, though Law and most Interpreters fovour the Negative, upon the same ground that compensation is excluded; but the Affirmative is preferred, because, as the [Page] contrary action is competent for the Melioration, so much more the exception, being a part of the same Contract; and therefore, the Lord Balmerino having, by his own Missive and Back bond, acknowledged that the Estate of Jedburgh was Disponed to him in trust, to the behove of the Earl of Somerseat, all the expense on the Land, or for Somerseat in contemplation of the trust, was found competent against Bedford, who had adjudged Somerseat's Right.

And in all cases in the Law where Action is competent, Exception is also competent, and so with us, if instantly verified. Amongst the Romans, there was an Edict of the Pretors, in deposito, to this effect, that Depositars should be oblieged to restore or make up the single value: But in things Depositat through the present occasion of Tumult, Fire, falling of Houses, or Ship-wrack (in the case of not due Restitution) for the double, l. 1. ff. depositi, wherein there is much utility to secure persons, Depositating of necessity in these deplorable cases, but it hath not been allowed by our Customs as yet.

56. It may be questioned, if any thing be Depositate to more Depositars, whether they are lyable in solidum? So that the Deponent may crave Restitution, or Reparation from every one for the whole value, or for his share only: The Civil Law is clear for the Affirmative, that all are lyable in solidum, l. 1. §. 43. eodem, and upon good reason, because it is fidelity in preserving one Individual thing that is undertaken, which therefore, de natura rei, must obliege every person to the whole, seing he is not oblieged to restore a part of the thing Depositat, but the thing it self; yet if the Depositars be all solvendo, they are free paying their part, the thing depositat being Money, l. 22. si duo haeredes, ff. depositi; but in this case, there were not more depositars, but more Heirs of a Depositar.

And in this Depositars and Con-tutors differ, that the diligence of these, even as to their Con-tutors, being greater then of the other; this being consequent to the nature of Depositation, will no doubt be followed by us. In deposito, in the Law, the Deponent hath beneficium juramenti in litem, or to prove the particulars or quantities wanting and their value, secundum praetium affectionis, because of the exuberance of Trust in this Contract, l. 1, §. 26. ff. depos. but not the Depositar in the contrary action, l. 5. eodem. where the reason is added, because there is no breach of Faith nor Trust, but Damnage and Reparation in question: The Depositar also detaining, being condemned becomes infamous, l. 1. ff. de his qui infamia notantur. Hence it is from this Trust, that if a Chest or other continent sealed be Depositat, action is competent for all that was therein shown or not, l. 1. §. 41. eodem; and therefore in such cases, the Deponents Oath in litem, must be taken, or else this Interest perisheth, which is suitable to our Custome, before mentoned in the case of Inn-keepers, and there is good reason and equity, pro pretio affectionis, but I have not observed it questioned or decided. This being a Contract of greatest Trust, Restitution is to be made, cum omni causa, as Fruits, and Birth, and Annualrent, post moram, l. 2. C. depositi, but Annualrent with us is not due, sine pacto, but may be made good by modification of expense by the Lords.

There is a frequent case of Depositation of Writes before delivery thereof, which therefore suspende their effect, until the Terms of the Depositation appear, which is unquestionable by the Oath of the Party receiver of the Write, both that the Write was not delivered, but depositat, and also upon what terms.

[Page] 57. Pledge either signifies the thing impignorat, or the Contract of impignoration, in the same way as Pignus in the Law is taken, and it is a kind of Mandat, whereby the Debitor for his Creditors security, gives him the pawn, or thing impignorat, to detain or keep it for his own security; or in case of not payment of the Debt, to sell the Pledge and pay himself out of the price, and restore the rest, or the Pledge it self upon payment of the Debt; all which is of the nature of a Mandat, and it hath not only Custody in it, but the power to Dispone in the case of not payment; but if the profite of the Pledge be alloted for the profite of the Debt, which is called [...], it is a mixt Contract, having in it a Mandat, and the exchange of the Usufruct, or use of the Pledge for the use of the Debt.

58. This Contract hath this special in it, that it is not meerly to the behove of the Constituent, as ordinarly Mandats are, but it is to the behove of the Hypothecar, for his security, and so ends not with the death of either party, nor is Revockable as other Mandats but passeth to Heirs and Assignays; and therefore requireth greater diligence then Mandats, viz. such diligence as prudent men use in their Affairs, but obliegeth not for the lightest fault, l. 23. ff. de reg. juris.

This is also singular in Wodsets, or Impignorations, that thereby there is constitute a real Right in the Pledge, which no Deed nor Alienation of the Constituent can alter or infringe, which is not so in Mandats, or things Depositat, neither in Location, whereby there is only a Personal Right, and if the property of the thing be Alienat from the Constituent, the Personal Right hath no effect, as to the thing about which it is Constitute; but there is here a real Right, of which hereafter among other real Rights.

59. We shall not insist in the manner of the sale of Pledges prescribed by the Roman Law, and the Intimations or Denunciations requisite to be made to the Debitor, that being wholly changed by our Customes, for in Wodsets of Lands, the Wodsetter hath a Disposition of the Property, but with a Reservation or Paction, to sell back again to the Debitor, upon payment of the Debt, and so the Wodsetter cannot by vertue of the Impignoration, sell the Lands and pay himself, but all he can do is to affect the Wodset Lands, by legal diligence as an other Creditor; and if any other prevent him in diligence, they acquire the Right of Reversion, and no posterior diligence of his can take it away, or capacitate him to acquire the full property of the Pledge, or to alienate it simply to another. The like is in the Impignoration of Moveables, which cannot be thereby sold, but the Creditor may affect them by his Legal Diligence, by Poynding thereof.

60. In Impignoration either of Heretable or Moveable Rights, the Law rejected, pactum legis commissoriae, which we call a Clause Irritant, whereby it is provided, that if the Debt be not payed at such a time, the Reversion shal be void. Our Custome doth not annull such Clauses; but by Act of Sederunt, November 27. 1592. it is declared, that the Lords would decide in all Clauses Irritant, in Infeftments, Bonds, and Tacks, according to the express words and meaning thereof precisely; yet the Lords allow such Clauses to be purged by performance, before Sentence, declaring the Clause irritant committed.

[Page]In which Process, though it be committed long before, yet by payment at the Barr, it will be purged, even though the Party after the irritancy get Possession, Hope, Clause irritant, John Edgar contra Gordoun of Earlestoun: Yea, though the Wodsetter had obtained a Decreet of Removing, two years after the failzie; against which Reposition was granted, paying all Damnage and Interest, July 8. 1636. Cleghorn contra Ferguson: And albeit the Money was not ready to purge at the Bar, so that the Failzie was declared, yet it was superceeding Extract for a time, that it may be purged in the mean time, February 7. 1628. Pringle contra Ker. But where the Requisition was on nine score days, there was no time granted after the Decreet to purge, July 19. 1625. Nairn contra Naper. This Clause is so odious, that it was elided by the Wodsetters Possession of a part of the Lands, and thereby getting a part of the Annualrent, March 18. 1629. Barcley contra Stevinson. The like by accepting of payment of Annualrent after Failzie, Hope, Clause irritant Nasmith contra Kinloch. The like by payment of Annualrent, or by compensation therewith, ibid. Barns contra Barcley. The reason of the Law and our Custome is, because Impignoration is a permutative Contract, wherein equality is meant and required, and Clauses irritant are redacted to equality, respect is not had to the Terms and Expressions of the Contract, but to the thing truely done; and therefore, though sale of Lands with Reversion be exprest, yet if there be not a competent equivalent price, and that it be not a real and proper sale, but only a Wodset, under that conception, the Clause irritant hath no further effect then is before exprest; but if it be a true sale and competent price, the Clause irritant is not penal, but hath its full effect; but otherwise it is still purgeable till declarator, which therefore is necessar, even though the Clause irritant bear, that the Reversion shall be null without declarator, for the remeeding of the exorbitancy of such Clauses irritant.

61. Impignoration is either express by the explicit consent of parties, or implicit, which is introduced by Law without consent of parties; of such tacite hypothecations, there have been many in the Civil Law, as in the Ware, for the price, in Houses for expenses in Preservation or Melioration, or for Money lent for that use, to a Wife in the Goods of her Husband, for her Tocher: To Pupils and Minors in the Goods of their Tutors and Curators for their Duty and Administration to Pupils in the Goods of their Mother being their Tutrix, or in the Goods of her second Husband, if she did not make an accompt, and procure a new Tutor before her Marriage: to Legators in the Goods of Executors: To the Fisk for their Tribute, or their Contracts: to Cities in the Goods of their Administrators. But our Custome hath taken away express hypothecations of all, or a part of the Debitors Goods without delivery, and in the tacite legal hypothecation, hath only allowed a few, allowing ordinarly parties to be preferred, according to the priority of their legal diligence, that Commerce may be the more sure, and every one may more easily know his condition with whom he contracts; and therefore, Goods sold were not found under any hypothecation for the price, June 14. 1676. Thomas Cushney contra John Crystie.

Yet with us there remains the tacite Hypothecation of the Fruits on the Ground in the first place, and they not satisfying, the Goods on the Ground, belonging to the Possessour, for the terms or the years when the Cropt was on the Ground, but not for prior or past years; and therefore, all Masters of the Ground, or their Assigneys, having right to the Mails and Duties, have interest to recover the rents thereof, from all intromettors with the Fruits, [Page] Rents or profits thereof, though upon a Title, unless their Title be preferable, or at least have the benefite of a Possessory Judgement: This was extended to Intromettors, though they bought the Corns which grew on the Ground, in publick Mercat at Zule, albeit the Heretor had Poynded a part of the Crop, for the Rent of a prior year, unless at the Term of payment, Candlemas, there were sufficient Fruits on the Ground to satisfie the Rent, March 29. 1639. Dam Mary Hay contra Archibald Elliot.

Secondly, It is extended to Intromettors, with the Cropt and Goods of the Ground, though they lawfully Poynded the same from the Tennants for their just Debts, Nic. in quibus causis pignus, &c. Earl of Wintoun contra Barcley, unless they left as much upon the Ground as might satisfie the rent, besides the Houshold Stuff, July 25. 1623. February 3. 1624. Hay contra Keith. The like wherein the present Cropt was not accompted, but left for the subsequent Rent, of which the Terms were not come, June 29. 1624. Polwart contra

Thirdly, It is extended, that thereby the Master of the Ground may summarly stop Poynding, unless sufficient Goods be left to pay the Rent, beside the plenishing of the House, February 3. 1624. Arrocks Bairns contra Keith.

Fourthly, This is extended against the Donatar of the Tennants Escheat, intrometting thereby, who was found lyable, though no Action was moved by the Master of the Ground for seven years, in the said case, Hay contra Keith.

The like is sustained as to the Goods of the Possessours of Houses, invecta & illata, for House-mailes, for all intromettors therewith are lyable, and the Goods may be stopped from Poynding for the Possessours Debt, without Deforcement, being invecta & illata: But this extends only to one year, or two Terms Mail, December 7. 1630. Dick contra Lands.

But the Hypothecation of the Fruits of the Ground is greater, then of the Tennants other Goods; for the Fruits are lyable according to the value thereof for the rents, though there remain other Goods sufficient to pay the Rents on the Ground, seing there remained not sufficient Fruits to pay the same, March ult. 1624. Lady Down and her Spouse contra Laird of Down. This Hypothecation of the Fruits for the Rent, was extended to a Town setting their Customes, even against the Sub-tacksman, not bound to the Town, who were preferred to the Tacksmans Creditors in a double Poynding, January 31. 1665. Anderson and Proven contra the Town of Edinburgh. It was also extended to the seller of Fishing against the Donatar of the Tacks-mans Escheat, who was found lyable to restore, July 4. 1667. Cuming of Alter contra Lumsdean. This Hypothecation was found to give the Master of the Ground Right, not only to detain, but to bring back the Tennants Goods to the Ground, de recenti, December 11. 1672. William Crichtoun contra the Earl of [...], but not ex intervallo, February 9. 1679. Park contra Cockburn of Riselaw: But this Hypothecation was not extended to an Appryzer without diligence or Possession, July 29. 1675. Lord Panmoor contra Collistoun.

The like Hypothecation is competent to Teind-Masters for their Teinds, even though the Heretor get a Rent for the whole, or Profite of the Land, Stock and Teind joyntly, he is thereby lyable as Intromettor, which was extended to Ministers for their Benefices or Stipends, whereby they may have access to any Intrometter with the Teinds, out of which the Stipend is modified, [Page] not only for the Intrometters proportion of his Lands, but in solidum, for his whole Teind, according to the value of his Intromission, July 6. 1625. Mortoun contra Scot, which held, though the Intromettor had a Wodset of Stock and Teind, whereby he had but his Annualrent, March 21. 1633. Mr. Gilbert Key contra Mr. James Gray and Carmichael, and this was found not only in Beneficed Ministers, but in Stipendiaries, who may either take them to the Tennents or their Masters Intrometting, Spots. Kirkmen, Mr. Andrew Ker contra Gilchrist. There is with us no Hypothecation in Lands, for the Price or Money borrowed, expresly to buy it, Nicol. quae in fraudem, Paterson contra Scarlet. And the preference of Relicts for Implement of their Contracts of Marriage, out of their Husbands Moveables, in their hands, to other Creditors, is not a Hypothecation, but a priviledge personal.

63. Permutation, or Excambion and Sale, are so congenerous Contracts; especially in our Customes, that the same work will explain both, by holding out in what they do agree, and in what they differ: Permutation or Exchange, is a Contract whereby one thing is agreed to be given for another, which, if it be Money, as it is current for Goods or Ware (under which all things which can be bought, are comprehended) then its sale, or emption and vendition.

These Contracts agree in this, that both are perfected according to Law and our Custome, by sole consent: Naked pactions being now efficatious, and though neither of the things exchanged be delivered, the agreement is valid, but if there be any latent vitiosity, if it impede the use of the thing bought, the Romans gave action em redhibitoriam, to restore and annual the bargain, or quanti minoris, for making up the buyers Interest; but if the seller was ignorant of the vitiosity, or insufficiency, he is not lyable to make it good, unless he affirm it to be free of that, or in general, of any other faults, but if he knew, he is lyable, if it were not showen to the buyer, or of it self evident or known; in which case, the seller is only oblieged, if he expresly paction, our Custome alloweth making up of latent insufficiency, of which before.

But these Contracts differ, First, in the materials, which in sale must be Money, as such, and as a liquid price, else if it be respected as a body, or indefinite quantity, as uncoyned or uncurrent Money, or if it be bought by the weight, or intrinsick value; or if Money of one Countrey be exchanged with Money of another Countrey, having no common Standard, here is no sale but exchange: Neither is exchange of Money loan, because it is not as a liquid quantity, as when so much English Money is given for the Floren Crown, or Gilder, and the remitting thereof. The price must be also certain, or which may be assertained, as such a person gave, or as shall be had from others by the seller for the like Goods, or as such a person shall appoint, which if exorbitant, may be redacted, ad arbitrium boni viri, which seems to consist, though the arbitriment be made the buyers.

Secondly, Excambion and Sale differ mainly in this, that in sale, delivery of the Goods or things bought, with the Obligation of Warrandice in case of eviction, which is implyed in sale, though not exprest, is the implement of it on the sellers part, even though the buyer know, and make it appear that it were not the sellers, yet he could demand no more but delivery and warrandice; but contrarways, the price must be made the Sellers, and he may refuse it if he can shew anothers Right.

[Page]But in Excambion, delivery must be made on either part, and the thing delivered must become thereby the receivers, else, if it appear to be anothers, it may be refused before delivery, and if it be evicted after, the Contract becomes void, and the other party hath regress to what he gave in Excambion, which followeth even singular Successors, though it be not so expres, and though the singular Successor was by Appryzing, &c. prior to the eviction, November 21. 1623. Earl of Montrose contra Sir John Ker. And that without necessity to instruct, that he who craves regress had right when he changed any further then by the Narrative of the Excambion, which was of an old date, in a Charter from the King, bearing, These Lands to have been Disponed in Excambion, for the Defenders Lands, and that the Excamber and his Heirs should have regress, without mention of Assignays, albeit the Pursuer was Assignay, July 14. 1629. Laird of Wardess contra Laird of Balcomy; where it was also found, that no person needed to be cited to obtain regress, but the present proprietar of the Lands Excambed, and the Successor of the Contracter, and no intervenient Authors, July 2. 1629. inter eosdem.

64. Sale may consist in all things which are not prohibite, such as buying of Pleas, by Members of the Colledge of Justice, by the Act of Parliament, which is understood of all persons, having imployment about the Session, as Advocats, Clerks, Writers, &c. Agents and their Servants; wherein by Pleas, are not understood things wherein there may be contraversie, but wherein there is Process actually depending, and called and not decerned, July 6. 1625. Mowat contra Mcclane. July 30. 1635. Sir Robert Richardson centra Cranstoun Riddel. But the Prohibition doth not annul the Right or hinder Process, but is a Ground whereupon deprivation may follow by the Act, as in the former case, June 5. 1611. Adam Cunninghame Advocat contra Maxwel of Drumcoltrane.

Sale being perfected and the thing delivered, the property thereof becomes the buyers, if it was the sellers, and there is no dependence of it, till the price be payed or secured, as was in the Civil Law, neither Hypothecation of it for the price, Hope de empto. John Parker contra Stevin Law. Nic. quae in fraudem creditorum, Paterson contra Scarlet.

In fale there may be Earnest interposed, or Reversion granted, or the Commissory Paction or Clause irritant, adjected, that if the price be not payed, the sale shall be void, or the same may be conditionally, if the price be payed by such a day, or if any other offer not a better Price in such a time, or with condition not to sell, without consent, of which in order.

65. As to the First, Though giving of Earnest be very ordinary in Bargains of sale and others, yet it is no less dubious, what the Nature and Effect thereof is, some holding it to be, to the effect the Bargain may be evident and certain; for though sale be perfected by sole consent, yet it is not always evident to the parties and the witnesses, whether it be a Communing or a Contract; and therefore, to make it sure to both, Merchants who may not hazard upon dubious Interpretations, do give Earnest as an evidence of the Bargain closed and perfected: But others think, that the effect and intent of Earnest, is that the giver of the Earnest may resile from the Bargain if he please to lose his Earnest, and the taker may resile, if he return the Earnest with as much more. The Civil Law, l. 17. C. de side instrumentorum & instit. de empt. vend. in principio; And many Interpreters seem to favour this construction: [Page] Yet many Texts in Law adduced by Wezenbecius, Faber and others, are for the former opinion, and they do Interpret the contrary places, not to be of sale perfected, but of an antecedent promise or paction, to buy or sell: It hath not oft occurred (so far as I have observed) to be decided with us, which of these opinions is to be followed with us, but the former seems to be preferable, because ordinarly with us, Earnest is so inconsiderable that it cannot be thought to be the meaning of the parties to leave the Bargain Arbitrary, upon the losing or doubling thereof, so was it found, February 24. 1628. contra James Riddel. To this also suits the sense, that Earnest is taken in the Scripture, for Evidence and Assurance, making the matter Fixed and not Arbitrary, which at least evinceth that the Word hath been anciently taken so, whatever hath been the Custome and Constitution of the Romans.

66. Reversion or the Paction of Redemption, though ordinarly it is used in Wodsets, which albeit they be under the form of sale, yet in reality they are not such, there being no equivalent price, yet may it be where there is a true sale, and this paction is no real quality or condition of the sale, however it be conceived, but only a personal obliegement on the buyer, which therefore doth not affect the thing bought, nor a singular Successor, though Reversion of Lands and Heretable Rights, be made as real and effectual against singular Successors, when it is ingrosled in the Bargain, or duely Registrate, yet that is not by the nature of the thing, but by the Statute, and takes no place in other cases, as in Reversion of Moveables, which are sold under Reversion; but if impignorat, the Reversion is a part of the Contract, and is effectual against singular Successors.

As to the other Pactions adjected to sale, sometimes they are so conceived and meaned, that thereby the bargain is truely conditional and pendent, and so is not a perfect Bargain, till the condition be existent: Neither doth the property of the thing sold pass thereby, though Possession follow, till it be performed, as if the Bargain be conditional, only upon payment of the price at such a time, till payment the property passeth not unto the buyer; but there are many other adjections which are exprest under the name of Conditions and Provisions, which are not inherent as essential in the Bargain: But extrinsick personal Obliegements, the existence where of doth not annual the sale, or suspend or annual the property in the buyer, at least in his singular Successors, as hath now been said in Reversions, and is frequent in many other cases.

67. In Sale there uses to be adhibit a Clause irritant, or resolutive Clause, that if such a thing or Condition were, or were not, in that case the Bargain should be null and void, as if it had never been made and granted: whence ariseth a very subtile Debate, whether such Clauses, whatsoever their Tenor be, are effectual, and follow the thing to singular Successors, and do render the Bargain and Property acquired, null in it self? Or whether such be but personal Obligations only? Which though they may annul the Property or Bargain, if it remain in the hands of the Contracter, cannot reach it, if it be in the hands of a third party, is the Question: for clearing whereof, it appeareth,

First, That if such Conditions, or resolutive Clauses do stop the transmission of Property, and be so meaned and exprest, then as is said before, the Bargain is pendent, and the Property not transmitted, even as to singular Successors, and the seller remains the Proprietar: But if by the Contract and [Page] Clause, the buyer become once the Proprietar, and the condition is adjected, that he shall cease to be Proprietar, in such a case, this is but personal, for Property or Dominion passes not by conditions or provisions, but by Tradition, and otherways prescribed in Law; so that these conditions, however exprest, are only the foundation, upon which the Property might pass from the buyer, if the thing bought remain his, unless by Law or Statute it be otherways ordered, as in Reversions of Lands, Alienation of Fewdal Rights, which become void, and return if alienat, and not payment of the Few Duty, whereby the Few Right becomes void, but all by Law and Custome, and not by privat Paction.

68. Secondly, The doubt remains, if such personal Conditions with such Clauses resolutive be in the body of the Bargain, whether it be effectual against singular Successors, who cannot but know their Authors Rights, and therefore are in dolo & mala fide, if they acquire such Rights in prejudice of the conditions thereof, and so ex dolo, at least such Clauses will be effectual against the singular Successors; But first, this hath no force where the acquiry is not voluntar, but necessar for satisfaction of Debt by Appryzing, and other Legal Diligence, in which ordinarly the acquirer doth not, neither is supposed to know his Authors Right.

Secondly, If the Bargain be so necessar, that the Purchaser be a Creditor, and hath no other probable way of payment, in which, though he see his Authors Right bearing such Clauses, yet he acteth upon necessity, for his own satisfaction.

Thirdly, These who acquire such Rights without necessity, and see therein such conditions in themselves personal, though having resolutive Clauses, do not thereby know that the third party hath the Right, jus in re, but only jus ad rem; and therefore, if they acquire such Rights, the property is thereby transmitted: and though there may be Fraud in the acquirer, which raiseth an Obligation of Reparation to the party damnified by that Delinquence; yet that is but personal, and another party acquiring, bona fide, or necessarly, and not partaking of that Fraud, is in tuto: but certain knowledge, by intimation, citation, or the like, and inducing malam fidem, whereby any prior Disposition, or Assignation made to another party, is certainly known, or at least interruption made in acquiring, bona fide, by Arrestment or Citation of the acquirer: Such Rights acquired, not being of necessity to satisfy prior Ingagements, are Reduceable, ex capite fraudis, and the acquirer is partaker of the Fraud of his Author, who thereby becomes a granter of double Rights, but this will not hinder Legal Diligences to proceed and be compleated, and become effectual, though the user thereof did certainly know any Inhoat, or incompleat Right of another; but it is more doubtful, and not yet clear by Custome, whether a voluntar Right taken for satisfaction of a prior Debt by him, who certainly knew of a prior Disposition or Assignation, though not perfected, would be reduced as Fraudulent.

The relating of a Right unto another Right, without any invalidity thereof exprest, was found to infer an acknowledgement of it, February 15. 1637. Lawder contra Goodwise of Whitekirk. Of late the like conditions have become very ordinary, that thereby property may become inalienable, and as a perpetual Usufruct; yet it seems such are neither expedient for Commerce, or for the necessity of the Proprietar, nor consistent with the nature of Property, whose main effect is Alienation, or disposal of the Substance of the thing, as Usufruct [Page] is of the Fruits; and therefore, it were safest upon such Clauses to use Inhibition, yet they may be effectual against Lucrative Alienations or Donations, in respect that by these Clauses, at least the parties are personal Creditors, and so Alienations gratuitous in their prejudice, may be anulled by the Statute, 1621. c. 28.

But of late, it hath been found, that the Clause irritant being in a Tailzie, and in the Seasine of both the first Heir, and of the last, that it did annul the Creditors Rights and Appryzings, and the next who might have been Heir of Tailzie, had access to the Land without that Heir who incurred the clause irritant his Debt, February 26. 1662. Lord [...] contra Creditors of the Earl of Annandale.

69. Sale being compleat, the Question is, if the thing should perish by accident before delivery, and not after delay, and without the fault of theseller, whether the hazard be the sellers or the buyers, by the Civil Law, the buyerhath the peril, l. 34. §. 6. ff. de contrahenda emptione. l. 14. ff. de furtis. l. 1. Cod. de periculo & commodo, the peril is not the sellers, unless expresly he take the hazard, or that the buyer buy, per aversionem, l. 62. §. 2. l. 2. §. de contra abenda emptione, all which putteth both the peril and profites of the thing upon the buyer, ejus est periculum, cujus est commodum; and it is far more clear, that the Accessions, Fruits and Profites of things bought, are the buyers, even before delivery; and by the same ground, must the peril be his also: But on the other part, that the loss is the sellers, is the opinion of others, because the seller after the sale is debitor for the delivery, and it is a general Rule, that the Debitor is never oblieged for the hazard of accidents, when he is debitor for a certain body; but all agree, that if the sale were of a Fungible, as Wine, Oyl, or Grain, not considered as a particular body, as the Wine in such a Seller, or the Grain in such a House, but generally so much Grain or Wine as a meer Fungible, in that case the peril would be the sellers, because the perishing of any one particular could not be the buyers; but beside Authority, the main reason on the contrair is, that every thing perisheth to its owner; and before Tradition, the seller is Proprietar of the thing sold. I have not observed it debated or decided with us, if the thing sold should thereafter perish, that yet the price is due; and if by common custome, the seller had not forborn in that case, doubtless the buyer would not have payed willingly, which therefore seems to be our Custome, seing none have obtained the price, who did not deliver, or offer the thing sold, which is also the opinion of Cujac. ad l. 33. ff. Locati, yet the peril of a Housesold, and thereafter burnt, found to be the buyers, though the Disposition bore an obliegement to put the buyer in Possession, but the buyer did voluntarly take Possession, and re-builded the House, and was Infeft before the Burning, December 13. 1667. Hunter contra Wilsons. In sale, absolute warrandice is implyed, which is not to be extended to moderate servitudes, as was Aquaeducts and City servitudes, l. 66. ff. de contrahenda emptione.

70. Location and Conduction is a Contract whereby hyre is given for the fruits, use, or work of persons or things; this Contract keepeth a great proportion with sale, for as no Sale can be without a Price, so no Location without a Hire, and as the price must be certain, either being expresly named, or indirectly, being the price that such another gave for the like, or that such a person should think reasonable, both which become certain, if the price given by that other party appear, or if that third person modifie the price otherways, the sale is void and pendent, and unperfect, till that be performed: So in Location the hire must be the same way assertained; for if the pryce be but made, ex post facto, it is no proper Location, as he who gives his Cloath to be dyed, and [Page] promiseth to agree for the Cloath, as the dye shall be in fineness, this is no Location, but an innominat Contract.

But it is contraverted, whether Sale and Location do also agree in this, that as the price must be in current Money, so also the hire. It was of much moment in the Roman Law, because Location was a nominat Contract, perfected by sole consent, but other Contracts innominate were but naked pactions, till the thing agreed upon was interposed; and therefore it is there accuratly debated, some holding that Money only can make the hire in a proper Location, and some that any other Liquid quantity or fungible is sufficient, as Oyl, Grain, &c. But with us, all agreements being effectual by sole consent, we need not much debate; and therefore, seeing all the effects and conditions competent, where the hire is Money, are also competent where it is any other Fungible, we agree with that opinion, that such are proper Locations.

Sale and Location differ mainly in this, that the intent and effect of Sale, is to alienate the Substance of the thing bought, and state the property thereof in the buyer; but in Location, the ordinar intent thereof is, that the Substance and property of the thing is not alienat, but remains in the setter, and the taker hath only the fruits and work thereof, which must not be already done, and extant, but that which is to be done, & in spe: as for instance, a Bargain for the Fruits of a Field, which are already growing, is no Location, but Sale, and so of use or work, already performed; and therefore, in the nature of this Contract, there is a hazard and uncertainty in the conductor of the quantity, or value of the Fruits, use or Work, the peril and profites whereof is the Conductors.

71. But here ariseth the Question, that in the case of the sterility of the Ground set, or the absolute ceasing of the Use, Fruit or Work, whether the hire be due in that case? The determination thereof will clear the exception of the former Rule, concerning the peril and quantity of the Use, Fruit and Work locat; and therefore, First, Where the Use, Fruit and Work doth altogether cease, without the fault of the Conductor, there the hire must also cease, because the one is given as the cause of the other, and the peril undertaken, is not of the being, but of the quantity and value thereof; for instance, if Land taken be inundat or sanded, and so have no Fruit, it is the common opinion of all, that the hire or cane ceaseth to be due for that time: Or if a Horse sett, or a Servant hired die, the hire or see is but due according to the time of their life; but if they be sick or unprofitable for a time, yet with hope of recovery and profite, in that case there is no abatement.

Secondly, Though the opinion of the Learned be very diverse, in the matter of the barrenness of the Ground, some accompting it, if the half of the ordinar Increase fail, some if the third, and some leaving it to the common estimate of the place, what is called barrenness or the arbitriment of the Judge; yet I think it more rational to determine that case with the rest, upon the former ground, that if there be any profite of the Fruit above the expenses, or work, the rent or hire should be due.

72. The like is in vastation by publick Calamity, which hath been frequently decided upon occasion of the late Vastations, but this will not extend to private accidents besalling the Cropt after the growing or reaping, even though by accident it should be destroyed or burnt without the Takers fault, the [Page] hazard is his own, because it is not then respected as the Fruit, but as a Body in being, whereof he hath the property and peril: But in publick Calamities by War, not only the Cropt is taken away, but the Tennants aredisinabled, and hindered to Labour, and therefore must have abatement, this will take no place, if the abundance of another year compense the sterility of the former, l. 8. Cod. Locati.

73. Seing the intent and effect of the Location, is not to alienate the property of the thing Locat, it followeth, that this Contract is meerly personal, and thereby there is no real Right in the thing, whose Use, Fruits, or Work are Locat; so that if the property of these things be alienate from the Locator, the interest of the Conductor ceaseth, and a singular Successor may recover it from the Conductor, notwithstanding the Location, which reacheth it only by the personal Contract, as it did belong to the Setter, and so it would be in our Tacks or Rentals, by their own nature, but it is otherways provided by a special Statute, of which hereafter. We shall speak nothing here of Feu-Farms, which though they are Locations, yet by the Law they become real, leaving these to their own place.

74. What shal be said of that Contract, whereby Money or any Fungible is lent for the like in kind again, with such a hire for the use thereof? These are called Usurary contracts, and they cannot be comprehended under Loan, because they are not Gratuitous, or under Location, because the property and substance is alienat, Usurary Contracts come nearest to Location; but to repress the exorbitance of Usurers, the Civil Law rejected Usurary Contracts, and admitteth only of the profite of fungibles. In some cases, the Judicial Law also rejecteth them, and prohibiteth Usury to be used among the Jews, though they might use it with other Nations. So doth the Canon Law disapprove it, and most Nations, where that Law is in vigor; yet we, and generally other Protestant Nations do allow of the profite and hire of Money, or other Fungibles, being within the proportion allowed in Law, which sometimes was ten for each hundred in the year, thereafter eighth, and now six; and therefore Usurary-contracts are only, wherein there is unlawful or exorbitant profites beyond the Law. So did the Civil Law allow, usuras centesimas, viz. one of an hundred Monethly; and their Usuras besses, semisses and Dodrantes. In the several cases allowed in Law, we have only one measure for all; the nauticum foenus, is where so much is given, not only for the profite of the Money, but for the hazard and peril of the Ware bought thereby, or of other Fungibles, by Sea, and so it is a mixed Contract; and in both cases Profite and Annualrent is lawful, as having no moral countermand, and so being free, is not only subject to our pactions and promises, which we are morally oblieged to observe; but hath also in it permutative Justice, in that Money, Wine, Oyl, Grain or the like, have a real use profitable to men by the exchange thereof, and increase that may accrew thereby, and for which proportionable hire may be lawfully and profitably constitute: These Usurary-contracts therefore are to be reduced, not to Loan, but to Location, though by accident they have that difference from the rest, that the property is alienate, because there can be no use of Money or Fungibles otherways.

The penalty of exorbitant Usury with us was, that the Debitor for such Usury, revealing the same, should be freed of the Contract, and if he did not, any other revealing it should have right to the sum given out upon Usury and Profit thereof, Par. 1594. cap. 221. But afterwards, all taking of more [Page] Annualrent then ten per centum, directly or indirectly, by taking of Victual within the ordinary prices, or buying Victuals for the Annualrent with exorbitant prices in case of not delivery, or by improper Wodsetts, having greater backtack Duties then effeiring to ten per centum, or otherwayes, do confiscate their Moveables and the Sums so given out; which the party cannot renounce, but the Advocat hath interest to pursue therefore, without the parties concurrence; and if he concur, he shall have restitution of what more Annual he payed norten per centum, Parl. 1597. cap. 247. But the Annual was retrenched to eight per centum, Parl. 1633. cap. 21. and to six per centum, Parl. 1649. cap. revived, Parl. 1661. cap. 49. But whether proper Wodsetts without backtack, though the Rent be much more then the ordinary Annualrent, be an usurary Contract, and falls under the general Clause of the said Act, though it hath sometimes been essayed, yet hath not been decided. The main reason that the parties found on is, on the one part, that there is indirectly more then the ordinary Annualrent, and so falls under the Act, 1597. and on the other, that improper Wodsetts are there exprest, and proper Wodsetts seem ex proposito omitted, and in proper Wodsetts all hazard lyes upon the Wodsetter. Of setting the Land of dead, poor and waste, we shall leave this to every mans private judgement, till publick judgement cast the ballance; but all proper Wodsetts before 1661. are restricted to the Annualrent by the Act of Parliament, 1661. cap. 62. If upon offer of security, the Wodsetter will not quite possession, he is countable from the offer, as hath been often decided since that Act.

There uses also, in Wodsetts and Reversions, to be included, a condition to set the Wodsett Lands for such time, to begin after redemption, which if it be far within the true worth, is Usurary, and is declared so, Parl. 1449. cap. 19. That Lands provided to be set for Tacks not near the true worth, the same shall not be keeped: yet such a Tack was sustained, seing the Wodsetter had not his full Annualrent, by reason of a Liferent reserved in the Wodsett, and the Wodsetter was the Constituents Brother, and so like to be for his Portion natural, whereof the Tack was a part, June 21. 1662. Laird of Polwart contra Home; but in other cases, such a Tack was found null by the said Act, but not by the Act betwixt Debitor and Creditor, February 15. 1666. my Lord Ley contra Porteous.

75. This much for Usury of Annualrent by Contract or Pactions, it is also due of the Law, and by the obligation of recompense and reparation; and in the Civil Law, in all Contracts bonae fidei, it is due ex mora, by the delay of the Debitor, which is understood after he be required for the same, or that the Term is past, nam dies interpellat pro homine, and in other Contracts by litiscontestation: but our custom hath little use of that distinction, neither followeth it that rule; but where Annualrent is not agreed, first, ordinarly it is not due till Horning be used against the Debitor, and that by a special Statute, 1621. cap. 20. Yea, though the Horning was not registrat, and so null as to Escheat, it was found valid as to the Annualrent, July 16. 1673. Isabel Ker contra Parochioners of Moramside; but it was found not competent by way of special Charge in the Suspension of the principal Debt, but ordinarly by ordinary action, July 2. 1629. Purveyance contra Laird of Craigie, where Dury his opinion is, That if the Charger had raised Horning upon the Act of Parliament, it would have been sustained summarly, and is now ordinarly sustained summarly by a special Charge, when the sum is charged for or suspended; but it being once due, it not only continueth during the life of [Page] the person denounced, but still thereafter till payment, July 4. 1642. Huntley contra Heirs of Mr. John Manson. 2. Annualrent provided by a Bond for one year, though it express not for all years thereafter, yet continueth due till payment, Decemb. 2. 1628. Blair contra Ramsay. The like where one Term was only in the Bond, Spots. usury, Keith contra Bruce; and where Annualrent was promised for a time by a Letter, it was found still due till payment, January 13. 1669. George Home contra Seaton of Menzies. 3. It is due by use of payment only without express paction, March 4. 1628. Forrester contra Clerk. 4. Annualrent is ordained to be due to Cautioners by their Principals, for sums payed by them as Cautioners by the Clause of relief, as being damange and interest, though the Bond bear no Annualrent, by Statute of Session, Decemb. 21. 1620. Hope usury, Torry contra Dowhill; Dec. 4. 1629. [...] contra Johnstoun, where the Clause of relief bare only to relieve the Cautioners of his Caution, and not of all damage. The like though there was no further distress against the Cautioner, but registration, January 24. 1627. I. Wauchton contra L. of Innerweek; and this was extended to co-principals, having Clause of mutual relief of cost, skaith, &c. Novemb. 15. 1627. Black of Largo contra William Dick. 5. Annualrent is due without paction by Tutors and Curators to their Pupils, of which formerly, in the Obligations betwixt them. 6. Annualrent was found due without paction, by an Heirmale for the Portion of the Heirfemale, though not required for many years, and that still from the term of payment, July 5. 1610. Calhound contra L. of Luss. The like by a husband, who was oblieged to his wife for the Annualrent of the Tocher payable by the Father, though the Tocher was never payed, Hope Husband and Wife, Baird contra Gordoun, Spots. Usury, Mr. John Skeen contra Mr. John Hart. 7. Annualrent was found due for the price of Lands possest by the buyer, without paction, Hope Usury, Mr. James Stirling contra Mr. David Ogilvy; February 17. 1624. Dury of that ilk, contra Lord Ramsay; the like though the delay of payment was not the Debitors sault, November 14. 1628. Cuming contra Cuming; Spots. Usury, Home contra Laird Rentoun. Annualrent was not found due without paction, for a sum lent to an old man, on condition, that if he died without Heirs, the Creditor should become the Debitors Heir, and yet he having Heirs, Annualrent was not found due, Decemb. 11. 1662. George Logie contra Logie. But the Lords do sometimes allow Annualrent, or an equivalent expense among Merchants; and they did so in a Provision by a Father to his natural Daughter payable at her Marriage, which was found so favourable not to hasten her to marry, that Annualrent was allowed her, seing the condition was in her power, June 25. 1664. Margaret Inglis contra Thomas Inglis. The Romans allowed Annual till it equalled the Principal, but no further; but our custom hath no such restriction. Yet, we restrict the English double Bonds to the single Sums and Annualrent thereof, but no further then till it be equivalent to the Principal, seing by the tenor of such Bonds, it appears the meaning of the Parties, that no more should be demanded in any case, January 2. 1679. Sir Alexander Frazer and Leyes Burnet, contra Sir James Hamiltoun.

Annual upon Annual is condemned of all, when it is comprehended in the first paction; but it is ordinar, by posterior Contracts, to accumulate Annualrents and make it a Principal, and so both that which was first Principal, and that which was once Annual, bears Annual: so also Annual, by vertue of the Act of Parliament, if Decreet follow thereupon and Horning, will bear Annual, seing there is no limitation; but this will not be extended to Annuals in time coming after the Horning: and last, Annualrent payed by a Cautioner, [Page] by the said Statute of Session, will bear Annual, because to him it is a Principals. Annualrent was also found due without paction, for money expended by the Custom of Bourdeaux, Decemb. 8. 1677. Antonieta Peron contra Morison.

To return to Location, all things may fall under the same, that can have any use, fruit or work, but real servitudes cannot be set severally, but only as accessories to the thing which they serve. Works which can be locat, 1. must be lawful. 2. They must be performable in that which belongeth to the conductor, or in reference to his person; for work employed upon the workers own matter, it is no Location; as if a Goldsmith be employed to work such a piece of work in his own Mettal, and the same to be bought as it is so wrought, it is Sale and no Location, unless there be two distinct Bargains, one for the Mettal, which is Sale; and the other for the Workmanship, which is Location; So he that bargains for the benefit of what fish he shall take for such a time in his own water, contracteth Sale, and not Location; and if the work be to be employed on that which concerns a third party, it is not Location, but a Mandar.

76. From this Contract, the Conductors Obligation is to pay the hire, and after the end of Location, to restore the thing locat, making up all damages, in which the Conductor is lyable even for light faults, and must use such diligence as prudent men use in their Affairs, but is not lyable for casual or accidental perishing of the thing locat. Some hold him lyable for the most exact diligence and lightest fault; but others, with better reason, are for the contrary, it being the common rule in diligence, that which is only to the behove of the keeper, he should use most exact diligence, and is lyable for the lightest fault, as it is in Loan, and these who have the custody only for another, are lyable but for the grossest fault, which is equivalent to fraud, and for such diligence as is commonly accustomed by every man; but these who have the custody for themselves, and partly for others, are in the middle way oblieged for such diligence as themselves or prudent men use in their Affairs.

77. The Obligation on the part of the Locator, is to deliver the thing locat, and to continue it during the time of the location, and to refound to the Conductor his necessary expense employed upon the thing hired, unless the custom of the place be otherwayes; and so the reparation and upholding of houses set in prediis Urbanis lyeth upon the setter, if it be not otherwayes agreed; but in Lands, or prediis Rusticis, the Tennent is oblieged to keep the Land and Houses in as good condition as he got them, and may not destroy Mosses, nor rive out Meadows, and is lyable for the damage, though there be no such provision in his Tack, February 6. 1633. Laird of Haddo contra Johnstoun; but he hath no reparation for any building or policy which he maketh, which is accounted as being frely due without expectation of recompence, if it be not otherwayes agreed, or that the Rent be raised thereby.

78. Society is not so much a permutative, as a commutative Contract, whereby the Contracters communicat each to other some Stock, Work, or Profit. The effect of Society is, that thereby something which before was proper, becometh, or is continued to be common to the co-partners, and it is either a Stock, or the profit of a Stock, or Work, Labour or Industry: Yet, this communication is not effectual to transfer the Property in part, or to communicat it without delivery or possession, by which, Property by positive Law [Page] is conveyed. There is ofttimes a communion without Society, because it is of accident, as Legators, Heirs or Acquirers of the same thing, pro indiviso, but if there be interposed a Contract thereupon, to continue that Communion for the common profite of the Contracters, it becometh a proper Society.

79. The matter of Society are things, fruits, work or industry, and that variously; for sometimes the thing or stock is only put by one, and the work and industry about it by another, as where a stock is given in partnership to a Merchant to Trade with, here it may be that the Merchants skill and pains is ballanced with the profite of the stock of the other, who doth not, nor cannot make that use of it. Or Land is set to Husband-men to be Laboured, and the Increase to be common. Sometimes each partner bringeth a stock to the Society, and their work or pains withal, and sometime only work, and the profite thereby is made common; and sometimes the one communicateth the stock it self, whereby the property thereof becometh common to himself and other partners, and the profite accrewing thereby, and the other bringeth in a stock, but doth not communicate it self, but the profite thereof; in all the interest and shares, may either be equal or unequal, but without work and industry by the partners or others, there can be no Society, because there can be no profite or hazard, of profite or loss.

80. The nature of this Contract is, to have in it equality of profite and loss, proportionable to the value and worth of the stock and work, which is unalterable and undispensible by the nature of this Contract; and scarcely can any paction or indirect course, be effectual in the contrair, because thereby the Contract would become Usurary and void; which equality, as to the work and industry is illiquid, and the value thereof is esteemed according to the common estimate; but where there is a special value set upon it, by the private consent of parties, which (as was said before of the private rate of parties) without Fraud it is sufficient; so sometimes the value of the work is estimate equal to the stock or industry of the other partner, and sometime the half, third, or other proportion of it: But where the matter is clear, or where the Society consists of a Stock in Money, the profite must necessarly be proportionable thereto, and the hazard or loss accordingly; but if it be agreed, that where the Stocks are equal, the one should have one third, and the other two thirds of the profite or loss, or that one should bear the hazard of the Stock of both, and the profite should be equal, or any other inequality, it is clearly Usurary, unequal and unjust, neither doth it subsist as a Donation, unless so specially exprest and really meaned; for oftimes to make inconsistent Contracts subsist, it is agreed, that the inequality, if any be, shall be a Donation; but that is a meer colour, and doth work no effect, seing the intent of the Contract is truely to communicate like for like, and not to gift, and that addition is but simulate or fraudulent: Hence Society may be described a Contract, for communicating the profite or loss of that which is brought unto the Society, proportionably according to the share and interest of each partner. It is true that if there appear no inequality in the Stock and industry of the partners, when no proportion is exprest, equal share of profite and loss is understood; or if the skill or industry of some of the partners be of great importance, the Society may consist in these terms, that these persons shall have no share of the loss, and shall have such a share of the profite according to the Sentence of Sulpitius, but if such inequality appear not, the Sentence of Mucius, rejecting such inequality is just, and there is no contrariety between the opinions of both, §. 2 instit. de societate.

[Page]81. It remains to consider, what are the effects of Society while it is, and how it ceaseth: As to the first, the disposal and management of all the affairs of Societies is in the whole partners, and each of them (though having an unequal share) hath an equal vote, unless it be otherways agreed, and the common rule is, potior est conditio prohibentis, so that every one hath a Negative Vote, in Acts that are not necessary for the design of the Society, unless by the custom, or paction, or deed of the parties, it be otherways ordered; as where its the custom of the place, that in such Societies, there should be a plurality, or when it is agreed that the minor part should give place to, and is comprehended in the Acts of the major part, or when the Society hath been accustomed to act in such a way, not only the greater part, but even one or more of the partners may continue that way, which is still held to be the mind of the whole, unless the contrary be exprest; and therefore it was found, where one of more partners in a Ship had fraughted her to a dangerous Voyage, without the others consent, yet was not found lyable for her value, being lost by accident, where no just objection could be made against the Skippers skill, July 22. 1673. John Sim contra William Abernethy. So letting out of Lands, or setting out of Houses, employing of Moneys in a Society, may be continued by one or more of the partners, and their actings with extraneous persons, in name of the Society, do constitute the whole Society Debitor or Creditor, or doth acquire to them, or dispone from them. It is also consistent with the nature of this Contract, to give a Negative Vote to one or more of the Society, whose interest in the Stock, or whose skill and industry is esteemed the greatest; but the simple nature of Society it self is, the most tender ingadgement, and so if it be not otherways provided, it is always dissolveable at the option, and the choise of any of the Society, and it implys that the management is in the whole partners equally, and that every one hath a Negative Vote; and therefore, when it is Contracted to a time, that it may not be parted from, in that case, the interest and end of the Society is changed, and if the minor part will not cede to the Major part, or to Arbitriment, it must be decided by the Judge ordinar, which of the parts is most conduceable to the Society, but this being so great a retardment upon the management of the affairs of the Society, it looseth the fraternity among the partners, and is sure to lose the pleasure and readily the profite of all: Therefore the Romans did upon good grounds annul and disown all pactions, whereby Society did continue beyond the life and pleasure of any of the partners, except in few cases.

82. Society is finished; First, When the matter whereupon it is Contracted is extinct.

Secondly, By the death or incapacity to act in the Society of any of the partners; for it being one individual Contract of the whole, and not as many Contracts as partners, it is like a sheaf of Arrows bound together with one tye, out of which, if one be pulled, the rest will fall out, and the personal humor of the partners is so chosen, that it is not supposed to be communicate to their Heirs or Assigneys, unless by custom or paction the contrair be provided, which, no doubt is consistent with, though not consequent from the naure of Society.

Thirdly, It is most consonant to the nature of Society to be dissolved at the option and pleasure of any of the partners, it being very contrair thereto, and much impeding of the ends of it, that any should be continued a partner [Page] against his own will; and therefore ordinarly, not only the express renunciation of the Society, but any Contracting or Acting separatly in the matter of the Society dissolveth it, yet propter bonam fidem, whatsoever is done with, or by the Society, before the dissolution thereof be known, is valide; but this dissolution at pleasure may be altered by custom, or consent of parties: And to sum up all, in Society proportionable equality is essential and inseparable, and all the other specialities are congruous and convenient, and therefore understood, if by custom or consent it be not otherways ordered.

83. The same question is incident here, that before hath been touched concerning Mandats, when one or more of the parties act in the matter of the Society, whether thereby the whole Society be oblieged by the obligations of these? Whether obligations made to these, constitute the Society Creditor? Or whether real Rights acquired by these, are ipso facto, common to the Society? Or if there be but an obligation upon the actors, to communicate, the property always remaining in the actors, till they effectually communicate, the resolution of this being the same with that in Mandats, we refer it thither, and say only this in general, that when these parties only act in name of the Society, and by its warrand express, or what they have been accustomed to do, in so far they are not only partners, but Mandatars, and it hath the same effect, as if the Society had acted it self; but when they act not so, there doth only arise an obliegement upon the partners actors to communicate, in the mean time the property remaineth in them: And if transmitted to others before this communication, the Society will be thereby excluded, but the actors will remain oblieged for Reparation of the Damnage and Interest of the Society; and this will hold, though things be bought or acquired by the common Money of the Society: But all the natural interest, birth, fruit and profite of the Society, is of it self and instantly common to the Society.

84. Partners are lyable each to other, for such diligence as men do ordinarly use, or the Partners themselves use in their own affairs; for this Contract being undergone for the mutual good of either party, the diligence keepeth the middle way betwixt exact diligence and supine negligence, but none of them are lyable for what is lost by force or accident, without their fault.

Society hath as many divisions, as hath the various and multiform matter in which it may be contracted; but that which is most noticed in Law is, that some Societies are common and general, whereby parties communicate all their goods, rights and interests, communicable; others are particular of one or more of them; upon the first there are many questions arising, as how far the partners may gift, or educat and provide their Children, so that the rest are oblieged, or understood to concur: But such Societies being altogether unaccustomed here, it shall be vain to debate the properties of them.

85. These be the several kinds of Pactions and Contracts; there be other distinctions of them, not from their nature, but from their adjuncts or circumstancee, of which this is the chief, that Contracts may be celebrate, either immediatly or mediatly by the interposition of other persons, as Mandatars, or Commissioners; concerning which it hath been showen before, that as there is a Contract betwixt the Mandant and Mandatar, so ofttimes there is a Contract ingaged betwixt the Mandant and a third party, who hath acted with the Mandatar according to his warrand; in which case ordinarly there is no Contract [Page] or Obliegement betwixt the Mandatar and the third party; as he who buyes Land in name, and to the use of another by his warrand, the Lands are acquired to him who gave the warrand, and he is oblieged to pay the price to the seller, but not his Mandatar, so the seller is oblieged to deliver and warrand to him, and not to the Mandatar.

To all manner of Promises and Contracts, Caution and Oaths may be accessory; with which therefore, it shall not be improper to sum up this Title. Caution or Surety is the Promise or Contracts of any, not for himself, but for another; and therefore, this being a gratuitous ingagement, having no equivalent cause onerous, as to the Cautioner, it required a stipulation among the Romans to make it effectual, though it was sometime by Mandats or Constitution; but now every promise and paction, according to the Law of Nature, being effectual, it is valid without Stipulation.

86. Caution is interposed any way, by which the consent is truely given, and it may be either by Mandat or Commission, when the Mandator giveth order or warrand to Contract with any other party, to that parties behove; for then that party is the principal Debitor, and the Mandator is Cautioner, or it may be by taking on the Debt of another freely. This Cautioner in the Law is called Expromissor, but is more improperly a Cautioner, seing himself is principal, having but an obligation of relief as Mandatar, or Negotiator: But the most proper and ordinary Cautioner, is he who is oblieged with, and for the Principal Debitor, and is called, ad promissor, or fide jussor, because upon his Faith or Trust the Creditor contracteth. These Cautionary Promises or Contracts are of the same kind or nature with these, of which we have now spoken, yet have they something peculiar, which we shall shortly touch, which resolve in these Questions; First, Whether Cautioners are lyable and conveenable simply, or in so far as the principal Debitor is not solvendo, or after discussing of him. Secondly, Whether Cautioners are lyable, in solidum, or pro rata.

87. As to the first, the nature and intent of Surety is, that the Creditor may be secure of his Debt; and therefore Cautioners are not ordinarly decerned till the Creditor assign the Debt, and all security they have for it from the Principal, if they have not a distinct interest to retain the security, January 10. 1665. Lesly contra Gilbert Hay. July 10. 1666. Dam Margaret Hay contra Crawford of Kerse.

88. Cautioners cannot be pursued till the principal Debitor be discust, unless it be otherways Contracted or provided by the Custom or Law of the place: It was cotrary by the ancient Roman Law, l. jure nov. C. de fidei juss. which was corrected by the Authentick Constitution, Coll. 1. Tit. 4. With us Cautioners are frequently bound for, and with the Principal, as full Debitors, conjunctly and severally, and thereby, ex pacto, the Question ceaseth: But otherways the Cautioner is understood to be oblieged for the Principal Debitors performance, and so is lyable only subsidiarie after the Principal is discust, and specially where the performance is a Trust or Deed, proper to the Principal Creditor; thus Cautioners for Executors are only lyable after the Executors are discust, at least by Horning execute, June 27. 1610. John Sorogy contra Constable of Dundee.

[Page]The like, though the Executor was alledged to be Bankrupt, July 24. 1662. Birsbane contra Monteith. But a Cautioner for an Executor was discerned with him, superceding execution against the Cautioner, till the Executor were first discust, December 2. 1662. Dowglas contra Lady Ormistoun. And Executors were not holden discust by Horning, till Poynding were essayed, and search made for his Moveables, though none was condescended on, February 12. 1623. Arnot contra Patrick Abernethy. The like, that search behoved to be made, both for Moveables and Lands, and they Appryzed, if any were; and that Horning and Caption sufficed not, Hope Executors, Robert Stuart contra Thomas Fisher. But there is no necessity in that discussing to call the Cautioners, December 5. 1623. Ruchead contra Manderson. So the Diligence for discussing must be according to the Estate of the Principal Debitor; if he have Moveables, these must be Poynded; if Lands, these must be Appryzed; if Debts, they must be Arrested and made forthcoming.

89. Cautioners for Curators are not lyable till they be discust; yet they were decerned for constituting the Debt, with this quality, that before execution against the Cautioners, the Curators should be discust in his Person, Goods and Lands, November 20. 1627. Jean Rollock contra Corsbie.

90. Cautioners for the Factors in Camphire to the Burrows, found not [...] till the Factors were discust, July 8. 1626. Smith contra But Cautioners for these Factors were not found lyable for the Goods sent to a Factor, after he was known to the pursuer to be Bankrupt, March 4. 1630. Richee contra Paterson. Cautioners in suspensions are only lyable after discuscussing the suspenders, and because by the Tenor of their Act or Bond, they are bound to pay what shall be decerned against the suspender, if the Decreet suspended be turned into a Lybel, they are free; or if the reason of suspension was relevant and instructed, though it were elided by an answer emergent after the suspension, Spots. suspension John Weir contra John Bailie. And because of the tenor of the Bond, and the unfavourableness of the matter, it was so strictly interpret, that if the suspender dyed before he were discust, the Cautioner was free: Yet by Act of Sederunt, Anno, 1649, all Cautioners were declared lyable, though the suspender dyed, if the Charge being transferred against his Heir or Executors, if the Letters were found orderly proceeded, which is in use whensoever the Creditor insists in the suspended Decreet, and obtains Sentence, in which the Cautioners uses to be called. A Cautioner in a suspension of a real Action of Poynding the ground, was not found lyable to pay the Annualrent suspended, but to warrand it, February 18. 1623. Blackburn contra Drysdail. A Cautioner in a suspension was found lyable, though his Bond of Cautionry contained a clause of Relief, which was not signed by the suspender, seing the Bond did not obliege the Principal and the Cautioner to perform what should be decerned, but only the Cautioner to perform, and the Principal to relieve him, January 6. 1681. George Home contra Mr. Patrick Home. In which case, it was only found necessary to discuss the suspender, and not the Cautioner, in the first suspension, Ibidem.

91. Cautioners for loosing of Arrestments, are not Cautioners for those in whose hands Arrestments are made, but for the Debitor, whose Goods or Money are Arrested in lieu of the Arrestment, and yet they are no further lyable then in so far as was in the hand of the person against whom the Arrestment was used, who therefore must be pursued before or with the Cautioner, that it may be constitute, June 21. 1626. Lord Balmerino contra Lochinvar. [Page] And it may be constitute against the Cautioners by the Oath of these in whose hands Arrestment was made, February 22. 1627. inter eosdem.

92. Cautioners are lyable according to the Oath of the principal Debitor, which is a sufficient probation against them, because their obligation being accessory, is lyable to the same Probation with the Principal, as is clear from the case last instanced; but it is more dubious, whether the Cautioners runs all other hazard with the Principal Debitor, wherein, though the Cautioner of an Executor was not admitted to propone exhausting, being proponed by the Executor himself, and he failing therein, March 4. 1623. Wood contra Executors of Ker. Yet it was found, that where exhausting was omitted by the Executor, it was admitted for the Cautioner, being instantly verified, July 9. 1623. Arnot contra Executors of Home and Mastertoun. And likewise, though the Principal intented Reduction, and was holden as confest by his Oath, de calumnia, yet that was found not to prejudge the Cautioner, or to exclude him from insisting, in proving that same point, January 22. 1629. Carberry contra Kello. Whence we may conclude, that Collusion or wilful Omission, or negligence of the Principal hindereth not the Cautioner, but if the Principal, proponing any reason of defence, used Probation by Witnesses, which was not found to prove the same, it would not be again admitted to be proven by the Cautioner, with these or other Witnesses; and therefore, a Cautioner was not secluded to prove a defence, wherein the Principal succumbed, not being intimate to the Cautioner, December 11. 1673. Earl of Kinghorn contra Earl Wintoun.

93. Cautioners as Law will are liberat, if the Cause be Advocat upon incompetency. The like of Cautioners judicio sisti, March 1. 1626. [...] because the Caution was not warrantably taken being for a Debt only assigned to a Burgess by a stranger; yet it will take place in other cases, where the Citation was competent and warrantable if the inferiour Judge do not put parties so Arrested in Ward. The like, [...]. de saetisdando, William Stuart contra Archibald Hutchison. For though Advocation be obtained, the Cautioner as Law will must sist the Principal, when he produces the Advocation, who must then remain in Ward as he was before Caution was found, till the Cause be [...], as was found, February 20. 1666. contra Hugh Mcculloch. The like found, that a Cautioner judicio sisti & judicatum solvi, was Liberat by putting the party in Prison, though not at the calling of the Cause, July 10. 1666. Thomson contra [...].

94. Cautioners may be accessory to Obligations, though the Principal [...] be not lyable by any Statute or Custome, giving him a special priviledge, as Minors, or Wives cled with Husbands, November 28, 1623. Shaw contra [...]. But where the Obligation is in it self null, and hath not so much as a natural Obligation; if the Principal be free, the Cautioner is also free, as if the Principal did not at all, or did not validly Subscribe, Hope fide jussor. The like may be said of Obligations by Pupils, Fools or Furious Persons, whose [...] are free with themselves. But a Cautioner was found lyable for the whole Sum, though the Principal Party subscribed but by one Notar, whereby he would be only lyably for an hundred Pounds, July 8. 1680. Sophia Johnstoun contra the Laird of Romano. And a Cautioner was found lyable, though the Debitor having received a Disposition of Moveables from the Principal Creditor in security of his Sum, promised not to trouble his Person or [Page] Goods, reserving power to distress the Cautioner, July 12. 1680. Leitch of Monsie contra Mr. Andrew Hedderwick.

As to the other question, Whether Cautioners be lyable insolidum, unless they be expresly bound conjunctly and severally? If they become Cautioners at diverse times without relation one to the other, there is no doubt but as they oblieged themselves, so are they lyable all insolidum; but when they obliege together, or with relation to one another, the nature of the Deed importeth no more then Surety; so that each is lyable for what is wanting by the Principal, and what is wanting by the other Cautioners: but this holds even when parties are bound, not only as Cautioners for, but as Principals with the Debitor, for then they are lyable only pro rata, unless they be bound conjunctly and severally, or when the matter of the obligation is an indivisible Fact.

Cautioners ordinarily have no Action against the principal Debitor till they be distrest, unless the Clause or Band of relief bear, to free, relieve and skaithless keep them; yet where an Executour was becoming poor, the Cautioner pursuing him to relieve him or find Caution, was thought by the Lords to have interest so to do, January 19. 1627. Adam Thomson contra Lewis Moor.

If a Cautioner pay, without intimation to the principal Debitor in due time before Litiscontestation, it is on his peril, and the Principal is not oblieged to relieve him, if he had a competent Defence that would have excluded the Debitor, Decemb. 19. 1632. Maxwel of Gribtoun contra Earl of Nithisdale.

Cautioners getting Assignation from the Creditor, whether they insist in the Creditors name, or their own as his Assigneys, are oblieged to allow their own part, July 8. 1664. Nisbet contra Leslie; in this cause there was a Clause of mutual relief amongst the Cautioners. Co-principals bound conjunctly and severally, are mutually as Cautioners for their shares, and are lyable to relieve other, though there were no express clause of relief, which hold also in cocautioners, though there were no clause of mutual relief amongst the Cautioners, June 19. 1662. Wallace contra Forbes. Co-cautioners were found lyable for relief ex natura rei, without an express clause of relief, January 27. 1675. Monteeth contra Rodger. Cautioners having payed, if they seek their relief from the other Cautioners, any ease they get on special favour to themselves, hinders not to obtain of the rest their full proportion; but if they get ease by transaction, or upon account of question of the debt, they can ask no more then what they truly gave out, allowing their own share, as was found in a Charge to the Cautioners behove against the Co-cautioner, July 27. 1672. Joseph Brodie contra Alexander Keith: June 28. 1665. Monteith contra Anderson. A Cautioner in a Suspension of a Bond wherein there were five Cautioners, being distrest, and having payed and obtained Assignation from the Creditor, was found to have access against the first four Cautioners, allowing only his own fifth part, Febr. 23. 1671. Arnold of Barncaple against Gordoun of Holm.

97. As Caution, so Oaths are accessory to all Promises, Pactions and Contracts; not these declaratory Oaths which are ordinary in the discussing of Rights, whereby all persons are bound to declare the truth upon oath as witnesses, or as parties against themselves in civil Causes; but promissory Oaths, whereby they promise to observe or fulfill any thing active, or passive never to quarrel it; concerning which Oaths, there is no small matter of debate among Lawyers, what effect they have: all do agree, that in so far as any promise [Page] can be effectual, a promissory oath is valid, and hath this much of advantage, that the Creditor is the more secure, because he may justly expect, the Debitor will be more observant of his oath then of his ordinary paction, seing the penalty of the violation of an oath deserves a more attrocious judgement than any other, God being called as a Witness and Judge: which effect it hath, though adhibit to that which by the matter hath an anterior obligation; as obligations betwixt Husband and Wife, Parents and Children, in these things in which they are mutually oblieged, or where there hath preceded or is conjoined an obligator Contract, which of it self is binding without an oath. 2. All do also agree, that Oaths interposed in things unlawful, not only as to the manner, but as to the matter, are not obligator; so no man justifieth Herod, for taking John Baptists head without cause, upon pretence of his oath. 3. All do agree, that in matters free, and in our own power as Contracts are obligator, so also are Oaths.

The question then remains, Whether in acts civiliter inefficacious, the interposition of an Oath can give efficacy; or whether that which is done in debito modo, becomes valid by an Oath to perform it, or not to impunge it, and if that efficacy will not only extend to the swearer, but to his heirs or successors. Of this there are multitudes of cases and examples debated among Civilians; by the Civil Law, naked Pactions are not efficacious to ground any Action upon; quaeritur, whether if the Paction be with an Oath, the Creditor may not effectually pursue thereupon? By Law likewayes, the deeds of Minors, having Curators not consenting, are null; but if the Minor swear not to quarrel them quid juris, Minors laesed have by Law the benefit of restitution, but if they do the deed upon oath to perform it, or not to quarrel it, whether if they pursue to reduce it, will they be excluded by their Oath; or if a Wife be oblieged personally for debt, and swear to perform it, or never to come in the contrair, Whether yet she may defend her self with her priviledge; or if a womans Land given her for security of her Tocher donatione propter nuptias, be sold by her Husband with her consent, which the Law declareth null, Whether her oath interposed will validate it, or if pactum Legis Commissoriae in pignoribus, confirmed with an oath will be valid, or if an oath for performance will exclude the common exceptions of fear, force or fraud: And innumerable such cases, whereby positive Law prohibiteth any act to be done, or declareth it void simply, or void if it be not done in such a manner, and with such solemnities.

For clearing of these and the like cases, we are chiefly to consider, quae sunt partes Judicis, or what is the Judge his duty in deciding cases wherein oaths are interposed, rather than what concerns the parties, and the obligations upon their conscience by these oaths in foro poli; and therefore, we shall take up the matter distinctly in these ensuing points.

First, if an Action be pursued upon a ground ineffectual in Law, albeit the Defender hath interposed an oath never to come in the contrair, yet that which would not be sustained by the Judge, though the Defender should not appear or object, which is ineffectual of it self, in that case the interposition of an oath hath no effect: as if by the Civil Law, an Action were intented upon a promise or a naked paction, with an oath interposed, the Action would not be sustained, albeit the Defender should not appear, or appearing should not object, that it were a naked paction. Or, if a Declarator should be intented, to declare pactum legis commissoriae in pignoribus to be valid and effectual, though it were lybelled, that the other party did swear never to come in the contrair, yet the Judge could [Page] not sustain such an Action, nor generally can sustain any Action which is unjust or irrelevant, albeit it should not be opposed, but consented to simply, or with an oath never to quarrel it, because in such cases, pactis privatorum non derogatur juri communi. The consent or oath of no party can make that just which is unjust, nor can make that sufficient or effectual, that is deficient in its essentials; as if any party should grant a Disposition of Lands or Annual-rents, and declare, that it should be effectual for poinding the ground without Infeftment, and should swear never to come in the contrair thereof, if thereupon the obtainer should pursue poinding of the ground, the same could not be sustained, because these Rights are defective in their essentials, wanting Infeftment; and yet in these cases, if the party should object, or any way hinder the effect of their oath, they contraveen the same: But the Judge not sustaining the same, doth no wrong, because his not sustaining proceeds upon a defect of an essential requisite, and not because of any exception or objection of the party: from this ground it is, that if a Wife be pursued or charged upon a Bond for Debt subscribed by her, bearing expresly her to be designed a Wife, though it were condescended on that she made faith never to come in the contrair; the Lords would not sustain the pursute or Charge, because by the very Action it self it appeareth, that the Summonds or Charges are irrelevant, and contrair to Law, which declareth a Wifes Bond for Debt ipso jure null; and therefore, though she may be faulty in suspending, or hindering the performance of the ingagement of her oath, the Lords do justly reject such an irrelevant Libel or Charge, as they did in the case betwixt and Catharine Douglas, Feb. 18. 1663. where her Band was suspended simpliciter, as being expresly granted by a wife, though she judicially made faith never to come in the contrair: or if the husband should suspend and alledge, that such an Obligation or Oath could not be effectual against his Goods, or the person of his Wife in his prejudice, there could be neither wrong on his part, nor on the Judges part. 2. If either Action or Exception be founded upon that which is not defective in essentials, but in circumstantials, ordained and commanded by Law, the defect thereof may be supplied by the other parties consent, much more by their oath; and in that case, quae fieri non debent facta valent: for every prohibition of Law doth not anull the deed done contrair thereto, but infers the penalty of Law upon the doer, as Tacks of Teinds are prohibit to be set by Prelates for longer then nineteen years, Parl. 1617. cap. 4. Yet it was found, that a Tack granted for a longer time was not thereby null, Novemb. 9. 1624. Mr. Thomas Hope contra the Minister of Craighall: So likewayes, members of the Colledge of Justice are prohibite to buy Pleas; yet the Right acquired thereto was not found null, or Process refused thereupon, but that it might be a ground of deprivation, June 5. 1611. Adam Cunningham Advocat contra Maxwel of Drumcoultroun. In like manner, the solemnities of Marriages are prescribed in Law, and all prohibit to proceed any other way; so they are appointed to be publickly solemnized by a Minister, and the consent of paretns are required; yet the want of these will not anull the Marriage, because it is a divine Obligation which cannot receive its essentials from positive Law or Statute: Whence it is justly said, Mult a impediunt Matrimonium contrahendum que non dirimunt Contractum. It is not therefore the prohibition of Law that anulleth an Act, but the Law must expresly anull it, or at least declare such points as the essential requisites to such Deeds or Rights: some Deeds are declared null ipso jure, and others are only anullable ope exceptionis, or by way of restitution, or at least where something in fact must be alledged and proven; which doth not appear by the Right or Deed it self, and so belongeth not to the Judge to advert to, but must be proponed by the party: in these an oath interposed doth debar the swearer [Page] from proposing or making use of such exceptions and allegiances; and therefore, neither may the party justly propone the same, nor the Judge justly sustain the same, for there be many things of themselves relevant and competent in Law, which yet may be excluded by a personal objection, against the proponer; for in many cases, allegeances competent to parties may be renounced, so that though they be relevant, that personal objection will exclude the proponer, but his Oath is much stronger then his Renunciation; and therefore, seing such points are not partes judicis, nor consistent in any intrinsick nullity or defect, though the Law allow or prescribe them, yet it doth not mention or express, that though the party in whose favours they are introduced renunce them simply, or with an Oath, that these shall be admitted; and therefore, they are justly to be repelled, being in detrimentum animae, of the proponer. This ground solveth most of the cases before proponed; for if a Minor pursue Restitution upon Minority and Laesion, his Oath to perform, or not to quarrel the deed in question, excludes him, both by the Civil Law and our Custome, by the authentick sacramenta puberum spontefacta, super contractibus rerum suarum non retractandis, inviolabiliter custodiantur, C. si adversus vend. It was so decided in an obliegement by a Minor, to quite twenty Chalders of Victual, provided in his Contract of Marriage, January 15. 1634. Sir Robert Hepburn contra Sir John Seatoun, where it was found that the Oath was valide, though not judicial. The like was found, that a Minor having given a Bond for his fathers Debt, whom he represented not, and being sworn not to come in the contrair, the same was not reduced upon Minority and Laesion, February 10. 1672. Mr. George Waugh contra Bailzie of Dunraget. Upon this same ground, a Minor having Curators not consenting, swearing to perform his Obligation, or never to come in the contrair, his exception of its being null, because it consists in Fact, and must be proven that he was Minor, and that he had Curators, may justly be repelled, and he excluded from proponing thereof, in respect of his Oath, seing it is not the part of the Judge to know or advert thereto; but his Curators who have not sworn may, yea, must propone that nullity, because they have not sworn.

On this ground likeways, the exception or reason of Reduction upon force or fear is excluded, if the party have sworn to perform, or not quarrel the deed, which is the sentence of the Canon Law, not only as to Wifes consent, to the alienation of Lands given to them, donatione propter nuptias, which is both null, and presumed to be granted upon her fear or reverence of her Husband, C. licet mulieris, l. 6. de jure jurando C. cum continget de jure jurando, whereby such consents and oaths, being interposed, are declared to be valide; but generally, that no deed having an oath interposed, can be recalled upon an alledgeance of force and fear, C. 3, & 4. de iis quae vim metumve; albeit the Pope assumes to himself liberty to absolve from such oaths as are done upon fear, yet they are declared of themselves to be valide, which our Custome followeth, and was so decided, Parl. 1481. cap. 83. and was so decided by the Lords, July 4. 1642. Agnes Grant contra Balvaird, where a Wife was excluded from the Reduction of the alienation of her Liferent Lands, super vi & metu, because she had judicially ratified the same, and sworn never to come in the contrair; neither was it respected, that the Oath as well as the Disposition was by force and fear, this is the great foundation of all publick Transactions betwixt different parties and Nations, where ofttimes the one party is induced through fear, to that which otherways they would not yeeld to; and yet both parties acquiesce in the Religion of an Oath interposed: So the Oath of Israel to the King of Babylon was binding upon them, though thereby the people [Page] of God subjected themselves to a Heathen King; and therefore they are accused by Jeremiah for breach thereof, and likewise for breaking the Oath to their Servants, whom they manumitted upon meer necessity, for their defence.

From this reason it is, that the exception or reason of Reduction upon deception, Fraud or Circumvention is excluded, if an Oath be interposed, whereof we have the most eminent example, of the Oath of the People of Israel to the Gibeonites, who purposely deceived and circumveened them, feigning themselves to be a people far off, though they were of the Hivites, whom Israel was commanded utterly to destroy; against which judicial Precept, they being induced through error and deceit to swear, the Oath was binding on them and their posterity, and was punished upon Saul for breach thereof. From this instance we have occasion to return to the last case, whether Oaths be only personal oblieging the swearer, and so inherent to their persons that they bind not their Heirs, wherein some are for the affirmative, that even Heirs are oblieged, as being fictione juris eadem persona cum defuncto, which is also fortified by the punishment in the Successors of Israel, in the days of Saul; but I rather incline to the Negative, that Heirs are not oblieged, but only the persons who swear, which is the more common opinion of Lawers, Civilians, and Canonist's; nor doth the instance infer the contrary, because Oaths by Societies and Incorporations, continue not as to their Heirs, but because the Society dieth not, and is ever the same, especially in Contracts betwixt Nations, where the parties intend not to obliege particular persons, then living, but the Nation; neither doth the fiction of Law operate in this case; for no position or fiction of Law can either extend or abriege the obligation of an Oath, which is alterius & superioris juris.

There remains yet this Objection, that if Oaths be so effectual, great inconveniencies will follow, a door being opened to Force and Fraud, for the same facility that parties are induced to act, they will be induced to confirm it by an Oath. It is answered, in commodum non solvit argumentum; which therefore was not regarded in the case of Agnes Grant contra Balvaird, but there may be a remeid by severe punishment upon parties, who shall induce others to swear to their own hurt, which the Prince may inflict, and repair the damnage of the laesed; it is true, if the fear be such as stupifieth, and takes away the act of reason, there is nothing done, because there can no Contract in its substantials consist without the knowledge and reason of the party; or if the deceit be in substantialibus, as if a man should by mistake Marry one woman for another, there is nothing done, but when an act of reason is exercised: But upon motives by fear, error, or mistake, the deed is in it self valid, but annullable by the Fear or Fraud, which are excluded by the Oath, against which they cannot be alledged by the party who hath sworn, but may be proponed by his Heirs, Executors, or Cautioners, or any other having interest.

Having now spoken of the several kinds of Obligations, before we go over to real Rights, it is fit to touch the common considerations that fall into all or most Obligations, as to the implement or performance thereof, viz. delay, interest, profite, time, place, and manner of performance.

98. Delay or mora, is not that time, which by the adjection of a day or condition, or by Law is allowed to perform, but that time which runs after lawful delay is past, and is the Debitors fault, in not performing his Obligation, [Page] so that it seldom makes any part of the Contract, whereupon the Obligation ariseth, except penalties be adjected in case of delay, or an estimation made of the interest.

Delay is incurred in pure Obligation by interpellation or requisition, for when no term is prefixed, the option of the Debitor is the time of performance, and though requisition be most clear and secure by Instrument of a Nottar; and therefore, verbal requisition by a Merchant to a Skipper, to loose after the Ship was loadened, was not found sufficient without an Instrument, where the Charter party had no definite term, but to do diligence to transport the Fraught, February 14. 1678. David Calderwood contra James Angus: Yet in some cases that is not necessar, but being only emission of words, it will only be probable by the Debitors Oath or Write. In Obligations to a day, delay is incurred by the passing of the term, nam dies interpellat pro homine. In Obligations Conditional, delay connot be till the condition be purified, and even then, either requisition or a term is requisite, for it is frequent in Obligations Conditional to add a term also, so that the existence of the condition makes the Conditional Obligation to become pure, and so requisition is to be used before delay, if no term be exprest; but if there be no party who can require or be required, delay is incurred, if performance be not made so soon as it can be, as is in the case of the Restitution of things found, or come in the hands of others without Contract, which is seldom known to the owner. So also in Obligations due to Pupils, delay is incurred without requisition, l. 1. §. ult. de ujuris. And in Obligations by Delinquence, delay is without requisition, and runneth from the first time performance can be made.

Till delay, legal execution is not competent ordinarly, because none should be pursued till he have failed: Yet in some cases the Debitor may be pursued before the term, to pay at the Term, as si vergat adinopiam: Yea, in removing it seems very expedient, to pursue the party warned, even before the Term, to remove at the Term, otherways the Lands cannot be safely set, the Tennent not knowing if others will remove willingly, and may not be uncertain in that point, which is a publick Interest, for setting Land, and preventing wast; but upon all Obligations which are truely contracted, the legal diligences of Arrestment or Inhibition may be used even before requisition, or the term of performance.

The ordinar effect of delay is, that when the Obligation is to give or deliver any thing, if it perish, even without the Debitors fault, it perisheth to the Debitor, and must be made good to the Creditor, unless it appear that it would have so perished with the Creditor, which seldom can be made appear, because it is ordinarly presumed, that if the thing had been delivered, the Creditor would have disposed of it, and so been free of the hazard, especially if it be a thing for sale, not for keeping, and if an occasion was offered, to have disposed thereof.

99. The next effect of delay, is the interest or damnage of the Creditor; for if the Obligation be performed within the due time, and in due manner, there is no interest; if not, after the delay incurred by requisition or term, it is in the Creditors option to pursue for performance or for damnage and interest. But in some cases delay may be purged, which is much in arbitrio judicis, and is always granted in things penal, where the penalty is great and exceeds the true interest, as in non-payment of Few Duties, which infers loss of the Few. And [Page] [Page] [Page] in Clauses irritant, in Wodsets. When delay is purged, the hazard returns upon the Creditor, and the Debitor is free, if the thing to be delivered perish; but if the Creditor do again! equire, after the former delay is purged; delay is again incurred by that new requisition.

This is a general rule, [...] factiimprestabilis subit damnum & interesse, yet in some cases if the delay be wilful or fraudulent, that the thing might become imprestable, all personal execution by escheat, and Caption will proceed.

Interest may either be competent for the whole Obligation, as when it is imprestable, or when any part or qualification is unperformed, or the value thereof.

Interest doth both comprehend damnum emergens & lucrum cessans. The first is commonly competent, the last but in some cases, and that ordinarly for such gain as the Creditors used to make; and so the delay of Bills of Exchange, gives Exchange and Re-exchange, as the Creditors condition requires, but would give neither, when not drawn for the use of a Merchant, or him that behoved to obtain the sum for a Merchant, for present use. In Ejections, Spuilzies, and other attrocious Delinquences, the greatest profits that might have been made, are allowed as the Creditors interest. In Obligations which are not in dando, but in faciendo, the common opinion of the Doctors is, that there can be no pursuit for performance, but only for interest; for before the delay there is no pursuite, and after, the Debitor cannot pursue for performance but for interest, l. 13. in fine ff. de re judicata; but it seems more suitable to equity, that it should be in the Debitors option, even after the delay, either to sute for performance or interest, as he pleaseth, if both be prestable.

In Obligations in dando, where there is delay incurred, it will not be purged by offering performance, especially, if the thing have a certain definite season of its use, as Grain of such a year, if it be not delivered, debito tempore, the delay will not be purged by offering it after, but the price comes in place of it.

In Interests, the value thereof may either be that which is agreed by parties, which, if high and penal, may be modified, or ordinarly the common rate, and sometimes pretium affectionis, in these cases where the Creditor hath juramentum in litem, the value was estimate by the Romans, in bonae fidei [...], as at the time of Sentence, in stricti juris, as it was worth the time of Litiscontestation, this distinction is not now of much use with us; and therefore, it is rather in the arbitriment of the Judge, to ponder all Circumstances, and accordingly modifie the value, either as at the time of delay, at Citation, Litiscontestation, or Sentence.

100. Profits which comprehends Fruits, is a part of the Creditors interest in sale, for by the special nature of that Contract all Accessions and Fruits belong to the buyer, from the time of the sale, and so it it a part of that Contract; but in other Contracts it is only due, post moram, and is no part of the Contract. The Sentence of the Roman Law is in this, as in the estimation for in actionibus bonae fidei, and Arbitrary, Fruits and Profits become due from delay, which also take place in Legacies; but in these which are fructi juris, if the Obligation be to deliver that which was the Creditors before, the Fruits and Profit follow the property, and are due from delay; but where the property [Page] was not the Creditors, the Fruits are not due till Litiscontestation, l. 3. & l. 34. & l. 38. ff. de usuris.

101. The time of performing Obligations, is at, or before the Term, in Obligation to a day so soon as requisition is made, which cannot be understood in that instant, if the thing require more time to perform it; but such time is allowed, that by ordinar diligence it may be performed so, that delay is not understood till that be past, as when a party is oblieged to do a work, he must have so much time as the work requires; or if Money be required, if the Debitor offer within twenty four hours, it would not infer delay, for it is not his part to carry a sum of Money about him, nor to have it ready each instant, and pasiing an instant, the strickest time Law respecteth, is an artificial day or twenty four hours, if the Debitor offer before the day the Creditor cannot refuse it, seing the day is in favour of the Debitor, and so may be renounced by him, if a Term be exprest there needs no requisition, nam dies interpellat pro homine.

102. The place for performing Obligations, if it be exprest, is to be observed, and another place cannot be obtruded, though it may seem as convenient for the Creditor, unless there be not safe access to that place, in which case, the Debitor may offer, and the Creditor may pursue as if no place were named; in which case he hath the choise to pursue either in the place of the Contract, if he find the Debitor there, or where ever the Debitor is conveenable, and even where the place is exprest, the Creditor may else where pursue for performance, if he allow the Debitors damnage, in not paying at the place appointed; but if the thing to be performed be delivery of a certain species or body, which cannot follow a man as a Horse or a Dog, but an inanimat body, as a Coatch, Coffer, Cabin, or the like, if no place be exprest, the place where it is must be understood, but if it be a quantity, simply the place of Contract, or where the Debitor resides, is understood, for the Debitor is not presumed to follow the Creditors Residence, if Custom or Paction be not contrair.

103. As to the manner of performing Obligations, the main Question is, when there are correi credendi, or debendi, whither performance must be by all, in solidum, or but pro rata? For eviting the question, Debitors use to be bound conjunctly and severally, but when that is omitted, the Debitors are understood to be but bound conjunctly, & pro rata, for in dubiis potior est conditio debitoris, if the Debitors were bound by several Obligations, not relating to others as becoming parts of the same Obligation, all are bound severally and in solidum; but when they are bound together in one Bond, and so correi debendi: By the ancient Roman Law, they were all lyable, in solidum, which was altered by Justinians novel constitution, giving the benefit of division, pro rata, as to these who are solvent and not far absent, which as more equitable and favourable is followed, unless the matter of the Obligation be indivisible, as the delivery of a Man, a Horse, or any thing which the Law considers not as quantity or genus, but as corpus; for ofttimes that cannot be devided without destruction of the thing, and always its the Creditors interest that it should not be devided.

Secondly. Obligations in suciendo, are ordinarly indivisible, l. stipul. ff. de verborum oblig. as was lately found in an Obligation by two owners of a Ship, to carry Corns from one Port to another, both were found lyable in solidum; [Page] or if the Obligation be, in non faciendo, that such a thing shall not be done, but that they shall hinder, each is oblieged in solidum, June 14. 1672. Sutherland and Grant contra Flut. This also concerns the manner of performance, that in alternatives, electio est debitoris, whose part is more favourable, but the adjection of a penalty or estimation makes not the Obligation alternative: But if any of the Members of the alternative, become not intire the Debitor connot offer that Member, January 18. 1675. Collector of the King and Lords Taxation contra Inglis of Straitoun.

The manner also of performance admitts not that the Debitor may perform by parts that which he is oblieged to by on Obligation, if it be not that which cannot be performed all at once, as the performance of some Acts, requiring divers seasons, but otherways it must be done without intermission, for neither can Money or Grain be delivered at one instant; but that is understood to be performed together, which is without intermission; yet the Civil Law favours the Debitor so far, that the Creditor cannot refuse to accept a part of the Money due.

TITLE XI. Liberation from Obligations.

[Page]

1. Obligations cease by contrary consent, by Discharge, Declaration, Renunciation, or per pactum de non pentendo.

2. Three subsequent Discharges Liberat from preceedings.

3. Payment made, bona fide.

4. Consignation;

5. Acceptilation;

6. Compensation;

7. Retention;

8. Innovation;

9. Confusion.

HAVING thus run thorow the constitution and effects of Conventional Obligations, It is requisite in the next place, to consider their destitution and how they cease, which we have exprest in the general term of Liberation, comprehending not only payment, but all the ways by which Obligations, or Bonds are dissolved or loosed, and Debitors Liberat; We are not here to speak of the Objections competent against Obligations from their nullities, for such were never truly Obligations; neither of the common exceptions against them, and other Rights, as Prescription, Litiscontestation, res judicata, Circumvention, Extortion, &c. of which in their proper places: But only of the proper ways of taking away Obligations; and these are either by contrair consent, or by performance, or the equivalent thereof.

1. First, As consent constituteth, so contrary consent destituteth any Obligation, whether it be by Declaration, Renunciation, Discharge. or per pactum de non petendo, which may be extended, not only to Conventional, but [Page] to Natural Obligations, as to any duty omitted or transgressed, which is past, though not to the discharge of the Obligation it self, as to the future, for love to God or our Neighbour, and most of the Duties betwixt Husbands and Wives, Parents and Children, cannot be Discharged as to the future; neither can future Fraud or Force be effectually Discharged, for such, cadunt in turpem causam; If the Write be special and express, there can be no question when it concerns a personal Right, and is given by the party having power to Discharge; and therefore, a Discharge of a clause in a Bond, constituting an Annualrent, whereupon Infeftment followed, for a sum lent by a Father, and taken to his Son in Fee, and bearing, with power to the Father during his life to Dispone, was found valid, and that it required not Registration, as a Discharge of Reversion, January 6. 1681. Mary Bruce contra Patrick Hepburn. But a Discharge of an Annuity, belonging to an office by infeftment, containing a renunciation of that annuity, was not found Relevant against an Appryzer, December 9. 1679. Lord Hattoun contra the Town of Dundee. Neither did a Discharge of a sum, payable to a man and his Wife, and the Bairns of the Marriage, subscribed only by the Husband, exclude the Wife from her Liferent Right to that sum, January 22. 1680. Isobel Caddel contra John Raith. Neither was a Discharge to a Cautioner, upon payment found competent to the principal Debitor, unless the Cautioner concur, for the Principal may be distressed by the Cautioner, using the name of the Creditor as his Cedent, July 13. 1675. Margaret Scrimzour contra the Earl of Southesk. A Discharge to one or more Debitors, Viz. Con-tutors found not to liberat the rest, except in so far as satisfaction was made; or as the other Con-tutors would be excluded from relief by the party Discharged, December 19. 1669. Seatoun contra Seatoun. But payment made by one party, whose Lands were affected by Inhibition, did Liberat the rest, pro tanto, though it bore not in satisfaction, but to restrict the Inhibition, January 5. 1675. Ballantine contra Edgar. But Discharges by Masters to Tennents for Rent, by their Subscription, without Witnesses, and not being holograph, are sustained, in regard of the custom so to Discharge, November 7. 1674. John Boyd contra Story. And by the same custom, receipts and discharges of Merchants and Factors, in re mercatoria, are sufficient by the parties subscription, albeit neither holograph, nor with Witches.

But the main Question is, how far general Discharges are to be extended, which are of two sorts; One where there are particulars Discharged with a general Clause, and then the general is not extended to matters of greater importance then the greatest of the particulars, February 24. 1636. Lawson contra Ark Inglas. The other is, where the Discharge is only general without particulars, which useth not to be extended to Clauses of Warandice, Clauses of Relief, or obliegements to Infeft, or to purchase real Rights; and therefore, a Discharge of all Debts, Sums of Money, Bonds, Obligations, Clags, Claims, for whatsoever cause, was found not to Discharge a Contract for purchasing an Appryzing of Lands, and Disponing the same November 19. 1680. Beatrix Dalgarn contra the Laird of Tolquhon. Neither was a Discharge wholly general, extended to an Obligation by the party Discharged as Cautioner, unless it were proven that the Discharge was granted upon satisfaction of that Debt, Hope, Bonds, Ogilbie contra Napier. But it was extended to Contravention, though there was a Decreet after the Discharge, Hope Contravention, Laird of Aitoun contra his Brother. Yea, a general Discharge in a Decreet Arbitral, was found to Liberat the submitters Cautioner, Hope, Bonds, Lady Balmastiner and her Son contra Alexander [...]. Neither was a general Discharge, found to extend to a sum assigned by the Discharger before the Discharge, albeit the Assignation was not intimat, seing the Discharger was not [Page] presumed to know the want of the Intimation, unless it were proven that the sum was particularly commoned upon, or satisfied at obtaining the general Discharge, February 3. 1671. Blair of Bagillo contra Blair of Denhead. Neither was a general Discharge extended to sums, whereuto the Discharger succeeded after the Discharge, February 14. 1633. Halyburtoun contra Huntar.

2. Three subsequent Discharges, do presume that all preceedings are past from; As first, The Discharges of three immediat subsequent years Rent, June 21. 1610. Nowison contra Hamiltoun. This was sustained, though the Discharges were only granted by a Chamberlain, Hope, Clause irritant, Laird of Wedderburn contra John Nisbit, this was sustained to purge a Clause irritant; yea, though some of the Discharges were granted by the Father, and the rest by the Son as Heir, February 17. 1631. Williamson contra the Laird of Bagillo, which was extended to by gones, though a Bond was granted for them, the Bond bearing expresly for a Term, and having lain over very long, and all subsequent Terms payed, March 18. 1634. Dowglas contra Bothwel. But Discharges of three subsequent years, granted by Merchants, who had bought Ferms, did not Liberat from former years, March 26. 1626. Minister of Corstorphen contra Neither where the Discharges were not in Write, February 19. 1631. Moristoun contra Tennents of Eastnisbit. Neither where the payment of three Terms, was acknowledged by the parties oath, which bore not three Terms immediatly subsequent, March 26. 1622. Kennedy contra Dalrymple of Stair. Nor where there were two years Discharges and Receipts, making up the third, March 28. 1631. Laird of [...] contra Wood; and therefore, Receipts, though being joyned, they would make up more then three years; inferr not this presumption, that all preceeding years are payed, yea, one Discharge for three consequent Terms or years, would not infer the same; for the presumption is mainly inferred from the reiteration of the Discharges without reservation, which no prudent man is presumed to do; the presumption is also introduced in favours of Debitors, that they be not oblieged to preserve fourty years Discharges; and therefore, if the payment be Annual, there must be three Discharges, of three years immediatly following one another, as in the payment of Ferms; but if the payment be Termly, as in Annualrents, or Silver Rents, the ground of the presumption holds by three several Discharges, of three immediate subsequent Terms, Hope, Bonds, David Weyms contra the Lady St. Colmb. But as to the Discharges of Factors or Chamberlains, three subsequent Discharges are sufficient against the Chamberlain, during his Commission, and against his Constituent, who gave him power to Discharge, during that Commission: But the presumptions from Discharges of the Chamberlains will not always hold, as if the former Chamberlain Discharge two Terms, and the later one; much more, if the former Discharge one Term, and the later two; But if there be three consequent Discharges from two immediat Chamberlains, though they will not infer presumptionem juris, which the Law hath acknowledged; yet they may infer presumptionem judicis: But the strongest of these presumptions admits of contrary Probation by the Debitor, that he knows there are preceeding Rents, which his Write will not prove, though he should acknowledge in Write, so much resting at such a time; for three subsequent Discharges thereafter, will presume that rest payed, though still his oath may prove it is not payed; so that the strongest of these presumptions, though they be presumptiones juris, yet they are not presumptiones juris & de jure, which admit of no contrary Probation.

The more proper way of dissolving Obligations is by performance, by which [Page] they attain their effect, and that is either by payment, or consignation; the more Improper ways are Acceptilation, Compensation, Innovation, Confusion; of which in order.

3. Payment is the most proper lousing of Obligations, and therefore retaineth the common name of Solution;

And therefore, in many cases payment made, bona fide, dissolveth the Obligation, though he to whom it was made, had no right for the time. So payment made to a Procurator, was thought sufficient, albeit the Procuratory were thereafter improven, seing there was no visible ground of suspition of the falshood of it, February 15. 1661. Elphingstoun of Selms contra Lord Rollo, and Laird of Niddery. And payment made by Hererors to their Ministers, who were suffered to continue to Preach, was sustained, though they had not obtained Presentation, or Collation, conform to the Act of Parliament, 1661. seing no Process Civil or Ecclesiastical, was intented against them, nor the Heretors before payment, February 10. 1666. Collector of the vacand Stipends contra Heretors of Maybole and Girvan. And payment made to a Minister, though he was deposed, having continued to Preach after the Term, before intimation of the deposition, was sustained, but not for Terms after the intimation, February 10. 1679. Colledge of Aberdene contra Earl of Aboyn. So also payment made by a debitor to his creditor, bona fide, was found sufficient to Liberat, against an Appryzer, who had appryzed the Right of that sum, before payment made, albeit the Appryzing, as a Judicial Assignation, was sound to need no intimation, as was found in the case of Thomson contra Elizabeth Dowglas Lady Longsormacus. And payment made, bona fide, to a Donatar, was found relevant against a prior Donatar, Hope, Horning, James Wright contra Thomas Wright. And most ordinarly payment made, bona fide, by Tennents to their old Master, is found relevant against singular Successors, though publickly Infeft, using no diligence to put the Tennents in mala fide, Spots. Appryzing, Lord Lowdoun contra the Tennents of Jedburgh. And payment by Tennents to their Master, was sustained against the Donatar of his Escheat, not having obtained Declarator, February 10. 1610. Blackburn contra Wilson. Neither will Citations against Tennents, or Arrestments upon the Titles of singular Successors, put them in mala fide, to pay to their Master, till the Titles of the singular Successors be judicially produced against the Tennents compearing, because Tennents are not oblieged, as purchasers to search Registers to find their Masters Rights, or the Rights of singular Successors; yea, the Arrestments of their Masters Rents not insisted upon, and their Masters Debts instructed before the Term, seem not to infer double payment, against the Tennents, paying after their Terms are past: But payment made before the hand doth not liberat, against Donatars Arresting and doing diligence after payment before the Term, February last 1628. Laird of Lauchop contra Tennents of Cleghorn. February 5. 1667. Lady Traquair contra Marion Houatson. But it will not be accompted payment before the hand, if by the condition of the Tack, the first Terms payment be made at the entry, and the Tennents to be free at the ish, January 7. 1662. Earl of Lauderdail contra Tennents of Swintoun. Neither will a Discharge freely granted, without true and real payment, besufficient, though it bear payment, to obtain the priviledge of payment, bona fide, as was found in the foresaid case, Thomson contra Dowglas. Payment made by Tennents, bona fide, to their Master of Stock and Teind promiscue, as they had been accustomed, found to Liberat from their Teind Master, who had Inhibite and intimate the same to the Tennents, seing the proportion of the Duty they payed for Teind was not known, December 13. 1627. Arbuthnet contra Tennents. March 21. 1628. [Page] Mr. Patrick Murray contra Tennents of Inchassray Abbay. Yea, payment made of a part of the price of Lands to the Disponers Bairns, to whom it was destinat, was found relevant, albeit after a Reduction, depending of that Disposition, seing there was no reason filled up against the Bairns interest, nor they cited, July 19. 1662. Peter contra Mr. William Wallace. Payment of a Tocher, Contracted by a Wife, inferred by presumption, that the lived twenty two years, and that the Husband acknowledged in his Testament that she had payed the Tocher, February 16. 1671. Marrion Dods contra Laurence Scot. Payment is always presumed by retiring of the principal Bonds, Chyrographum apud debitorem repertum presumitur solutum; and therefore, Missives or Narratives in other Writes, will not instruct, where the principal Write it self is not produced; and therefore is held as retired, albeit these are adminicles to prove the Tenor, if the casus amissionis, be so far instructed, as to take off the presumption, that the Write is retired. Payment made indefinitly by a Debitor for several sums, is generally ascribed to any of these sums, that the Debitor pleaseth to apply, because the case of the Debitor is favourable, and the Creditor granting a receipt indefinitly, it is interpret against him, the matter remaining intire as it was the time of the receipt; But where the Debitor became Bankrupt after the indefinit receipt, the famine was not found applicable to a sum having Caution, there being another sum which had no Caution, which would be lost by that application, February 2. 1680. Samuel Moncref contra Donald Cameron. But where the Debitor makes no application, but his Creditor or singular Successor do count for the application, presumitur in duriorem sortem, as if for one debt there be a Band bearing Annualrent, and another Debt bearing no Annualrent, the indefinit receipt is to be imputed to the Bond bearing annualrent, or where the one security hath a greater penalty, legal or conventional, in case of not payment, as Apprysing, or Adjudication, whereof the legal is near to expire.

4. Consignation in case of the absence, lurking, or refusal of the Creditor, is equivalent to payment, and where it is not otherways agreed (with us) it is ordinarly done in the hands of the Clerk of the Bills, by way of Suspension, and it stops the running of Annuals, and all other inconveniencies upon the Debitor, and the Consigner is free, though that which is Consigned be lost by the keepers being Bankrupt; or otherways, if it was the Creditors fault who charged for more then was due, as if he charged for the whole penalty, which ought to be modified, and there is no necessity in that case, to offer what is due; but if the fault be the Consigners, if the Money be lost, it is lost to him, as was found in the case of the Earl of Galloway and [...] of Kilkerran. It was also found, that a sum Comsigned in the hands of the Clerk of the Bills, upon obtaining Suspension, the Consigner having first offered by Instrument the principal sum and Annualrent, and so much of the penalty as the Charger would Depone he had truly debursed upon Oath, the Instrument being also instructed by the Oath of the Witnesses insert, the Consigner was declared free, though the then Clerk of the Bills was become insolvent, July 28. 1665. Bessie Scot contra Somervail. So that in Consignation of Sums, for which there is a Charge of Horning, if the Charge be for more then what is due, Consignation may be warrantably made, without offer of what is due; but other waye, the offer of what is due should proceed, else the peril is the Consigners, if the sum Consigned be lost; but if when the Consignation is authore pretore, either by deliverance of the Lords, or by the ordinar passing Bills of Suspension upon Consignation, it stops the course of Annuals; because there is always a several reason of Suspension, which ought to be relevant, though Consignation [Page] would make it pass without instruction; for then, Consignation is only for the Creditors security in place of Caution, and seing the Creditor may quickly discuss the Suspension, and will be heard to answer summarly upon the Bill, albeit at discussing the reason be not found relevant, or not instructed. Annuals is not decerned after the Consignation, being modica mora, yet if the sum were lost, the peril would be the Consigners, not having first offered all that was due, by Instrument; and though the Creditor be uncertain, lurking, or out of the Countrey, the Lords upon supplication will grant Letters of Requisition and offer, to be execute at the Cross of Edinburgh, and Peer of Leith, where all men are presumed to have Procurators to answer for them, tanquam in communipatria: But if an offer be made of all that is due, and not accepted, it is a relevant reason of Suspension, upon production of the Instrument, and Consigning the Principal and Annual, though no part of the expenses be Consigned, till they be modified, if the Consigners reason be found relevant, and instructed, the Charge will be suspended simpliciter, and the Decreet will contain warrand to the Clerk of the Bills, to deliver up the Consigned sums to the Suspender, who must bear the expenses of Consignation; but if the Suspender be in mora aut culpa, as if he do not Consign the expenses modified by the Lords, whereby the Charger will be put to a new Charge, he must bear the expenses of Consignation; yet a Sheriff having Charged an Heritor for the Kings Taxation, albeit at discussing, it was found he had Charged for more then was due, the expenses of the Consignation was laid upon the Heretor, seing he did not offer what was due, for in that case the Sheriff might proceed by general Letters, as he was informed, and was not in the case of a Creditor, charging for his own Debt, which he could not but distinctly know: but if an Assignay or singular Successor Charge for more then is due, the hazard will not be his, who may be ignorant of his Cedents Discharges; and therefore, the Suspender ought to produce to him the Discharge, and offer to him what is due, which if he omit, the hazard will be his: As to the Obliegements upon the Consignatar, these shall more properly come in with Redemption of Wodsetts, where Consignations are most frequent.

5. Acceptilation is the solution of an Obligation by acceptance of that which is not the direct performance of the Obligation, in satisfaction thereof, either really, or imaginarly, by acknowledgement thereof, as if it were truely performed.

The Romans did only allow Acceptilation as a Liberation from Stipulations, and therefore, before any other Obligation could be dissolved by Acceptilation, it behoved to be innovat, by a Stipulation ingaging for the same matter and the Acceptilation it self could only be by Stipulation, by the Interrogation of the Debitor, quod ex tali stipulatione debeo acceptum fers. To which the Creditor answered, acceptum fero, whence it had the name of Acceptilatio, expressing an acknowledgement of the receiving and accepting of the performance of the Obligation, and of present bearing and having the same, which was valid and effectual, though the Creditor, neither then nor before had received any performance of the Obligation, and needed no other Probation; nor doth it admit of a contrary Probation, that nothing was truely received, in respect that the sole will of the Creditor may evacuat the Obligation, by Discharge or Renunciation; and therefore, Acceptilation without any performance is sufficient, and is the more solemn and secure way of Exoneration.

For where there are many Co-debitors, the Discharging one Liberats not the [Page] rest, if they be Co-principles, unless the Discharge be impersonally conceived, that the thing oblieged shall not be demanded; or that the Renunciation or Discharge be granted to the principal Debitor, for thereby the Obligations of the Cautioners being accessory, are understood also to be Renunced: But Acceptilation extinguisheth the Obligation as to all the Debitors; because it importeth an acknowledgement of performance.

Acceptilation with us may be of any Obligation, and requireth no Stipulation, but as the acknowledgement of payment Liberats all the Debitors; so the acknowledgement of any satisfaction, which importeth payment, or any thing accepted as equivalent, hath the same effect; and therefore, we use more the Term of Satisfaction, then Acceptilation; which Satisfaction, if it be upon grounds equivalent to payment, or direct performance, it is equiparat thereto in all points, and hath the priviledge of payment made, bona fide, to Liberat, though the Obligation be not performed, to the party having the present, and better Right; but otherways, neither the acknowledgement of payment, or of satisfaction, or any Discharge, hath the priviledge of payment made, bona fide, which is mainly founded upon this ground, that bena fides non patitur ut idem bis exigatur.

6. Compensation is a kind of Liberation, as being equivalent to payment, for thereby two liquid Obligations do extinguish each other, ipso jure, and not only ope exceptionis; for albeit Compensation cannot operat if it be not proponed, as neither can payment; yet both perimunt obligationem ipso jure, and therefore are not Arbitrary, to either party to propone or not propone as they please; but any third party having interest may propone the same, which they cannot hinder; for instance, if a Cautioner be distrest, he can propone payment, or compensation, upon the like liquid Debt, due to the principal Debitor, which he cannot hinder; and therefore, a liquid clear Debt, though bearing no Annualrent, compenseth another Debt bearing Annualrent, not only from the time Compensation is proponed, but from the time that both Debts came to be due; from which time, it stops the course of Annualrent, as is clear by many Laws in the digeste & C. de compensationibus, which is constantly followed by our Custome, wherein positive Law for utilities sake, hath influence, to shun the multiplication of Pleas; for otherways, if compensation were rejected, the Creditor would proceed to execution, and the Debitor would be put to a new Action, which is very inconvenient; and therefore, when a Debitor forbeareth to insist for a liquid Debt, after the term is past, it is presumed to be on that accompt, that the Creditor oweth him the like, or a greater sum, & frustra petit quod mox est restituturus; but otherways compensation is neither payment formally nor materially, for when a Creditor borroweth from his Debitor a sum, and expresly obliegeth him to pay the same, it is so far from being done for payment of a sum, formerly due to the Debitor, that there is an express obliegement to pay the same in numerat Money, at a day; and yet if that posterior Debt be insisted on, it may be compensed with the prior.

If compensation be renunced it will be excluded by that personal objection, which will take no place against other parties interest; for thereupon Compensation would be admitted for a Cautioner, for a Debt due to the principal, though the principal should renounce Compensation; or if the Compensation be indirectly renounced, by giving a Bond blank in the Creditors name, which is understood, as done of intention, that the Bond may pass to singular [Page] Successors without a formal Assignation or Intimation, but by filling the parties name who gets the Bond, who charging thereupon will not be compensed by any Debt of the party, to whom it was first granted, Nic. hic. November 14. 1621. Findlayson contra Gardine. February 27. 1668. Henderson contra Birny. And on the same ground, a Bond of Corroboration, bearing a general exclusion of Suspension, was found to exclude Compensation, though the Bond was granted under Caption, without any Transaction or abatement, June 28. 1672. Robert Murray cantra Spadie of Assintully.

Compensation is described by Modestinus debiti & crediti contributie, l. 1 ff. de compensationibus; which description is neither clear nor full: It is not clear whether the Contribution be by concourse of two Debts, or by proponing of the Compensation: Neither is it full by expressing what kind of Debts are compensible, for they must be commensurable, and liquid, being considered as Fungibles, indecernable in the value, or in the Individuals, as Money, Wine, Oyl, Grain, &c. Or if both Obligations be in general, as if either party be oblieged to deliver a House, a Sword, &c. for then no speciality being exprest, the Obligations are commensurat, and so compensible. But Obligations of a particular body, are not compensible by Money; and therefore, Money depositate being demanded, cannot be compensed by a Debt due to the Depositar, because the Money depositat was not delivered as a Fungible to be restored in the same kind, but in the same individual; and likewise, acceptance of Depositation imports so much trust, for ready delivery, that Compensation is understood to be renounced, l. pen. C. depositi.

Upon the same ground Compensation is not relevant upon sums secured by an Heritable Infeftment, whereby Lands or Annualrents are Disponed for these sums; for though Impignoration be intended, yet the Contract being in the form of vendition with a reversion, the sum lent becomes the Debitors, as the price of the Land or Annualrent, and is no more the Creditors, unless there be a clause of Requisition, that he may return to his Money, or pass from his Infeftment, or a clause to repay upon a simple Charge; and therefore, till the Requisition or Charge, there can be no compensation, except upon the bygon Annualrents, due by the Infeftment, which remains still moveable and compensible, January 2. 1667. Oliphant contra Hamiltoun. But Compensation was sustained upon liquid sums, though Appryzing was led thereupon, unless it were cled with Possession and expyred, June 18. 1675. Leys Burnet contra Forbes of Blacktoun. The like was found as to a sum Appryzed for, but not upon a Wodsett, requiring Requisition, unless Requisition were made, November 12. 1675. Home of Plandergast contra Home of Linthil.

But by a liquid Debt, is not understood a Debt, for which there is a decreet, or quae habet paratam executionem, for Restitution; but it is sufficient that the Debt it self is liquid of the same kind with the Charge; And therefore, Compensation is competent against sums due by Registrat Bonds, upon sums due by Bonds, though not Registrat, yea, though not Registrable.

Compensation is also competent upon Debts which are not liquid so soon as they become liquid, either by a liquidation of consent, or by a Decreet, which was sustained, though the Decreet was after the Charge, December 23. 1635. Keith contra Glenkindie. Yea, a Decreet of liquidation against a Principal, was found sufficient to infer Compensation against the Cautioner, or his [Page] Assigney, though not called to the Decreet, it being without collusion, June 24. 1665. Irwing contra Strachen. And Compensation was sustained against an Assigney, upon a debt due by the Cedent, though liquidat after the Assignation, in respect the Assignation was gratuitous, January 18. 1676. Corbet contra Ramsay: But the Compensation ought not further to be drawn back then the liquidation; and so Ferms being liquidat will stop the course of Annualrent, from the time of the liquidation, but not from the time the Ferms were due, unless it were Money Rent; but Ferms or Services only from the liquidation, December 4. 1675. Walstoun contra Robert Cunninghame.

Compensation is relevant, not only upon a Debt of the Creditors own, but if he be Creditor by Assignation, the Debt is compensible by a liquid Debt, due by the Cedent, before he was denuded by Assignation, and Intimation, because the Compensation was effectual, ipso jure, from the concourse of the two liquid Debts, inter easdem partes, February 14. 1633. Keith contra Heriot. March 16. 1639. Coupland contra Forsyth.

Compensation is also relevant upon a Debt Assigned to the Compenser, by our common Consuetude, albeit the Debitor pursued or charged, do seek out and acquire a Debt of the Chargers, even after the Charge, which is a further Benefit introduced by Custom, though it hath this inconveniency, that a Creditor can hardly recover any Debt, if he be due Debt to others himself; but if an Assigney Charge for a Debt, the Debitor will not have Compensation upon a Debt of the Cedents, Assigned to him after the Intimation of the Chargers Assignation, for these two Debts never concurred, inter easdem partes, for though the Debitor may always compense the Assigney upon the Cedents Debt before the Assignation, if it was originally due to the Debitor himself, but after the Cedent is denuded by Intimation, the Debitor cannot acquire a Debt of the Cedents due to another, therewith to exclude the Assigney, unless the Debitor Compenser was Creditor to the Cedent, ab initio, or became Creditor to him by an Assignation to the Creditors Debt, Intimat to him before he was denuded in favours of an other Assigney, otherwise the Debts do never concur betwixt the same Debitor and Creditor, January 22. 1663. James Wallace contra Edger. July 4. 1676. John [...] contra Alexander Brownlie. But Heirs and Executors are accompted, eadem persona cum defuncto; and therefore, Compensation may be both upon, and against their Debts: So Compensation was admitted against an Heir or Executor, upon Debt due by the Defunct, to the Defenders Father whom he represented, Spots. hic, Cassmire Pyet contra Russetter. And Compensation was admitted against an Executor upon a Legacy left to the Defender, though there was no sentence thereupon, Spots. Executors, Williamson contra Tweedies. It was also admitted for an Executor, upon a Debt due by the pursuer to the Defunct, though the Executor had not Confirmed that Debt, but he behoved to cik the same, December 7. 1609. Aikman contra Lady Brughtoun.

But Compensation is not competent to a Creditor of a Defunct, taking Assignation to one of the Defuncts Debts after his death, which is upon accompt of the Priviledge of the Creditors, who have access to the Defuncts Estate according to their diligence; And therefore, the Executor cannot prefer one to another; much less can a debitor of the Defunct, by taking Assignation to the Defunct Debts, prefer that Creditor to the rest of the Creditors of the Defunct, [Page] February 8. 1662. Thomas Crawford contra the Earl of Murray. February 14. 1662. Children of Mouswall contra Loury of Maxwelstoun.

Compensation was found competent against a Donatar upon a debt of the Rebels before the Rebellion, for which the Compenser was Cautioner, though he payed after, February 3. 1635. Innes contra Lesly. January 23. 1669. Mr. James Drummond contra Stirling of Airdoch.

Compensation is competent against Factors, Procurators, or Commissioners, upon their Constituents liquid debt, but not upon their own debt, for they are not Creditors as to their Constituents sums: Yea, a Factor being charged by his Constituent for his Intromission with his Rents, was not admitted to compense the same with a debt due by his Constituent, whereunto the Factor took Assignation. Neither was the Chamberlain accompted a debitor to his Constituent, as by a liquid debt, but that his Constituents Rents were in the Property of his Master, and in the Factors custody as a Servant, November 9. 1672. Pearson contra Sir Robert Murray, alias Crightoun.

Compensation takes no place in the Provinces of France, which acknowledge not the Roman Law, but a [...] Law, without a priviledge from the King, as is observed by Gregorius, Tholesanus, upon Compensation. And it seems not to have been competent by the Law of Scotland, before the [...] of Parl. 1592. cap. 141. Whereby it is Statute, That any debt, de liquido in liquidum, verified by Write, or oath of party, before giving of Decreet, be admitted by all Judges within the Realm, by way of Exception, but not after the giving thereof, in the Suspension, or in the Reduction of the same Decreet: So that if the charge or pursuit be instantly verified by Write, the defender will not get a Term to prove Compensation; but if a Term be assigned to the pursuer, the same would be assigned to the defender, to instruct any debt wherewith he would compense by Write, or Oath, yea, by Witnesses, if the Probation be closed as soon as the pursuers Probation; for the Statute bears, Compensation to be in liquid debts instantly verified before the Decreet, although it mention not Probation by Witnesses, it doth not exclude the same; but it excludes Compensation after the Decreet, either by Suspension, or Reduction, which seems to import more then the rejection of Compensation, because it was competent and omitted, which hath been always a common objection against any reason of Suspension, or Reduction; but that Compensation should not be admitted after Decreet, though the Decreet were in absence, unless it were Reduced upon Improbation of the Executions, or other nullity, or by purging the contumacy in not compearing and that taking Assignation to debts of the Cedents after Decreet, should not found a Compensation, as being against the letter of the Statute; for though it seem an emergent reason, which would be sufficient against competent and omitted, yet not against the speciality of this Statute, excluding all Compensation after Decreet; but this Statute is to be understood only of Decreets proceeding upon Citation, and not Decreets of Registration, which are summar, and of consent, by the clause of Registration; and therefore, Compensation was not sustained against a Sheriffs Decreetsthough in absence, July 25. 1676. William Wright contra John Shiel.

It remains to consider in what case Compensation may be elided, by Recompensation which but seldom occurs, and I have observed no decision upon it; it can only occur when the charger or pursuer hath more liquid debts due to him by the defender, and insists not for them all; for in that case, if the defender [Page] propone Compensation, the pursuer may propone Recompensation, upon the other liquid debts, whereupon he pursued not; and if both the pursuers debts be anterior to the defenders, there appears no recompensation, because the defender may impute his debt to either of the pursuers debt he pleaseth, as he might in indefinit payments; but if the defenders debt be anterior to both the pursuers debts, or in the middle betwixt them, in that case, Recompensation seems not to take place; because Compensation being competent, ipso jure, so soon as ever two liquid debts concur, inter easdem personas, both debts are thereby in so far mutually extinct, and so there is no place for Recompensation by a debt posterior to that concourse, so that if the defenders debt be anterior to both the pursuers debts, The first of them by its concourse, did extinguish the defenders debt; and therefore, if he pursue for the first debt, Compensation is proper to the defender upon his debt, anterior to both the pursuers debts, and cannot be excluded by the pursuers posterior debt, by way of Recompensation, for then the debts from their first concourse, should not compence ipso jure, which holds also when the defenders debt is after the pursuers first debt, and before his second, for the pursuers prior debt, and the defenders debt first concurring extinguisheth each other, and the pursuers posterior debt cannot hinder the same, and so cannot found Recompensation: But if the pursuit or charge be on the second debt, if compensation be proponed on the defenders midle debt, there is place for recompensation on the pursuers first debt.

7. Retention is not an absolute extinction of the Obligation of repayment, or restitution, but rather a Suspension thereof, till satisfaction be made to the retainer; and therefore, it is rather a dilatory then a peremptory exception, though sometimes, when that which is due to the retainer, is equivalent to the value of what is demanded, if either become liquidat it may turn into a Compensation, such is the right of Mandatars, Impledgers and the like, who have interest to tetain the things possest by them, until the necessary and profitable expenses wared out by them thereupon be satisfied.

8. Innovation is the turning of one Obligation unto another, if it be a third person becoming debitor for relief of the former debitor, it is called Delegation. Innovation is not presumed by granting of a new Obligation, either by the debitor or another; But it is rather held to be as Caution, or Corroboration of the former Obligation, consistent therewith; and in the Civil Law it is never esteemed Innovation, unless it be so exprest, l. ult. de novationibus: But with us, though it be not named, yet if it appear to have been the meaning of the parties, not to Corroborat, but to take away the former Obligation, it is a valid Innovation: So it is ordinarly inferred, when a posterior Security bears, in satisfaction of the former Obligation, though it did not renounce or discharge it, nor expresly innovate it, December 6. 1632. Chisholm contra Gordoun. The like where the posterior Bond bears, in full satisfaction of the sum, for which the former was granted, though it made no mention of the former security, July 23. 1633. Mr. John Lawson contra Scot of Whitslade.

9. Confusion of Obligations is, when the Creditor and Debitor become one person, as when the one succeedeth as Heir to the other, or becomes singular Successor in the debt, for therby the Obligation is ineffectual, seing none can be Creditor or Debitor to himself, which was extended so far, that an Heir Portioner being Debitor, by meddling with the Defuncts means, and thereafter her Husband taking Assignation to a debt, and pursuing another, representing [Page] the Defunct thereupon, the exception of Confusion was found relevant, because he was Creditor as Assigney, and Debitor as the intromettors Husband, Spots. Assignation, John Moor contra Richard Calder. Thus vitious Intromission is ordinarly sustained by exception, to elide any debt due to the Intrometter, proprio nomine, or as Assigney, Hope, vitious Intromission.

But where an appear and Heir gave a Bond, and thereupon Adjudication was used of his Predecessors Estate, his taking Assignation to that Adjudication, was not found to extinguish the debt by Confusion, though Rights so taken will not free the Assigney of behaving as Heir, if he intromet; whereupon there was an Act of Sederunt made, as to all cases thereafter, in the case of the Creditors of the Earl of Nithisdale, January 22. 1662. But if by different Successions, the Debitor and Creditor should become distinct, the Obligations would revive, as in many cases may occur, and so Confusion is not an absolute extinction, but rather a Suspension.

Confusion doth not always take place, where the same person who is debitor succeeds to, or takes Assignation, as is evident in Cautioners taking Assignation to Bonds, wherein they are debitors as Cautioners; yet may pursue the principal, or Co-cautioners as Assigney, and will not be excluded upon alledgeance of Confusion, which is only relevant when that debitor who hath no relief, becomes also Creditor by Succession or Assignation. And so an Executor taking Assignation to an Heretable debt, may thereupon pursue the Heir for relief: Or any Heir male, of Tailzie or provision, taking Assignation to his Predecessors debt, may as Assigney, have recourse against the Heir of line, of Conquest, or Executor. Yea, if any person take Assignation to a debt due by his Predecessor to whom he is Heir male, though during his life the Assignation can have no effect; yet after his death, his Heir male will succeed to him in that Assignation, and may thereupon pursue his Heir of line, or Executor for payment, for the taking of an Assignation and not a Discharge, did clear the mind of the Defunct, that the debt and Credit would divide after his death, and that his Heir male would succeed to him in credito, and his Heir of line in debito.

TITLE XII. Rights real, where, of Community, Possession, Property, Servitudes, and Pledges.

[Page]

1. The original Dominion of Man over the Creatures.

2. What Rights are Heretable, and what moveable.

3. Moveable and Heretable Bonds.

4. How Heretable Obligations become Moveable, and return to be Heretable.

5. The original Community of Mankind over this inferior World, and all therein.

6. What remains yet common to Mankind.

7. Grass and Fruits on high ways, are publick not common.

8. In Possession what is facti, what is juris.

9. Possession described.

10. Possession natural and civil.

11. Possession of moveables.

12. Possession of the Ground.

13. Possession by limits and bounds.

14. Possession by occupation, and by lifting the Profits.

15. Symbolical Possession.

16. Possession by Reservation.

17. Definition of Possession.

18. Requisites to begin Possession.

19. Requisites to retain Possession.

20. How Possession is troubled, interrupted, or lost.

[Page] 21. Kinds of Possession.

22. Lawful Possession gives right to continue it against all illegal and clandestine Acts contrary thereto.

23. Bonae fidei Possessor, facit fructus consumptos suos.

24. This not extended to unlawful Possessers.

25. Possessor decennalis & triennalis non tenetur docere de titulo.

26. [...] Possession of forefaulted persons.

27. Possession, to what right ascriveable.

28. The nature of Property.

29. Property by Possession of things common.

30. Appropriation by Industry.

31. First Property of the Ground was of Houses and Walls.

32. Next of Fields and Countreys.

33. Quae nullius sunt.

34. Appropriation by Accession of Birth and Fruits.

35. Appropriation by Alluvion.

36. Appropriation by Specification.

37. Appropriation by necessary Conjunction

38. De tigno injuncto.

39. Inaedificata solo cedunt.

40. Things sown and planted, how far they follow the ground.

41. Possession of Moveables [...] Property.

42. Reprysals.

43. Enemies Goods taken in War.

44. Goods of Neuters assisting Enemies become Prize.

HAVING gone thorow the first two Branches of privat Rights, Personal Freedom, and obligation, we come now to the third, which is Dominion: But because that Term is more appropriat to men over men, then over other creatures, it is therefore called a real Right, or a right of things: For as Obligation is a right personal, as being a power of exacting from persons that which is due, so a right real is a power of disposal of things, in their Substance, Fruits, or use: For unfolding this right, and the progress thereof, both according to the order of time, and nature, advert;

1. First, That when God created man, he gave him the Dominion or Lordship over all the Creatures of the Earth, in the Air, and in the Sea, Genefis 1. Verses 29, and 30. with power to Man to dispose of the Creatures, even to the consumption thereof; and it is like, that during mans innocency, there was upon the part of the creatures, a great subjection and subserviency to man, till afterwards, when he revolted from God, the Creatures revolted also from him: Yet Gods Dominion over Man, and Mans Dominion over the Creatures, [Page] remaineth still in right; so that he hath a legal power and warrand to dispose of them, though not so much Possession, or natural power, being less able to master them then before.

It is a false and groundless opinion which some hold, that Man by his fall hath lost his right to the Creatures, until by Grace he be restored, and that the sole Dominion of them belongs to the Saints, who may take them by force from all others. For by the whole strain of the Law of God, he still owneth Dominion and Property of the Creatures in Man, without distinction, and prohibiteth all force, or fraud in the contrary, which sufficiently cleareth that subtilty of mans forefaulture; which, though it maketh man obnoxious by way of Obligation to punishment, by Gods exterminating him from the use and comfort of the Creatures, yet that Obligation doth not infer actualceassing of mans right, much less the stating of the rights of mankind in a small part of them.

This Dominion of the Creatures being given to man without distinct proportions, or bounds; it necessarily followeth, that by the Law of Nature, the birth and fruit of both Sea and Land were common to all Mankind, who had equal interest therein, and every one might take and make use thereof, for his necessity, utility, and delight: yet so, as the use and fruit thereof must in some cases, and might in all cases become proper, as what any had taken and possest for his use, became thereby proper, and could not without injury be taken from him. much more the things which had received specification from his Art or Industry became proper, and all others might be debarred from any profit or use thereof, but so, that some property or use might be communicate to others, which being the lesser, and not reaching the power of the substance of the thing, is therefore called a servitude, whereby that which is proper to one serveth another, in part: And when the proprietar giveth not the fruit, or use, but only the holding, or the detention of the thing to another, for his security of some debt, or Obligation of the Proprietars to him, that right is called a Pawn or Pledge, so that in whole, all real rights are either that original community of all men, or the Interest which Possession giveth, or Property, Servitude or Pledge, of which in order.

First, Generally as they were of old, common to both things moveable, and immoveable, and then specially in relation to things immoveable, and to Heretable Ground-rights of the Earth, and things fixed thereto, which now by the Feudal Customes are much changed from what they were, and yet are in moveables.

2. The distinction of moveable and Heretable, is very necessary to be here known, as being the common materials of real Rights, and having a general use; any thing is called moveable, which by its nature and use is capable of motion, as things immoveable are the Earth, Sea, and things fixed to the Earth, not to be removed therefrom, as Trees, Houses, &c. which though they may be possibly moved, yet it is not their use so to be, the superfice of the Earth is immoveable, though it may be moved from one place to another place of the Earth: The Sea also is immoveable, though it hath at the Shoar its agitation by ebbing and flowing, which is not the use man maketh of it. These things are called Heretable, because they descend not to Executors, to whom only Moveables befall, but to Heirs: And so the distinction cometh ordinarly of Moveables and Heretables, as that which is fixed to, or part of the Ground is compted immoveable, as Trees, and Grass, and all he natural Fruits of the [Page] Earth; yet industrial Fruits, as Corns, are counted Moveable, and belong not to the Heirs of Defuncts, but to their Executors, when they are sown, or growing upon the ground at their death, as well as when they are reaped, and so fall under single Escheat, February 2. 1627. Lewis Somervel contra Mr. William Stirling.

The distinction of Heretable and Moveable is derived to Rights and Obligations, as the matter thereof is Heretable or Moveable, and so all Dispositions or Obligations for constituting any right of the ground, in property, community, or Servitude, are Heretable, although they have not yet attained their effect, and become real rights compleat, as dispositions of Lands, Annualrents, Pasturages, Thirleage, &c. which is so far extended, that all which is by Destination, to have its accomplishments by a real right of the ground, is Heretable, as Bonds bearing clause of Annualrent, which because Annualrents were usually by Infeftment; therefore, the very provision of Annualrent, though but a personal obliegement to pay it yearly or termly, without mention of Infeftment, made the provision or Bond Heretable, and not to descend to Executors, Children, or Wives, but to Heirs only; yea, though the Bond bore but five per cent, which was alledged but an alimentary clause, June 28. 1665. Jean Pitcairn contra Isobel Edgar, till the Act of Parliament, 1641. revived, Parl. 1661. cap. 32. whereby such Bonds as were, or should be made after that Act, 1641. bearing only a clause of Annualrent, and no obliegement to Infeft the Creditor in an Annualrent, were declared to be Moveable as to the Defuncts Children, or nearest of Kin, but not as to the Wife or Fisk, to fall undersingle Escheat, and that because many have their Estates and Stocks in Money, and take obliegement for Annualrents, for the profit thereof, without purpose to exclude their younger Children therefrom: But Wives are excluded, because they are ordinarly provided by their Contracts of Marriage; but before this Act, all such Bonds were to all effects Heretable, yet so, assums destinat for Annualrent, though de facto, they bore none, are Heretable, quoad, the party who destinat, as when a Tocher is oblieged by a Wifes Father or Brother to be payed to her Husband, who is oblieged to imploy it upon Annualrent: This sum as to the Husband is Heretable, and excludes his Executors: But as to the Debitor who was neither oblieged to pay Annualrent, or imploy it, it is moveable, and so would affect the Debitors Executors, and exhaust his moveables, but would only belong to the Creditors Heirs, January 19. 1637. Robison contra Seatoun. July 25. 1662. Barbara Nasmith contra Jaffray.

This was so far extended, that when the Destination was by a distinct article, or Bond; yet the Executor might be compelled to assign, or repay the sum to the Heir, Spots. juramentum de calumnia, Margaret contra Janet Watson. Idem de haeredibus, Executors of David Seatoun contra Thomas Robison.

Bonds also become Heretable by distinct superveening Rights, as by a several Disposition of the Debitors, of his whole Goods and Lands, with obliegement to Infeft, and also by a superveening Appryzing.

But even the compleat Heretable Rights themselves, containing also personal Clauses of Requisition, become moveable by the Requisition or Charge, which is, pro tempore, a passing from the infeftment, and taking the Creditor to the personal obliegement, yet so, as when ever he pleaseth to pass from the Requisition or Charge, it convalesceth, and is not excluded by interveening [Page] Rights, and was found moveable by a Charge, though but against one of the Cautioners, not only as to him, but as to all the Debitors, seing thereby the Creditor had taken his option, January 24. 1666. Collonel James Montgomery contra Stuart. But the shewing the Defuncts mind to require, is not sufficient to make the sum moveable, unless it be done habili modo: So a Requisition being disconform to the clause of a Requisition, was found not to make the sum moveable, January 18. 1665. Stuart contra Stuart. Yea, a Charge upon a Bond of Corroboration, accumulating the Principal and Annual in a former security by Infeftment, and bearing but Derogation of the former security, was found to make the whole sum moveable, and to belong to the Executor, without necessity to instruct a warrand to give the Charge, which was presumed; albeit the Defunct upon death-bed exprest, that the sum belonged to his Heir, June 25. 1672. Executors and Heir of Sir Robert Seatoun. But sums were not found Heretable, because a Disposition of Land did bear, as the condition of the Reversion, that the Land should not be redeemed, or the Acquirer denuded, till he were satisfied of all sums due to him, or which should de due to him by the Disponer; neither yet when the sums are in the dispositive clause, to be contracted thereafter but only sums which are the anterior causes of the Disposition, for thereby the Creditor doth not make such sums jura fixa; nor are they the causes of the Disposition, February 18. 1676. Thomas Wauch contra Doctor Jamison. Sums are also Heretable, when Executors are expresly excluded; and a Charge or Decreet for such sums, will not make them moveable, July 13. 1676. Christy contra Christy: The reason is, because the mind of the Creditor, by calling for his Money, is not to retain it in his hands as moveables, but to make it a fixed right for his Heir, seing he excludes his Executors. And for the like reason, Wives charging for their Heritable sums, the Stocks whereof is not in their Husbands power, are not presumed thereby to make them moveable, and to fall in the power of their Husbands: And if any party in his Process or Charge, should so declare his intent, it would not make the sum moveable. But Requisition or a Charge will make sums which were Heretable by Infeftment or Destination, moveable. And so likewise will a Decreet for payment, Decem. 13. 1676. Mr. John Fairholm contra Mr. Francis Montgomery. Sums consigned by an order of Redemption, do not thereby become moveable till declarator of Redemption, or till the Creditor accept of the Confignation, and insist for the consigned sums, which if he do not, his Executor cannot recover the same, but his Heir, to whom the Wodsett right belongs. For it is not in the power of the debitor to alter the condition of his Creditors sum, and to make it either Heretable or Moveable, without consent of the Creditor, or authority of a Judge; but the Consignet may take up his sum Consigned, and pass from his order, January 21. 1673. Thomas Nicol contra Lowrie. June 18. 1675. Laird of Lie contra Foulis of Blacktoun.

The Requisition and Charge may not only be past from expresly, but tacitly, by taking Annualrent after the Charge, if it be for Terms thereafter, as in the last case, Spots. Assignation, Denaldson contra Donaldson. Requisition or a charge, makes Bonds Heretable, even after the Act, 1641. moveable as to the relict. The like is when they become otherways simply moveable.

But sums only Heretable by Destination for Annualrent, are moveable till the first Term of payment of the Annualrent be past, though the Term of payment of the Principal be not come; yet if the first Term of payment of Annualrent be past, the sum is Heretable, July 31. 1666. Sir Lodovick Gordoun [Page]contra Sir John Keith. And if the Debitor die before that time, they affect his Executors, June 29. 1624. Smith contra Relict of Peter Sanderson, or by the Creditors death before the first Term of the Annualtent, they fall to his Executors and Wife, February 12. 1623. Wallace contra Mcdowal. And generally all Rights and Obliegments, having a tract of Future time, are Heretable as to the Executors, who are thereby excluded, though they no way relate to Infeftments, or Lands, as Pensions, Tacks, &c. But as to the [...], where the distinction is betwixt Moveables, Liferent Rights, and Heretable Rights; The first being carried by single Escheat; the next by Liferent Escheat, the whole by forefaulture. All Rights relating to Infeftment by Destination, are Heretable, or moveable in the same manner as betwixt Heirs and Executors: But Rights having a tract of time, but not for a Liferent, are Moveable, and fall under single Escheat; yet the bygones of Annualrent by Infeftment, are still moveable: But as to both effects, Assignations to Literent Tacks, were found moveable, and to fall under single escheat, Hope, Horning, Sir Robert Ker contra Sir John Ker. Clauses also of relief in Heretable Bondsare moveable; and the jus Marti of Husbands, though they carry the profit of the Wises Heretable Rights, or Rights of Liferent, fall under the Husbands single escheat.

3. To return now to the several kinds of real Rights; The First whereof, is, that original Community which all men had at first, in the whole Creatures of this inferior World.

For as to that Community which is competent to a Nation, Incorporation. Society, or more single Persons, it is property indeed to these in respect of other Men, though amongst themselves it keepeth a proportion with the universal Community; First, In that there is an equal right and interest presumed to be in all these that have Community, unless the contrair appear.

Secondly, That this Equality is not exact in the use, but that which is enjoyed in common, may freely be made use of for the ends of the Community, though some make use of more, and others of less, according to their need or satisfaction: As when two persons have an universal society of all their means, if the one be taler then the other, he is not to go naked, in so far as he exceeds his fellow: Or if his appetit be greater, he is not to pinch it: and if he have more Children, he may entertain and provide them, and thereby consume more of the common Stock then the other; so that in these universal Societies, there is not an Arithmetical equality, but a Geometrical proportion to the need and use of the parties, to be observed.

Thirdly, Such Communities may be past from, and division being made of that which is common, thereby it will become proper to either party, unless the nature of the thing, or paction hinder; in which case, division cannot be made without consent of the whole; for (as is showen before) under the Obediential Obligations of Restitution, to every man that which is his own, divisions of that which is common, is comprehended.

Fourthly, Even during the Community, that which any party taketh for his use is proper, and may not be taken from him by any other, if he exceed not the ends, or the interest of the Society, by seeking more then is proportional to his need and use, with the rest in the Society: All these agree to the original Community of Mankind, and so they did continue in the first and golden Age of the World, when Gold was not known, nor regarded, but simplicity [Page] and sincerity were the Gold of that Age, whereby every man contented himself with the natural Fruits and Birth of the Earth, Sea, and Rivers: And it is like, that the Fruits of the Ground and Trees, were satisfying to man at first, before they came to hunting, and killing of Beasts, fishing in the Seas, and Rivers, and Haulking and killing of Fowls.

5. Then also, men were contented with Caves of the Earth, or shades of Trees for Houses, and skins of Beasts for Cloathing; in this Community do many of the Savage Nations of America continue to this day, in these vast and unpeopled places of the World: But for the most part, man being multiplied upon the face of the Earth, there was necessity of division, and appropriation, which hath so far prevailed, that now there remains nothing common, which by its nature and mans necessity, can be appropriat, whereby some things in whole, and some uses of others remain yet common to all men; as,

6. First, The Air is common to all men, because it can have no limits or bounds, and because all men every where must necessarily breath it.

Secondly, Running Waters are common to all men, because they can have no bounds; but Water standing, and capable of bounds, is proper.

Thirdly, The vast Ocean is common to all mankind, as to Navigation and Fishing, which are the only uses thereof, because it is not capable of bounds; but where the Sea is inclosed, in Bays, Creeks, or otherways is capable of any bounds or meeths, as within the points of such Lands, or within the view of such Shoars, there it may become proper, but with the reservation of passage for Commerce as in the Land.

Fourthly, All the wild and free creatures, which are in the property of none, are in some sort common to all, as Fishes, Fowls, Bees, &c. But in respect property hath taken hold of all that is appropriable, these are said rather to belong to none, as being by common consent declared void by all, that property thereof may be inferred by occupation, and possession, without respect to the persons necessity or use, as was in the ancient Community, but that simply whosoever possesseth that which belongeth to none, doth thereby acquire the property thereof.

Such also are Gemms and precious Stones on the Shoar, or things relinquished by the proper owners, except where there is a National Community, that people or their authority, do possess in common, not only some reserved rights of the Earth, but also the rights of precious things, or things relinquished, or lost by Shipwrack, or otherways, whereby the imaginary possession of having such within their Territories, is sufficient by the custome of Nations to appropriat them, and to exclude other Nations, or single persons of that same Nation from them. So with us, Treasures hid in the Earth, whose proper owners cannot be known, are not his in whose Ground they are found, nor the finders, but belong to the King: And things stray or waith, whose owners cannot appear, are publick, And ship-wrack, which is only understood, when all living things in the Ship have perished; but where an Ox escaped out of the Ship to Land alive, the Goods were not found escheatable as Shipwrack, November 22. 1622. Hamiltoun contra Cochran. But shipwrack is not to be made use of by the King, in prejudice of the owners of such Countreys, as use [Page] not that Law themselves, but they shall have the same favour here, as they keep to Ships of this Land broken with them, Par. 1429. cap. 124.

Fifthly, Of things appropriat, there remains still the common use of Ways and Passages, which is like a servitude on property, for this is necessarly required for the use of man; and therefore, understood as an use reserved, both in their tacit consent to appropriation, and in their custom. So all Nations have free passage by Navigation, through the Ocean, Bays and Navigable Rivers; and have also the benefite of Stations in the Sea or Rivers, and have the common use of the Shoars, for casting Anchors, disloading of Goods, taking in of Ballast, or Water rising in Fountains there, drying of Nets, erecting of Tents, and the like. Yet doth the Shoar remain proper, not only as to Jurisdiction, but as to Houses, or Works built thereupon; and as to Minerals, Coals or the like found there, and so is not in whole common, but some uses thereof only.

Nor doth it follow, that these uses are not common to all men, because they are denyed to enemies; for, as for these, we may take away that which is in their power, in some cases; so, much more may we detain from them that which is ours, and as we pursue their Persons and Goods in their own, much more in our bounds.

The Shoar in the civil Law is defined to be so far as the greatest Winter Tides do run, Inst. de rerum divisione. §. 11. which must be understood of ordinary Tides, and not of extraordinary spring Tides. But the use of the Banks, of the Sea, or Rivers to cast Anchors, or lay Goods thereon, or to tye Cables to Trees growing thereon; or the use of Ports, which are industrial, or Stations made by Art, or fortified for security, are not common to all men, but publick to their own people, or allowed to others freely for commerce, or in some cases are granted for a reasonable satisfaction of Anchorage, Portage, or other Shoar dues, which oftimes belong to private persons, by their proper right or custom, or by publick grant.

So also, Ways or Passages in the Land are common to all, and may not be justly refused by one Nation to another; and being refused, have always been accompted lawful to be forced, as Plutarch relates of Simon, who going to Lacedemon, forced his passage through Corinth. And Agesilaus returning from Asia, craved passage through Macedon, and while they craved time to consult of an answer, he conceiving delay to be a denyal, said, consult you, but I will pass; but to take away all questions, whether these were by might or right, we have a divine Example of Moses, Numbers 20. Verses 17, and 19. where Israel in their way to Canaan, craved passage of Edom, by the high ways, and offered payment even for their Water, which was to be understood of their standing Water, as Wells, which were rare and precious there; and did the like with the Ammonites, and upon refusal, forced it by War.

There is also in Property implyed an Obligation of Commerce, or Exchange, in case of necessity; for without this, property could not consist, seing by the division inferred there through, every man cannot have actually all necessars without Exchange, which being denyed in cases of necessity, or where there is no common Authority, may be taken by force, as these who pass through the Territories of others, if by their opposition, or otherways they be short of provision, they may lawfully take the same for Money, as is implyed in Moses [Page] offer to Edom, yea, there is implyed in property, an Obligation to give in cases of necessity, to these who have not wherewith to exchange, and cannot otherways preserve their life, but with the Obligation of Recompence when they are able, for humane necessity doth also infer this, but it must be a real, and not a pretended and feigned necessity. So David being hungry, eat the Shew-bread, though appropriat to God. And the Disciples being hungry, eat the Ears of Corn; and this is the ground of the Obligation, to aliment the poor, which though it also floweth from the Obligation of Charity; yet (as hath been spoken before) that Obligation hath no determinat bounds, but is left to the discretion of the giver, not of the demander, and so can be no warrand for taking by force, and without consent.

7. The Community that is of Grass and Fruits growing upon the high-ways, followeth the Community of the ways themselves: But the common use of natural Fruits brought forth without industry, even in proper Fields, as of Nutts, Berries or the like; Or the promiscuous use of Pasturage in the Winter time, accustomed in many places of Scotland, are no part of this Community, but are for the most part permitted as of little moment, or disadvantage; and therefore, may be denyed without injury.

8. The second step of real Rights is Possession, which as it is the way to property, and in [...] cases doth fully accomplish it, so it hath in it a distinct lesser Right then property, which hath no other name then Possession, though it be more facti then juris: And seing Possession is a common precognit to the most of real Rights, it fitly falleth in here to be considered, both as it is a Fact, and as it is a Right; for as it is a Fact, it is not only requisite to constitute real Rights, but is also an effect thereof, when constitute.

9. Possession hath its name from its special kind, for it is as much as positio sedium, expressing the way of Possession of the Earth, (at first common) by Families, Nations, or Persons, by fixing or settling their Seats or Habitations there, evidencing their affection and purpose to appropriat these Seats, which therefore was not understood by their passing through it, but by fixing in it; and therefore, Territories of old were called Possessions. That we may take up aright the nature of Possession, wherein it doth consist, and how it is begun, continued, interrupted, and lost, we must first distinguish the several kinds of Possession: And secondly, collect the common nature wherein they agree: And thirdly, the point of Right thence arising.

As to the First, The reason why the kinds and distinction of Possession are so much multiplied, is because by positive Law, and the custom of Nations, Property and Servitude cannot be constitute but by Possession, though it be not natural or necessary to these Rights, but by the will and constitution of men; therefore it receives diversification at their pleasure.

10. So what men think fit to call or esteem Possession, is enough to constitute Property, seing without any thing such, it may be constitute, as afterward appears. Hence ariseth the distinction of Possession, in Natural, and Civil; the former being that which is, and the latter that which is holden or repute such, under which there are degrees, as it cometh nearer to the natural Possession; we shall proceed in order from the more plenary and plain Possession, to these which are less clear.

[Page]11. First then, the clearest Possession is of Moveables, and it is the first possession that was amongst men, for so did the Fruits of things become proper; and thereafter, Ornaments, Cloathes, Instruments, and Cattel become proper, the possession whereof is simple and plain, holding and detaining them for our proper use, and debarring others from them, either by detaining them in our hands, or upon our bodies, or keeping them under our view or power, and making use of them, or having them in fast places, to which others had no easie access. This possession of Moveables was so begun and continued, and by contrary Acts interrupted and lost, when others exercised the same Acts, either without the possessors consent, or by their tollerance, or tradition and delivery, or by forsaking or relinquishing them, so that in the matter of possession of Moveables, there is little controversie.

12. Secondly, Possession of the Ground is also clear in many cases; As First, In Habitations, whether in Caves, Tents, or proper Houses. Next in Gardens, Inclosures and all Plantations. Thirdly, In Fields by Pasturage or Tillage, in so far as the Acts extend, so far these all are most natural possessions: But after that most ancient simplicity, Rights and the ways of acquiring thereof were multiplied; and therefore, possession could not be intire, but behoved to be divided amongst the several interests, then did the difficulties arise, as when one had the property, a second the fruits, a third the use, a fourth the servitudes in some, part a fifth the detention for security, a sixth, the custody or location, and all these exercised, either by the parties themselves, their servants or Children in their power, and their Procurators in their name: Yea, and by opposite and interrupting Acts, many at once pretending to the same kinds and parts of possession.

13. So then the third kind of Possession was, when the Earth began to be divided by limits and bounds, and to have common denominations, then the possession of the whole was attained by exercising possessory Acts upon a part, as he who possesseth a Field, needs not go about it, or touch every Turff of it, by himself or his Cattel, but by possessing a part, unless there were contrary possessory Acts. So possession of the greater part of Lands, contained in one Tenement, was found sufficient to validat a base Infeftment, as to the whole, and to exclude a posterior publick Infeftment, for removing the Tennents from a part of the Tenement, though the base Infeftment had possession several years, and had attained or pursued for no possession of these Tenements, Spots. removing, Hunter contra Hardie, observed by Dury, January 14. 1630. The like of possession of a Tack, of a part of Teinds in a Tack, found sufficient to validat the Tack as to the whole, Spots. 1. possessione, Lady Merchistoun contra Wrights-houses.

14. Possession Civil is extended to uplifting of Mails and Duties, which is sufficient to introduce and preserve property, though the pasturage and tillage, and all other natural deeds of possession be in others, who are properly called possessors, who hold and possess for themselves, in so far as concern the excresce of the profits, above the rent, as to which they possess in name of their Masters; and therefore, this possession is partly naturral to the Master of the Ground, and partly civil by their Tennants.

15. Fifthly, Possession is attained Symbolically, where there is not use of the whole or a part, but only of a Symbol or Token, and this is when the thing to be possest, is present, as the civil possession by Infeftment, by delivery [Page] of Earth and Stone upon the Ground of the Lands, or by delivery of a parcel of Corns for a Stack or Field of Corn, or some of a herd or Flock for the whole Flock being present, in which the Symbols being also parts of the thing to be possest, have some affinity to natural possessions.

Sixthly, Civil Possession is by a Token or Symbole, which is no part of the thing to be possest, but is a Token to represent it, as either having some resemblance with it, as the delivery of a Copy or Scroll for an office, or a penny for an Annualrent, or otherways hath no resemblance, but is a Token meerly suppositious to represent it, as delivery of a Batton in Resignation; or Delivery of a thing bought or sold, by a wisp of Straw, which ordinarly is in absence of the thing to be possessed.

16. Seventhly, Possession is attained or retained without Symbol, and without Interposition of any person in our power or procurator, but only by conjunction of Interest: So when the property of Lands is granted to one, and the Usufruct or Liferent to another, or when the Liferent is reserved, the possesssion of the Liferenter is held to be the possession of the Fiar, as to all other third parties, and Rights. And a Husbands possession of Lands by himself, or any deriving right from him, is held to be the Wifes possession, by her Liferent Infeftment.

The several kinds and degrees of possession being thus laid open, it will be more easie to takeup the common notion and nature of it, and it may be thus described.

17. Possession is the holding or detaining of any thing by our selves, or others for our use, it is not every holding or detaining which makes possession; for so Depositars detain, but because it is not for their use, they do not possess. To Possession there must be an act of the body, which is detention and holding; and an act of the mind, which is the inclination or affection to make use of the thing detained, which being of the mind, is not so easily perceiveable, as that of the body, but it is presumed whensoever the profite of the detainer may be to make use of the thing, but where it may be wrong, or hurtful, it is not presumed: As he who taketh another mans Horse by the Head, or keepeth that which is waith; or taketh in his hands the Money or Goods of another, which if it were to make use of, it would infer theft; and therefore, such detention is not presumed to be possession. He also who detaineth or holdeth a thing, not at all for his own use, but for anothers, who doth detain by him, as by his Servant, or Procurator, doth not possess: But otherways, if he have no warrand from another, but only intended, or is oblieged that it shall be to the behove of another, in that case he is possessor, because the real Right is in him, and there is upon him only an obligation to make it forthcoming to another: And they who possess partly for themselves, and partly for others, as Tennants have possession in part.

18. To come now to the Requisites for entering and beginning Possession, there must be both the detention of the body, and the detention of the mind, for use, for neither of the two alone can begin possession; corporal possession alone can neither begin it, nor continue it; and if any act of the mind were enough, possession would be very large, and but imaginary, but the manner of this seasure of possession, to begin it is very diverse, by all the several ways which are before set forth.

[Page]19. Possession being once begun, is continued, not only by reiteration of possessory acts, but even by the mind only, though there be no outward acts exerced, and the mind and affection to continue possession is always presumed, unless the contrary appear, so that if the thing once possessed be void, as to outward acts, yet it is held possest by the mind; and any contrary act of others, entering to that possession, is unwarrantable, and intrusion. For as hath been before showen, intrusion is where the entry is made in possession without violenc, but without warrand or consent, as ejection is by violence. But these contrary acts, though unwarrantable, yet they take away the possession that is detained by the mind.

20. Possession then is lost by a contrary Possession, and it is interrupted by contrary acts, and attempts of possession, which if they do not attain the effect to expulse it, it is called also a troubled or disquieted possession, for nothing can be possessed in solidum, by more then one, either simply, or in relation to the same right, as there cannot be more Proprietars then one, of the same kind, though one be superior, and another Vassal, so more Liferenters cannot possess in solidum; and therefore, the entry to possess that which is already possessed, must expulse the prior, or else introduce a partial and common possession; yet it is not the contrary attempts, or every act that expelleth a prior possession; but if the same be violent, the prior possessor hath the benefit of possessory Judgements, and may lawfully use violence to continue possession, which afterwards he may not, for recovery thereof, when it is lost, though unwarrantably, or violently: Thus Possession is transferred from one to another: But Possession is simply lost, when it is forsaken and relinquished; it is not easie to be known when Possession is detained by the mind, and when relinquished, wherein there is a general Rule, that dereliction is not presumed, except it appear by evident declaratory Acts or Circumstances, as when it is thrown away in any publick place, where it cannot but be taken up, or when another is suffered to possess without contradiction, or when possessory Acts have been long abstained from; all which conjectures, are in arbitrio judicis.

21. From what hath been said, the ordinary distinctions of Possession may be easily understood, as being either natural or civil, continued quiet and peaceable, or interrupted and disturbed, lawful or unlawful. Under which distinction, are comprehended, possessio bonae fidei, which may be called innocent Possession; and malae fidei, or fraudulent, and Possession publick and clandestine, and long possession, momentany or precarious.

22. To come to the Right implyed in Possession, it is mainly in two points; First, in the right to continue it against all illegal contrary acts. Secondly, The right of Appropriation of the Fruits consumed, bona fide, both these are introduced by positive Law, for utilities sake: For, by equity any man might at any time recover the possession of that which is his own by force, and all the Fruits thereof, whether extant or consumed: But civil Society and Magistracy being erected, it is the main foundation of the peace, and preservation thereof, that possession may not be recovered by violence, but by order of Law; and therefore, there is no more allowed to private force, then to continue possession, against contrary, violent and clandestine Acts, immediatly after acting of the former, or notice of the latter: But a violent clandestine and unlawful possession, may not be troubled, though there be an evident right; much less may Possession be entered, where there is a Right in a party [Page] himself, or his predecessor, to whom he is Heir in that thing; for as they are accounted as one person in Law, so their Possession is accounted as one Possession. Like unto this, is the Right of appearand Heirs, to possess their predecessors Rents, though they be not Infeft, which will not only exoner the possessors, but if the appearand Heir die uninfeft, his nearest of kin will have right to the Rents resting, from his predecessors death to his own death, and these will be subject to hi own proper Debts, albeit they will not affect the Land it self, but the next appearand Heir must enter to the Defunct last Infeft, and his Person and Estate will only be lyable for the Debts of the Defunct to whom he entered.

23. The other Possessory Right is, that which was allowed in the Civil Law, bonae fidei possessor facit fructus consumptos suos, l. certum 22. Cod. de rei vindicatione; the reason whereof, is because they who enjoy that which they think their own, do consume the Fruits thereof, without expectation of repetition or account, else they are presumed to reserve them, or imploy them profitably for Restitution, and if it were otherways, there could be no quiet nor security to mens minds, who could call nothing securely their own, if the event of a dubious Right might make them restore what they had consumed, bona fide, and as it is in the favours of the innocent possessor; so it is in hatred of the negligence of the other party not pursuing his Right.

24. This Right is only competent to possessors, bonae fidei, who do truely think that which they possess to be their own, and know not the right of any other; but private knowledge upon information, without legal diligence, or other solemnity allowed in Law, at least the private knowledge be certain, is not regarded, nor doth constitute the knower, in mala fide, March 14. 1626. Nisbit contra Williamson. But a Mother was not found to enjoy this benefit in prejudice of her Children, there being several presumptions of her knowledge of their right, November 20. 1662. Children of Wolmet contra Lady Wolmet and Dankeith her Husband. In some cases a Citation and Production of any other evidently preferable Right is sufficient, when the possessor hath no probable Title; but where he hath a doubtful Title, mala fides, is only induced by Litiscontestation, or Sentence, as in Reductions, whether the defender is lyable for the bygone profites, from Citation, Litiscontestation, or Decreet is in the arbitriment of the Judge, July 11. 1627. Pitmedden and the Lord Elphingstoun contra Smith. The like in a Tack reduced upon a failzie, Hope, Reduction, Seatoun contra Seatoun. The like, June 2. 1610. Mr. Robert Hunter contra Lord Sanquhar. The like as to a Decreet of Removing reduced, and the violent profits found due only after Litiscontestation in the reduction, January 24. 1611. Jousie contra Mortimer. And found only to take effect after Sentence, in Reduction of an Appryzing, because the half of the of the sum was payed, Hope, poinding, James Lamb contra Smeatoun Hepburn. And though the Possessors Right was but a Tack, which fell in consequence with the setters [...], reduced in Parliament; yet the Tacks-mans Possession, bona fide, was sustained, though he needed not to be called to the Decreet of Parliament, seing that on that Decreet there was nothing done to make him know it, or put him in mala fide, July 19. 1664. Elizabeth Dowglas and Longformacus her Spouse contra Laird of Wedderburn. Upon this ground, an adjudger was preferred to the bygone duties uplifted by him, to a prior Appryzer, who charged the Superiour to Infeft him before the Adjudication, December 1. 1632. Laird of Kilkerran contra Ferguson. This was extended to the profits uplifted by Infeftment upon a Disposition, though granted after the [Page] Liferent Escheat fell, in prejudice of the Superiour and Donatar, July 3. 1624. Moor contra Hannay and the Earl of Galloway; And extended to a Tack or Few of Ward-Lands not Confirmed by the Superiour, in prejudice of his Donatar of the Ward, March 13. 1627. Laird of Ley contra Blair. And extended to the profits of a Procurator-Fiscals place, wherein the incumbent served three years without interruption, though his Right was reduced thereafter, and declared null, ab initio, February 17. 1624. Thomson contra Law. It was also extended to one, who having a posterior Right of Reversion, first redeemed and possessed thereby, as to bygones, before the Citation, though he had not possest so long as to give him the benefite of a possessory Judgement, November 18. 1664. Guthrie contra Laird of Sornbeg. It was also sustained against a Minor, reducing upon Minority and Lesion, yet the possessor by vertue of his Contract, was secure as to bygons, before Citation; here there was a probable cause of contracting for an onerous consideration, though not fully equivalent, February 16. 1666. Earl of Wintoun contra Countess of Wintoun.

Upon this Title, a Tennent was liberat from removing, upon a warning by a Fiar after the death of his Father the Liferenter, in respect he set the Tack without mention of his Liferent, and was reputed Fiar; and therefore, the Son was put to a new warning, February 16. 1669. Hamiltoun contra Harper.

Possession bona fide, was found to Liberat an Appryzer from being countable to the other Appryzers within year and day, July 17. 1675. Bailzie Baird contra Bailzie Johnstoun. It was also sustained against the Donatar of forefaulture, January 28. 1679. Laird of Blair contra Lady Heslehead. It was also sustained upon an Infeftment for relief, whereby the rents were to be imputed in satisfaction, both of the Principal and Annual, February 8. 1676. Margaret Scrimzour contra the Earl of Northesk. Yea, it was sustained, though the possessors Title was forged, he being a singular Successor, not accessory to, or conscious of the forgery, even after improbation of his Title, was proponed by exception, but not sustained, but reserved by way of Action, in which the Title was found false, yet the bona fides was extended to the rents spent, till he was put in mala fide, by probation of the forgery, but he was found lyable, in quantum lucratus, for getting more price for the Land in question, then he payed to his Author therefore, December 10. 1677. Dick of Grange contra Sir Laurance Oliphant.

But no unlawful Possession is valid in this case, if it be vitious, violent, clandestine, or momentany. But it is not so evident when a possession is accounted momentany; sure little time will suffice in Moveables, but in Lands more time is required; a year or term, or less time may suffice.

This Right is different from the possessory Judgement competent upon Infeftments which require longer time; and because it is an effect of Infeftments, Tacks or the like, we shall speak thereof in that place. If the Possession bona fide, be by vertue of a colourable Title, though perhaps null in it self upon informalities in the Law requisite, or upon Inhibition, interdiction, or want of power in the granter, it is effectual. Yet when by a common or known Law, the Title is void materially; in this case the possessor is not esteemed to possess, bona fide, it being so evident, ignorantia juris non excusat: As if a Relict should possess Lands or others, the Marriage being dissolved by her Husbands death within year and day, November 16. 1633. Grant contra Grant. Hereby [Page] it is evident, that possession hath much in it dictinct and several from Fact, and therefore it stands in place of a Title in Ejections and Spuilzies.

25. By the Canon Law allowed by our Custom, possessor decennalis & triennalis non tenetur docere de titulo etiam in causa salsi, whereupon Prebendars were assoilzied from production in an improbation of their provisions, Hope, Improb. Bishop of Galloway contra the Prebendars of the Chappel-royal. But this holds not in Reductions, where the Title is supposed, but craved to be reduced upon a better Right, as when the debate is, who hath the right of Patronage, Earl of Wigtoun contra Drummellier, July 24. 1622. Earl of Wigtoun contra Bishop of Glasgow; for in these cases an Ecclesiastical persons Title was to be reduced, in consequentiam with the Patrons Title, which hath not this priviledge. But this possession must be as being holden and repute a part of a Benefice, and must be proven by Witnesses; and therefore, the possession of Lands by tollerance, was found probable by Witnesses, to elide thirteen years possession thereof by a Minister, who pretended to it as a part of his Glibe Ministers of contra Duke of Bucleugh. And if the Churchmens Title can be found, their possession will be ascribed thereto, and regulate thereby. And therefore the Bishop of Dumblain, as Dean of the Chapel-Royal, having long possest ten Chalders of Victual, as a part of his Benefice, there being found a Mortification of that Victual by the King, bearing the King to have had right by Disposition from another, and that others right being produced, did bear, Reversion in the body thereof for seven thousand Merks, which being payed to the King when the Bishops were supprest, and his grant of Redemption thereupon voluntarly, without an Order or Sentence: The Church-mens possession more then thirteen years before the Redemption, and thirteen years after the Redemption, was elided by the reverse Right and Redemption: Neither did the Act of Sederunt, after the Reformation, declaring ten years possession of Kirk Lands before the Reformation, and thirty years after, to import a right sustain this Church-mans possession: That Act being only for Fews, granted by Church-men, not for rights granted to Church-men, July 7. 1676. Bishop of Dumblain contra Francis Kinloch. And it was found, that thirteen years possession of Viccarage by a Minister, did not prefer him to a Tacksman, where the Ministers Title was a Decreet of Locality produced, and not containing the Teinds in question, February 24. 1681 Doctor Lesly contra the Minister of Glenmuck. This right in favours of Church-men, is by a rule of Chancelary of Rome, which hath been continued after Reformation, as being convenient, that less time and Title should give right to the Church Benefices, whose Mortifications may be easilier lost, or supprest, then other Rights. There is also another rule in the Chancelary, that triennalis pacificus possessor beneficii est inde securus; this rule gives not right to the Church, but prefers one Church-man to another, if he continue to possess three years, without interruption, though he could not defend by his Right.

There is a third Benefite by Possession of Benefices and Stipends, by seven years peaceable possession, whereby they have the benefit of a possessory Judgement, and cannot be called in question but by Reduction, or Declarator; and therefore, a Ministers possession of his Stipend for seven years, was continued, though it partly affected the Stock, and no Title produced but a Horning upon a Decreet of Locality, which was lost and never Booked, December 6. 1672, Mr. John Veitch contra Laird of Wedderly. And a Minister having possessed his Stipend seven years after the restitution of Bishops, was preferred to a Dean, who had a Right before the year 1637. and that all [Page] Bishops and Deans are restored by Act of Parliament, to their Rights and Possessions as before, 1637. untill the Deans Right were declared, in petitorio, February 9. 1675. Mr. Lewis Dunlap contra his Parochioners of Skeen. And by an Act of Sederunt, possession of Benefices, or Ecclesiastical Rights, thirty years after the Reformation, or ten years before, is appointed to stand as a valid Title, Hope, possession, Earl of Home contra Earl of Bucleugh.

26. So also Possession of a forefault person five years, and being repute as Heretable [...], is appointed to stand as a valid Right to the King, and his Donatar of forefaulture, Parl. 1584. cap. 2. And so it was found, though the Donatar was nearest of Kin to the forefault person, and might be presumed to have had his right, Maxwel contra Westraw, July 11. 1623. where Hope observes, that the Donatar made faith, that he had just reason to affirm that the Rights were wanting, Hope Possession. This was sustained, though it was offered to be proven, that the Rights were reduced, in foro contradictorio, upon recognition, February 20. 1611. Hairstones contra Campbel. The like, though the forefault persons predecessors was denuded, by a publick Infeftment of Wodsett; and possessed also by a Back-bond, seing the Wodsett might have been renounced; therefore it was left to the Inquest, appointed to cognosce by the Act of Parliament, whether the possessor was repute as Heretor, or as Backtacks-man, as was found in the case of Sir John Scot of Scotstarbet contra Tennents of Garvock. So effectual is Possession active, besides that it is the ground of prescription, whereby property and all other rights are introduced; and passive, it is sufficient to hold out all others, who have not a good right, and it is always favourable in dubious cases; from the experience whereof, is the vulgar saying, that Possession is eleven points of the Law.

27. Possession as distinct from Right, is ascriveable only to that Title, by which it did begin, in prejudice of him from whence the Possession was acquired, and must be restored, notwithstanding any other Right in the Possessor, to which he might ascribe it, and which after he had quit the Possession, might recover it, Spots. possession, George Herreis contra Anderson. Idem. Elphingstoun of Selms contra Bethia Gutherie. The like, when it is acknowledged as accepted from a party, after Decreet of Removing, Nicol. de migrando, Earl of Angus contra Gilbertson. Possession attained without Process, by on who had in his person, both a Wodsett and an Appryzing of the Lands, found only ascryveable to the Appryzing, that the same might be satisfied by Intromission, as being jus nobilius & durior sors, as was found in the case of the Earl of Nithisdale contra Countess of Balcleugh. But as to all others from whom the Possession flowed not, the same may be defended upon all Rights in the Possessor, or him from whom he hath tollerance or right.

28. The Main real Right is Property, standing in the middle betwixt Community and Possession, which precide it, and Servitude and Pledge which follow it.

The nature of Property is best understood, when it is compared with Community; for in this they both agree, that either hath a power to dispose of things, and in this differ, that Community is a promiscuous, and a conjunct power; but property is a disjunct and separat power of disposal, which, if it be with diminution of any part of the Fruits or use, it is a diminished property, and that diminution is called a Servitude, or Pledge; but though the Proprietar, and these who have Servitudes, have both the power of Disposal [Page] of the same thing, yet in this they differ from Community, that it is not promiscuous, but a distinct power, relating to distinct Effects and Interests.

The way to distinguish betwixt Property and Servitude is, that the greatest interest retaineth the name of Property, which hath in it a power of Disposal of the Substance of the thing, or alienation thereof; whereas, Servitude is the lesser Right, and reacheth but the Fruits or use in part, or for a time; it will be here proper to inquire the manner of Constitution of Property, where it was not; for the transmission of Property (being constitute) from one to another, comes in afterwards amongst Conveyances, or Transmissions of Rights.

29. The first and most simple way of constitution of Property, is by Possession of things common to all men, in so far as the Possessors use requireth; for as before is showen the original Community of the Creatures, did necessarly carry this with it, that every one might possess that which was possest by no other, in so far as his use required, and might not be lawfully dispossessed thereof without his own consent, which made it to become proper to him, and that he might defend violence against his posession of it. This Property began first in Moveables, Cloathes, and Ornaments of the Body, Instruments for making use of the Creatures, as Darts, which are the most ancient Instruments of force, while man was satisfied with the natural Fruits of the Earth, and such other Creatures as for his use and delectation, he seized on for the time.

30. Secondly, Appropriation was by mans Industry and Possession, by subduing and taming of the Creatures, and his Affection to make use of them, not for a time, but constantly, for thereby not only his common Right and Possession, but his industry and labour did properly Entitle him to these things he possest: Thus when man made use of the other Creatures, not by his own strenth alone, nor by Darts, Stones or the like, but made use of one Creature to master others, as Hounds, Halks, &c. these Instruments of pleasure managed by him, became unquestionably proper to him; then man proceeded also to subdue and make proper Cattel, as Cows, Oxen, Sheep, Horse, Mules, Camels, &c. by constant use making of their work and fruits.

Thirdly, Property having extended it self to the ground, appropriated Seats for Habitation, and Fields for Pasturage, and Tillage, and that for a constant abode; whereas at first, though mans use-making of the Earth did introduce some kind of Property in it for the time, yet was it without a purpose or evidence of a constant or perpetual appropriation, but men moved with their Cattel, from place to place, without fixation in any one place.

31. This fixation of the Ground began first in Houses, and Wells, which in the places of the World first Inhabited by man, were rare, and of great necessity and use, and therefore, Digged with Industry, and preserved with Earnestness.

32. Fourthly, When man increased upon the Earth, and Societies became to be Erected, they possessed whole Countreys, and divided them amongst them, by Meiths and Marches, and when any one of them swelled to that [Page] greatness, that their Territories could not contain them, either the whole, or the Excreass of them removed to places of the Earth not then inhabited, and fixed Seats for themselves, though the unjust ambition of some of them, made them expell others: Yet that, as contrary to the Law of Nature, was also abhorred, and gave occasion to the rest, from that same Law to concur with, and maintain the oppressed. So that almost the whole Face of the Earth became changed from its Original Community, and there was a tacite consent of Division, and Property established throughout the World, except some Barbarous Nations, and nothing was left common that could be proper, but the few ways of Community (of which before) do only remain. In which Division and Appropriation, this also is implyed, by the common consent of Nations, that what is possessed or appropriated by none, or relinquished, is not now common to all, but held as belonging to none, that by posession it might be appropriat.

33. And therefore, Fifthly, Property is introduced, by Possession of things which are simply void and belong to none, and that without limitation. This is by the Law of Nations, and their common consent, whence is that principle, Quod nullius est fit occupantis. And this way of Appropriation, differeth from the first way, whereby things common or their Fruits, become proper by seasure and possession; for, that being an effect of the Native Community, was with this limitation imployed in the Nature of Community, that one might sease upon no more then their use required, without hurt to the rest, who enjoyed that same Community, as in a Theatre, which is common to a City, every Citizen as he cometh, may possess a place for himself, by standing, or sitting there, but he may notly along, if thereby others of the Society might be hindered, to be present and behold. So if Property now were but the effect of that Original Community, when the Earth is so straitned with the increase of man, it would be the ground of perpetual Contention and War, that the Possessions of some were unequal and exceeded, and others had not enough; therefore, for preservation of the common Peace of mankind, the custom and consent of Nations, hath allowed Property of things void by Occupation, without any further debate. All these ways of Appropriation are by Possession or Occupation, and thus are all free Creatures Appropriat, as Fowls of the Air, wild Beasts of the Earth, Fish of the Sea, without distinction, upon whose ground they be taken; and though men may be hindered to come within the ground of others, there being now no ground for passage only upon account of Hunting, Halking, or Fishing: Yea, though in some Nations, the use of some of these free Creatures be prohibite to any but to the Soveraign power, yet the personal restraint hindereth not, but he who seaseth upon any wild Creature in another mans bounds, it becometh his own, though he be punishable for that trespass; and Positive Law may make a part of the punishment to be the loss of what he hath taken. So likewise, it is the first seasure that introduceth Property, and not the first attempt, and prosecution; as he who pursueth or woundeth a wild Beast, a Fowl, or Fish, is not thereby Proprietar, unless he had brought it within his power, as if he had killed it, or wounded it to death; or otherways, given the effectual Cause whereby it cannot use its native freedom as at the Whale Fishing at Greenland, he that woundeth a Whale, so that she cannot keep the Sea for the smart of her Wound, and so must needs come to Land, is Proprietar, and not he that lays first hand on her at Land, though the falling in upon anothers Game, when he alone is in prosecution, may be [...] civility, or injury, yet it hindereth not the constitution of Property, though it be a just ground to annull the Right of the first [Page] Possessor, and make him restore to the first prosecuter, if he continue his pursuit, with a probability to reach his prey. And therefore, in the last Dutch War, a Frigot of the Kings, called, the Nightingall, and a French Frigot, being then auxiliary to the King in that War, having Rencountered a Dutch Privateer, who had possessed and manned three Pryzes, and having debelled him, in the mean time the Prizes made sail to escape; while the two Frigots were taking two of these Pryzes, a Scotish Privateer atacked the third, called, the Tortoice, and made her strick Sail, but not knowing whether the other Frigots were friends or foes at such a distance, did not board her, till they came near. The French Frigot being nearer then the English Frigot, both the French Frigot and the Scotish Privateer claimed the Tortoice as their Prize: The English Captain sent the Prize to Leith, and declared the case under his hand, whereupon the Admiral adjudged the Tortoice Prize to Rankine the Scotish Privateer, and the matter being brought before the Lords by Reduction, the French Privateer pursued not, but the Kings Advocat; the Lords found, that the Frigots under the Kings pay having defeat the Dutch Privateer, who was Possessed of the Tortoice, and being in view and prosecution of her, that Rankins Capture and Possession was injurious, otherways then to assist the first attacker, unless it were proven that the Prize would have escaped, if it had not been stopped, and forced to strick Sail to Captain Rankine, February 15. 1667. Kings Advocat contra Captain Rankine.

The Creatures are understood to be free while they are not within the power of any. But Fishes within Ponds are proper, and Fowls though never so wild, while the are in custody. Amongst these free Creatures, these which are tame are not comprehended, but only these which are wild, which if they be tamed, contrary their Nature, are so long proper, as their tameness remains; but if they return to their ancient wildness, the property thereof is lost; so soon as the owner ceaseth to pursue for Possession, It is so long continued, or understood to be continued by the mind, having once begun by bodily Acts; and therefore, prosecution of wild Creatures will not begin, though it may continue the property of them. Bees are numbered amongst these wild Creatures, which therefore are not proper, though they hyve on Trees, more then Fowls who set their Nests thereupon, but if they be within a Skep, or work in the hollow of a Tree, Wall, or in a House, they are proper, or while they Hyve, or flying away are pursued by the Proprietar: but thereafter they belong to him who next getteth them in his power: As also, these who were tamed and become wild, become theirs who regain and tame them again, and return not to their first owner. Thus are also Gemms, Pearls and precious Stones, appropriat by the finders. And likewise Lands not possest, or which do arise of new, as do some Islands in the Sea, or more frequently in publick Rivers, which by the Civil Law are accounted to accress to these whose Ground lyes nearest proportionably, according to that part of the Ground that fronts them; but where such civil constitution is not, such Islands are publick as the Rivers are, in which they are bred.

34. The Second way of Appropriation, is by Accession, whereby the accessories of things proper are also proper, as the birth of all Cattel, and their Fruits. It is likewise a natural acquisition of property, which ariseth by accretion of part, accretion of Birth and of Fruits, and even the Dung, or any other profite followeth the property of that whereunto it is accessory, not only because by common utility, that is understood to be comprehended in the common consent of Mankind, to depart from the Original Community of the Earth, and [Page] all the parts, Fruits and Profits thereof, and all other things thereupon, that the samine might be appropriat. But also from that general consent of Mankind, Quae nullius sunt, fiunt occupantis. And so the Birth and Fruits being a new production, are carryed as accessory by the first possession.

So Trees and all Plants, as the Birth of the Earth are carried therewith, while they are growing thereupon, even to singular Successors; but if separat, or contained in moveable Boxes, they are not so carryed with the Ground, as accessories, but are separat Moveables. So likewise, the Natural Fruits of the Ground, as Grass, and Herbs, are carryed as the Fruit thereof accessory thereto. But by our Custom, Corns and Industrial Fruits, are esteemed as distinct Moveables, even before they be separat or ripe, and belong not to purchasers of Land or Heirs. These are the ways of constituting Property by natural equity, without consideration of the positive Law of any particular Nation; but there is no doubt that the sole Dispositive Will of the owner, may state the property of what is his, and fully at his dispose in another: So may the publick content of any people introduce ways of Appropriation, as they find most convenient, for publick good, and that either expresly by Statute, or Declaration of the Legislative Authority, or tacitly by Consuetude; and albeit it be a good and solide rule, Quod meum est, sine me alienum fieri nequit, yet it hath the exception of publick sanction, or common custom, and so though it be not by the sole and proper consent of the owner, yet it is by the consent of that Society of people, or their Authority, wherein the submission or consent of every one in the Society is implyed, in so far as the design of Association extends.

Therefore, first, In Fungibles and all such things as are not discernable from others of that kind, Possession is generally esteemed to constitute property, which is most evident in current Money, which, if it be not sealed, and during its remaining so, is otherways undiscernable, and doth so far become the property of the Possessor, that it passeth to all singular Successors without any question, of the knowledge, fraud, or other fault of the Authors, without which, Commerce could not be secured; if Money, which is the common mean of it, did not pass currently without all question, whose it had been, or how it ceassed to be his, l. si alien. 78. ff. de solutionibus, and though that Law is in the case of commixtion of Money with his Money, who was not owner of it, whereby it is esteemed as consumption of the Money commixed, that ground doth necessarily reach all Money, so soon as it passeth to any singular successor by commerce, for thereby in the same way it is consumed.

35. Secondly, Upon the like ground it is, that Appropriation by Alluvion, is admitted in all Nations, for thereby the adjection of others ground insensibly, and unperceivably by the running of a River, becomes a part of the ground to which it is adjected, because it is uncertain from whose Ground such small and unperceivable particles are carryed by the Water, and thereby also the frequent questions that would arise betwixt the Proprietars, upon the opposit Banks of Rivers are prevented; and though the adjection may be perceivable and considerable in a tract of time, it maketh no difference, if at no particular instant the adjection be considerable, as the motion of the Palm of a Horologe is insensible at any instant, though it be very perceivable when put together, in less then the quarter of an hour.

36. Thirdly, Upon the same ground, confusion of Liquids, which are not separable, [Page] altereth the property, in so far that what before belonged to several owners severally, becometh now to belong to the same owners, pro indiviso, according to the proportion of the value of their shares, neither is there any difference, whether the confusion be made by the consent of parties, by accident, or by mistake, or fault, the effect being the same in all: that because the parts are undiscernable and inseparable, so as to give every owner the individual body he had before, therefore, he can only receive by equivolence, the like value by division.

Fourthly, upon the same ground, commixture of Grain or other arid bodies, belonging to divers owners, which cannot be easily separate, or of any materials in one Mass, Work, or Artifice, if they be not separable, they induce a communion proportionable to the value of the several ingredients: And though all the ingredients remain without alteration of their substance, so that in subtilty, the property of each part might be considered as remaining with the former owner, not only in commixture, but in confusion, alluvion, and Money: Yet publick Authority for utilities sake, constituteth or declareth Property in manner foresaid, which is also consequent from necessity, and the nature of the thing, though there were no positive Law; and such commixtures are not like the commixtures of a Flock, where every individual is discernable and separable, as having the several marks of their distinct owners; and if a commixture in that case should become undiscernable, it would of necessity introduce a community, as if different Flocks of unmarked Lambs should in any way fall to come together, so that the owners, or the servants could not distinguish their own, there were no remeed but to divide according to the number belonging to the several owners, and till that division were made, every owner had proportionable interest in every individual, seing none of them could say or instruct this or that to be properly his own.

38. Fifthly, Positive Law for the common benefit, constituteth Property by necessar conjunction in constructure; such is the Roman Law, de tigno injuncto, whereby a Beam, or any other material builded in a House, becomes proper to the owner of the House or Building, that pollicy be not prejudged by demolishing of Buildings, which therefore taketh effect, whether the materials be made use of bona, or mala fide; yea, though the materials were affected with theft, which in other cases, is labes realis, the publick interest would not suffer demolition, but give the prior owner the value, secundum pretium affectionis, and further punish the transgressor; as the Roman Law gave the double value, but if before receiving of that satisfaction, the Building become to be demolished, there is no doubt but the owner of such materials will recover the same, rei vindicatione.

Upon the like ground of common utility, the Roman Law did constitute Property by contexture, whereby the materials wrought into Cloth, Garment, or other Artifact, did become the property of the owner of that Artifact, if without destruction thereof, or considerable detriment thereto; such materials could not be separate therefrom, in which they made no difference, whether these materials were made use of bona, or mala fide; nor did the inherent labes of materials stolen, hinder the accession and appropriation thereof by contexture, §. 26. instit. de rerum divisione: But both in constructure and contexture, he who thereby acquireth the property of materials belonging to other owners, seing restitution thereof ceasseth, he is lyable, not only for recompence, in quantum locupletior fastus est, but also for reparation of the damage [Page] of the former owner, in which the manner of Acquisition is considered; for, if the materials of others be made use of, in constructure or contexture, bona fide, the orninar value thereof is only due, but otherways the greatest value, according to the estimation of the former owner, per pretium affectionis.

In Contexture it is considered, what is the design of the Artefact, that it may appear what it is principal and what it is accessory, as in Cloathes the Materials though much more precious then the Cloath, are accessory thereto, and the property of the whole befalleth not to the owner of the Materials, but the owner of the Cloathes. And precious Stones set in Rings, are accessory thereto, though more precious then the Gold, or other Material of the Ring. But otherways, if a Gemm beset in Gold, the Gold becomes accessory thereto, and wherever the case is dubious, that which is of greatest value carrieth the property of the whole.

Albeit that contraversies have been seldom moved with us, as to constructure, or contexture, it is not to be doubted, but we would proceed upon the like grounds of equity and utility.

Upon the like ground of accession, questions in relation to Pictures are to be resolved, for if the Ground, broad, or Table of a Picture belong to one and the same be painted by another, either for his own use, or for the use of a third party, there doth not continue two distinct properties, one of the Broad, and another of the Picture, nor a communion by proportion of Interest, but the property of the whole befalleth to one, as to which, there was a contrariety betwixt the two Roman Juris-consults, Paulus and Caius, for Paulus allowed the Picture to follow the Broad, as accessory thereto, and carried therewith, l. in rem, 23. §. 3. ff. de rei vindicatione; but Caius on the contrair, attributeth the Broad as accessory to the Picture, l. 9. §. 2. ff. de acquirendo rerum dominio, and both Sentences be confirmed by Justinian in the Digest. In the Institutes, he prefers the opinion of Caius, §. 34. Instit. de rerum divisione; upon that reason, that it were ridiculous, that a precious Picture of Appelles should follow a Broad, though of the lowest value: Albeit before, precious Stones, though of greater value then Cloth, were declared by him to be carryed therewith, Positive Law may determine the point either way, without injustice, according to equity and expediency; but there are diverse cases in the matter, which should be diversly resolved; as,

First, If any Picture be Painted upon a Wall, or other immoveable, it doth necessarily cede to the ground thereof, and quality, wherever the Picture is, for ornament of its ground, as when a Scrine, or Cabine, or the like Moveables are Painted, because the adorning of the ground is in that case designed; but a Face or any other Picture, where the Broad is only designed for it, the Broad is most conveniently esteemed as accessory thereto, and in all cases, the owner of the whole is lyable in quantum lucratus est, even though the Painting be done by him, who knew that the ground was not his own, for in that case, the presumption is not strong enough, that he did it animo donandi, for it cannot be imagined, that the making use of an inconsiderable Broad of an other, should infer the purpose of gifting a fine Picture thereupon, neither that they who Paint a Wall, Scrine, or Boxes of others, being Articens, who work for profit, did the same to gift. but to obliege the other party.

[Page]Writing upon Parchment, Paper, or other Tables, was by the Rontan Law accounted as accessory thereto, Instit. de rerum divisione, §. 33. l. 3. §. pen. ff. ad exhibendum, which is very disionant from that which is there determined of Pictures; and therefore, is every where in desuetude, as is observed by Grotius, Minsynger and others, both as to Writing and Printing in the same way as Painting; for if the Writing be upon the Wall or other Moveables of another, or if it be upon the Books of others, it cedeth thereto; but if it be upon Paper or Parchment, the design and use whereof is for Writing, and the use whereof is consumed and lost by Writing, it doth follow the Writing, and it were very unreasonable to think that the Evidents and Securities of Lands, or any Manuscript, should be accessory to the Paper, or Parchment whereon they were Written, and which were only designed to bear and preserve the Write.

38. It is a Rule in the Roman Law, which we follow inedificatum solo cedit, for thereby all Buildings of Houses, Walls, Wells, Dyks, &c. And generally, all things sixed to the Ground, are accounted as parts of the Ground, and pass therewith (though not exprest) to all singular Successors: And not to Executors, but to Heirs; and thence, not only the Materials of others become the owners of the Ground, on which they are builded, and for preserving of policy, cannot be demolished, as hath been said of Constructure: But likeways, he that Builds with his own Materials upon another Mans Ground, the samin accresce to the Ground, and if the owner of these Materials knew the Ground to be anothers, the Roman Law gave him no Recompence therefore, but presumed it to be done, animo donandi, which is rather penal, in hatred of these who incroach upon the ground of others, then from any sufficient ground of presumption; and therefore, our Custom doth allow a Recompence to the Builder, in so far as the Heretor were profited thereby, in that he might get a greater Rent for that Building. But Building by Tennents of Houses for their own use, though at their removing, they leave the Land in better condition, then at their entry, they get no satisfaction thereof, without paction. And a Liferenter having Rebuilded a Jointure-house, which was burnt by accident in her Vidowity, and Rebuilt by her second Husband, was found to have no satisfaction therefore, except the House had been accustomed to be set for Rent; and that the Liferenter, or her Husband had no power to demolish any thing, that was fixed to the Ground, February 2. 1672. Captain Gutbrie contra Laird of Mckerstoun. And an Appryzer having Rebuilded a burnt House, was not presumed to gift the same to a Liferenter, albeit her Seasine was Registrat, but she had her option, either to get so much out of the Rent of the Tenement, as it was worth before the Reparation; or to have the possefsion of the Tenement, paying the Annualrent of the Sums necessarly and profitably wared upon the Reparation thereof, during her Life, January 24. 1672. Hacket contra Wat.

There remains to be cleared, that Appropriation which is by Specification, whereby of materials belonging to other owners, a new species is produced, whether the product belongs to the owners of the materials, or to him for whom the Work was made, as to which, the two great Sects of the ancient Lawers, were divided, Proculus and his followers attributing the property of all materials to him that made the Work. And Sabinus and his, attributing the whole to the owners of the materials: But Tribonian midseth the matter thus, that if the product can easily be reduced to the first matter, the owners of the matter remain proprietars of the whole, as when a Cup or other [...] is [Page] made of Mettal; but otherways the materials cedes to the Workmanship, not only when the materials are consumed, but even when they remain, and cannot be reduced to their first nature, as Wine of other mens Grapes, Mault of other mens Bear, Cloth of other mens Wool, and even a Ship of other mens Timber, but not by Maultning of Barly, or Dying of Cloth, or the like, which change not the Species. Conanus is of opinion, that whether the Workmanship or the Materials be more precious, the property is carried by the value. And [...] esteemeth, that there ariseth a communion, as in confusion of Liquors, proportioned according to the value of the Materials and Workmanship. Positive Law, or Custom may without injustice, follow any of these ways, reparation being always made to the party who loses his interest, unless the presumption be strong enough to infer, that the Workmanship was performed, animo donandi, by him who knew the Materials belonged to others.

In Immoveables, the constitution or transmisson of property, is exprest in Write, and is parted in many interests; but in Moveables, property is simple and full without servitude, and there is no other interest in them, unless they be impledged, neither need the Title Constitution or Transmission of property in Moveables be instructed by Write, but is presumed from possession; and therefore, for the Restitution or recovery of Moveables from the possessor thereof, it is not sufficient to instruct that the pursuer had a sufficient right thereto, as by the birth or fruit of his Ground or Cattel; or as being bought by him and in his Possession: But he must instruct the manner how his Possession ceassed, as being either taken from him by violence, or by stealth, or having strayed, and being lost or the like; and the reason thereof is, because moveables pass without Write, and oftimes without witness; and therefore, whatever right parties once had to Moveables, it is presumed to be transmitted by Donation, sale, or otherways, unless it be proven that he lost Possession, as aforesaid; or otherways, that it be proven by the Defenders Oath, that he knew the thing in question to be the pursuers proper Goods; for in that case, even his privat knowledge will prejudge him, though he had bought it at a competent rate, though it be not so in Heretable Rights, to whose constitution and transmission, Write and Solemnities are necessar, neither will it avail, though it were a Horse bought in publick Mercat and Booked there; for we have not the priviledge of Fairs which the English have, that Horse bought in publick Mercat should be secured to the buyer, without further question, but he buys the same with the peril of the sellers rigt, March 19. 1639. Ferguson contra Forrest. Hence it is, that in all Actions for recovery of moveables, there is no more lybelled, then that the moveables were the proper Goods of the pursuer, and in his Possession, for such time, by using the same as his own proper goods, and condescending how he ceassed to possess, as being lent by him, which was found relevant to be proven by witnesses, though the question was of a Book of a considerable value, January 27. 1665. Walter Scot Oy to Scotishtarbet contra Sir John Fletcher; or that the goods did stray, February 3. 1672. Scot of Gorrenberrie contra Elliot; or if the goods were in possession of a Defunct at his death, the presumption of sale ceasseth; or if there be a stronger contrary presumption, as was found in the case of Jewels, which the Defender neither could use as proper to his quality, and he was not a Merchant or Jewler; (these Jewels were once in pignorat by Write,) in that case possession was not found sufficient to infer property, December 12. 1665. John Ramsay contra James Wilson. And even in the case of Ships of War, which are the most considerable moveables, property was presumed by possession without write, July 26. 1673. Captain Hamiltoun contra the owners of the Statine, and the property of Money was inferred, [Page] by having the Key of the Chist in which the Money was unsealed, unless a contrary positive probation were adduced, June 18. 1675. Tailour contra Rankin. Yea, moveables acquired bona side, for causes onerous, were found not lyable to a Hypothecation, or conditions of a written disposition of them unless they had been affected with diligence, when they were in the hands of him to whom they were disponed with these conditions, December 17. 1675. Creditors of James Masterioun contra Creditors of Alies Thin.

These are the ways of Appropriation by private Right; Appropriation by publick Right is by War, and force, where there is no common Judge or Authority, for in that case, equity and that common justice, which is acknowledged by all Nations, as the rule of right and wrong, especially in so far as it is owned by the Law of Nations, is a sufficient warrand for obtaining satisfaction by force, where it is denyed by justice; but our design here being only to consider privat Rights, we shall but noice that which by publick Authority is allowed in these cases, to be the peculiar Right of privat persons, which doth only reach moveables, seazed upon by reprysals, or the Goods of enemies, or their partakers taken in publick War.

42. Reprysals or Letters of Mark, are granted by Princes or States, by their Warrand or Commission, to seaze upon the Goods of all persons under the Dominion of such Princes or people, who have refused to make just reparation, for the wrongs and damages done by any of their Subjects, which the Law of Nations doth justly and necessarly allow, for the common good of mankind; for if private persons be injured, by these who are not under one common authority with them, by Piracy, Pillage or otherways, oftimes they cannot know the injurer, and all force being stated in publick Authority, they cannot make use thereof to redress or revenge themselves; and therefore, they can only make application to the Soveraign Authority of that society of people, whereof they are members, and represent and instruct the injury and damage sustained by them, by the Subjects of other Princes or States, and thereupon desire that a redress may be demanded, which is ordinarly done by Ambassadours, or other Ministers of State; and if redress be not so obtained, the Soveraign authority of the persons injured, may and ought to give Commissions for seazing upon the goods of any of the people of that Society, whereof the injurers are members, till just satisfaction and reparation be obtained, and though there be that singularity in it, that the goods of these who did not the injury, are taken to satisfie the same; yet therin, there is not only necessity but moral justice, allowed and approven by the Custom of all Nations, by their common consent, for without this Societies could not be preserved; and therefore, the publick association of people implyeth this in it, that the Society is lyable for reparation of the injuries and damages of any of their Society, when reparation is refused.

Reprysals ought to be limited to a just satisfaction; and therefore, what is thereby seazed, ought to be adjndged in Courts of Admirality, wherein it ought to be proven, that the goods seazed belonged to persons of that Society, of which the injurer is a member, and to be valued according to the rate they are worth, where they are brought in and to be adjudged, in satisfaction to the injured of their damage and interest, in whole or in part: So that the excress should be forthco ming to the owner: thereof; and so soon as satisfaction is obtained, the reprysals ought to ceass: Neither doth the use-making of reprysals in this just order and measure, import the breach of Treaties, [Page] [Page] [Page] or common Peace, or infer publick War, though they may become the occasion thereof.

43. But where the injury is publick and attrocious, the Law of Nations hath necessarly and justly allowed publick War, not only to reach the moveables of publick enemies, but their Territories, Jurisdictions and Estates, wherein the proportion of satisfaction cannot be so measured, nor is it so considered as in reprysals. That which accreweth to privat persons in War, is only the giving of quarter, or getting of spoil, in so far as the same is allowed, or permitted by the Commanders in chief, warranted by publick Authority, as is ordinar to the Souldiers upon defates of their enemies, to seaze upon, and appropriat such moveables as are upon their enemies persons, or in their baggage: And sometimes for the encouraging of Souldiers besieging, and for the obstinacy of the besieged, the plunder of places gained by force, is for some time permitted, and ceasseth so soon as countermanded. In other cases, what belongs to enemies is confiscated for publick use, and Souldiers ought to be contented with their wages.

44. The main privat interest in publick War, is that which accreweth by Commissions granted by the Admiral, for seazing and appropriating of the Ships and Goods of publick enemies, and of these who become partakers of the War, and who carry not themselves as friends, or newters, to the Princes, or States ingaged in the War: For by our Custom, albeit such Ships and Goods be confiscat as publick, belonging to the King or States; yet private persons who undertake these Commissions, have the expenses and profit of these seazures, paying a fifteenth part thereof to the King, and a tenth part to the Admiral.

There have been many questions as to the Rights and Interests of Allies, and Newters, very fully and accuratly debated, and decided in the Session, upon occasion of the late Wars, betwixt the King and the States of the United Provinces, which, because they are of great use, for clearing the important points that occur in these controversies, and for vindicating of the publick justice of the Kingdom, we shall in the clearest and shortest method we can, give account of what hath been determined in all the Pryzes which came before the Lords of Session in these Wars.

The Lord Admiral of Scotland is the Judge ordinar, and the sole Judge in the first instance of all Prizes taken at Sea, but in the second instance, the Lords of Session, who are the supream Judges in all civil Causes in Scotland, which are not determined by, or depending before the Parliament, or their Commissioners, do upon complaint of iniquity committed by the Admiral, before final sentence Advocat such Causes, wherein they find probable ground of iniquity alledged and instructed; or in the second instance after sentence, do grant Letters of suspension, or reduction of the Admirals Decreets, whereupon all intricat and difficile questions in matters of Pryzes come to be debated and determined by the Lords; there is no question, when the Goods and Ships seazed on belong to enemies, but only when they do belong, or are pretended to belong to Allies or Newters.

The Lords, upon complaint of iniquity committed by the Admiral, it being alledged, that the Lords were not Judges in the matters of Pryzes in the first instance, yet they found, both by the amplitude of the power of their Jurisdiction, [Page] and by the custom in former times, that it was competent to the Lords to Advocat Causes from the Admiral upon iniquity, albeit the process cannot begin before them in the first instance; for as they are the Kings ordinar Council, all matters, not belonging to the Jurisdiction of another Court, belongeth to them; and therefore, they may, and oft have Advocat Causes from the Justice General, and other Judges in Criminal Causes; albeit the Lords cannot decide these Causes, as being only Judges in Causes Civil, yet they may Advocat the same, that in case, the reasons of Advocation be relevant and proven, they may remit the Cause to the proper and competent Judge, if the reason of Advocation be upon incompetency, or to other unsuspect Judges, if the reason be upon the suspicion of the Judge, as being concerned in the Cause, or nearly related to the parties, or having enmity against any of them; and therefore, the Lords in the Advocation, raised by the owners of the Ship, called, the Bounder, against Captain Gilleis, it being, alledged that the Admiral had committed iniquity, in granting a conjunct probation for proving the property of the Ship and loadning; the Lords found this no relevant ground of Advocation of the Cause, it being in arbitrio judicis, whether to grant a conjunct probation before answer to the relevancy of the reasons of Adjudication, or to discuss the relevancy first, and then to admit the points found relevant to probation; but in the other way witnesses, are adduced for either party, yet this being only, ex nobili officio, the Lords remitted the Cause to the Admiral, and ordained him to proceed to discuss the relevancy, there being pregnant grounds of Adjudication instantly verified, June 12. 1673. and upon his refusal, they did Advocat the Cause to themselves; they did also ordain the Admiral to proceed upon the evidences adduced to adjudge or assoilzie, without allowing a conjunct probation before answer, and declared, that if he proceeded not accordingly, they would Advocat the Cause, albeit the Danish Treaty bear, that their Ships shall not be medled with, or their Goods disloaded, till they be adjudged in a Court of Admirality; for the Lords are the Kings great Court of Admirality, in the same way as his Commissioners in England are Judges in the second instance, of Pryzes brought before the Admiral of England, December 17. 1673. Captain Stuart contra the owners of the Danish Ship, called, the Seal Fish.

When Questions concerning Prizes come before the Lords, they do not exclude the Defences of strangers, as being competent, and omitted in the first instance, though that be a Rule by our custom, but do proceed according to the common Law of Nations, and so they decided, July 23. 1667. Hans Jurgan contra Captain Logan, which was the first case occurring in that question, and was always followed after.

The rule by which the Lords have always proceeded in the matter of Pryzes, hath been the Law and Custom of Nations; and therefore, the Tenor of the Admirals Commission was not found to be the rule, February 21. 1668. Bartholomew Parkman contra Captain Allan.

The treaties betwixt the King and his Allies, in so far as they differ from the common Law of Nations, have always been allowed by the Lords, as exceptions from that general Rule, and good Defences to the people, comprehended in these Treaties.

In dubious cases, the Lords have proceeded by the Kings Instructions, ordinarly adhibit to the Admiralities of all his Kingdoms, that they might keep one [Page] uniform rule with strangers, in which, not only respect hath been had unto Justice, but even favour towards Allies, and policy and prudence towards all Newters, that none of them might receive irritation, by the extension of Justice in savourable case [...]

The ground of Justice for confiscating the Ships of those who are not enemies is, that they have assisted the enemy in carrying on the War, and thereby became accessories to the War, and by that Delinquence, do confiscat the Ships, and the loading, by which they have had accession; for the Law and Custom of Nations hath very fitly restricted the reparation of this Delinquence, so as not to state the parties offenders, as enemies, and thereby to make all their goods confiscable, as enemies goods, but doth limit the same to these Ships, in which the concurse is acted, ifthey be seazed in that Voyage, in which they give assistance, or in the immediat return.

Ingagement in War by Princes and States, cannot justly hinder the free Trade of other people, upon whom, neither party hath either Obligation or Jurisdiction; but the common consent and Custom of Nations requireth an equality and newtrality in all other parties, that they concur not in the War with either party, forbearing assistance in the War, which is by furnishing them men, instruments of War, materials specially requisit for the present War, Money furnished for publick use, and in some cases Victual, as when carried to places besieged, and other things which have promiscuous use in Peace and War, when there is a special application there of to the necessar use of the War; as Iron, Brass, Leid, Pitch, Tar, and the like, which are therefore called counterband-goods, or prohibit-goods; and by the Denunciations of War, intimation is ordinarly made to Newters, from what things to abstain, as from carrying of counterband-goods towards enemies Ports, or carrying the goods and ware of enemies, whereby their Trade is promoted, and they enabled to maintain the War; or by carrying on their. Trade under the colour of the Trade of Neuters; and therefore, in time of War, Neuters do instruct their Vessels with Passes, and other Documents, instructing, that the bottom and goods belong to their subjects free-men, and that the parties ingaged in the War, or any of their subjects have no interest therein; which Passes are upon the oaths of the owners of the Ship, or Masters thereof, and those who embarque the loading; and where there is any Treaty, the formula of such Passes useth to be exprest, always including an oath, and being given by such Magistrates as are agreed upon.

First, Then seing the accession of Neuters is a Delinquence, it can have no place where there is not a publick denunced War, which were presumed to be known to the Delinquent; and therefore, the Ship and Goods belonging to Neuters, were not found Prize, because carrying counterband-goods towards the enemies Ports, unless the War had been nottourly known, at the place where they loosed, at the time when they loosed, and acts of hostility, and declaring of Prizes, in neighbouring places was not found sufficient, July 22. 1667. Hans Jurgan contra Captain Logan. The like was found of a Ship of Hamburg, carrying counterband-goods to Danish Ports, after acts of hostility betwixt the King and the Danes, because the Ship was taken before the Proclamation of the War against the Danes, February 25. 1668. Merchants of Hamburg contra Captain Dishingtoun. If Ships have in them counterband-goods, they may be brought up, if the Port be not exprest upon oath, and be a free Port, or be contradicted by the oaths of the Skipper and Company, which infers a full probation, [Page] in case they acknowledge an unfree Port, and a presumptive probation, in case the Pass bear not a free Port, yet it admits a contrary probation, for proving of the true Port, January 21. 1673. Hendrick Anderson Master of the Sun of Dantzick contra Captain Dowglas. The like was found, where the Pass made the Port uncertain and ambiguous, bearing, London to be the Port, but a greater fraught promised, if the Ship was brought up into Holland, which was found to be elided by a positive contrair probation, February 19. 1673. the owners of the Palm-tree, and Patience contra Captain Atchison.

Amongst counterband, Pitch and Tar were found comprehended, July 9. 1668. Captain Allan contra Bartholomew Parkman, Timber propper for Shipping, as Masts, &c. is unquestionably counterband, but Timber of promiscuous use, is not counterband, except in special cases, for the peculiar use of the War.

There is a particular Article in the first Treaty betwixt the King and the Swedes, by which it is declared, that in regard the most of the materials of the Swedish Trade, are Pitch, Tar, [...], &c. which are counterband, yet the King declares, these shall not be seazed upon that accompt, which was not found sufficient to defend a Swedish Ship carrying such counterband-goods, not being the product of their own Countrey, July 27. and 31. and November 6. 1665. Parkman contra Captain Allan.

In the last Treaty betwixt the King and the Swedes, there is an Article, bearing, that counterband shall be prize, si deprehendatur; and therefore, it was thereby inferred, that the Ship and remanent loadning was not Prize, July 18. 1673. Captain Winchester contra the owners of the St. Andrew.

There was the like Article, both as to counterband, and enemies goods, in the Treaty of Breda, betwixt the King, the Dutch, the French and Danes, at the pacification of the first Dutch War, but that pacification being broken by the second Dutch War, it was not found effectual in the subsequent War, upon a Letter from the King.

A Ship was not found Prize for carrying of Victual or Money to the enemies Countrey, July 16. 1673. Captain Lyel contra the Master of the Leopard.

There is no doubt but carrying of Souldiers to the enemies Countrey of what Nation soever they be is counterband, and useth to be exprest in the Treaties of Allies generally, under the name of men, which can only be understood of strangers when they are actual Souldiers in the enemies service, for thereby there is a greater participation of the War, then either by carrying of enemies goods, or by carrying the instruments of War towards the enemies Ports; but otherways, passengers who are Neuters, may freely go to the Ports of enemies for Trading, travelling, or any other end not being found or presumed to become Citizens or Souldiers there, but residing only as Factors for strangers, and not contributing with the enemy to the War, they do not exceed the bounds of Neutrality.

The difficulty is greater in case persons belonging to the enemies Countrey, be carryed in the Ships of Allies or Neuters, and there is little doubt but the persons of enemies, residing in the enemies Countrey, and contributing to the War, have the same or more effect, then the carrying of their goods, though [Page] that hath not occurred to be determined with us, and there is less doubt, that being born in the enemies Countrey, or having resided there as Citizens, but having left the same before the War, doth no further state them as enemies, then that by their Language, or other evidence they are presumed to be enemies, unless they make it appear that they had left the enemies Countrey, and fixed their residence else-where: Neither will any burdens imposed upon their Lands or Houses, import their concurse in the War as enemies.

There was a special Concession by the King in favours of the King of Spain, that because the Language of his Subjects in the Netherlands, is the same with these of the United Provinces, that there should be no seazure of the Ships belonging to his Subjects, upon accompt of being served, or Navigat by Hollanders.

There is also an Article in the Swedish Treaty, that it should be free for them to make use of Dutch Masters for Navigating their Ships, provided that these Masters fix their Domiciles in Sweden, and become Citizens and Inhabitants there.

These Concessions gave great occasion of doubt, whether these or other Allies or Newters might make use of Hollanders as Mariners, or Servants in their Ships, because, if without that Concession they were free to hire Hollanders for Servants, they might hire them for Masters of Ships, as well as other Mariners, and so needed no such priviledge, and therefore run no hazard by being Navigat by Hollanders; but if they might not lawfully make use of a Hollands Master, till they had it by special priviledge, a pari, they could not make use of Hollands Mariners. It is clear, that the being by Nation Hollanders inferreth no hazard, either as to the Masters or Sea-men, for the War is only with the Citizens and Inhabitants of the enemies Countrey, so that the true Domicile or Residence is the main point in question. There is also great difference betwixt the Master or Stearsman and the common Mariners; for the Master is in possession of, and intrusted with the Ship, which is affected both with his Delinquence, and by his Contracts of Bottomarie; and therefore, his oath alone is always accounted sufficient probation, as to the property of the Ship, and frequently the Stearsman is intrusted with the Loading, in which case also his oath will be sufficient probation as to the property thereof, but the oaths of the Mariners have only been made use of as ordinar witnesses, proving by the concurse of two or more, and the confessions of the Master, Stearsman or Company at Sea when they were taken, have not been allowed as sufficient probation, to Confiscat the Ship or Loading, yea, though renewed after they came to Land, but only when taken judicially, and very little use hath been made of the oaths of the Privateer, or his Company, for proving against Strangers, but only their own oaths, and other evidences, the oath of the Skipper alone was found to prove against the owners, July 13. 1669. Captain Wood contra Booz Neilson.

The taking priviledge for a Hollands Master upon the considerations aforesaid, doth not import that Mariners may not be made use of, who are by Nation Holanders, if they reside not in the Jurisdiction of the enemy; neither will the being of some of them aboard, infer such evidence, that the whole Ship and Loading belong not to Newters and Free men; but if the most part of the Company be Hollanders, or if the Master be a Hollander, the presumption is strong, and gives sufficien ground for seazure; and therefore, is fitly declared [Page] by Treaties, that if the Master by Nation be a Hollander, the Pass shall bear expretly, that it is sworn upon oath that he is Citizen and Inhabitant in Sweden.

The King by his Proclamation of the first War against the Dutch, did command to seaze and make Prizes of all Ships, where there were found any number of men belonging to the enemy; and therefore, a Swedish Ship was found Prize, because Navigat with Hollanders, being all or the most part of her company, albeit she had a Pass from Sweden in the Terms of the formula, contained in the Swedish Treaty; and albeit the Treaty bear, that where such a Pass is, in bona aut homines nullo modo inquiratur, because in that same Article it is subjoyned, nisi gravis suspicio subsit, and it was a most weighty ground of suspition, that the Ship or Goods belonged to Hollanders, that the Company acknowledged that they resided in Holland, and were taken on there immediatly before this Voyage in this Process, it being alledged, that the confession of the Company, taken by an Admiral Depute at Cromarty, was extorted by holding Swords and Pistols to their Breasts, or that the samin was so extorted at Sea, when they were taken, it was found sufficient to enervat their Testimonies, if they were made to swear at Sea, the Privateer and Company having Swords and Pistols in their hands, because to evite the insamy of Perjury, they might adhere in their judicial Re-examination to their Testimonies taken at Sea, upon oath, albeit not true, or if by force or just fear, they did so depone before the Admiral Deput, February 25. 1668. the owners of the Ship, called, the Castle of Riga contra Captain Seatoun. The like was found, where a great part of the Company were Hollanders, June 30. 1668. Peterson contra Captain Anderson. And in the case betwixt Captain Allan and Bartholomew Parkman, decided, July 9. 1668. the Ship was found Prize for having a number of Hollanders Sailers, viz. three, the Company being nine, and for having a small parcel of Tar, as counterband aboard, and having aboard the product of counterband, taken in the immediat return of that Voyage; upon all which grounds joyntly, the Ship was declared Prize.

But in this War there hath no Ship been declared Prize upon account of the Companies being Hollanders, neither because the Master was a Hollander, if he were not also a part owner, albeit two of the Company were Hollanders, July 24. 1673. Captain Bennet contra the owners of the Pearl. But the Master being a Hollander was found a sufficient ground of suspition and seazure, but not of Confiscation, the property being proven to pertain to free men; and therefore, probation was allowed to either party, July 16. 1673. Captain Lyle contra the Master of the Ship, called, the Leopard.

The hyring of the enemies people is no assistance to them in the War, but rather a weakening of them, so that if these of the enemies Country be only aboard as Servants to Newters, and not upon their own account, either as Traders or Passengers, there hath been no inquiry in the last War, as to their Residence, neither hath any thing as to that point been mentioned in the last Proclamation of War, or in His Majesties Instructions to the Admiralities of His Kingdoms; and though the Law might have reached Ships Navigat by Hollanders, residing in Holland, and not changing the Domicile, yet in favour and prudence, that ground hath not been sustained, it being more the Kings Interest to allow his enemies to withdraw from their Countrey, then to force them to serve only there.

[Page]Counterband is not only a cause of Confiscation, when taken going towards enemies Ports, but also when the Ship is taken in her return from the enemies Port in that same Voyage, for then the Delinquence is compleat, whereas it had not taken effect before the Ship attained the Port, and yet might be justly seazed before the full effect, because the seazure of the Ship in her Voyage is the impediment that the effect is not attained; and therefore, the common custom of Nations hath allowed such seazures, for otherways it were impossible to hinder Newters to carry Counterband-goods to enemies, for carrying on the War; neither will the pretence of altering their resolution, to sail to, or disload in a free Port, be a sufficient Defence, unless the Ship were actually stearing another course; but if a Ship should be pursued to be searched for counterband in her passage to an enemies Port, and should be waited for till her return, and taken as she came from that Port, there could be far less pretence to excuse that Delinquence; and therefore, it was one of the grounds of Confiscation of Parkmans Ship, taken by Captain Allan, that she was taken in the return of the same Voyage, in which she carryed counterband to the enemies Ports, July 9. 1668. And though in that case the reason was lybelled, that the Ship was taken, having in her the product of counterband, having the same effect with counterband it self, quia surrogatum sapit naturam surrogati, yet without that, in the foresaid case of Captain Lyle, it was found sufficient that the Ship was taken in the return of that same Voyage, in which she carryed counterband, without mention of the product thereof, July 16. 1673. in which case it was found necessar that the Ship belonged to the same owners, that had carryed in the counterband, so that though the Ship had been light without any Loading, she would have been Prize, unless she had been a Swedish Ship, and so secured by the Swedish Treaty, Confiscating only counterband when it is actually taken.

It is a most convenient moderation of the Law of Nations, that the Delinquence of carrying counterband, is followed no further then the immediat return of that Voyage, otherways it would be the foundation of marring Trade, by perpetual quarrels, upon pretence of counterband carryed in to enemies in former Voyages.

In these Wars there has been no occasion to determine, whether it be a cause of Confiscation, if a Ship be taken in return of that Voyage, wherein she was Loaded with enemies goods.

The Dutch by their Declaration did prohibit all Friends and Allies, not only to carry counterband-goods to any Port in the Kings Dominions, but to be found therewith upon his Coasts, or diverting from the Voyage they might make with counterband towards the Kings Ports, holding that for a sufficient probation of their intending these Ports, which is like they would not take off by Documents aboard, expressing their own Ports, or the Ports of Newters, it being so easie to procure false and colourable Documents, yet that was never sustained as a relevant ground of Adjudication with us.

By what hath been said, the confiscation of the Ships and Goods of Allies and Newters upon account of counterband, and the assistance given to enemies thereby, hath been cleared; the other chief ground of confiscation of the Ships and goods of Newters, is by their concurse with enemies, in carrying on their Trade; and therefore, in all the Treaties, the formula of Passes doth require, that it be attested upon oath, that the ship and Loading belongs to the Subjects of [Page] that Ally, and no part thereof to the Kings enemies; and likewise the particular kinds and quantities of the Cargo, and the owners thereof, and of the Ship must be exprest.

Some are of opinion, that an unfree Ship Confiscats the Loading, as accessory thereto, but that unfree Loading or a part thereof doth not Confiscat the Ship, which is but a groundless subtilty; the reason of this Confiscation being the partaking with enemies in carrying on of their Trade, it taketh place alike in the Ship and Loading, or any part thereof; but it being a Delinquence, it hath still the exception of the bona fides, and ignorance of these who partake in that Conjunction of Trade, but though the Society or partnership was entered into before the War, it was not found to liberat, seing there was time and opportunity to dissolve it after, July 17. 1673. Master of the Golden Falcon contra Captain Buchannan.

That a part of the Ship belonging to an enemy, doth confiscat the whole Ship, and Loading, hath been of times decided, even in the case where the Master was hired by the Swedes, or other Allies, and was a sworn Citizen in Sweden, unless it were sufficiently instructed, that he were an Inhabitant and Residenter there, and had changed his Domicile from Holland, and carried his Wife and Family, if any he had, to a newtral place. Neither was the production of a Burgess Brieff in Sweden found sufficient, seing the Skipper by his oath acknowledged, that he left his Wife lying-in at Amsterdam, February 28. 1673. and July 18. 1673. Master of the Elsingburg contra Captain Dowglas. The like was found, because the Master by his oath acknowledged that he was a Hollander, and a part owner, and that the evidences that his Domicile was still in Holland, was more pregnant then that he had changed the same to Copenhagen, June 25. 1673. Captain contra Master of the Saint Mary. The like was found where the Skippers oath bore him to be a part owner and a Hollander, and that he intended to change his Domicile, but had not done it, though he produced a Swedish Burgess Brieff, July. 10. 1673. Captain Frazer contra Master of the young Tobias. It was so decided, July 23. 1673. Captain Seatoun contra the owners of the King David; where the Skippers oath contradicted the Pass. acknowledging himself a part owner, and an Emdener, under the Jurisdiction of the States, though he shew Certificats of being a Burgess, and having Children in Denmark; seing it was also deponed that his Wife and Family remained in Emden. The like was also lately found in the case of Captain Stuart contra the Master of the Wine grape, in Novemb. 1674. where many evidences were adduced for changing the Masters Domicile, to Sweden but the contrary evidences were found the stronger. The like was found in the reduction at the instance of the owners of the Ship, called the Calmer, against Captain Smeatoun, which was first found Prize by the Admiral, and twice thereafter by the Lords, be cause the Skippers oath contradicted the Pass, bearing, the Ship to belong wholly to Swedes, and yet he deponed that he was an eighth part owner, and a Hollander, and probation having been adduced by Commission, both from Sweden and Holland, the most pregnant probation was, that his true Domicile was at Amsterdam, December 13. 1673.

The Loading belonging to enemies, was also found to make the Ship Prize, seing it appeared, that they knew the same to belong to enemies, when inloaded, and had no priviledge by Treaty, July 15. 1673. Captain Wilson contra Master of the Ship, called, the Venus. In like manner, the most part of the Loading being proven to belong to a Jew, residing and Traffiquing in Amsterdam, the [Page] same was found Pryze, but the Ship belonging to Lubeck was found free, because the loosed from Lisbon before the certainty of a War, and so was in bona fide to ingage for a Fraught with a Hollander; neither was it respected that this Jew was an Agent for the King of Portugal, seing he was a residing Traffiquing Merchant in Holland, February 11. 1673. Earl of Kincarden, contra the Master of the St. Andrew; but thereafter this Ship was also found Prize upon other grounds. The greatest difficulty in the matter of Prizes, is, the discovery and probation of the Interest of Enemies, if probation be not had from the Oath of the Skipper and Company, or from the Documents found Aboard, there remains no more but presumptive Probation, which sometimes is so pregnant, as it admits no contrary positive probation, and oftimes it doth admit the same, and then there is probation allowed to either Party, for clearing the Matter of Fact, either as to the property of Ship, or Goods, the true residence of the Master, or the Port truly intended, or any other Matter of Fact, whereupon Confiscation or Liberation may be inferred.

In the second Dutch War, they had found out so cunning contrivances to cover their Trade, that the same could hardly be so far discovered as to make a lawful Probation; for they did not only procure Passes from the Swedes, and Danes, and other Allyes, and Newters, and upon the Priviledge granted to them of Hollands Masters, did send persons intrusted by them, as Masters or Steersmen to mannage their Trade, under pretence of fixing their Domiciles in Sweden, or in Denmark, conform to these Treaties: But also, they intrusted their Money to Merchants, or Factors, belonging to the Countries of Allyes, and Newters, who bought Ships and Goods in their own Names, but to the use and behove of the Hollanders, and upon their risk and advantage and profite, so that they had pretence to depone, that the propertie of Ship and Goods did belong to these free-men who bought them, because there lay only an obligation of trust upon them, to communicate the same to Hollanders; as did appear by a report returned from the Magistrats of Stock-holme, upon a Commission from the Lords for clearing the property of the Ship called, the Wine Grape, and her Loading, for the persons who by the Pass, made faith as owners, being interrogat, whether they had lent their names for the behove of the Dutch, or had bought the Ship and Goods for their use; so that the benefit or loss was to redound to the Dutch, they declined to give a direct answer upon Oath, denying the same, and only asserted, that they ought not to be interrogat upon such indirect dealing, or the like, or to that purpose: yea, use was made of the Name and Trust of his Majesties Subjects, to collour the Dutch Trade, and many Passes were procured from the Admirality of England for the same effect: all these were the more easily obtained, because the sufferings of innocent Merchants, upon accompt of their Governours was generally pitied, and the profite of Privateers was als generally hated and envied.

The ordinar grounds of a presumptive Probation of the Interest of Enemies, by the custom of Nations are these, first, if in the time of War, Ships were not instructed with Passes upon Oath, expressing the Owner of Ships and Loading; and therefore, the want of Passes, or the want of Documents for instructing the properties of the Ship and Loading, or any part thereof, the samen is presumed to belong to enemies. Secondly, False or forged Documents. Thirdly, Double Documents. Fourthly, Destroying of Documents, as throwing the same over Board, or sending them away at the time of the Capture; infer that the Ship or Loading, or some part thereof, belong'd to Enemies, and [Page] likewise the having Aboard double Flaggs, to be made use of at diverse occasions.

As to the first ground of Confiscation upon want of Documents; First, There is no necessity to have Aboard a Vendition of the Ship in write, but in Ships, as other moveables, property is presumed from possession. July 26. 1673. Captain Hamiltoun contra the Master of the Ship, called the of Stattin; neither doth the want of a Pass, conform to the formula in Treaties, as being defective and not expressing the Port to which the Ship was direct, infer Confiscation: in this case there was no Counterband Goods Aboard, so that though the true Port had been the Enemies Port, it would not have inferred Confiscation, January 21. 1673. Hendrick Anderson, Master of the Sun of Dantzick, contra Captain Dowglas. The like was found the 19. of February, 1673. the Owners of the Palm-tree and Patience, contra Captain Atchison. and upon the 27. of February, 1673. The owners of the King David, contra Captain Donaldson; where a Swedish Ship wanting a Pass, conform to the Swedish formula, and not being upon Oath, though these were found presumptive Probations of the Interest of Enemies, yet not so pregnant as to exclude a contrary positive Probation, that the property of the Ship and Goods belonged to Free-men, and the not expressing the Port in the Pass of a Swedish Ship, was not found so to infer the Goods to belong to Enemies, but that it admitted a contrary Probation, that the Ship and Loading belonged to Free men, and because the Loading was Pitch and Tarr, which is Counterband, the not expressing the Port, being essential as to Counterband, would have Confiscate the Ship and Loading, unless it had been secured by the Swedish Treaty, declaring Pitch and Tar, and others, being the Growth of Sweden not to be Counterband, February 28. 1673. The Master of the St. Peter of Stoad contra Captain Stewart.

Passes for Ships in time of War, must be renewed for every Voyage, and cannot otherwayes express the kinds and quantities of the Cargo, which was sustained as one of the reasons of the Adjudication of the Ship called the Elsinburgle, at the instance of Captain Dowglas, decided July 18. 1673. yet a Ship was not found Prize as wanting a Pass for the present Voyage; in respect, She having loused at Nantz, and having there a particular Pass, she was forced in to England by stress of Weather, and there sold her Loading, and went back to Nantz, and took in the like Loading for the same Owners and Port, and therefore altered not the first Pass, June 17. 1673. Captain Donaldson, contra Master of the Debora.

It is Likwise most necessar, that Passes be truly granted upon Oath made, which is the greatest security against colourable Documents, and therefore was sustained as one of the Grounds of Adjudication, of the Ship calledth [...] St. Mary, that the Master by his Oath acknowledged, that he had not made Faith, as the Pass bears: as was found June 25. 1673. and upon that reason a Ship was found Prize; in which case also, one Witness Deponed, that papers were thrown over-board, July 9. 1673. Captain Gilles contra the Owners of the Bounder.

Double Documents infer Confiscation, but that is Chiefly understood when the Documents are contrary in material points, but where there was one pass from the Colledge of Commerce, and another from the King of Sweden, having some contrariety, but not in material points, the same was not found to [Page] make the Ship prize, June 13. 1673. Captain Winchester, contra the Owners of the St. Andrew.

The throwing of papers over-board, or destroying the same at the time of the captur, is a most pregnant ground of Confiscation; for thence it is presumed, that these papers would have instructed the property to belong to Enemies, and therefore being proven but by one Witness, it put the burthen of probation upon the strangers, that the Ship and Loading belonged to free men, February 28. 1673. The Master of the White Dove, contra Captain Alexander: regard was also had to the same, though but proven by one Witness in the Confiscation of the Bounder, July 9. 1673. and if there were concurring Witnesses in this point, it would infer praesumptionem juris, & de jure, not admitting contrair probation.

Ships have oftimes been found prize by the concurse of several evidences of a contrivance, under colourable Documents, and therefore a Ship was found prize, because the pass did not mention the Port, which a Toll-breif bore to be Breme, and the Master by his Oath acknowledged the Port to be Amsterdam, and that the Owners were other persons then were exprest in the pass, and that the Master resided in Holland, though the pass bore him to to be a Burgess in Dantzick, against which a contrary probation was not admitted, January 23. 1673. the Owners of the Crown of Dantzick, contra Captain Lyon; a Ship was also Confiscat, because the Master and Steersman deponed that they knew not to whom the Goods belonged, but that they had order from a Merchant in Amsterdam, to consign them in the Pack-house of Stockholme, to be delivered to such persons as should show such marks, July 10. 1673. Captain Frazer contra Master of the Flying Heart, and in like manner the Fortune of Trailsoundt was found prize, July 22. 1673. because it was acknowledged upon Oath, that if the Ship were taken by Hollanders, the Company should depone the Goods belonged to the Tarr Company in Stockholme, as the pass bears, and if it came safe to Scotland or England, they should declare the same belonged to Samuel Souton an English man residing in Sweden.

Albeit a part of Ship or Loading be found to belong to Enemies, and that thereby the whole becomes prize, as being partners with the Enemy in carrying on their Trade, yet these who can show that they were in an invincible ignorance of the interest of an Enemy, and did all that they could do, to secure against the same, by taking the Oaths of the Owners of the whole Ship and Loading, that the property belonged to themselves, and no part thereof to an Enemy, it would take off the Delinquence of that party, and preserve their interest, which was never pleaded during these Wars, but by some of the Kings Subjects; as in the first War, the King having by His Proclamation, warranted all Ships even from Enemies, to be employed for bringing Timber for the rebuilding of London, a great part whereof was then lately burnt, Certificats and passes being alwayes had from the Duke of York, Lord High Admiral of England, whereupon Iohn Dyssone Merchant at London, Fraught a Ship of Norway, whereof Booz Neilson was Master, called the Raphel, to Import to London, six thousand Dail boards, the Ship in her Voyage to London, was taken by Captain Wood, and the whole Ship and Loading adjudged as prize, which being brought before the Lords by Reduction, they found that the Ship and Loading became prize, because there were found Aboard fifteen hundred Dails belonging to the Owners or Company, who then were in enmity in the Danish [Page] War; and yet the six thousand Dails belonging to the London Merchant, who had contracted bona fide, by the Kings Proclamation did not become prize with the Ship, as was decided July 13. 1669. for the London Merchant not being the place of Embarquing, could not know whether there was more entered then the Dails he Fraughted, or whether the Owners gave truly an Oath upon the property and quantity of the Loading. And in like manner, Sir Francis Clerk Merchant at London, having ordered a parcel of Brass wyer to be brought home to him from Sweden, the samen was imbarqued in the Ship, called, the Calmer, which was taken in her Voyage to London, by Captain Smeatoun, and was adjudged prize by the Admiral, because the Pass was convelled by the Masters Oath, yet the Parcel of Brasswyer belonging to Sir Francis Clerk, was found not to be prize, Decemb. 13. 1673. Sir Francis Clerk contra Captain Smeaton, and that because, Sir Francis residing in England, and not being upon the place of Embarquing, could not know the false-hood or simulation of the pass, or other grounds of Confiscation; and albeit there was no Document Aboard for this parcel of Brass-wyer, which would have inferred a presumptive probation against Allies or Newters, that the same belonged to enemies, yet the same or any other presumptive probation, though so strong against Newters, that it would admit no contrary probation, as to the Kings Subjects residing in His Dominions, who could not Trade but under colourable Documents, it was not dolus malus, unless they had or could have known the Interest of any of the Kings enemies. And likewise, some Merchants in Hull, having embarqued a Loading in a Ship of Hamburg, called the Lyveday, the Admiral found the Loading prize, because there were double and forged Documents made use of, against which no contrary probation would have been admitted for Newters, who being free with all parties ingadged in the War, had no reason to make use of false or double Documents, so that it necessarily inferred, that the Ship and Loading belonged not to Newters, but to Enemies, yet the matter being brought in question by Reducton, the Lords found, that there being no ground of Confiscation of the Ship, but it was a free Hamburg Ship, except upon accompt of the colourable Documents for the Loading, they admitted a contrary probation, that the property of the Loading belonged to the Merchants of Hull, Nov. 14. 1673. Master of the Lyveday contra Captain Middletoun. We have now gone through the ordinary grounds of Adjudication of prizes, there are some other grounds that have been alledged for Confiscation, but have not been sustained, as first, It was not found a ground of Confiscation of a Ship or Loading, that the same belonged to the Subjects of the Duke of Holstein, who held some of his Estate of the King of Denmark, then a declared enemy to the King, unless the Duke of Holsten had contributed to the War, as was found January 4. 1667. Paul Herrison contra L. of Ludquharn, neither that the Ship wanted a Vendition in write, July 26. 1673. Captain Hamiltoun contra Master of the Ship called of Stattin; neither was it found a relevant ground of Confiscation, because the Ship was bought in Holland, and taken at Sea ere she touched any other ground, February 21. 1673. the owners of the Ship called, the Prince of East-Freezland contra Captain Binnie; the like was found in the foresaid case of Captain Hamiltoun, neither did the insurance of Ship or Loading in Holland infer a sufficient ground of Confiscation alone, though it might concur with others as an adminicle, albeit the insurance was alledged to put the risk and hazard of the Capture upon the Kings enemies, without detriment to his Allies; Yet the Lords found, that seing the property of the Goods insured, did remain in the Kings Allies, the samen ought not to be Confiscat, neither was it alledged, that the insurance was expresly against capture, but against hazard at Sea in general, July 22. 1673. Captain contra Owners of the Fortune of Trailsound.

[Page]This further is to be observed, that when the Ships of Newters have aboard counterband, the deffect of Documents for the counterband, or double, or colourable Documents to cover the same, will not infer confiscation, if the property be proven to belong to free men, and that the true Port intended, was not an enemies Port, because in such cases Newters have necessity of colourable Documents: but as to the property of Ship and Goods, they have no such necessity; and therefore, contrary probation is not admitted against the ordinar presumptive probation, by wanting of Documents, concealing or destroying of Documents, or making use of double or false Documents.

When Prizes adjudged by the Admiral, are rouped and sold, if by reduction they be liberat by the Lords, the owners are decerned in solidum, to restore the price, the Ship and Loading being indivisible; and oftimes some are assumed as owners which are not solvent, June 10. 1680. the Ann of Christiana contra Captain Martin. And if the Ship and Loading be orderly rouped, upon the Admirals warrand, or sold upon his Decreet, before the same be called in question by citation upon reduction, albeit the Lords thereafter liberat the Ship, they will decern no more but the Price obtained by the roup before the Admirals Adjudication, or the Price obtained by sale, bona fide, after the Admirals Decreet: And if the Kings fifteenth part, and the Admirals tenth part, be bona fide, payed, they are liberat, pro tanto, and the strangers must have recourse to the Thesaury and against the Admiral for repetition.

TITLE XIII. Infeftments of Property.

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1. The original of Fees.

2. Feudal Jurisdiction, especially of the King in Parliament.

3. Feudal Jurisdiction of Superiors.

4. Allodials.

5. Requisits of proper Fees.

6. Kinds of improper Fees.

7. Dominium directum essential to all Fees.

8. Dominium utile.

9. Fidelity also necessary.

10. Feudal Contracts.

11. Udal rights.

12. Infeftment what it signifies.

13. How write is necessary for Infeftments.

14. What kinds of writes are necessary for Infeftments.

15. The Tenor of formal Charters.

16. When Instruments of seasine became necessary.

17. The Tenor of formal seasins.

18. The essentials necessary in seasins.

19. Seasins must have warrands and adminicles, and what these are.

20. Registration of seasins.

21. Registration of resignations, ad remanentiam.

21. Registration of the allowance of Apprysings and Adjudications, Inhibitions and Hornings.

23. The attest of the Nottar and two witnesses, necessary in seasins.

24. Extracts of seasins not probative.

25. Transumpts of seasins.

26. Bounding Infeftments.

27. Base Infeftments, how far effectual without Possession.

28. Infeftments by Confirmation.

29. Infeftments upon Appryzing or Adjudication.

30. The effect of Appryzings or Adjudications with a charge.

31. Infeftments Ward.

32. Feus of Ward-lands, how far valide.

33. Infeftments blensh.

34. Infeftments Feu.

35. The annexed property of the [...] can only be set Feu after [...] in Parliament.

[Page] 36. Feus of the annexed propertie, set with diminution of the retour dutie, are null.

37. Feus of Kirk-Lands.

38. Infeftment in burgage.

39. Infeftment in mortification.

40. Manses and Gleibs.

41. Conjunct Infeftments.

42. Infeftments to heirs substitute.

43. Infeftments simple and tailzied.

44. Union.

45. Erection.

46. Warrandice.

47. Tacit conditions implyed in Ward-Lands.

48. Tacit conditions in Warandice and relief.

49. Tacit conditions in Infeftments of Offices.

50. Tacit conditions in Excambion.

51. Tacit conditions in Feus.

52. Liferents reserved in Infeftments of Propertie.

53. Exceptions in Infeftments, how far effectual.

54. Faculties reserved in Infeftments.

55. Burdens of sums in Infeftments, how far effectual.

56. The effect of impossible or unlawful conditions in Infeftments.

57. Conditions inconsistent are null.

58. Clause de non alienando in Tailzies.

59. Clauses restrictive and irritant in Tailzies.

60. Regalia not exprest, are not carried by Infeftment.

61. Regalia are carried in Barony, though not exprest.

62. Jurisdiction and Courts.

63. Jurisdiction of Baron Courts, how far restricted.

64. Issues of Baron Courts belong to themselves.

65. Infeftments of Constabulary.

66. Fortalices, how far extended.

67. Forrestries.

68. Hunting of Deer, inter regalia.

69. Salmond-fishing.

70. Cruives.

71. Milns.

72. Priviledge of Brewing.

73. Part and pertinent.

74. Wood and Coal.

75. Houses and Biggings, and Park Dykes.

76. Fowling, Hunting and Fishing:

77. Cunningars.

78. Dovecotts.

79. Free Ish and Entry.

80. Herezelds.

81. Steelbow-goods.

82. The effect of Infeftments, in possessorio.

83. The effect of Infeftments, in petitorio.

84. Inhibitions and their effects against Infeftments.

[Page]THE Roman Empyre in Italy, being long opprest, and at length supprest by the Inundation of the Longobards and other barbarous Nations, who seated themselves there, and divided these beautiful Courtreys amongst their Captains, and they sub-divided the same to their Souldiers, for their Military service; and as they were the authors of this new Right, so they did term it by a new and barbarous name, Feudum, which the Germans call Fiff, and we with the English call a Fee; concerning which, there was no common written Law, but the several Provinces had their diverse Customes, as they thought most suitable to the nature of this Right, and their own utility. These Books annexed to the Civil Law, called Libri Feudorum, though they have great respect amongst Lawers, yet they are but the observations of privat persons, and so not a written publick Law.

By the Irruption which happened in the sixth Century, the Civil Law was sopit for five hundred years, it was revived in the eleventh Century, and did take in with it the Feudal Customes, which have been propagat through the most civil Nations in the World, not only for strengthning them towards War, but because Soveraigns had thereby a new interest over their Subjects and Inferiors, thereby becoming their Feudatars and Vassals, owing always to them fidelity, and oftest following as their Clients and Assecles, acknowledging them as their Lords, Superiours, and Paramount in their Lands and Heretages, which are all derived, mediatly or immediatly from the Soveraign authority, as the common and supream Superiour of all the Subjects, who have any more then the right of unfixed Moveables.

2. And thereby also ariseth the Feudal Jurisdiction, whereby not only the Soveraign power, but all Superiours do by the advice and assistance of their Vassals, who are called Peers of their Court, order and determine all things, not only relating to themselves and their Vassals, but to all others who are locally within their Territories, both in Civils and Criminals, in so far as they derive Jurisdiction Civil or Criminal from the Soveraign power, immediatly or mediatly; no Nation is more exact in this then Scotland, wherein the King as Supream Superiour, ruleth by His Vassals assembled in Parliament; in which, at first, all were personally present, who held Lands immediatly of Him, as Barons great and small, Free-holders and Prelats for Church-lands; the free Burghs were also represented in Parliament by their Commissioners, as holding their Burgage Lands, and their Freedoms and Priviledges of Burghs, as Feudaters of the King; so that there was not one foot of ground in Scotland whose Lord was not present in Parliament.

But when Fees holden of the King became sub-divided, or multiplied, two or more Commissioners were admitted in Parliament, in name of the meaner Barons and Free-holders; all were accompted great Barons, who held an hundred [Page] merk Land or above of the King, and the rest meaner Barons, Par. 1503. cap. 78. So also other Superiours have their Courts, consisting of their Vassals, who are oblieged to answer suit thereto, who as a Jury, gave Doom and Judgement of old, when all matters proceeded by Jury or Inquest, as it was also in the Kings Court by Sheriffs, Bailzies, &c. of which the shadow or formality yet remaineth, of having a Doomster as a member of Court to pronounce sentence, though Inquests be in most things laid aside through custom.

3. The very right of Superiority carryes this right of Jurisdiction over the Vassals, unless by their Infeftments, or Prescription, they be exempted.

Our Learned Countrey-man, Mr. Thomas Craig Advocat, hath largely and learnedly handled the Feudal Rights of this and other Nations, in his Book de Feudis; and therefore, we shall only follow closely, what since his time by Statute or Custom hath been cleared or altered in Feudal Rights, which is very much, for he having written in the year, 1600. there are since many Statutes, and variety of cases, which did occur, and were determined by the Lords, and have been, de recenti, observed as they were done by the most eminent of the Lords and Lawers, as by Haddingtoun who was President of the Session, and by President Spotswood, and by Dury, who continued in the Session from the year, 1620. until his death in the year, 1642. And though these Decisions have been intermitted since that time, till the Kings return, the loss is not great, these times being troublesome, and great alterations of the Lords; but the Decisions of the Lords have been constantly observed since the Kings return, by which most of the Feudal Questions are determined; and these things which Craig could but conjecture from the Nature of the Feudal Rights, the Customs of neighbouring Nations, and the opinion of Feudists, are now commonly known, and come to a fixed Custom; neither doth he observe any Decisions particularly by the time, further then his own time in which our Feudal Customs could little be determined, seing the Lords of Session were mutable and ambulatory, till the year, 1540. in which, King James the fifth did perfect the establishment of the Session in a Colledge of Justice, who at first, could not be so knowing and fixed in their forms and customs; and therefore, it cannot be thought strange, if the Feudal Customes as they are now settled, do much differ from what Craig did observe; he hath indeed very well observed the origine and nature of Feudal Rights, and the Customs of Italy where they began, and of France and England, whence they were derived to us; and therefore, we say little as to these: And so much only of the Rights themselves as must necessarly be introductory to our fixed Customs; in which, we shall follow that same Method (as most accommodat to the matter) which we observed in the former Title of real Rights: But there being in Feudal Rights, nothing of that original Community which is therein, being only a promiscuous property of Incorporations or persons; or otherways a servitude of common Pasturage, &c.

Therefore, we shall first speak of the Right of property in Fees, both in relation to the Superiour and to the Vassal. Next of the Servitudes competent in Fees, which comprehending all Rights, not reaching the alienation or substance, but the lesser interests, extending only to the profits or use of Hereditaments, must comprehend both the interest introduced by Law, as Teinds, and these that are by consent, by Infeftments or other grants, or long possession, whether they be personal as Liferents, Conjunct-fees, Terces, and the Right of Courtisie, Annualrents, Pensions, Rentals, Tacks, &c. Or whether real Servitudes, [Page] as Thirlage, Pasturage, &c. And last, Feudal Pledges, which are called Wodsetts. But in all, we are only here to speak of the constitution of Feudal Rights, leaving the transmission thereof to Heirs, or singular Successors, to the next part, Vide Title 24. and 27.

4. The property of all Lands and Immoveables, or Hereditaments, are either Allodial or Feudal; Allodial is that, whereby the right is without recognisance or acknowledgement of a Superiour, having a real Right in the thing, thus are Moveables enjoyed; and Lands and Immoveables were so till these Feudal Customs; and now there remains little Allodial: For Lands holden Feu or Burgage, or Lands Mortified, are not Allodial, seing they acknowledge a Superiour, having the direct Right of property, and to whom, there must be some Rent or return, though they be not so proper Fees, as Land holden Ward. Yet the Superiours Right in the Soveraign power, is not Feudal, but Allodial here, though some Kingdoms be holden of Superiors as Feudal. So also the Gleibs of Ministers seem to come nearest to Allodials, having no Infeftment holding Rent or acknowledgement, though they be more properly mortified Fees, whereof the Liferentescheat befalls to the King only.

Kirks and Kirk-yards are only Allodial, without any acknowledgement of a Superiour, but they are destinat for pious Uses, and are ordained to be upheld and repaired, Par. 1563. cap. 76. And the Parochioners of every Paroch ar ordained to build and repair Kirk-yard-dykes with Stone and Morter, two els high, and to make Kirk-styles therein, Par. 1597. cap. 232. The manner of reparing Kirks was remitted to the Council by the said first Act of Parliament, and thereupon an Act of Council was made, which is ratified, Par. 1572. cap. 54. but is not repeated in the Ratification, but only in general, that the Parochioners were warranted to name persons to stent the Neighbours.

A Fee signifieth either the right it self, or the thing affected with the Right, whether it be corporeal, as Lands Lochs, Woods, Fortalices, Milns; or incorporeal, as Annualrents, Fishing, Jurisdiction, Pasturage or the like, and at the first, it was freely granted for Fidelity and Military service of the Vassal.

5. And therefore it implyed, first, That it was a free and gratuitous Donation, as to Money or other anterior cause, and only for fidelity and service. Secondly, None could succeed therein, but such as could perform that service, whereby women were excluded. Thirdly, It could descend to none but to the Male Issue of the first Vassals body, which ceassing, it became void, and could not be transmitted to the Collaterals, or to the Ascendents of the first Vassal. Fourthly, Whensoever it was open or void by the death of the Vassal Infeft, it returned to the Superiour, until the Vassals Heir were capable of Military Service, which was esteemed to be so soon as he attained Majority. And while it was in non-entry, by the negligence of the Vassal, not demanding Infeftment, but in his Minority, when he was unable to serve, both the Lands and the Vassal were in the hands of the Superiour, in Ward and Custody, or of his Donatar as his Legal Tutor, who was to educat him for his own service, and to intertain him, beside which he had then no other profit of his Fee. And if he married without the Superiours consent, he lost a sum equivalent to that Tocher, which were suitable to his Quality and Estate: And if contrary his Superiours will, he refused a suitable Match, he forefaults the double of the Tocher: The reason introductory of this was, because the Superiour might be concerned in the affinity contracted by his Vassal in his marriage.

[Page]In all Fees, fidelity by the Vassal to his Superiour is necessarly implyed, and if any thing were acted contrary to fidelity and gratitude, against the life and fame of the Superiour, to the great prejudice of his Estate or nearest Relations, the Fee became void; wherein is also comprehended the Vassals disclaiming of his Superiour, or owning another in his place; or Infefting another Vassal without his Superiours consent.

Fees are not only unalienable without consent of the Superiour, for the reasons now adduced; but they are stricti juris, and there is no obliegement upon the Superiour to receive any stranger or singular successor, his Vassal, except what the Law hath introduced by Statute or Custom, in favours of Creditors, for obtaining satisfaction of their Debts, by Appryzings or Adjudication, whereby the superiour may be compelled to receive singular successors: Yet the Disposition procuratory, or precept of seasing before Infeftment are asignable, and the superiour may be compelled to receive the Assigney, if the Disposition be in favours of Assigneys: But Infeftment being once taken, he is not oblieged to receive any Assigney or singular successors, otherways then in obedience of Horning upon Appryzing or Adjudication, getting a years Rent for accepting a new Vassal.

6. These being the ancient requisits of Fees; that is a proper Fee which hath them, and the want of any of them makes it Improperin so far, but most of them might always, and now are changed by the Tenor of the Infeftment, as when the Fee is granted to the Vassal and the Heirs of his body; it is so far improper, that women may succeed. If it begranted to him and his Heirs simply, then his Collateral Heirs or Ascendents may succeed: Or if to his Heirs male whatsoever, much more if to the Heirs or Descendents of other persons in Tailzies. Fees are also granted, not for Military service, or service indefinitly, but for some definite particular service, as for carrying of a Sword or other Ensign of Honour, before the Superiour in solemn days; or not for service at all, but for some Rent, which is either inconsiderable, as a meer acknowledgement of the Superiour, as a penny Money, or a grain of Pepper, a Rose, &c. Or, for a Feu-ferm-duty in Money, or any Fungible, or other performance: Or, when the avail of the Marriage, and profit of the Ward is taxed to such a sum.

Hence we may consider, what remains as to the essentials of Fees, and common interests thereof, which are these.

7. First, there must remain a right in the Superiour, which is called, dominium directum; and withal, a Right in the Vassal, called, dominium utile: The reason of the distinction and terms thereof is, because it can hardly be determined, that the Right of Property is in either the Superiour or Vassal alone, so that the other should only have a servitude upon it, though some have thought Superiority but a servitude, the property being in the Vassal; and others have thought the Fee it self to be but a servitude, to wit, the perpetual use and fruit, yet the reconciliation and satisfaction of both, hath been well found out in this distinction, whereby neithers interest is called a servitude; but by the resemblance of the distinction in Law, betwixt jura & actiones directae, and these which for resemblance were reductive thereto, and therefore called, utiles.

8. The Superiors Right is called, dominium directum, and the Vassals utile, and without these, the Right cannot consist.

[Page] Secondly, As there must be a right in the Superiour, and another in the Vassal, so the Vassal in his right must necessarly hold of, and acknowledge the Superious, as having the direct Right in the Fee, otherways the two distinct Rights without this subordination, will make but two partial Allodial Rights.

Thirdly, There is necessarly implyed in Fees, some Rent or return to the Superiour for the Fee, which may be either service, Money, or other Fungible, or prayers and supplications; as in Fees mortified to the Kirk, or other performance, or at least the Vassals fidelity to the Superiour, implying, not only negative, that he may not wrong the Superiour, but positive, that he must reveal to his Superiour any design against his Life or Fame.

9. Which fidelity, though it be not exprest, yet it is necessarly imported in all kinds of Fees, and cannot be taken away by any paction to the contrary, without destroying the very nature of this Right.

10. To come now to the constitution of the Property of Lands, in Fee and Heretage, the Feudal Contract is of it self alienative as Loan, Sale, Exchange: and the Contracts in Law, ealled, do ut des, and do ut facias: Of which two last, the Feudal Contract is a kind, seing thereby Land or other immoveable is given, for giving or doing something; therefore, as in others, so in it, the will of the owner must constitute the Right in the Vassal; and seing by the Custom of Nations, some kind of Possession is necessary to constitute or transfer property, the Superiours delivery of Possession to the Vassal, or acknowledgement and approbation thereof in the Vassal, to be holden by him in Fee, were sufficient to constitute and perfect the Fee.

11. And therefore, in the Udal Right of Lands in Orknay and Zetland, whereby without any Infeftment, Investiture or other Right or Write, they enjoy Lands and Hereditaments; it sufficeth them to instruct by Witnesses, that they have possest, as being holden and repute Heretable possessors of such Lands; but the Law and Custom of Scotland, having, as in all other places, necessarly required Write, not only for evidence of the Constitution of this Right, but as Solemnities for the perfecting and solemnizing thereof, without which it becomes not a compleat real Right of the ground, except where such Writes have been destroyed, or lost in times of trouble, and then proving the Tenor of them, must be used: Or in some cases, the Heretor may be cognosced by an Inquest, as Heretable possessor. But ordinarly Write is requisite, which Writes are called an Infeftment, or an Investiture.

12. Infeftment or infeudatio, signifieth the Right constitutive of a Fee, as its Etymon indicateth: So also, Investiture is the same, more Metaphorically, as we are said to be invested or indued with any right, as men are covered with a Garment or Cloak, and denuded and divested thereof, when it is extinct or transmitted: So both Infeftment and Investiture signifie the Writes, which are evidents, signifying the Act constituting the Fee; and these are two, the Dispositive Will of the Superiour, and his delivery of Possession by himself or his Procurators in his Name.

13. Of a long time, Infeftment hath required write as a necessar solemnity, not only as a mean of probation, that the Superiour did truly dispone to the vassal, any immoveable in Fee and Heretage, and that accordingly the vassal attained Possession, Natural, Civil, or Symbolical; for if write were adhibite [Page] only for probation, other probation might also be admitted, not only against the Superiour, or his Heirs by their Write or Oath, but even against their singular successors, or other Competitors, by whose oath of knowledge or write, the truth of the Infeftment, and of these two necessary Acts, to constitute a Fee, might be proven; and albeit the Superiours oath would not prove against a singular successor, yet his write anterior to that singular successors Right, acknowledging, that he had at such a time invested such a person as his vassal, and entered him in possession, which would prove against his Assigney; yet neither of these ways would constitute a Fee, and supply a written Infeftment, except where the peculiar custom of Fees without write hath been immemorial; and therefore sustained as sufficient: And albeit it be provided by ancient Statutes, that the Heretable Possessors of Lands may be cognosced by inquest, yet that was only upon consideration of Calamity and War, whereby Writes were destroyed, and where no competition was by any pretending a written Infeftment, and Possession conform. But the question being only betwixt the Superiour and his Vassal, who with his Predecessors had been in Immemorial possession, as being holden and repute Heretable possessors, by performing the deeds proper to Vassals of such Lands, and so holden and repute as Heretable Possessors by the Neighbour-hood, which I have not heard to take effect; but as to the Kings immediat Vassals, who claims property in no Lands as Supream Superiour; but what is annexed to the Crown, or whereof the property is acquired to the King, by the Casualities of his Superiority: Or by Acquisition from other Proprietars; and therefore, he doth never exclude the ancient Heretable Possessors, though they have losed their Rights by publick calamity, wherein- not only Adminicles in Write, but the testimonies of Witnesses above exception are received, whereby if the Right be not proven to be blench, or Feu by the Exchequer Rolls, which bears all the Kings Property and the Reddendo's thereof; or by Eque's made in Exchequer, the Fee will be held Ward, and according to the probation and verdict of the Inquest, Charters will be granted by the King in Exchequer, and there scarce can be pretendedany Fee, which hath not been already established by write.

14. The Write requisite to constitute a Fee, must contain the present Dispositive Act of the Superiour, by which he Dispons to the Vassal and his Heirs the Fee, in whatsoever terms he expresseth it, as if he gift, grant, alienat, sell, or dispone, though the several terms exprest may import a different Title and Warrandice; yea, albeit no Cause or Title be exprest or implyed, but only that the Superiour Dispons; or though the Cause or Title insinuat be not true, yet it was sufficient with Possession until the Solemnity of Instruments of Seasine was introduced, and is still sufficient when Seasine is rightly adhibit; for we follow not that subtility of annulling Deeds, because they are sine causa, but do esteem them as gratuitous Donations; and therefore, Narratives expressing the cause of the Disposition, are never inquired in, because, though there were no cause, the Disposition is good: And albeit neither tenendas, reddendo, or the modus acquirendi, be exprest, yet if the property was the Disponers, and he do but express the Disposition to be in Fee and Heretage, it is valid; for the reddendo is understood to be services, accustomed in Wardholdings; and there will be carryed (though not exprest) all the parts and pertinents of the Fee.

And therefore any Disposition, de presenti, in Fee, is valid as to that part of the Infeftment, although the Disposition contained an obliegement to grant Charters; yet the not granting there of doth not prejudge. And if Charters [Page] be granted relative to prior obliegements, yet the Charter is good, without necessity to prove these. Nor will it be sustained, for the Superiour or any competitor, that if the prior Obligation, Disposition or Contract were produced, it would be found conditional, or have Clauses in favours of the Superiour, or that Competitor, whether generally or particularly alledged: But if these were lost, the Charter is sufficient, and no more is understood to be in the real Right, then what is contained in the Charter; yea, though the Charter bear, according to the provisions and conditions contained in such a Contract, Disposition, or Bond, which may import that the Superiour by granting the Charter without these, hath not past from them; and therefore, he may insist upon them as personal obliegements, and the Vassal will be oblieged to produce the same, ad modum probationis, by Exhibition as an incident diligence, whereupon he must Depone, whether he has them or had them since the Citation, or did at any time fraudfully put them away: But if without Fraud, they be lost, the Charter is sufficient, and in no case doth require the production of any former ground.

Precepts of clare constat, are also sufficient, seing they contain a Precept to Infeft such a person as Vassal, which implys, the Dispositive. Will of the Superiour; and therefore, is valid in place of a Charter from its date, albeit it [...] no effect against singular Successors, as to that Vassals Predecessors Rights, which must be instructed by the Rights themselves, and not by the Superiours acknowledgement.

And for the same reason, other Precepts of Seasine, not relating to particular Charters or Seasines, but either simple, or bearing secundam cartam [...], are sufficient, although these Charters be never granted: But there will be only understood a proper Ward-holding gratuitous, without [...], extending only to the Heirs of the Vassals Body, but not reaching to [...] or Ascendents, unless the precept express or insinuat an onerous Title, [...] Vendition, Excambion, &c.

But since Write became to be an essential solemnity of Fees, the Superiours [...] Dispositive Act must be in Write, but his preterit Declaratory Act, acknowledging such a person and his Predecessors to be Vassals, and have the Fee, [...] his obliegement to grant the Fee, though never so express, which relates but to a Disposition, de futuro, will not supply a Charter, though clede with [...] Possession, or having Seasine by Instrument, bearing to be propriis [...], though by these the Superiour may be compelled to grant Charters [...] and compleat, bearing expresly, all the ordinar Clauses in such Rights: Yet [...] cases, Adminiculation of a Seasine will suffice, as in the Liferents of [...], being proportional, or in very ancient Rights; or where in Competition no better Right is shown.

Much less is it necessary to have formal and ample Charters in the best style upon Parchment, in Latine, sealed and subscribed, albeit Vassals are oblieged to accept no other, and the Nottars, drawers of such Charters may be deposed and censured yet the Right will not be annulled, or postponed to posterior, more formal and solemn Rights, for want of these formalities.

15. The formal Tenor of Charters is different according to the several kinds on Infeftments, whereof some are original Infeftments, by which the Fee was first constitute, and therefore are most plain and simple, containing the dispositive [Page] Clauss, relating or insinuating the Title or original of the Right, if it be an original Charter from the King, it begins with His Royal Title, Carolus Dei Gratia, &c. And bears the consent of the Thesaurer, and Commissioners for the Thesaury, and bears a Narrative of the Motives, inducing the King to grant the same; and if it be Ward or Blench, in Burgage or Mortification, it bears, Damus, concedimus & in perpetuum confirmamus: But if it be a Feu Charter, it bears, Arendamus, locamus in emfeuteosin dimittimus & in perpetuum confirmamus; And then follows the Clause, Tenendas, and the Clause, Reddendo, which if it be Ward, bears, Servitia debita: If Blench, the particular Blench Duty, nomine Albae firmae: If Feu, the particular feu duty, and sometimes the duplication thereof, and the marriage of the Heir: If Burgage, it bears, Servitia Burgalia: If in Mortification, it bears, Preces & supplicationes. And ordinarly Warrandices, which, though very ample hath no effect; for if the Right prove invalid, there is no Action against the King, who doth always Dispone, plenissimo jure; but periculo petentis, especially when he Dispones as Supream Superiour, by the Right of His Crown: But if he dispone for a price or cause onerous, as for sums of Money, or by Excambion. Lands acquired by him, being no part of the Revenue of the Crown, or annexed property; in these, utitur jure privato, and his warrandice may have effect, as to his privat Patrimony, and not as to the Patrimony of the Crown.

Charters granted by the King of Fees by progress, are either upon Resignation or by Confirmation, or upon Apprizing or Adjudication, which differ from original Charters, in their several specialities, as Chartersupon Resignation, after the Dispositive Clause, bear the conveyance, that the Lands or others were resigned in the hands of His Majesty, or His Commissioners, by a Procuratory of Resignation a-part, or in a Disposition or Contract expressing its date in favours of the Acquirer, his Heirs or Assigneys, whereupon Resignation being made in the Resigners Life, the Charter will be granted to him or to his Heirs, served generally, or to his assigneys, having right by Assignation to the Procuratory of Resignation.

Charters of Confirmation do deduce the Right to be confirmed, which, if it be a Charter a se, bearing, to be holden from the Disponer of the King, and expressing the Tenendas & reddendo. The Kings Charter doth in the like style, generally relate the Charter to be confirmed, and then Ratifies, Confirms, and approves the same in all the Heads and Articles therein, and then subjoyns the Tenor and Words of the Charter.

These Charters of Confirmation whensoever granted, are drawn back to the date of the Charter Confirmed (which were absolutely null till Confirmation) unless there be a medium impedimentum, as a prior Infeftment by Confirmation, or upon Resignation by the Superiour; yea, though the Infeftment by Confirmation be after the death of the granter of the Charter to be Confirmed, if the Superiour do Confirm, it is drawn back, and will import the Superiours passing from any Casuality, falling by the death of the Author, unless these be reserved, wherein the neglect of the Kings Officers may not be imputed in his prejudice; albeit Craig relates a case betwixt Kirkaldie of Grange, and Ker in the contrary, l. 2. Dieges. 4. and adds this reason, that the former Vassal granter of the Charter to be Confirmed, dying before Confirmation, it might be truely said that he dyed last, Vest and Seased as of Fee; which, the subsequent Confirmation cannot make false, yet this being fictione juris; these fictions [Page] may do much more then this change, and there is nothing more frequent, then to Confirm very old Charters or Dispositions.

There is another kind of Charter of Confirmation by the King, of Charters granted by his Vassals to their Sub-vassals, not to be holden a se of the King, but de se of the Disponer. The effect of which Confirmation is to secure the acquirer against the forefaulture, or Recognition of his Superiour.

Charters by the King upon Appryzing or Adjudication, do either Narrate the Appryzing or Adjudication, before the Dispositive Clause: Or otherways after the Dispositive Clause, by the Clause beginning, Quae quidem terrae perprius haereditarie, pertinuerunt, ad A. B. &c. Which Clause, is also next to the Dispositive in Charters upon Resignation, and doth express the Resignation made either personally by the Vassal, or more ordinarly by his Procuratory, and then bears, the procuratory of Resignation and the date thereof: But if it be upon Appryzing or Adjudication, it bears, that the Lands and others in the Charter were Appryzed or Adjudged from the former Vassal or his Apparent Heir, lawfully Charged to enter Heir in special; and expresses the date of the Appryzing or Adjudication, and the sums therein-contained, and bears, in the Reddendo, the duties and services, due and accustomed before the said Appryzing or Adjudication. The Kings Charters bears as witnesses, several Officers of State, and director of the Chanclery.

The Kings Charters must pass in Exchequer upon a signature signed by the King, or by his Thesaurer or Commissioners of the Thesaury, and a quorum of the Exchequer; which signature is recorded in the Books of Exchequer, and then passeth under the Signet, and then under the Privy Seal, whose Warrand is the Signature, and last under the Great Seal.

Charters by Subjects in most things agree with the Kings Charters, but differ in these points, that they begin not with their Titles, but thus, Omnibus hanc Cartam visuris vel audituris; and then follows the Superiours Title or Designation. And in original Charters, the special Cause is Narrated, as for Implement of a certain contract, Disposition or Obligation, in them also the warrandice is more particularly expressed, because it is effectual according to its Tenor.

In the Charters granted by Subjects, the Precepts of Seasine were ordinarly ingrossed, and now by the late Act of Parliament, 1672. cap. 7th. Precepts of Seasine are appointed to be insert in the Kings Charters, which before could only pass by a Write, under the Quarter Seal, or testimony of the Great Seal.

In all Charters, both by King and Subjects, the Clause Tenendas useth to be insert, expressing the Lands, or others by their ordinary Designations, and then adding, Per omnes [...] metas antiquas & divisas, pro ut jacent in [...] & latitudine, cumdomibus, AEdificiis, boscis, planis, moris, maresiis, viis, [...] aquis, rivolis, stagnis, pratis, pascuis, & pasturis, molendinis & multuris, & eorum sequelis, aucupationibus, venationibus, piscationibus, petariis, turbariis, cuniculis, cuniculariis, columbis, columbariis, hortis, pomariis, fabrilibus, brasinis & brueriis, genestis, sylvis, nemoribus & virgultis, lignis, lapicidiis, lapide & calce, cum curiis & earum exitibus, herezeldis, [...], & mulierum merchetis, libero [...] & exitu, ac cum omnibus aliis libertatibus, commoditatibus, proficuis, astamentis, [Page] ac justis suis pertinentiis quibuscun (que) tam non nominatis quam nominatis, tam subtus quam supra terram, procul & prope ad praedictas terras spectantibus, seu spectare valentibus, quomodolibet in futurum, libere, plenarie, quiete, integre, honorifice, sine aliquo impedimento, revocatione, contradictione, aut obstaculo qualicunque.

In the Charters by the King or Subjects, there may and useth to be insert a Clause, de novo-damus, which doth Dispone the Fee, as by an original Right, in case the Disponers Right should be found defective, and to secure against any Title proper to the Superiour, either as to the property, or any servitude or casuality; which Clauses use to be very full, and to express all Nullities, Title, or Interest in the Superiour, with supply of all defects; and bearing all the particular Casualities, with which the Fee might be burdened, which are effectual, and extended to the full against Subjects. But as to such Clauses in the Kings Charters, they are fully extended as to all Interest in the King, relating to the Property, such as Nullities, Forefaulture Recognition, Purpresture, Disclamation: But the general words, Pro omni jure titulo & interesse, are not extended against the King, to any Casuality of Superiority, not reaching, but burdening the Property, except such only as are particularly exprest; and therefore, a novo damus, in a Bishops Charter from the King, Disponing a Patronage, pro omni jure, was found to give the Bishops Successor right to that Patronage, though it was a Laik Patronage, without necessity to instruct that the Bishop had any pretence of a Title thereto before, but that the novo damus was as effectual as an original Right, February 19. 1680. Sir John Scot of Ancrum contra Arch-bishop of Glasgow. But a novo damus by the King, bearing, pro omni jure titulo & interesse, and expressing Ward, found not to exclude the Kings Donator from the Marriage, as being a Casuality differing from the Ward, which useth to pass by a several Gift 17. day of July 1672. Lord Hatton contra the Earl of Northesk.

The reason of the different extention of the Clause, de novo damus, as to the King and Subjects is, because Subjects are presumed to take special notice of all Clauses, that they insert in their Charters, which in dubio, are interpret, contra proferentem. But these Clauses do more easily pass by inadvertence in Exchequer; and therefore, their Gifts are more regulat by their Acts, then by the common Style thereof. For though Gifts of Ward comprehend Non-entry, ay and while the Entry of the righteous Heir: Yet by act of Exchequer, it is only extended to three Terms after the Ward, though the old Style be still continued.

Charters do also comprehend several conditions and provisions, of which hereafter. And some Charters do express a bounding, which is ordinary in these within Burgh. And some do express a particular enumeration. And some have only the general name of Barony, or Tenendry, or some other common Designations, under which, there may be particular Designations comprehended. And some Charters bear, Infang-thief, outfang-thief, Pit and Gallows.

These Charters, or other Writes in place of Charters, though they do never so fully comprehend the Dispositive Will of the Superiour, yet they never become a real Right, till they be compleated by seasine, which imports the taking of Possession for seasine and seasure are from the same original, signifying laying hold of, or taking possession: And disseasing is dispossession; and therefore, it is a needless question, whether Seasine or Possession were distinct, and [Page] which were most effectual; for till the solemnity of Instruments of Seasine was introduced to accomplish the real Right of Fees, Possession was necessary to be joyned to the Disposition: Which Possession might either be natural by actual Inhabitation, Manuring or Stocking the Ground, positione sediuni: Or might be Civil, by uplifting the Fruits and Duties: Or it might be Symbolical, positione pedum, by entering upon the Lands as Vassal upon the Superiours Warrand. But if this Symbolical Possession were retent a possessione naturali, the Superiour disponing to another who first attained the natural Possession, be would have been preferred to the Symbolical Possession, as being suspect and simulat, retenta possessione: Therefore, till the time of King James the first, any Charter, Disposition, or Precept from a Superiour to a Vassal, mentioning his Heirs, or an Heretable Right, with true and real Possession, without simulation, was sufficient to compleat the Fee. So a Charter with natural Possession was sustained, being in the Raign of King Robert the second, June 24. 1625. And also before the Raign of King James the second, Hope, seasine, Earl of Mar contra Bishop of Aberdeen.

16. But King James the first having been long detained in England, being taken in his Voyage coming home from France, did thence bring in the Solemnity of Seasines by the Instrument of a Nottar, about the year, 1530. as Craig relateth, l. 2. dieges. 7. near the beginning, and yet sayeth, that long thereafter, even near to his time, the Bailies Seal upon the Superiours Disposition, Charter, or Precept, was sufficient to instruct Delivery of Possession.

Neither was there necessity in any case to prove the delivery, or the Superiours Entering the Vassal in Possession, but that was presumed from the Possession it self; and therefore, it needs not be debated how the Vassal entered in Possession, or what warrand the Bailzie had to give him Possession, or what warrand the Person who received the possession for the Vassal had, as his Procurator or Acturney; for if the Vassal were in the Natural and Civil Possession; all these powers were presumed. Neither were Precepts of Seasine, or Acturneys then in use; for as this solemnity of an Instrument of Seasine was introduced from England, so was the name of Acturney, which is frequent there, but seldom usedhere, but in cases of Seasine.

After Instruments of Seasine became in use, they were not only sustained as the mean of probation, that Possession or Seasine was given or taken, but they were the necessary solemnities to accomplish the right which could not be supplied by any other mean or probation, though the Superiour with a thousand Witnesses, should subscribe all the Contents of a Seasine.

It would be of no effect to make a real Right without the attest of a Nottar, in which sense, the vulgar maxime is to be understood, nulla sasina nulla terra, which is not only necessary to the first Vassal, but must be renewed to all his Heirs and Successors; although by the custome of France, the Vassal being once Infeft, his Heirs need not be Infeft, but do continue to possess by his Right, as the Heirs of Tacks-men do with us: But every Heir must be Infeft in Fees, otherways, if they die uninfeft, they never attain the real Right, but only a possessory Title to the Fruits and Rents, which will belong to their Executors, in so far as unuplifted from their Predicessors death, till their own death, or renunciation to be Heir, and will be affected for their proper Debts, which will not affect the Heritage, or the next Heir entering, who must enter to the [Page] Defunct, who died last Infeft, and will be lyable for his debts, but not for the debts of his appear and Heir, who was never Infeft.

17. Let us then consider the formal Tenor of an Instrument of Seasine and the meaning thereof, and then consider the essentials and necessary requisites thereto, and how far unformal seasines have been sustained.

A formal Seasine is the Instrument of a Nottar-publick, bearing the delivery of Symbolical Possession, by the Superiour or his Bailzie, to the Vassal or his Acturney, by delivery of Earth and Stone, and other Symbols accustomed upon the Ground of the Fee, which should contain the Name of God, as its initial Words, In Dei nomine, Amen, that may keep the Nottar in remembrance of his faith and trust, deterring him to take the Name of God to a falshood or lie.

Secondly, It should bear the date by the day, moneth, and year of God, and was accustomed to have the indiction and Name of the Pope, which since the Reformation hath not been in use: But it should contain the Name of the King, and the year of His Raign.

Thirdly, It bears, the appearance of the Vassal, or his certain Aucturney, which is sufficiently instructed, by having of the Precept of Seasine in his hands, which is but presumptio juris, and doth not exclude a contrary probation, especially as to the Heirs of the first Vassal, who, by taking Infeftment, becomes lyable for all his Predecessors debts; and therefore, if the Superiour should grant a Precept of clare constat, the bearer whereof, as Aucturney for the appearant Heir, taking Seasine, would involve the appear and Heir in all his Fathers debts; and therefore, it may be proven by the Superiour and Aucturneys oath, that the Precept of Seasine was without warrand from the appearant Heir, and so was fraudulent and collusive, to involve him in his Predecessors debts, in an overburdened and hurtful succession.

Fourthly, It must bear the delivery of the Precept of Seasine to the Superiour, if he be present, or in his absence, to his Bailzie, whose warrand is secured, because there is a blank left in the Precept for his Name, in which blank, any persons name being filled up, he is sufficiently authorized as Bailzie in that part, specially constitute.

Fifthly, It bears, the Bailzies accepting of the Precept, and delivering of it to the Nottar in presence of the Witnesses.

Sixthly, It must bear the Nottars reading of the Precept, and exponing it if it be in Latine, and then the words of the Precept should be Ingrossed.

Seventhly, It bears the Superiour or the Bailzies delivering of Earth and Stone of the Land to the Vassal, or to his Aucturney, bearer of the Precept; Or delivery of any other accustomed Symbol, as a penny for an Annualrent, a Net for Fishing, a Clap for a Miln.

Eighthly, It bears the Aucturneys requiring Instruments.

Ninthly, It must bear, that these things were done upon the ground of the Land, or other Hereditament, and the hour of the day, before two Witnesses, at the least, required thereto,

[Page]And last, The attest of the Nottar, bearing the auctority of his Creation, and that he was present with the Witnesses, & vidi, scivi & audivi, that the things contained in the Instrument, were so done as is exprest therein, and that he took a Note thereof, and thereupon drew a formal Instrument, and insert the same in his Protocol, whereunto are adjoyned his Sign, his Motto contained in his Commission, relating to his faithfulness and trust, and his name or the initial Letters thereof.

18. If any of these be omitted, the Nottar may be exauctorat and punished by the Lords; but the essentials are much sewer: Yet the Seasine must contain the delivery of symbolical Posession, by the Superior or his Bailzie to the Vassal, or his Acturney upon the Ground of the Land, or other Tenement in presence of the Nottar and Witnesses, with the date and subscription of the Nottar. But the delivery of the symbol of an Office, having no particular place or ground, is sufficient any where, as a Batton for a Military Office, or a scrol, Book, or Cape for a Civil Office. But where the Fee hath a particular ground or place, there it must be taken upon the ground, and it will not be sufficient to be in view of the ground, yet Law or Custom may otherways order in case of necessity: As the Infeftments of Lands, in Nova Scotia, were appointed to be taken at the Castle-hill of Edinburgh. And when Lands are rightly Unite or Erected in Barronries, Seasine taken upon any part thereof sufficeth for the whole; and without Union, Seasine taken upon any part of the Lands, will serve for all the Lands in the Infeftment lying contigue. Craig relates, that a Seasine was found null and false, where it bore, These things were done upon the ground of the Land, albeit the parties had put, of the ground of the Land on which they stood, within their Shooes, but were not upon the fixed ground thereof.

The Instrument of Seasine must be taken by a publick Nottar, lawfully authorized, at the least so holden and repute; for though the Nottar be deprived, it will not vitiat his Instruments, taken bona fide, by persons who knew not his deprivation, till it be commonly known, or Letters of publication intimat at the Mercat Cross. A Seasine was also found null, because it wanted these words, vidi, scivi & audivi, Hope, Seasine, Primrose contra

In ancient Rights, or where there is not a more Solemn Infeftment, Seasines have been sustained, though with considerable defects, as where the Seasine bore not delivery of Earth and Stone, but only actual and real Seasine, June 17. 1630. Earl of Wigtoun contra Earl of Cassils. But not where the Seasine wanted delivery of Earth and Stone, and the name of the Aucturney, Hope, Seasine, Laird of Lie contra Earl of Callender. A Seasine was sustained, though it did not repeat the Precept, and did not bear delivery of Earth and Stone, but only of the ground of the Land, yet was preferred to a posterior formal Seasine, taken after the matter was Litigious, October 23. 1680. Lady Lambertoun contra Laird of Polwart. And a Seasine, being the Title in a Reduction, was sustained to infer Certification, though it bore not delivery of Earth and Stone, nor Instruments taken, nor the hour, nor being conform to the warrand; but bearing only, according to the custome in such cases; but the defender thereafter, having made a production of his Right, certification was not granted, contra non producta, March 20. 1632. Laird of Lie and Stuart contra Earl of Lunderdail. Aand Seasine of Land and a Miln, was sustained, bearing delivery of Earth and Stone of the Land and Milne, with all solemnities requisite, March 15. 1631. Laird of Swintoun contra Vassals of Dumfermling.

[Page]19. Seasines being but the assertions of a Nottar, do not prove or instruct a real Right, unless they be astructed by a Warrant or Adminicle in write, except that it be against Tenents at the instance of their Master, who is known to be in Possession: or that Prescription hath run by one or more subsequent Seasines, and 40 years peaceable Possession. And albeit the most ordinar warrant of Seasines be the Superiors Precept Ingrossed or related to in the Seasine, yet after 40 years Possession, there is no necessity to produce Precepts of Seasine, Procuratories, or Instruments of Resignation, even in the Case of Reductions of Infeftments for want of these, Parliament 1495 cap. 214. In which there is not required peaceable possession, neither yet continued possession, as is required in the Act of Prescription, so that Interruptions as to this point, will not alter the case: but there is no necessity to produce any more for instructing an Infeftment, but the Seasine and a warrant thereof, such as a precept of Clare Constat, a precept out of the Chanclery, a disposition or contract of Alienation, according as the Seasine doth relate to the one or the other. As if the Seasine bear, to proceed upon a precept contained in a Charter ter, Disposition, or Contract of Alienation, these must be produced specifice as they are related; not only passive to defend in Reductions, but active, as Titles of Reductions, Declarators, and all other Processes, except against Tenents or naked Possessors, or where prescription hath run, because the Charwhen it is related to, is a part of the Investiture, making up the real Right: and therefore (as hath been now shown) §. 14. there is no necessity to produce a Disposition, Contract of Alienation, or Bond, though the Charter relate thereto. But if the Seasinebear, to proceed upon a Precept contained in a Disposition, Contract of Alienation or Bond, then these are parts of the Infeftment, and make up the real Right, and so must be produced, that the Defender may except or defend upon any clause therein contained, in favours of himself, his predecessors or authors, unless the Infeftments be ancient, and clede with long possession; in which case, it is like the Lords would extend the foresaid Statute, and would sustain a Disposition, Contract or Bond, as a sufficient Adminicle of the Seasine, though it related not thereto. And albeit this Statute mentions only, that Charter and Seasine shall be sufficient, under which a disposition or Contract of Alienation must be comprehended when the Seasine is immediatly taken thereupon, and not upon a formal Charter, for then they are the real Charter: yea, it is not like they would reject a Bond, obliedging to grant such Infeftment, albeit it do not de presenti dispone, as a sufficient adminicle to sustain a seasine, where they had been 40 years possession, although prescription was not compleated by immediat subsequent Seasines, or uninterrupted possession, the Party making faith, that he did not keep up, or conceal any other part of the Investiture, which would sufficiently take off the presumption of Fraudful concealing or away-putting the immediat warrant of the Seasine, which might afford defences to the other Party. For even in a recent Case, of the Infeftment of a Wife in Life-rent, her Seasine was sustained upon Production of her Contract of Marriage, albeit the Seasine proceeded upon a Bond granted for the same cause, January 29. 1665. Mr. George Norvil Advocat, contra Margaret Sunter, where nothing was alledged of long possession. See what was found November 22. 1628. Clappertoun contra Hoome, Hope, Seasine, Murray of Philliphaugh contra Schaw, Gray contra Finlayson, there could be less question if the Seasine related to a precept apart, and did not bear, whether the precept proceeded upon a Charter, Disposition, Alienation, or Bond, for then the production of any of these, would adminiculat the Seazine.

[Page]Seasines within Burgh, for serving of Heirs by Hesp and Staple, by the immemorial Custom and Priviledge of Burgh, being given by the Town-Clerk, do prove sufficiently both the propinquity of Blood, that the same was Cognosced and Seasine given accordingly, without necessity of any warrand or adminicle, but in Seasines of Original Rights, of conveyances to singular Successors, will not be sustained by Seasines by the Town Clerk, without Adminicles as to Tenements within Burghs, as was found in an Infeftment from a Father to his son, bearing to be upon the Fathers Resignation, February 11. 1681. Francis Irwing contra Corsan, June 21. 1672. William Mitchel contra Thomas Cowie.

Seasines propriis manibus, when either the Superior himself doth give Seasine to his Vassals Acturney, or when the Superiors Baily by his Precept, gives Seasine to the Vassal, himself being present, and accepting; or when the Superior immediatly gives Seasine to the Vassal, in these Cases, the Nottars warrant is sufficiently instructed by the Seasine, and by the Disposition, Contract of Alienation, or Bond: Or when the Seasine is propriis manibus secundum Cartam Conficiendam, if a Charter thereafter made beshown, as a Seasine propriis manibus, by a Father to his son, reserving the Fathers Liferent, was found valid against a second Wises Infeftment, granted for a competent Tocher, being adminiculat by a Bond granted by the Father of the same date, with the Seasine, obliedging him to warrant the same, February 11. 1669. Buchan contra Tait yea a Seasine propriis manibus by a Superior, containing Resignation, accepted by the Superior, and immediatly Seasine given, propriis manibus was sustained without any warrant, subscribed by the Superior, but by the Vassals Disposition, containing Procuratorie of Resignation, there being no more solemn Infeftment in competition, Januarie 17. 1672. John Young contra Thomson.

But as to Seasines propriis manibus by Husbands to their Wives in Contemplation of Marriage, either before Marriage, where Marriage followed, or after Marriage, having no adminicle but the Marriage; The Lords according to the different Cases, have sometimes sustained them when they were suitable to the parties, and not exorbitant, and where the question was only with the Husbands Heir, Nov. 22. 1628. Clappertown contra Hoom. June 19. 1668. Relict of Wallace of Galrigs Contra his Heir, in which case it was instructed, that about that time the Wife had disponed to her Husband her Joynture by a former Marriage. But such Seasines are easily improven, if they be not asserted by the Witnesses insert. As in the last case, the Heir insisting in improbation, there being four witnesses in the Seasine, two of them deponed they were not witnesses thereto, the third remembred not, the fourth was positive for it, and the Nottar offered to depone that it was true; yet having no adminicle, his oath was not taken, and the Seasine was improven; but if there had been an adminicle, the Nottar and one of the Witnesses being positive, the Seasine would not have been improven: for where there is a warrant mediat or immediat, providing a Seasine to be given, Quid fieri debet facile [...]. And therefore the witnesses not remembring, would hardly improve such Seasines, unless their Testimony were positive, giving special circumstances of their remembrance, as being in such another Country or far distant place at that time, if the truth of that were otherwayes astructed. But the general denial to be witnesses could import no more but non memini: and therefore an adminicle in write, with the protocol or oath of the Nottar, if he were alive, and especially if possession followed for some time: these would stronglier approve, then the not remembrance [Page] or general denyal of the witnesses insert would improve. But this dipping upon a general Question, de side instrumentorum, we shall say no more of it in this place, nor of the Admission and Qualification of Nottars, as to which, Craig relates the customs of France, which were not then, nor have not yet been here allowed; but certainly more exactness ought to be in the admission of Nottars, not only as to their skill, but as to their reputation of Honesty and Fidelity, and the least want or weakning of these should turn them out. For the Introduction of the Solemnity of the Instruments of Nottars, was not only because of old few could write, and the impression of Seals were easily imitat: yea even such rude Subscriptions, there being some in Justinian's time, who could so artificially imitat anothers hand write, that himself could not know it, or durst swear it was not his write. And therefore he introduced two remeeds, that private writes should not prove by the Subscription of the party, unless that there were three subscribing Witnesses, knowing he Parties Contracters; or that there were three Witnesses who depone anent the truth of the Deed, or otherwayes, that writes were made in publick by a publick person, which at first was only done Judicially, but thereafter Extrajudicially by a Nottarpublick; but our Custom hath returned to private write, and [...] not the Instruments of Nottars, but where they are adminiculat by [...], [...] in the case where parties cannot write: and then in matters of Importance, two Nottars and four Witnesses are necessary by special Statute. But this is not extended to seasines, but only to the subscriptions of Nottars for parties, February 11. 1669. Buchan contra Tait, Julie 5. [...]. Bishop of Aberdeen contra Viscount of Kenmuir. Yet in some cases of small importance, Instruments of Nottars are probative: and in all cases where witnesses would prove, it doth much fortifie the same, that they were Witnesses required, and Instrument of a Nottar taken thereupon. For then the Instrument of the Nottar, astructed by the witnesses insert, make a strong probation.

To return to Seasines propriis manibus by Husbands to Wives without warrand or adminicle in write, they are not generally probative, except in such cases as have been now exprest, Hope, Seasine, Bell and Morison contra Thomson, Laird of Coldingknows contra Dam Helen Hereis.

20. But for the further securing of Infeftments and Land-rights, that excellent Statute which before was attempted, was at last perfected, Par. 1617. cap. 16. whereby all Seasines, Reversions, Regresses, Bonds or Writes for making of Reversions, and Regresses, Assignations thereto, and Discharges thereof, Renunciations of Wodsets, and grants of redemption, not being Registrat in a peculiar Register, appointed for that end, or in case of Consigning Renunciations, and grants of redemption in Process, within 60 dayes next after the Decreet, ordaining the same to be given up to the parties having right thereto, or at least within 60 dayes after Seasing taken of the Lands or Rights, to which the reversions relate. It is declared, that the saids Seasines and other Writes, shall make no faith in Judgement by Action or Exception, in prejudice of a third Party, who had acquired a perfect and lawful right to the saids Lands and Heritage, without prejudice to make use of these rights against the granter and his Heirs: But there are excepted Reversions contained in the body of the Infeftment, and all Seasines, Reversions, &c. Of Tenements within Burgh.

21. And to make Land-rights yet more secure, because the former Act did not require Registration of Instruments of Resignation in the Superiors hands, adremanentiam, [Page] whereby purchasers were not secure, but that the Lands acquired by them, might have been resigned or renounced to the Superior, whereby their Authors Fie became Extinct, without necessity of new Infeftment, being consolidat with the Superiority, whereby the Superiors Infeftment carryed both Superiority and Property. Therefore, Instruments of resignation not being Registrat are declared null, yet with exception of Tenements holding Burgage, And therefore a Seasine within Burgh was sustained, though not found in the Towns books, June 30. 1668. Mr. Robert Burnet contra Swan, February 11. 1681. Francis Irwing contra Corsan.

Upon Consideration of this Case, the Lords by act of Sederunt ordained the Burrows, to take sufficient Caution oftheir Town Clerks present, and to come to insert in their books, all Seasines given by them of the Tenements within Burgh and all reversions, or Bonds for granting reversions, assignations thereto, and discharges thereof, renunciations and grants of redemption, and that within 60. dayes after the giving of Seasine, or presenting to them of the reversions or others foresaids, and that under the pain of the damnage of any Party acquiring bona fide for onerous Causes by such Latent rights, though prior, declaring that they will hold all such Seasines, reversions, &c. to be given hereafter, and not insert in the Towns books in manner foresaid, to be Latent and Fraudulent, keeped up of design to insnare lawful purchasers. But there is now an Act of Parliament, requiring the inserting of Seasines within Burgh, in the Town-Clerks Books in the same manner, and under the same certifications as is required to the Registration of Seasines without Burgh.

22. And for the further security of Land-rights, because Apprysing, or Adjudication, with a Charge of Horning thereupon against the Superior, maketh for some time, a real right; Therefore, an abbreviat of Apprysings contained in the allowance thereof, written on the back of the same, and signed by two of the Lords, was ordained to be Registrat in a particular Register for that purpose, within 60. dayes after the date of the Apprysing; with certification, that any other Apprysing, though posterior in date, yet first allowed and registrat, shall be preferred, Parliament 1661. cap. 31. which is extended to Adjudications, Parliament 1672. cap. 19. But this relates only to the new form of Adjudications then introduced in place of Apprysing. But for the old Adjudications, upon there nunciations of Heirs or implement of Dispositions, neither Statute nor Custom have yet cleared, whether these will be effectual against singular Successors from their Dates, or from the Charge against the Superior, or only from the Seasines thereupon; which, as all other Seasines, must be registrat. And if the Lords do sustain these from the Charge, it will make a defect in the security of Land-rights, till it be supplied by act of Parliament. And for further security of Land-rights, because they might be reduced upon Inhibition, or Interdictions; Therefore these, if not registrat, are also null. And in respect Horning, continuing unrelaxed year and day after the denunciation, the Superior hath the Fee, during the life of the Vassal denunced, therefore horning, if not registrat, is also null, and the act of Prescription excludes all prior rights, preceeding 40. years, unless they have obtained Possession, or done digence therefore by interruptions, which must be repeated every five years, or else they are null, and must also be execute by a Messenger; so that where before a Citation made interruption, which continued for forty years, which might much insecure Purchasers, they can now last but five years, in which short time the noise thereof may readily reach purchasers, so that if purchasers get a progress of Infeftment for fourty years, he may by the Registers know it [Page] there be any real Right that can affect the Fee within that time, and hath no more to enquire, but as to interruptions within five years, which if the Lords appoint to pass only upon Bills, it may be found at the Signet: So that upon the whole matter, no Nation hath so much security of irredeemable Land-rights as we have. It is true, redeemable rights are not so secure, because they may be evacuat by order of redemption, which proceed by Instruments of premonition and Consignation, which require no registration; and therefore, purchasers of Appryzings or Adjudications, during the legal reversion, are in hazard of any order of Redemption, or Summonds for Count and Reckoning; and likewise, these who purchase Wodsets or Infeftments of property, or annualrent for security of sums, run the hazard of satisfaction and payment of these sums by intromission, or otherways, wherein there is little inconveniency; for no man should purchase a redeemable right, without consent of the reverser, but upon his hazard; or if there be any reversion, reservation, or real burden in his authors right, sibi imputet, it is his fault and negligence, if he did not see it, and secure himself against it.

The Question may occur here, if the Keper of the Register of Seasines do according to the Custom, mark the Seasine Registrat, and attest the same by his subscription, and yet by negligence or fraud, shall not insert it in the Register; whether in that case a purchaser, bona fide, for causes onerous, though Infeft thereafter, will be excluded by that prior Infeftment, marked by the Clerk, not recorded, though nothing hath been observed in this case: If Seasines marked Registrat, though not found in the Register, were found sufficient against singular Successors, purchasing thereafter, the designe and tenor of this Statute would be eluded; for the Statute bears, if they be not Registrat, (which must import, there being insert in the Register) they are null; and therefore, though the Keeper of the Register hath attested such Seasines to be Registrate, yet truly they are not Registrat. And no purchaser could be secure by inspection of Registers, if a false attest of a Clerk could exclude him, who oftimes is insolvent. But the not inserting of Seasines within Burgh, in the Towns Books, doth not annual them; Seasins within Burgh being a total exception from the whole Act; for Registration and the Statute being defective in that point, the Lords did very fitly supply it by these two remeids; that the Seasins within Burgh, not being in the Towns Books, should not be found null, yet they might be reduced as latent and fraudulent: And if the Town Clerks were put to find Caution for the damage, real Rights within Burgh would be fully as secure as these without Burgh.

23. Seasines, as all other Instruments, must have the attest and subscription of the Nottar, giver thereof, bearing the names and designations of the Witnesses insert, whereof two will be sufficient, because the Seasine must have a warrand by a subscribed Write, by the author of the Infeftment, and so needs not two Nottars, and consequently requires not four Witnesses, as other principal Writes of importance, subscribed by Nottars, July 5. 1680. Bishop of Aberdene contra Viscount of Kenmure. Neither was a Seasine found void, because taken in the night, nothing of latency or fraud being qualified, but Possession conform, Margaret Arnot and Patton her Spouse contra Mr. Archibald Turner.

24. If a Seasine be only extracted out of the Register of Seasines, it will not be sufficient, because that Register is only for publication: As also the Register of Hornings and Inhibitions, and not for conservation, for the keeper of [Page] the Register doth not keep the principal Seasines, but gives them back marked: But if the principal Seasine marked as Registrat, be wanting, if the Nottar who gave it be alive, he may renew it out of his Protocol, and the keeper of the Register of seasines may attest it Registrat, upon the day mentioned in the Register; and therefore, the Lords upon supplication, ordains the keeper of a Register, so to mark a seasine, January 2. 1678. Sir Andrew Ramsay Supplicant.

25. But if the Nottar who gave the seasine be dead, there remains yet this remeid, that a transumpt may be made upon production of the Protocol and Citation of the Author, or his Heirs, or any other party having interest; which Transumpt is sufficient in place of the principal seasing, and may bear, both the Transumpt of the Protocol, and of that part of the Register, where the seasine was Registrate. But the Instrument of a Clerk, containing the Tenor of a seasine will not be sufficient without Citation of the parties.

If both the principal seasine and the protocol be wanting, the Tenor of the seasine may be proven upon Citation of the same parties, as in a Transumpt, if there be sufficient adminicles in Write, and Witnesses who saw the seasine, wherein the Extract of the seasine out of the Register is a good Adminicle.

Seasines taken out of the Towns Books, not by the Town Clerk who gave the seasine, but by his successor, will not serve for a principal seasine; the Towns Book being but the Protocal of the Town Clerk; and therefore, either must the Towns Book be produced, that the Seasine may be transumed, or Commission granted for inspection, or collation, which being returned, was found to suffice as a Transumpt, February 11. 1681. Francis Irving contra Corsan.

26. Infeftments do sometimes expresse the meithes or marches of the Lands and Tenements, which thence is called a bounding Infeftment, giving right to all within the bounds, if the giver of the Charter had right; or if the Vassal have by that Infeftment had peaceable Possession till prescription; otherways bounding Charters prejudge not, Par. 1592. cap. 136. Yet prescription will adject that which is within the bounding to another Tenement, which will not be elided by possessing the major part of that Tenement: But no prescription can give right to what is without the bounding, as part and pertinent, Novemb. 14. 1671. Walter Young contra Bailzie Carmichael. But where there is no bounding, possession clears the parts and pertinents of every Tenement; and in competition, where any ground is claimed as part and pertinent of several Tenements, witnesses are allowed to either party, for proving the Possession and interruptions, unless it be alledged that that ground is separ [...] tenementum, having a distinct Infeftment of it self, which will exclude the alledgeance of part and pertinent, if the several Infeftments be not excluded by prescription, as was found in the said case, Young contra Carmichael. But though the one Infeftment contain the ground in question, per expressum, in the enumeration of the parts of a Barronry or Tenement: And though the other Infeftment contain no enumeration, or in the enumeration, mention not the ground in question, but the same is alledged to be part and pertinent comprehended under the common Designation, or under some of the parts enumerat, if both flow from one common author, as original Rights, the first is preferable, otherways, [Page] both will be allowed Witnesses for proving Possession and interruption, & in paricasu aut dubio, the express Infeftment will be preferable.

27. But the main question is here concerning Infeftments holden of Subjects, not being past upon the granters resignation, by the Superior, or the Superiors Confirmation, or by his obedience upon Decreets of Appryzing or Adjudications, which therefore are called base Infeftments, and private Infeftments, because they proceed in a more private and ignoble way, being done by the granter and receiver thereof, without the interposition of the Superiour.

The doubt is, whether such be compleat real rights, carrying the property of the ground by the Charter and Seasine only, or not until possession of the Hereditament be obtained: The ground of this distinction betwixt Infeftments, and of the doubt as to base Infeftments, is from the Act of Parliament, 1540. cap. 105. Whereby it is clear, First, Before that Act, Infeftments holden of the Disponer, without Resignation or Confirmation, were valid without possession, and preferable to all posterior Infeftments, though proceeding upon Resignation, or by Confirmation, for it is for remeid of this, that this Statute is enacted.

Secondly, By the Letter of this Statute, posterior Infeftments upon Resignation, or by Confirmation, are only preferred to prior private Infeftments, when the obtainer of the posterior Infeftment, brooks the Lands peaceably, by Labouring, Manuring, and uptaking of the Mails, Profits and Duties, and so are known Heretable Possessors thereof, year and day. And when such Infeftments are for Causes onerous, or do contain or import warrandice; neither is there any thing mentioned in the Statute, as to the competition of Infeftments, upon Appryzing or Adjudication, with prior base Infeftments, nor of the competition of one base Infeftment with another: Yet Custome since that Statute, hath cleared and determined the competition of publick and base Infeftments, and hath restricted this Statute in some points, and extended it in others.

First, Custom hath preferred all publick Infeftments upon Resignation or Confirmation, or upon Appryzing or Adjudication to base Infeftments, though prior, if the base Infeftment hath lain out of all kind of possession; and likewise, hath preferred posterior base Infeftments, first clede with Possession to prior base Infeftments without possession, especially in consideration, that such base Infeftments are fraudulent or simulat, retenta possessione; for the retaining of Possession is a pregnant ground of simulation, not only of Infeftments, but many other Rights, as when Moveables are disponed and delivered, but presently taken back, and the natural Possession continued in the Disponer, though Instruments be taken upon the delivery; yet other Dispositions or legal Diligences, attaining and retaining Possession are preferable, because the other Dispositions are presumed fraudulent and simulat. And gifts of single Escheat or Liferent Escheat, are presumed to be simulat, if the rebel or his conjunct and confident persons, be long suffered to retain the Possession; and therefore, base Infeftments, retenta possessione, are also presumed fraudulent and simulat, and that not only presumptione juris, by this and other Statutes; but presumptione juris & de jure, admitting no contrary probation: For certainly, base Infeftments, may be, and oftentimes have been without simulation, and for onerous causes; and yet these have never been sustained or admitted to probation, [Page] to validat such base Infeftments: And albeit long retention of Possession may raise presumptionem hominis, that publick Infeftments are simulat or without cause onerous, yet that presumption hath not been owned by Law.

Secondly, Custom hath preferred posterior base Infeftments, attaining possession or using diligence to attain it, to prior base Infeftments, not attaining Possesion, nor using diligence to attain it: And albeit the superveening Statute for Registration of Seasines be designed for publication thereof, that purchasers thereafter may not be insnared or disappointed, whereby it might seem that the difference betwixt privat or base Infeftments, and publick Infeftments, might have been laid aside, since the Act for Registration of Seasines, whereby the uncertainty of real Rights, by proving base Infeftments, cled with Possession by Witnesses (wherein our Law is so justly Jealous and Cautious, that they are not admitted in cases where Write uses to be adhibit) might be avoided: Yet the preserence of publick Infeftments, to prior base Infeftments, not cled with Possession, being fixed by Custom from this Statute, before the Act for Registration of Seasines, by the space of threescore seventeen years, hath been still continued. And such Infeftments as are without consent of the Superiour or order of Law, have still retained the name and nature of base Infeftments; and albeit the alledgeance useth sometimes to be proponed against base Infeftments, that they are null, not being cled with Possession, yet it is no simple nullity, but only a preference of a more solemn right, for pursuits for Mails and Duties, Removings, yea, and Reductions are sustained thereupon, and will not be excluded upon pretence of want of Possession, as thereby being null, though they had lain long out of Possession. So a base Infeftment without Possession, was found a sufficient Title in a Reduction to inforce production of all other Infeftments, base or publick, albeit the Superiour did not concur, Spots. Kirk-men, Dowglas contra the Earl of Home: And such Infeftments do always exclude posterior Arrestments: They do also exclude the Terce of the granters Relict, January 27. 1669. Bell of Belford contra Lady Rutherford.

But base Infeftments do not exclude the Liferent Escheat of their authour, unless they attain Possession in cursu rebellionis, March 19. 1633. Laird of Rentoun contra Laird of Blackiter. February 21. 1667. Robert Milne contra Clerkson.

Where there is no further ground of Simulation then the want of Possession, very little Possession or Diligence, for Possession will prefer base Infeftments to Posterior publick Infeftments, or to posterior base Infeftments, cled with Possession; as the lifting of one Terms Rent did prefer a base Infeftment to a posterior publick Infeftment cled with many years Possession, Hope, alienation, Hamiltoun contra Mcadam. And the payment of a small part of Annualrent, far within a Terms Annual, was sustained to prefer a base Infeftment of Annualrent, and it was also preferred, because there was a Decreet of Poynding of the Ground, though not put to Execution, February 26. and 27. 1662. Creditors of Kinglassie competing. And a citation for attaining Possession was found sufficient, February 13. 1624. Corse contra July 2. 1625. Raploch contra Tenents of Lethem. June 26. 1662. Wilson contra Thomson. January 24. 1679. Hamiltoun contra Seatoun. Yea, a base Infeftment of Annualrent was preferred to a posterior base Infeftment of property, which interveened before the first Term, at which the Annualrent was payable, and cled with Possession before that Term; so that the Annualrenter did not lye out of Possession, but could attain none, July 26. 1676. Captain Alison contra Bailzie Carmichael. [Page] And an Infeftment of Annualrent being out of discontiguous Lands in several Shires, was preferred as to both Tenements, by getting payment of Annualrents from the Heretor or Tenents, of either Tenement, November 6. 1673. Mr. Alexander Miln contra Mr. Thomas Hay. And Possession by an Infeftment for Corroboration of an Annualrent, did preferr the principal Infeftment of Annualrent, having no other Possession, July 9. 1668. Alexander contra [...]. And an Infeftment of principal Lands, and Warrandice Lands, being cled with Possession of the principal Lands, these being evicted, was found to make the Infeftment of the Warrandice Lands effectual from its date, and preferred to a posterior publick Infeftment of the Warrandice Lands, though cled with long Possession, January 9. 1666. Elizabeth Brown contra John Scot. Yea, base Infeftments to Wivesupon their Contracts of marrage, [...] preferre to all posterior Infeftments, and the Husbands Possession is accounted the Wives Possession, though he be common author to both, November 23. 1664. Elizabeth Nisbet contra Patrick Murray. And though the Husband did not [...] himself, but Wodsetters deriving right from him, June 18. 1667. Lady [...] contra Sir John Strachan. And where the Husbands Mother did [...] by a Liferent flowing from the Husbands Father, to who [...] he was Heir, it was found sufficient to cloath his Wifes Infeftment with Possession, February 21. 1672. Mr. James Reid contra Countess of Dundee.

But a base Infeftment of a Wodsett, with a back-tack to the granter, is not held cled with Possession by the granters Possession as Tacks-man, till some further possession be attained.

Where there is any further ground of suspition or simulation, there must be a clear possession, as a base Infeftment by Fathers to their Children, was not sustained by the Fathers possession, whose Liferent was reserved therein, June 26. 1634. Dury contra Bruce. But a posterior base Infeftment to the Wife was preferred in this case, as being cled with the Husbands possession, though common author to both the Son and Wife. The like of a base Infeftment granted by a Goodsire to his Oy, reserving the Goodsires Liferent, July 3. 1624. Earl of Annandale contra Johnstoun. And an Infeftment by a Father to his Son, was not found cled with possession by the Fathers possession, though he had a Factory from the Son; but it was not alledged that the Father had granted Discharges, expresly relating to the Factory, July 10. 1669. Gardner contra Colvil. Yet in the competition of two base Infeftments, the former being granted to a stranger for relief of Caution, and the latter granted to a Son and appearand Heir for relief of his Caution, exceeding the value of the Lands, the Sons base Infeftment, though posterior, having first attained possession, and being without all suspition of Simulation, was preferred. And it was not found, that Infeftments for relief, were in the same case with Warrandice Lands, where the possession of the principal Lands is fictione juris, a possession of the Warrandice Lands; These Infeftments being less subject to fraud or uncertainty, then Infeftments for relief, which relate to personal debts, and oftimes generally to all debts or Cautionries contracted or to be contracted, which debts may be retired and keeped up, and made use of by the Infeftment for relief, June 26. 1677. Mr. John Inglis contra Tennents of Eastbarns.

Infeftments base to Wives, not being upon their Contracts of Marriage, or in place thereof, are not holden as cled with Possession by the Husbands Possession.

[Page]28. Infeftments by Confirmation, do not only require a Charter from the Disponer, bearing the Lands to be holden of the Superiour, and Seasine thereupon, but require also the Superiours Confirmation, till which it is no real Right, but null; but whensoever the Confirmation is added, the Right becomes valid from the date of the Infeftment Confirmed, as to the right of property, and as to the Superiours Casualities; and therefore, an Infeftment, ase, not confirmed, was found null by exception, though cled with some years possession, December 4. 1623. Patton contra Stuart, and found null, though the Confirmation was past the Privy Seal, Hope, Confirmation, Hunter contra Dalgleish. And also found null in an Annualrent, holden from the Disponer, not Confirmed, Hope, Confirmation, Lord Balmerino contra Coatfield. But if there were any mid impediment betwixt the Charter Confirmed, and the Confirmation; it excludeth the Confirmation and whole right, as an Appryzing and Infeftment. But Confirmation of a right, not bearing to be holden of the Superiour, but of the Vastal, makes it not a publick Infeftment, nor takes it away the Superiours ordinary Casualities, as Ward, but only Recognition and Forefaulture, Hope, Confirmation, Lady Cathcart contra Vassals of Cathcart, November 17. 1627. Laird of Clackmannan contra Balnamoon. Hence it is, that because Confirmation constitutes Rights holden of the Superiour, that the first Confirmation makes the first Right, though it confirm a posterior Infeftment from the Vassal, as is clearly determined in the case of double Confirmations holden of the King, Par. 1578. cap. 66. which is not introduced, but declared by that Act, and holdeth alike in other Confirmations.

It doth of times fall to be doubtful, whether a Confirmation makes an Infeftment publick or not, when Seasine is taken upon a precept of Seasine in a Disposition? Which Disposition contains obliegments for Infeftment, de se & ase, by Confirmation. But the precept of Seasine relates not specially to either obliegement, and Seasine is taken thereupon, and is afterward confirmed: The question comes, whether this be only a Confirmation of a base Infeftment, to exclude Forefaulture or Recognition, or if it doth make the Infeftment publick? it is generally constructed as a publick Infeftment, as was found, July 5. 1680. Bishop of Aberdeen contra Viscount of Kenmure.

29. Infeftments upon Appryzing or Adjudication, when formally perfected, do require Charters to be granted by the Superiours of the Appryzed Lands, or other real Rights, the Tenor whereof is already set down in this Title, and Precepts and Seasines thereupon, which have little peculiar differing from other Infeftments, as to their Tenors and Effects, but that their reddendo is ordinarly general, when the Appryzer or Adjudger cannot prove or instruct the Tenor of his authors Right; and therefore, do bear such duties and services, as were contained in the Authors Rights, which the Superiour may be charged to renew and make special, so soon as the Authors Rights are produced; and if they be not so renewed, they are understood as Ward-holdings: But for Renovation thereof, the Appryzer or Adjudger will get Letters of Horning summarly upon the allowance of the Appryzing or Adjudication, which will not be excluded, although the Superiour have already granted Infeftments in general terms as aforesaid, but he must renew the same according to the special Tenor of the Authors Right produced, and that without any new composition; yea, the Appryzers Heirs upon supplication, will obtain Letters of Horning summarly for renewing the same, and so will his singular Successors, but they must pay a years Rent for their Entry, whether their Title be Appryzing or Adjudication against the former Appryzer or Adjudger; in wich case he [Page] may make use of Letters of Horning, upon the allowance of his own Appryzing; and though his Title be a voluntary Disposition, he will get Letters of Horning, as succeeding in the place of the former Appryzer or Adjudger, to renew and make special the former Infeftment to his Author upon payment of a years duty. But Appryzing and Adjudications being legal Dispositions, and conveyances of the Authors Infeftment, we shall say no further of them in this place, but leave them to the Title twenty four, where they are considered amongst Dispositions.

We shall only add here, that before the year, 1624. Appryzings were left at the great Seal, by warrant from the Lords, whence Precepts were issued thereupon against the Superiours to Infeft; which if they obeyed not, Charters were granted by the King to supply their Vice; but since, they are retained by the Appryzer, and he may have Letters of Horning summarly Charging the Superiours to grant Charters and Precepts of Seasine, as is aforesaid.

30. This also is singular in Appryzings and Adjudications, that a real Right of Fee is constitute thereby, by a Charge of Horning against the Superiour, without Charter or Seasine: For such Appryzings or Adjudications are declared effectual by the Act of Parliament, 1661. cap. 62. ordering the payment of debts betwixt Creditor and Debitor: For after that Charge, no Infeftment upon voluntary Disposition, or upon any other Appryzing or Adjudication can be granted by the Superiour, prefering any other Vassal to the Appryzer, or Adjudger, whom he hath unwarrantably refused to Enter, if the Appryzer or Adjudger insist in his Appryzing or Adjudication for Possession; but he may forbear to make use of the Appryzing or Adjudication, and if hely long out without further diligence, he will be presumed to have relinquished his Appryzing or Adjudication, and posterior Rights and Diligences will be preferred: But if he enter in Possession, no posterior Infeftment or Diligence will exclude him, although he insist no further but the Charge of Horning: and it hath not occurred to be determined, how long that Right will subsist without infeftment; but it hath been found, that the Superiour will not be excluded from the Casualities of Superiority by his former Vassal, if he have not been in the fault, in refusing to Enter when the Appryzer or Adjudger offered him a Charter with a years Rent of the Land, or Annualrent of the sum adjudged or appryzed, for this was in the case of Ward, February 9. 1669. Black contra David Trinch. Neither was a Superiour found to have interest to exclude an Appryzer from Possession, till he payed a years Rent, but that he might possess during the legal, if he insisted not for infeftment, which insinuats, that after expyring of the legal, the Superiour might hinder the appryzer or adjudger to continue in possession till he take Infeftment, and pay a years Rent; but during the legal, the appryzing or adjudication is but as a legal assignation to the Mails and Duties, so that the appryzer cannot be forced to take Infeftment, till the legal expyre, and the Land become irredeemably his own, and then he is to pay a years Rent; but in this case there was no Charge upon the appryzing, December 3. 1672. Mr. Hendry Hay contra Laird of Earlestoun. Albeit in the case of Johnstoun contra the Tennants of Auchincorse, July 22. 1665. the appryzer having charged the Superiour, though he did not then obey; yet appearing in the Process of Mails and Duties, he offered now to receive the appryzer; and therefore, the appryzer was excluded till he payed the years rent, which being under consideration of the Lords, in the posterior case of Mr. Henry Hay, they resolved to give the apyryzer his option within the legal to [Page] take Infeftment or not, so that the Charge doth only hinder others to preveen, but doth not exclude the Superiour from any Casuality of the Superiority, falling by his former Vassal, unless he had been in culpa, refusing the appryzer Entry, insisting orderly to be Entered, which is a great advantage, both to debitors and creditors, not to have the accession of a years rent, till the ancient Rights may be discovered, and that it may appear whether the appryzing becometh an absolute Right.

The main division of Infeftments is in relation to the holding is in Ward, Blench, Feu, Burgage and Mortification.

31. An Infeftment Ward hath its denomination from Ward, which is the chief Casuality befalling to the Superiour thereby, it is the most proper Feudal Right we have; and therefore, wherever the holding appeareth not, or is unclear, there Ward-holding is understood; it is ordinarly expressed by rendering service, used and wont: and if the reddendo be not express in name of blensh, or Feu Ferm, though it bear payment of some Duty, yet Ward is inferred, as by a Charter, bearing, sex dinarios nomine cana, with a taxed Marriage: So also it was inferred by a reddendo, bearing a particular Duty, payable at Whitsunday and Martimass, cum servitiis in curiis, nostris & alibi debitis, & consuetis, Hope, de feudi renovatione, Williamson contra Thomson.

The main importance of a Ward-holding was indefinite service to be performed by the Vassal to his Superiour, and especially in War; but that being now little in use, the main effect of it is, the Ward and Marriage of the Vassal, of which hereafter.

32. Ward Lands according to the nature of proper Feudal Rights, might not be alienat by the Vassals, granting any subaltern Infeftment thereof: otherways, not only the subaltern Infeftments were void, but the Vassal granter thereof, his own Infeftment became void by Recognition; yet by Act of Parliament, 1457. cap. 72. all Feus to be granted by the King, Prelats, Barons, or Free-holders, are allowed and declared not to fall in Ward, as being but Heretable assedations, as the act bears, paying to the Superiour, during the Ward, the Feu-duty, providing the Lands be set to a competent avail, without prejudice to the King, which is ordinarly interpret to be the retoured duty; the same is repeated Par. 1503. cap. 91. and extended not only to subaltern Infeftments Feu, but also of annualrents, so that it be without diminution of the Rental, which in Lands holden of the King by secular men, is the retoured mail, and in the Kings property, and in Kirk-lands is the full rental, they should happen to be at the time of the subaltern Infeftments, which therefore, the Feus may not diminish, and the annualrent may not be so great as to exhaust the Land, that the rental remain not free: This last Act was temporal for that Kings life; and therefore, the extention as to annualrents ceaseth, though the first Act expresseth, that the King will ratifie all Feus granted by the Kings immediat Vassals; yet the Act bears, that the King thereby will give good example to the rest, viz. to other Superiours; and therefore, a Feu of Ward-lands granted by a Vassal, holding Ward of a Subject, before the Act of Parliament, 1606. was found valid, though without the Superiours consent, June 24. 1668. Stuart of Torrence contra Feuars of Ernock.

This priviledge was taken away as to all Superiours and their Vassals, except the Vassals of the King, who only might grant subaltern Infeftments of [Page] their Ward lands, Par. 1606. cap. 12. whereby all such subaltern Infeftments of their Ward-lands, are declared null by exception or reply, unless the Superiours consent were obtained; and therefore, the Superiours consenting in the Disposition by a Vassal to a Sub-vassal, was found to exclude the Vassals Ward so far as concerns the Sub-vassal, though it was a redeemable Feu, July 2. 1672. Earl of Eglintoun contra Laird of Greenock. The same was extended to the Vassals of the King and Prince, who were thereby also excluded from setting of Feus of Ward-lands to Sub-vassals, Par. 1633. cap. 16. but the Vassals of the King and Prince were restored to their former priviledge, and the said Act 1633. wholly repealed, Parliament 1641. cap. 58. which now is rescinded, Par. 1661. cap. 15. Yet the Lands set in Feu, during the time of these several Acts now repealed, are valid. So Ward-lands holden of the King or Prince, may not be set in Feu, nor of any other Superiours, except Bishops and their Chapters; for these might set Feus for a Feu-duty, equivalent to the retour, Par. 1621. cap. 9. But this Act was only temporary for three years; and therefore, subaltern Infeftments granted by Vassals, if of the most part of the Ward-lands, infers recognition thereof in the Superiours hands, but if within the half, they are not null as to the Vassal, but are null as to the Superiour, and exclude him from no Casualities of his Superiority, as Ward, &c. But as the half may be sub-sett, so any other right less then the value of the half, is sustained as an Infeftment of warrandice, March 6. 1611. Cathcart contra Campbel. The like holds of Infeftments of Liferent, but if the Disposition or Infeftment be granted to the Vassals appearand Heir, in linea recta, it infers not Recognition, bebecause the Superiour is not prejudged by change of his Vassal; but recognition was found incurred by a Disposition and Infeftment to the Vassals Brother, though his appearand Heir for the time, seing there remained hope of issue in the Disponer, and so his Brother was not alioqui successurus, Spots. recognition, Advocat and his Son contra the Earl of Cassils and Collane.

Feus of Ward-lands granted by the Kings Ward-vassals, after the Act of Parliament, 1457. and before the Act of Parliament, 1633. were found not only to be free from the ward-liferent-escheat, or recognition of the Kings Vassals; but also that the Sub-vassals Feu did not fall by his Superiour the Kings Vassals forefaulture, because the Act of Parliament expresseth a Confirmation of such Feus, which therefore needs not be past in Exchequer, without which there is no doubt but Ward and Non-entry are excluded: And by a Confirmation in Exchequer, Forefaulture would be excluded without question, even after the Act of Parliament 1633. and therefore, the ratification and approbation of Feus by the Act, 1457. when it was in vigour, must also secure against Forefaulture of the granter of the Feu, as was found, February 12. 1674. and January 23. 1680. Marquess of Huntly contra Gordoun of Cairnborrow, whose Feu being granted after the Act of Parliament, 1457. and before the Act 1606. was sustained against a Donatar of his Superiours Forefaulture. The like, though the Feu was renewed upon Resignation, in favorem, not being ad remanentiam, November 16. 1680. Campbel of Silver-craigs contra Laird of Achinbreck and Earl of Argyle.

33. Infeftments blensh are such, whose reddendo is a small elusory Rent, as being rather an acknowledgement of, then prosite to, the Superiour; and therefore, ordinarily it beareth, si petatur tantum, as a Rose, penny Money or the like, and these are not counted blensh Rights, unless they bear, in name of blensh Ferm; or if they bear not, si petatur; or if it be a yearly growth or service, it is not due, and may not be demanded at any time, unless it be demanded [Page] within the year, at the Term, as a Stone of Wax, or a Pound of Pepper, February 16. 1627. Lord Semple contra Blair. Where the like is observed to have been before, June 18. 1611. Bishop of St. Andrews contra Galloway. The like found, where the reddendo bore, si petatur tantum, June 15. 1611. Bishop of St. Andrews contra Tersons. So Blensh Duties of Lands holden of the King or Prince, are declared only due, if they be asked yearly, and no price can be put thereupon by the Exchequer, Parliament 1606. cap. 14. Yet seing by Act of Parliament, the King is not to be prejudged by neglect of his Officers, who ought yearly to call for his Blensh Duties, whereof many are considerable; therefore the Exchequer continues to exact the Kings Blensh Duties, though not demanded within the year. There is another part of the Act excluding all Liquidations of Blensh Duties in specie, which therefore should be so exacted, though not within the year, unless the Vassals voluntarly offer a price; in these Blensh Ferms, there is no ward and marriage befalling to the Superiour, in which it differs mainly from ward.

34. Infeftments Feu, are like to the Emphyteosis in the Civil Law, which was a kind of Location, having in it a pension, as the hyre, with a condition of Planting, and Pollicy, for such were commonly granted of Barren Grounds; and therefore, it retains still that name also, and is accounted and called an Assidation or Location in our Law: But because such cannot be Hereditary and perpetual, all Rentals and Tacks necessarly requiring an Ish; therefore, these Feu-holdings, partake both of Infeftments, as passing by Seasing to Heirs for ever; and of Locations, as having a Pension or Rent for their reddendo, and are allowed to be perpetual, for the increase of Planting and Pollicy.

35. In what cases Feus are allowed of Ward-lands, hath been now shown; in other cases, they are ordinarly allowed, where they are not prohibit; so we shall only need to speak of cases, wherein they are prohibit and void; and that is, first, In the Patrimony of the Crown, which is annexed thereto, and cannot be set Feu by the King, without consent of Parliament, by their Act of Dissolution, bearing, great, seen and reasonable Causes of the Realm, by Sentence and Decreet of the whole Parliament. But Ratifications, which pass of course in Parliament, without report from the Articles, will not supply the dissolution of the annexed property, or validat Infeftments thereof, even though the Ratification bear, a Dissolution: Upon which ground, the Earl of Mortouns Right to the Earledome of Orkney was reduced, February 25. 1670. Kings Advocat contra Earl of Mortoun. Neither can the annexed property be disponed by the King, but only in Feu, after the Act of Parliament, 1597. cap. 234. And all Infeftments, Tacks, Pensions, Gifts, Discharges granted before lawful Dissolution in Parliament, or after Dissolution, yet contrary to any of the conditions of the same, are declared null of the Law, by Action or Exception, as well as to by gones, as in time coming, Par. 1597. cap. 236. Par. 1455. cap. 41. which is confirmed and extended to Feus, not only to be granted of Lands, but to Feus granted of the Feu-Ferm-Duties, which was a device invented, to elude the Law, Par. 1597. cap. 239.

36. Secondly, Feus of the annexed property, after Dissolution, may not be set with diminution of the Rental; the Feu-duty not being within the new retoured Duty, Par, 1584. cap. 6. And that it may appear whether the Rental be diminished or not, before they pass the Seals, they must be presented to the Thesaurer and Comptroller, and registrate in his Register, and the Signature subscribed by him, otherways they are null, Par. 1592. cap. 127. And such Feus [Page] set without consent of the Comptroller, by his subscription, Registrat in his Register, are again declared null, Par. 1593. cap. 171. The Comptrollers Office hath been of a long time adjoyned to, and in the same Commission with the Thesaurers Office, or Commission of the Thesaury.

What Lands and others are annexed to the Crown, appeareth by the several Acts of Parliament made thereanent, consisting mainly of forefaulted Estates and Kirklands, after the abolishing of the Popish Clergy; which because they were presumed to have been most part mortified by the Kings of Scotland, therefore, the intent of their granting ceassing by the abolishing of Popery, they return to the Crown, as the Narrative of the Act of annexation of the temporality of Benefices, Par. 1587. cap. 29. bears; and therefore, Benefices of Laick Patronage, as having proceeded from these Patrons are excepted by the said Act: and though after the restitution of Bishops and their Chapters, the Act of Annexation, in so far as concerned their Lands, was rescinded, Par. 1606. cap. 6. Yet Bishops being abolished, Par. 1640. cap. 6. their Lands were again annexed to the Crown, Par. 1649. cap. whereby all Erection of Kirk-lands in temporal Barronies or Lordships, by which the King interposeth any person betwixt himself and these who were formerly Vassals of Kirkmen, are prohibit and declared null; this Act is rescinded in the general Act rescissory, 1661. cap. 15. The annexed property after Dissolution, may not be granted in ward or blensh, except upon Excambion, for as good Lands, Par. 1597. cap. 234.

37. Feus of Kirk lands by Prelats, or other beneficed persons being granted by consent of their Chapters, with all requisite Solemnities, were esteemed Legal Securities, without any particular Confirmation by the King or Pope, there being no Statute nor Constitution obliging the Subjects thereto: and in case any Confirmation had been requisite, the consent of the Prince, under his proper Seal, and Subscription was sufficient, Par. 1593. cap. 187. Yet it was the Custome, that the Kings, or Popes Authority was interposed to all Feus of Kirk-lands, therefore, all Feus not Confirmed by the King or Pope; before the 8. of March, 1558. or being thereafter not Confirmed by the King, are declared null by Exception. Par. 1584. cap. 7. The Reason hereof was, because in March, 1558. the Reformation of Religion began to be publickly professed in Scotland, and the beneficed persons became hopeless to preserve their rights of their Kirk Lands, and therefore endeavoured to dilapidat the same: But this was found, not to extend to an Infeftment of an Office, as the Office of Forrestrie, though it had Lands annexed thereto, and a threave of Corn out of every Husband Land of the Abbacy, seing the Statute mentioned only Feus of Lands. And this was but like a Thirlage, 20. of Ianuary, 1666. Lord Renton contra Feuers of [...]. It is also declared in the 7. Act Par. 1594. that the old Possessors were to have their Confirmation, for payment of the quadruple of their silver rent, or the double of their ferm: Providing they sought the same within a Year after the publication of that Act; otherwayes they were to pay the eight fold of the Silver rent, and the triple of the Ferm, and the King was thereby obliged to grant Confirmation to the old Possessors upon these terms; and being so Confirmed, the same could not be questioned upon aleadged Dimunition of the Rental, or Conversion in monie, or any other cause of Nullity, Invalidity or Lesion, or by any Law, Canon, or Statute, except Improbation only. And it was declared, that Confirmations by the King, of Posterior [Page] Feus should not perjudge the Anterior Feus granted by Prelates, and their Convents, with their common Seals, and Subscriptions at any time, being granted with consent of the Kings Predecessors, under their Privy Seal, though without farder Confirmation by the Kings or Popes, Par. 1593. cap. 187. The Reason hereof was, because in the time of the Reformation, most of the Evidents of Kirk Lands were destroyed: And therefore the Ancient Possessors, were presumed by their very Possessions to have Right: And for clearing who were the Ancient Possessors, and what were Kirk Lands, it is declared by Act of Sederunt, 16. of December 1612. that ten years Possossion before the Reformation, or thirty years Possession thereafter, but interruption, should be sufficient to stand for a Right of Kirk-lands, the same being possest as such; and Feu dutie being payed to Kirkmen, before the Reformation or to the King, or others having Right from them, after the Reformation therefore, it was so decided, 5. of July, 1626. Laird of Kerse contra Minister of Alva, though much stronger probation, of being part of a temporal Barronie, for longer time was alledged in the contrary, Hope, Earl of Home contra Earl of Balcleugh, Spots. Kirkmen. Mr. John Hamiltone Minister at Linton contra John Tweedie. Secondly, Feus granted by Prelats were null, Except they were expede by the consent of their Chapters, or Convents, Par. 1593. cap. 187. Thirdly, Feus granted by the beneficed Persons, as of themselves they ought to have been without diminution of the Rental, seeing the Property thereof was mortified to the Kirk, and the incumbents were but as Liferenters, Administrators and Tutors, it was also expresly declared, and statute, that any diminution of the Rental, or change of Victual for Money, or any other Disposition, making the Benefice in a worse Estate then at the Kirk-mens entrie, should be null, Par. 1585. cap. 11.

38. Infeftments in Burgages, are these which are granted to the Burghs, by the King, as the common Lands, or other rights of the Incorporation, and that for Burgal Service, in Watching and Warding within their Burghs, &c. These can have no Casualities, because Incorporations die not, and so their Land can never fall in Ward, or in Non-entrie. These Infeftments in Burgage are held by the Incorporation, immediately of the King for Burgal service, Watching and Warding within Burgh, &c. And the particular persons Infeft, are the Kings immediate Vassals, and the Bailies of the Burgh are the Kings Bailies: And to the effect that such Infeftments may be known, it is declared, that all Seasines of Burgage Lands shall only be given by the Bailzie, and common Clerk thereof; otherwayes the famine is declared null, (which seems to have given the rise to the exception in the Act of Parliament, anent Registration of Seasins, that it should not extend to Seasins within Burgh) Par. 1567. cap. 27.

39. Infeftments of mortisied Lands are these which are granted to the Kirk, or other Incorporation having no other Reddendo, then Prayers and Supplications, and the like: Such were the Mortifications of the Kirk-lands, granted by the King to Kirk-men, or granted by other privat men to the Provost, and Prebendars of Colledge Kirks founded for Singing; Or to Chaplains, Preceptors or Alterages, in which the Patronage remained in the Mortifiers.

40. Of all these Mortifications there remains nothing now, except the Benefices of Bishops, Deans, and Chapters, and the Manses and Gleibs of Ministers, which are rather Allodial then Feudal; having no holding Reddendo, [Page] or Renovatione; Yet are esteemed as holden of the King in Mortification: And therefore, the Liferent of the Incumbent, by being year and day at the Horn, falls to the King.

Manses, and Gleibs, did belong to Parsons, Viccars, and other Kirk-men before the Reformation, after which they were prohibited to set the same Feu, or in long Tack, without the Royall assent, and the Ministers were ordained to have the principall Manse of the Parson, or Viccar, or so much thereof as should be found sufficient. Whither the saids Gleibs were set in Feu, or long Tack before or not, unlesse a sufficient Manse be builded, by these who have right to the Few, or long Tack, Par. 1563. cap. 72. Which was explained, Par. 1672. cap. 48. That the Manse, either pertaining to the Parson, or Viccar, most ewest to the Kirk, shall belong to the Minister, and four Aikers of Land lying most Ewest to the said Manse, to be designed by the Bishop, or Superintendent at the Visitation, by advice of any two of the most honest, and godly of the Parochioners: For want of this Solemnity, a designation was found null, because it bore not two honestmen by name, required to joyn with the Presbytery, or their Commissionersthough it bore, that all the Elders of the Paroch were present, and consented, but named none. Spots. Kirk-men, Minister of Lamingtoun contra Tweedie, though Parsons, or Viccars Manses may be designed to be the Manse of a Minister, yet no other house can be designed, though it were in an Abbay, but the Parochioners must build one, 11. of February, 1631. Minister of Innerkeithing contra John Kerr.

If there be no Manse, nor Gleib of old extending to four Aikers of Land, then the designation is to be made of Parsons, Viccars, Abbots, or Priors Land, and failing thereof, of Bishops Lands, Friers Lands, or any other Kirk-lands within the Paroch; aye and while the four Aikers be compleat, with freedom of foggage, pasturage, fewel, feal and divet, Par. 1593. cap. 161. By which there is a clear order of designation; First, of Viccars and Parsons Manses most ewest, and failing thereof, of Parsons or Viccars lands; Failing these, Bishops Lands, Frier Lands, or any other Kirk-lands, as Chaplanries, Prebendaries: Which order was so found to be observed, 13. of July, 1636. Thomas Halyburton Minister, contra John Paterson. And therefore a designation of a Manse, or Gleib out of Abbots Lands was annulled, because there were Parsons Lands in the paroch, though they were builded with houses, and feued, for which the Feuers were obliged to acquire a Gleib, 24. July, 1629. Mr. James Nairn, contra Mr. James Boswell: The like, though the Lands were fewed all before the Act of Parliament, 25. of January, 1665. Parson of Dysart contra Watson. Yet Bishops Lands were ordained to be designed before Abbots Lands, though they be named after, in respect of their greater interest in the Cure. Nicol. de sacro sancta Ecclesia, 2. of July, 1622. Nicolson contra Porteous: Where there is not arable Land near the Kirk, the Geib is to be designed of pasture lands, sufficient for 16 soums most ewest to the Kirk, Par. 1621. cap. 19. The designation of Manses and Gleibs, where they are not designed, or not a full quantity, or are become unprofitable by Inundation, or other extraordinary accident, are ordained to be out of the Kirk-lands most ewest to the Kirk, according to the order in the Act. 1593. Burrowstoun Kirks being always excepted; yet a Gleib was found competent to a Minister of a Burgh, having a Land-ward part of his Parochin, Spots. Kirk-men, Mr. Robert Ruch. The Designation of Gleibs was committed to Presbyteries, Par. 1644. cap. 31. which is declared to be by three Ministers and three Elders, Par. 1649. cap. 31. Revived, Par. 1663. cap. 20. whereby [Page] Designations are referred to the Bishop, or such Ministers as he shall appoint, with two or three of the most knowing in the Paroch: In which Acts the power of Designation is extended, not only to Kirk-lands, but where these are not, to other Lands arable, or Grass, ewest to the Kirk, provided that the Heretor thereof may offer other sufficient Lands and Grass, within half a myle of the Kirk and Manse: And by the said Act, 1649. there is added to the Gleib pasturage for a Horse and two Cows, which is found to be regulat as the Gleib before, which is also revived, Par. 1663. cap. 20. with this alteration, that if there be not Kirk-lands near the Manse, or are not Arable Lands, the Heretors shall be lyable to pay yearly to the Minister, twenty Pounds Scots, for his Horse and Kines Grass, and this Act is declared to be as if it had been made in March 1649. as to designations, after 1649. that Parliam. being rescinded without reservation contained in the Act rescissory (as is in the Act Rescissory of the other Parliaments) saving all privat rights done thereby; but there is no warrand in any of these Acts to design temporal Lands, where there are any Church lands; and therefore, a Designation was reduced, because temporal Lands were designed, and Kirk-lands past by, albeit the Minister had been possessor, decennalis & triennalis, which gave him a presumptive Title, because his Designation which was the true Title, was produced, February 6. 1678. Lord Forret contra Mr. John Maters.

A Gleib designed, was found to carry a proportional part of the common pasturage following to the Lands designed, February 2. 1630. Hamiltoun contra Tweedie. Designation of a Gleib was sustained, though it bore not the same to have been four Aikers measured, in respect it bore, that the possessors servants hindered the measuring; and therefore, it was designed according to the common estimat, July 5. 1626. Kers contra Minister of Alloway. And also sustained, though there were Lands nearer the Kirk and Manse, which were Bishops Lands, seing they were inclosed as a part of the Kings Park, February 13. 1629. Lady Dumfermling contra Minister of Dumfermling. Bat a Designation was annulled, because there was an old Gleib possest long by the incumbent, being four Aikers, Nicol. de sacro sanct. Eccles. Minister of Aberdour contra Brown and Ramsay. A Designation was sustained, though there was only a Nottars Instrument without the subscription, of three Ministers Designers, December 17. 1664. Mr. Thomas Paterson contra Watson: Here the Ministers Designers, their Testificat under their hand, was ordained to be produced before extract. A Gleib being designed was sustained, though it was an united Kirk, the other Kirk having a Gleib, January 22: 1631: Ministers of Innerkeithing contra John Keir. A Designation was also sustained, though it proceeded upon warning out of the Pulpit, or at the Kirk-door, after Divine Service, in respect of the custom so to do, though some of the most considerable Heretors were out of the Countrey, January 28: 1668: Ministers of Hassanden contra the Duke of Bukcleugh. It was also sustained, though done but by two of the three Ministers, named by the Bishop, without a quorum, unless weighty reasons upon the matter, were shown to the contrary, February 7: 1668: Minister of Cockburnspeth contra his Parochioners. Manses & Gleibs being designed as said is, the Feuars, Possessors and Tacksmen have relief of the remnant Parochioners, having Kirk-lands, pro rata, Par: 1594: cap: 199: which was extended to a [...] Manse being Designed; and the other Kirk-lands, a part where of were mortified to, and holden of a Colledge, did bear burden, February 12: 1635: John Cock contra Parochioners of Auchtergivan. But where old Gleibs are designed, there is no relief by other Kirk-lands except these who had [Page] Feus of other parts of the same Gleib, seing by the foresaids Statutes, the Feuars of old Manses or Gleibs, are to suffer Designation, or to purchase new Manses and Gleibs; so that these old Manses and Gleibs do not infer relief: This relief is not debitum fundi, affecting singular successors, as was found, June 1675: Schaw contra Hamiltoun of Munckland. But when the Designation is of Temporal Lands, the whole Heretors of Temporal Lands are to contribute for a recompense thereof proportionally, Par: 1649: cap: 131: revived, Par: 1663: Session 3. cap. 20. Gleibs are Teind-free, Parl. 1578. cap. 62. The like, where they are Arable or Grass, Par. 121. cap. 10. And a Gleib was found Teind-free, though lately mortified, voluntarly without Designation or Process; and though not mortified to a Paroch Church, but a Chappel, seing Divine Worship was accustomed to be therein, June 9. 1676. Alexander Burnet contra William Gibb.

41. There is another division of Infeftments, into these which are granted to one Person and his Heirs, and to more Persons and their Heirs, which are of diverse sorts; sometimes as Conjunct-infeftments, and sometimes conceived in favours of Fathers, and after their decease, to Children or relations therein nominat.

Conjunct-infeftments are called Conjunct-Fees, whereby the Fee is disponed joyntly to more persons and their Heirs, which may be to three or more persons, who by the Infeftment, become all Fiars joyntly and equally; whence there ariseth a Communion by which they do possess the Fee, pro indiviso, until division thereof be made, which doth not comprehend an Infeftment to an Incorporation, as to a Town or Colledge, or to the use of the Poor, who do not thereby become joynt Fiars, but have only a share of the benefite, according to the distribution appointed. These Infeftments are not conceived to Heirs, seing Incorporations are perpetual and die not, neither doth the publick use fail; therefore, such Infeftments require no renovation.

Superiours will not easily be induced to accept Resignations from their Vassals in favours of Incorporations and publick uses, by which all the Casualities of their Superiority cease; or to grant Confirmations thereof, having the same effect: Nor can they be compelled to grant such Infeftments upon the Vassals Bonds, granted of purpose, that Adjudication may be used thereupon, that thereby the Superiour may be compelled to receive the Incorporation; yea, though without design, an Incorporation should become Creditor to a Vassal in a debt truly borrowed, either from the Incorporation or their Cedent; The question is, whether an Adjudication thereupon might force the Superiour to receive the Incorporation for a years Rent. Craigs opinion is in the Negative; and I have not heard such a case come to be debated. And though Custom hath oblieged Superiours to receive man and Wife in Conjunct-Fee, which abate their Casualities, during the life of two persons, the consequence would not be good, to reach to an Incorporation that never dies, though the Act of Parliament introducing Appryzings and Adjudications, be generally in favours of all Creditors: It were more just, that Incorporations should pitch upon a person, and assign their debt to him expresly, to the effect, that the Lands might be adjudged to him and his Heirs, for the use and behove of the Incorporation, or such other uses as were designed, which would be effectual against all singular Successors, especially, if the Trust were exprest in the Seasine; but the Superiour would have all his Casualities by the death, neglect or delinquence [Page] of the Trustee and his Heirs. I shall not pre-determine my self or others in the case, but leave it to publick determination.

Conjunct-Fees, by the Custom of England, are always so understood, that the survivers have the whole benefite, so long as any of them are alive; but we do only extend this survivancy to Conjunct-infeftments to Husband and Wife, which bears ordinarly to the longest liver: But though that were not exprest, it would be understood as implyed, and generally, it resolves in the Wife but as a Liferent; and the Husband is understood to be Fiar, unless it be evident, that the Right was originally the Wifes, and a Liferent only designed for the Husband; and therefore, if no Heirs be exprest, or only generally their Heirs, the Husbands Heir is understood in Heretable Rights, Nam potior est conditio masculi; and the Wife is only Liferenter, but with greater power then by a separate Liferent, June 24. 1663. Elizabeth Scrymzour contra Murrays. And a Wife having charged, upon a Bond granted to her Husband and her, and the longest liver, was found not to have right to uplift the sum, or to insist therefore, without concurse of the mans Heir, or he being called, that if the sum were insecure, it might be consigned to be re-imployed to the wife in Liferent, and to the Heir in Fee, December 10. 1671. Katharine Ross contra Laird of Hunthill. Yea, a Clause in a Bond, bearing, a sum borrowed from a Husband and wife, and payable to the longest liver of them two in Coniunct-fee, and to the Heirs betwixt them and their Assigneys, whilks failing, to the Heirs and Assigneys of the last liver, was found to constitute the Husband Fiar, and the Wife Liferenter, albeit she was last liver, whereby her Heirs of Line (failing Heirs of the Marriage) became Heirs of provision to the Husband, and lyable to his debts, January 29. 1669. Graham contra Park and Gerdan. January 23. 1668. John Justice contra Mary Barcley his Spouse. And a Clause in a Contract of Marriage, oblieging the Husband to take the Conquest to him and his future Spouse, and the Heirs betwixt them; whilks failing, the Heirs of the Mans Body; whilks failing, the Wifes Heirs whatsomever, was found not to constitute the Wife Fiar, but Liferenter, and the Husband Fiar; whereby failing Heirs of the Marriage and of the Mans Body, the Wifes Heirs of Line, were Heirs of provision to the Man, February 20. 1667. Cranstoun contra Wilkison; For by this Clause of Conquest, it is evident, the means were to come by the Man; yet an Obliegement by a Man, bearing, that whatsoever Lands or sums of Money he should purchase, during the life of him and his future Spouse (their present debts being first payed) that the wife should be secured therein in Conjunct-fee; and in case of no Issue, or Children, the one half thereof to be disponed as the Wife should think fit, was found to make the Conquest divide betwixt the Heirs of the Man and the Wife, and that her power to dispone the half, was not a personal Faculty, but did make her Fiar in that half, and took off the presumption of the preference of the Husband, seing no mention was made of the Heirs of either party, June 27. and 28. 1676. Earl of Dumfermling contra Earl of Callender. Conjunct-Fees to Husband and Wife, and the Heirs of the Marriage, do imply a restriction upon the Man, not to alter the succession, without a necessary or just consideration, and so do exclude deeds fraudulent, or meerly gratuitous, which might evacuat the effect, as to the heirs of the Marriage; so that if there were heirs of the Marriage, and also heirs of another Marriage, the Father could not alter the Succession, in favours of the heirs of another Marriage, because of the interest of the Wife, and the Tocher she-brings: But it doth not hinder the Father to give competent portions to the Bairns of another Marriage, June 19, 1677. Murrays contra Murrays. Neither did such a Clause of Conquest during the Marriage, exclude a competent Liferent, constitute to Wife of a subsequent [Page] [Page] [Page] Marriage, albeit there were Bairns of the first Marriage, June 16. 1676. Katherine Mitehel contra Children of Thomas Littlujohn. Yet where there survived no heirs of the Marriage, a provision in a Contract of Marriage, that such a sum, the future Spouse then had, and all they should acquire during the Marriage, should be taken to themselves in Conjunct-Fee, and to the heirs of the Marriage, whilks failzing, the one half to the Mans heirs, and the other half to the Womans heirs, found to constitute the Man Fiar of the whole, and that he might provide both the first Stock and all the Conquestro his Children of a posterior Marriage, which was found no fraudulent [...] meerly gratuitous deed, December 1. and 21. 1680. Alexander Anderson contra Androw Bruce.

42. Infeftments to more persons subordinat, are such as are taken to Parents, and after their decease to such Children and other persons named, whereby the Parent is understood to be Fiar and not Liferenter, and the Children or others to be Heirs substitute, albeit both the Father and the Bairns named, were Infeft, July 23. 1675. Laird of Lambingtoun contra [...] of Annistain. But where the Band did bear, a sum lent by a Father for himself, and as Administrator for his Son, and that the Money was the Sons, and payable to the Father, and after his decease to the Son, was found to constitute the Son [...], and the Father only liferenter, February 14. 1667. Campbel contra Constantine.

43. The third division of Infeftments, is in respect of the succession, and they are either simple or Tailzied: Simple Infeftments are these which are taken to Heirs whatsomever; for by that expression we express the lineal Heirs, who according to Law, would succeed in any Heretable Right: But Tailzied Infeftments are, where the Lands are provided to any other then the Heirs of Line, as when it is provided to Heirs Male, or Heirs Male of the Fiars own Body, or to the Heirs of such a Marriage, or to the Heirs of Titius, whilks failzing, to the Heirs of Seius, &c. Of these Tailzies, there are many several ways as the Fiar pleaseth to invent, and ordinarily in them all, the last Member or Termination is the Heirs whatsomever, of the last Branch or Person substitute, or the Disponer, and when that takes effect by succession, the Fee which before was Tailzied, becomes simple.

A Tailzie must necessarly be a part of the Infeftment, for no write apart can constitute a Tailzie, though Bonds or Contracts of Tailzie as personal or incompleat Rights, may force the Contracter or his Heirs to perfect the same. They must also be constitute by the Superiour, being a part of the Infeftment granted by him, either originally in the first Constitution of the Fee, or thereafter by Resignation or Confirmation; and as a Superiour is not oblieged to alter the Tenor of the first Investiture, or to accept a Resignation, or grant a Confirmation in any case, except where it is provided by Law, whereby he is necessitat to receive Appryzers and Adjudgers: So neither in that case is he oblieged to constitute a Tailzie, but only to receive the Appryzer or the Adjudger, their heirs whatsomever, unless the Debt and Decreet, whereupon the same proceeded, be conceived in favours of Heirs of Tailzie; in which case, the Appryzing or Adjudication, and Infeftment thereupon, must be conform, unless it be otherways by consent of parties.

Tailzies also being Constitute, are broken or changed by consent of the Superiour, accepting Resignation in favours of other Heirs, whether the resigner resign in favours of himself, or his heirs whatsomever; or in favours of any other [Page] and their heirs: But most ordinarly by Appryzings or Adjudications, whereby the Superiour is necessitat to receive another Vassal and his heirs, though perhaps he be substitute himself as an heir of Tailzie, as if it be provided, that failzing other heirs there mentioned, the Fee return to himself. But Infeftments holden of the King, have this priviledge, that they are not refused, either upon Resignation or Confirmation, as the Fiar Purchaser pleaseth: Yea, it is declared by several [...] of the Privy Council, that the King or his Commissioners ought not to deny his Confirmation upon the reasonable expenses of the party; which Ordinances are repeated in the Act of Parliament; and though the design thereof gives not occasion to ratifie the same, yet they are contained in the Narrative, as Motives of that Statute; and therefore, are not derogat, but rather approven, Parl. 1578. cap. 66. And though several Kings have revocked Infeftments granted by them, from heirs of Line, to heirs Male and of Tailzie; yet the effect of such Revocations hath never been tryed by Suite or Decision.

Conjunct-infeftments to Husband and Wife and their heirs, are also Tailzied, and though, if the heirs of that Marriage be a Son, and of a first Marriage, he may be both heir of Line, and heir of the Marriage, yet may he enter as heir of the Marriage; and if the Defunct had other Lands provided to heirs whatsomever, he may renunce to be heir in these Lands, to the effect, they may be first burdened with his Fathers Debt, and he or his Lands provided to the heir of the Marriage, can be but burdened in the second place, in subsidium, of what is wanting by the Executors, or Heretage befalling to heirs whatsoever; much more are Infeftments Tailzied, which are granted to Husband and Wife, and to the Bairns of the Marriage, whereby Male and Female come in pari passu.

Bonds taken to Parents, and after their decease to such a Child, nominatim, whereupon Infeftment followed, makes a Tailzied Fee; but these are rather called heirs of provision, and these are most properly called Tailzied Fees, where several Branches are specially substitute, one failzing another. But seing heirs of Tailzie fall under consideration in the transmission of Rights by Succession, we shall insist no further thereon in this place, but shall proceed to consider the Clauses which are adjected in Infeftments, not being of the Substantials or Solemnities thereof, and how far such come in as parts of the real Right, affecting singular Successors, and how far they are only personal, affecting alone the heirs of the Superiour or Vassal: And last, we shall consider the effects of Infeftments themselves.

As to the first, beside the Solemnities requisite in Infeftments, there uses to be many Clauses insert therein, all which, we cannot follow, but shall insist in the most ordinar and and important; These are Union, Erection, Warrandice, Reservations, Provisions, Conditions, and Clauses irritant.

44. Union is the Conjunction, or Incorporation of Lands or Tenements, lying discontigue, or several kindes unto one Tenement, that one Seasine may suffice for them all; in which there is sometimes exprest a special place where Seasine should be taken; and when that is not, Seasine upon any part is sufficient; for the whole Lands lying contiguous are naturally Unite, and needs no Union, so that Seasine taken upon any of them, extendeth to the whole: But where they ly discontiguous, other Tenements being interjected, there must be Seasine taken upon every discontiguous Tenement, which must be all particularly so exprest [Page] in the Instrument of Seasin, whereof one will serve for all the Tenements; or otherways, when they are Tenements of several kinds, as Lands, Milns, Fortalices and Fishing; all which are several kinds of Tenements, and require several Seasines, and pass by several symbols or tokens, as Lands, by Earth and Stone, Milns by the Clap, Fortalices by the Entry at the Gates, and inclosing the person possest, and excluding the granter of the Possession solemnly, conform to the Charter or Precept.

Union can be Constitute originally by no other then the Soveraign Authority, conceding the same, January 16. 1623. Mr. Hendry Aikin contra Greenlaw. Or Confirming the same, January 16. 1623. Aikin contra Stuart. And therefore, Union being Constitute by a Subject, not having the same from the King, was found null by Exception, at the instance of the Possessors, though pretending no Right, December 16. 1628. Lady Borthwick contra Scot of Goldylands. And when there is a place for the Seasine of the Union, a Seasine taken elsewhere, reacheth none of the Lands lying discontigue, March 19. 1636. Lady Dunipace contra Laird of But if the Lands united by the King be Disponed wholly together by the Vassal to others Subalternly Infeft, the Union stands valid, July 12. 1626. Stuart and Dowglas contra Cranstoun Home; repeated, Jan. 5. 1627. which for the same reason ought to be extended to Subaltern Infeftments of an annualrent of a Barrony or United Tenement, which was found to extend to a Miln, and to Lands lying discontigue, though not taken in the place designed in the Union, Spots. Executors, Lady Ednem contra Tennents of Ednem.

45. Erection is, when Lands are not only Unite in one Tenement, but are Erected into the dignity of a Barrony, which comprehendeth, Lordship, Earldom, &c. All which are more noble Titles of a Barrony, having the like seudal Effects; and whensoever the Tenements are granted as a Barrony, Union is comprehended as the lesser Degree, though not exprest; and therefore, one Seasine carryeth the whole Barrony, and all Milns and Fortalices thereupon, and fishing adjacent thereto.

Erections can be only granted by the Soveraign Authority, and are not Communicable by the Subaltern Infeftments, though the Union implyed therein may be Communicat. Erection was found to be instructed by the Kings Confirmation of a Charter, Designing the Lands a Barrony, though it was not a Barrony before, but the half of a Barrony, wherein the Barron Infeft his Son, in Libera Baronia; which Infeftment being Confirmed by the King, did Constitute it a full Barrony, whereby an Infeftment of annualrent taken upon a part of the Land, affected the whole, November 16. 1630. Laird of Clackmanan contra Alardice.

Erections of Kirklands in Temporal Barronies or Lordships, whereby the Lords of Erection were interjected betwixt the King and the Feuars, are prohibite, Par. 1592. cap. 119. and Par. 1594. cap. 195. for all these Lands are annexed to the Crown, Par. 1587. cap. 29. and Par. 1633. cap. 10. The Reason whereof is evident, that such Erections are prejudicial, both to the King, who loseth his Casualities of the Feuars, and to the People, who must accept another Superiour in stead of the King; and though they had formerly but Subjects to their Superiours, yet Church-men were much more easy then secular persons, as requiring little service, and being ashamed to demand rigorous Rates; but any man may obtain the Lands he hath in property, holden [Page] mediatly of the King, which were Kirk-lands, Erected in any dignity the King pleaseth to grant.

There are many exceptions in the Acts of Annexation of the Temporality of Kirk-lands, and in the Acts against Erections, by which the Kirk-land excepted, are validly Erected; and all the Erections are so far allowed, as to give the Lords of Erection right to the feu-duties, or fruits of the property of Kirklands, feued till they be redeemed by payment of ten per cent. and the Infeftments granted to the Vassals, medio tempore, are valid; but the Casualities ought still to belong to the King. It hath been sometimes questioned, whether the Union and Erection of Lands be dissolved, and lost by an Infeftment of a part thereof, from the Vassal holden of the Superiour by Resignation or Confirmation, Craig, l. 2. Dieges. 7. is for the affirmative, confirmed by the resemblance of a Sheaf of Arrows, bound with one Ligament, for if one Arrow be pulled out, all become louse, and so the Union of the whole is dissolved, unless the Superiour give the new Infeftment, but prejudice of the rest. But though such cases frequently occur, whereby Infeftments of discontiguous Lands would only be valid, as to the contiguous Lands upon which they were taken; yet in no competition or other Process, hath it been observed by any to be drawn in question or decided. so that we have ever rested in the Negative, and the consequence from that resemblance is not sufficient; But on the contrary, he who unites many Discontiguous Lands, unites every part of them to every part, so that the taking off of one part dissolves only it self, the rest remaining unite. But Union or Erection doth not change the Jurisdiction of the Lands unite, as to the Shires and Bailziries where they naturally ly, Vide Tit. Confiscatione, §. Horning.

Barronies and United Tenements, when they are originally granted, ought to express the several Tenements, according to their proper Designations, and so expresly Unite them: But when these are acknowledged to have been Baronies, or otherways Unite, or are named, or defigned as such by these who have power to Unite, then the common Name of the United Barony or Tenement, is sufficient to carry all that is holden and repute, as part and pertinents thereof; which was extended to Lands, as parts of a common Designation, though some particulars were named, and the Lands in question had also proper names, and were exprest in the ancient Infeftments, the right in question being an Appryzing, March 23. 1622. Gallowsheils contra Lord Borthwick. Union and Erection are as qualities of the real Right, and pass unto singular Successors, as is before exprest.

46. Warrandice is either real, when Infeftments is given of one Tenement in security of another, or personal, when the Superiour obliegeth himself to warrand the Infeftment; as to the warrandice by Disposition and Resignation, it is unquestionably personal, and cometh not within the Infeftment; but though it be granted by the Superiour in the Infeftment, yet it is but a personal obligation, no ways co-hering, nor carried with the real Right; and therefore, the singular Successor of the Superiour or Author, is not oblieged in the Warrandice, neither doth the Disposition or Infeftment from the Vassal, carry to his singular Successor, the right of the Warrandice, unless it be assigned specially, or generally in the Assignation of the Rights and Evidents.

Warrandice is a common obliegement, both in Infeftments and other Rights, [Page] and it is sometimes exprest, and then it is regulat according to the Tenor of it, whether it be absolute Warrandice, or from fact and deed, or from future or voluntary fact and deed. But oftimes when Warrandice is not exprest, it is implyed as Rights are to be warranted, which are granted for an Equivalent Cause onerous: But in that Case, where the Disposition was only of all right the Disponer had, the Clause inferred not absolute Warrandice, but only from the Disponers future voluntary Deed, Hope, Warrandice, Lord Sinclar contra Creighton. Absolute Warrandice is also implyed, where the Disposition or Infeftment bears (Vendidit) because that imports an equivalent Price, Spotss. Warrandice, John Stewart contra Fivie. But not so, if it were exprest under the terms of Alienation, which is common to both gratuitous and onerous Dispositions.

Warrandice from the future fact and deed of the Disponer and his Heirs, is implyed in pure Donations, Hope, Warrandice, Veatch contra Dauling, Mr. Partrick Schaw contra Sir James Durham, and was extended to a Legacy rei alienae scienter legatae, June 16. 1664. Murray contra the Executors of Rutherfoord: But ought not to be extended to future necessar deeds, preceeding the gratuitous Disposition, which the Disponer is, or may be, compelled to fulfil; neither upon any anterior deed, because, he who disponeth freely, is presumed but to dispone such right as he hath, but posterior deeds are fraudulent. It is Craig's opinion in the forecited place, that though Warrandice from fact and deed be exprest, that it doth not extend to prior deeds: And that in any Case, if the Cause of the Disposition be for service done, for gratitude, or merit, that Warrandice is implyed; much more, if for future Service, or for a feu Duty, or Rent: Yet, if beside these, there be not an Anterior Cause in Money, or Value, such Dispositions cannot be accounted onerous; for former merit or gratitude, infer no civil Obligation, and so no burden which could receive Legal compulsion. And as to annual Prestation in Services, Feu-duties, or Tack-duties, if they bear no Money received, or equivalent Value, they are presumed to be gratuitous in favours of the receiver, who may reject or renounce them when he pleaseth, if they be not by mutual Contract: And when they are evicted, the Vassal is free of these Duties, and hath no loss; and therefore they ought to import no more Warrandice, but from future voluntary fact and deed; But whatever Warrandice be exprest, must be accordingly observed: But Craig's opinion being, that naked Pactions were not effectual with us, and that a Charter was but a naked Paction; so Warrandice in an Innominat Contract, such as a Fee, could be but a naked Paction, importing no further then what would arise from the nature of the Right. But our constant Custome allowing all Pactions and Promises to be effectual, doth both make Charters without Seasine effectual against the granter, and likewise Warrandice, and all other Clauses-therein; yea, the paction, that nothing should be demanded in case of Eviction, is for the same Cause effectual, that the Money payed for the Right evicted, cannot be recovered: Yet Craig doth there report a Decision of the Lords, betwixt Samuel Cockburn and Sandielands of Calder, that a Charter without Seasine, and not delivered in the Granters Life, but recovered out of the Charter-chest of Torphichen, was found effectual to make the Granters Heir perfite the same with Seasine; but it did not remain in the hands of the Granter, and thereby it appears, that the Lords did not then look upon Charters as naked Pactions.

The Effect of Warrandice is, the upmaking of what is warranted, in so far [Page] as it is evicted, and the ordinar procedure in it is, when any Sute is moved, whereon Eviction may follow, Intimation is made to the Warrand of the Plea that he may defend: And if Eviction follow, and distress thereby, Declarator of distress, and action of Warrandice for relief is competent. Also it is effectual for decerning the Warrand to free the thing warranted of that which will undoubtedly infer a distress, though it hath not actually done it. In this case Execution was superceeded for a time, that therein the ground of the distress might be purged, July 1. 1624. Laird of Frendraught contra Balvenie. The like upon a Production of a Seasine of the Lands warranted, granted by the warrands Author before the Right and Inhibition, though there was no distress, Nicol. de evictione, Fisher contra Fleeming. The like, July 17. 1666. Alexander Burnet contra Johnstoun. February 17. 1672. Smith of Braco contra Ross of Balnagoun. Warrandice had also effect upon production of a Decreet of removing against the Buyer and Seller, Nicol. de evictione, Johnstoun contra Johnstoun. Yea Warrandice will take effect where there is an unquestionable ground of distress, though the Fiar transacted voluntarly to prevent the distress. Intimation of a Plea is sufficient without an Instrument, it being proven by the Warrands Oath, that the copy of the Citation was delivered to him as an Intimation, Nicol. de evictione, Lyme contra Dunlop. But though no Intimation be made, yet the Warrandice taketh effect, unless the Warrand had a relevant defence and could instruct the same, Nicol. de evictione, Boyd contra Stark. But in that case, the Warrandice hath no effect, ibidem, Cairncorss contra Murray. Glendinning contra Gordon.

Warrandice hath no further effect then what the Party warranted trulie payed for the Right, whereby he was, or might be distrest, though less then the value of the Right warranted, July 1. 1634. Robert Glendinning contra Barnbarroch. The like upon repayment of the sum given out, and the Annulrent thereof, Hope, Warrandice, Laird of Craicklaw contra Lord Herris. January 26. 1669. Boil of Kelburn contra Mr. John Wilkie. February 28. 1672. Earl of Argyl contra Laird of Aitoun. This will not hold in Warrandice of Lands, as to which Lands of equal value, or the whole worth of what is evicted, as it is the time of the Eviction is inferred; because the Buyer had the Lands with the hazard of becoming better or worse, or the rising or falling of Rates, and therefore is not oblieged to take the Price he gave. Neither is Warrandice a full security, being but a personal Obliegment; and many times the Price is not known. And if the Warrandice be not absolute, the Purchasers hazard was the greater: But in Warrandice of personal or redeemable Rights, the matter is ordinarly liquid, and there is no design of hazard but an absolute relief. But Warrandice hath no effect where there is Collusion, by being holden as confest, Nicol, de evictione, Aikenhead contra Blackwood. The like was found by suppressing the Warranders Right, and receiving considerable Sums therefore: whereby the Right warranted fell in consequence, February 18. 1679. Laird of Wedderburn contra Sir Robert Sinclar. March 3. 1629. Murray contra Lord Yester. Neither where Eviction falls through default of the party warranted, when having a Disposition of Ward-lands, with double Infeftment he infeft himself, base without the Superiors consent, and thereby the Lands recognosced, February 1. 1610. Maxwel contra Mowbrey. Neither inferred by the Forefaulture of the Disponers apparent Heir, seeing the Fiar omitted to obtain the Kings Confirmation, which would have excluded the Forefaulture, Hope, Warrandice, Hamilton contra Laird of Nidderie. It is not so clear either in Reason or Practice, whether Warrandice takeseffect upon any other ground then what is, or may be, a [Page] ground of Eviction, to take away the Right of the Party by whom the Warrandice is graunted judicially; as when Lands are taken away by Innundation, or are become barren: Or when a Right assigned with Warrndice becomes ineffectual, because the Debitor is not solvendo; or when any accidental or extrujudicial distress or damnage befalleth to the party warranted, through occasion of the ground of Warrandice, though not by legal Eviction, Secondly. Whether Warrandice takes place, when the Right warranted is taken away, or burdened by a subsequent Law. Thirdly, Whether Warrandice in general will extend toward Releef, and it Or to Forefaulture of the warrands own Superior.

As to the First, Warrandice relates to the point of Right, and not to the Matter of Fact, and therefore will not reach to Accidents, the hazard whereof lies alwayes upon the Acquirer and the Propriatar: Yea, a Clause of Warrandice that Lands should be worth so much yearly Rent, was not extended to Desolation, by famine, March 10. 1636. Lady Dunipace contra Laird of Rouiston. It was also [...] that a Cautioner being conveened, and through occasion of Compearance was made Prisoner in a Ship taken prize; had thereby no interest upon the Clause of Warrandice to distress the Principal for this accidental Damnage, James Maxwel contra James Nisbit of Ladytoun. So that unless some what more be concurring then the naked Warrandice, either by the value of the onerous Cause, for which the Right is granted, or Tenor of the Assignation, it reacheth not the sufficiency of the Debitor or the like points of Fact, as is Spotswoods opinion, Tit. Assignation. And it was lately found, that where a Creditor had given a blank Assignation to a Cautioner, who had payed him with absolute Warrandice, that as to the Cautioner, to whom it was gratuitous for the Creditor to give such a Warrandice, importeth not the sufficiency of the Debitor, July 16. 1663. William Hay contra Nicolson and Mitchel. It was also found, that absolute Warrandice in an Asignation, bearing that the samine should be good, valid and effectual, was not found to extend to the Solvency of the Debitor; but only that the Debt could not be excluded by any legal Exception, either from the cedents deed or otherwise; as if the write Assigned had been false, the cedent not being accessory, null, or declared a publick Debt, November 24. 1671. Sir Rober Barclay of Pearstoun contra Robert Liddel, which quadrats with lib. 4. ff. de haereditate et actione vendita, Venditore nominis tenetur prestare debitum subesse, Debitorem vero Locupletem esse non tenetur prestare. As to the distress by subsequent Laws when these are by way of Declarator of an anticedent Right, it is equivalent to a Judicial Eviction. But when the Law is Statutory introducing a new burden, as Taxes, Augmentations of Ministers Stipends, &c. It was Craigs opinion dieges, de evictione. §. 6. Which he reports as the Judgement of the Session, that in such Cases, the Warrand should be lyable in quantum lucratus est.

But Custome since hath cleared the contrary, that Warrandice is never extended to subsequent Statutory Laws, but that these are alwayes upon the Purchasers hazard: And therefore a general Clause of absolute Warrandice was not extended, to a burden imposed by a subsequent Law, though there was an Anterior abrogat Law to that same effect, July 12. 1667. Watson contra Law. Neither was extended to the making up of a Gleib, though it was by vertue of a Prior Law; but the Designation was after the Disposition, July 1. 1676. Laird of Auchintcul contra Laird of Innes. Yea, absolute Warrandice [Page] in a Ladies Liferent, which is most favourable was found not to extend to an Augmentation of a Ministers Stipend thereafter, though grounded upon a Prior Law, March 27. 1634. Lady Dumfermling contra her Son. But where a Clause of Warrandice did bear, that a Rental of a Ladies Liferent should be so much worth yearly; it was found effectual to make up an Abatment of the Rental by a Ministers Stipend; modified thereafter, July 28. 1635. Lady Cardross contra her Son. Or to the making up a Readers Stipend imposed by a Posterior Law: For in these Cases it was the special tenor of the Clause to uphold the Rental, which would have been effectual not only as to Eviction in Jure, but as to distress in facto by Inundation, Devastation, or the like.

The intent of Absolute Warrandice being only against legal eviction, it doth not extend to every burden that may affect the Land, as to a servitude of Pasturage, Fewel, Feal or Divet, Or to a Thirlage of the Land to the Miln of the Barrony, paying the ninteetnh Corn, June 21. 1672. Sandelands contra Earl of Haddingtoun.

Absolute Warrandice is sometimes general, and sometimes special, against Ward, Relief and Non-entry, &c. with a general Clause, and all other dangers, perils and inconveniences whatsoever, as well not named, as named, &c. as to which, the general Clause is not to be extended above the greatest of the special. But the question ariseth, if such Clauses will reach subsequent Wards or Marriages of the Superiour, or to future Porefaultures, or Recognitions, Non-entries, Liferent-escheats, &c., It is certain that whatever of these burdens besal by the fault of the Warrand, he must be lyable therefore.

Absolute Warrandice being much stronger then Warrandice from Fact and Deed, which reacheth not only to Facts of Commission, but even to ommission of Duties; and therefore, if the Warrandice be but by the Authour, and not by the Superiour, these subsequent distresses will not reach the Author, unless the Clause bear expresly, such distresses past, present or to come; and so though the fee were extinct by the Forefaulture or Recognition of the Superiour, or burdened by his Non-entry, or remaining at the Horn, these occurring after the Disposition will be upon the hazard of the Acquirer, and not the Authour Disponer: But if the Warrandice be in the Superiours Charter, burdening himself, it will be extended to all subsequent Distresses through his fault, and so to Recognition, Liferent-escheat or Non-entry, but it will not extend to the Forefaulture, or Recognition, or other fault of the Superiours Superiour: Neither will it extend to the Ward or the avail of the Marriage of the Superiour bound in Warrandice, failing thereafter, unless it be so exprest; for no provident man is presumed to guard against these, unless it be so exprest; and therefore, there is little advantage by special Clauses of Warrandice: For the general Clauses reaches all Evictions from anteriour Causes, yea, the effect is the same, though there were no Clause of Warrandice exprest, if the Right warranted be for Causes onerous, viz. sums of Money, or equivalent value, unless by the special Warrandice, future deeds inferring eviction, or which would not infer, it ex natura rei, be exprest.

Warrandice is never inferred from Infeftments from the King, as Supream Superiour, and though they were exprest, would have no effect; neither are the Warrandices of Infeftments by Church-men effectual against their Successors in Office; yea express Warrandices of Feus or Tacks of Kirk-lands thereafter [Page] annexed to the Crown, after the said Warrandice, doth neither reach the granters thereof nor their Successors, Par. 1587. cap. 29. and cap. 110. The reason whereof is there rendered, because the Church-lands were annexed to the Crown by subsequent Laws.

Infeftments do frequently bear Conditions, Reservations, Provisions and Exceptions, which give great ground of debate, which therefore must here be cleared.

There is no question but Infeftments may either be pure or conditional, some conditions are implyed from the Nature of the Right, and are effectual, though they be not exprest.

47. As in Ward-holdings, the Vassal cannot alienate without his Superiours is consent which, an effectual resolutive condition, whereby if the major part of the fee be alienate, the whole becomes extinct & returns to the Superiour as he gave it.

48. Infeftments of Warrandice imply this condition, that they should take no effect, but in the case of Eviction of the principal Lands. Infeftments for relief of Cautionry, implys this condition, that they shal have no effect till distress, and that they shall ceass by relief. Infeftments for satisfaction of sums imply this condition, that the sums being satisfied, they are extinct, and the Authors Infeftment revives and stands valid without necessity of Renovation.

49. Infeftment given for a particular Office, and bear not Assigneys, or Substitutes, as to be an Ensign-bearer, Advocat, or Chaplain, with Lands and Annual rents annexed, does imply this condition, that the Heir be capable to exerce these Offices; and therefore, by his inability they ceass, unless they be granted to Assigneys, with power of substitution, in which case they may be performed by another.

50. Infeftments by Excambion do imply this tacit condition, that if the one Tenement Excambed be evicted, there is recourse to the other Tenement with which it was Excambed, for therein Excambion or Permutation differs from Sale; this recourse is effectual, not only to the Heirs, but to the singular Successors of both parties, whether by voluntar or Judicial Rights; and therefore, regress was sustained against an Appryzing, prior to the Eviction, without necessity to instruct that the Excamber had right when he changed, it being presumed that he delivered his Rights to the other party; and therefore an old Charter from the King, bearing, the Lands to have been Disponed in Excambion for the other parties Lands, and expressing Regress, but without mention of Assigneys, yet was found effectual to a singular Successor, July 14. 1629. Laird of Wairdess contra Laird of Balcomie. In this Process it was found, that no person needed to be cited but the present Proprietar of the Lands Excambed, and the Heir, or appear and Heir of the maker of the Excambion, July 2. 1629. inter eosdem; and that Regress was effectual against an Appryzer of the Excambed Lands, it was so decided, December 21. 1623. Earl of Montrose contra Sir George Ker.

51. The Law doth also introduce Conditions in Infeftments, which do not arise from their Nature, as in Feus, by the common Feudal Law, and by special Statute with us, whereby if the Feu-duty be not payed by the space of two years hail and together, that the Feu shall be extinct and lost, Parl. 1597. cap. [...].

[Page]It is therefore beyond doubt, that such Clauses are effectual, whether exprest or not exprest in the Infeftment.

52. It is also incontroverted, that Liferents one or more may be effectually reserved in Infeftments, which will pass therewith as a real burden to all singular Successors, and needs no other Infeftment.

53. Infeftments are also sometimes burdened with the Exception of other Infeftments, which Exceptions, if they be in the Dispositive Clause, as a burden upon the Infeftment, they are effectual against singular Successors.

54. Infeftments are also frequently burdened with Faculties or Powers to affect or burden the Lands, or others Disponed, and that either absolutely at the Disponers pleasure, for such sums to Children or Creditors; which Clauses are frequent in the Dispositions by Fathers to their eldest Son, and are very amply Interpret against them and their Heirs, though the way of burdening might have been defective, as by a base Infeftment, not cled with Possession, or by Bonds of Provision, though no Infeftment follow, as was found in the case of the Relict of Robert Earl of Carnwath contra Gavin Earl of Carnwath. And a Disposition by a Father to his Son, witha power to burden with such a sum, a Bond granted thereafter to his Daughter, without mention of that power was found effectual against the Son, in so far as was not satisfied with the Fathers Moveables, June 24. 1677. Margaret Hopringle contra George Hopringle, though these might be more strictly Interpret in the case of singular Successors, acquiring for onerous Causes. And in the case of the Creditors of Mouswal contra the Children of Mouswal, who having Disponed his estate to his eldest Son by his Contract of Marriage, reserving a power to himself to burden it with such a sum to his Bairns, having given them Bonds of Provision with a base Infeftment, the same was preferred without Possession, by vertue of the reservation to the posterior publick Infeftments of the Creditors for prior Debts, seing he had then an Estate sufficient for all his Debts, and his Bairns Portions.

It is no less certain that all the Clauses contained in Infeftments are not real burdens, affecting singular Successors, such as Warrandice, which only obliegeth the Warrand and his Heirs, and is meerly personal; so then the difficulty remains, what Clauses insert in Infeftments are real burdens, effectual against singular Successors; First then, If the Infeftment bear a provision that the person Infeft shall pay such a sum or do such deeds to a third party, this will import but a personal obliegement, and will not affect singular Successors.

55. But if the Dispositive Clause be expresly burdened with payment of such a sum to the Author, or bear, that upon that condition the Infeftment is granted, and no otherwaies, such a Clause was found effectual against a Singular Successor, bearing only a Provision in the Dispositive Words, that the Lands should be affected with such a sum, and was sustained against an Apprizer, November 7. 1676. Caucham contra Adamson, here there was a Clause irritant in the Disposition, but was not in the Charter.

56. Provisions or Conditions in Infeftments, impossible or unlawful, if they be conceived as suspensive Clauses annexed to the Disposition, they annul the same: But if there be Provisions otherways adjected, though they be in the Terms of a Clause irritant or resolutive, they are void as not adjected.

[Page]57. Provisions also inconsistant with the Nature of the Right, are ineffectual, as if it were provided that the Vassal should not owe fidelity to his Superiour, or that the Right should be valid by the Charter without Seasine, these Provisions are inconsistent and null.

58. It is much debated amongst the Feudists, whither Clauses, de non alienando, with an irritancy or resolutive Clause, or that the Fiars should contract no Debt, by which the Fee might be alienat, or the Tailzie changed; and they are generally for the Negative, that a Clause prohibiting contracting of Debt, or simply not to alienat, are inconsistent with Property, albeit they may be effectual if so qualified. That no alienation be made, or debt contracted to affect the Fee, or alter the succession without consent of the superiour, or such other persons; but that being absolute, they cannot be effectual against singular Successors, whereas these limited prohibitions resolve but in Interdictions, and being contained in the Seasines registrate, they are equivalent to Interdictions, published and Registrate, though many such Clauses have been in Tailzied Infeftments, yet none of them have come to be debated, but that which was in the Tailzie of the Estate of Stormont, Tailzied to Annandails Heirs Male of his Body, whilks failing, to Balvaird and his Heirs, with a Clause not to annalzie or to contract any debt, or do any deed whereby the Lands might be taken from the Heirs of Talzie, otherwise the Contraveener should ipso facto, loose his Right; and the next person who would be Heir, should have Right, which being at length contained in the original Seasine, and all the subsequent Seasines was found effectual to annual the Right of James Earl of Annandail, who contraveened, and of all his Creditors who apprized for his debt, Febru. 26. 1662. Viscount of Stormont contra Creditors of Annandail.

Other Clauses irritant, consisting with the nature of the Right, are effectual against singular Successors, as the taking the Name and Arms of a Family.

And generally, all real burdens of Lands contained in Infeftments, though they give no present Right to these in whose favours they are conceived, nor cannot give them any Fee of the Lands, yet they are real burdens, passing with the Lands to singular Successors, though they bind them not personally, but the Ground of the Land by Appryzing or Adjudication, as if Lands be disponed with the burden of an Annualrent furth thereof, to such a person and his Heirs, this will not constitute the annualrent, but may be a ground of adjudging an Annualrent out of the Lands.

In all these cases, Purchasers by voluntary Disposition, are presumed and ought to see their Authors Rights, at least a progress of fourty years, whereby they may know such Clauses and consider them in the price, or otherways secure themselves against them.

But in the only Decision of this matter concerning the Tailzie of the Estate of Stormount which did pass with great difficulty, the Lords being near equally divided, special consideration was had, that the Clause irritant; de non alienando, was expresly set down in the first and subsequent Seasines of Heirs, whereby Creditors were certiorat of their hazard, if they should lend their money, that they could expect no security threfore by that Estate, seing thereby the borrowers Right became void; and therefore, such Clauses or any other [Page] Clauses irritant, or conditions that might evacuat infeftments, or deeply burden the same, when they are not particularly exprest in the Seasine, may not only be quarrelled by anterior Creditors, but also by posterior Creditors, as latent and fraudulent Clauses to insnare Creditors, who having no mean to know such Clauses, do contract and lend sums of Money to persons whom they see standing Infeft in considerable Estates of Land.

Clauses de non alienando, or non contrahendo debitum, are most infavourable and inconvenient, specially when absolute; for first Commerce is thereby hindered, which is the common interest of Mankind. Secondly, the Natural Obligations of providing Wives and Children are thereby hindered, which cannot lawfully be omitted. Thirdly, It is unreasonable so to clog Estates, descending from Predecessors, and not to leave our Successors in the same freedom that our Predicessors left us, whereby, though they have the shadow of an Estate, yet they may become miserable, as if they should happen to fall into Captivity, or in any Transgression that would infer a considerable fine, against which no such Clause can secure, then being disabled to borrow, they behoved to be denunced to the Horn, and thereby their Liferent Escheat fall to their Superiour, which no such Clause can prevent; and therefore, if any man have ground to suspect the frugality of his Successor, he may provide a part of his Estate by a Tailzie, disabling that Successor to contract debt without the consent of such persons in which he confides, leaving some part of his Estate to his diseretion.

For such a Clause irritant being in the Seasine published by Registration, may be sustained as equivalent to an Interdiction; such Clauses are also much more tollerable in Lands acquired by the Fiars own industry, wherein if there be insert a Tailzie with a Clause, de non alienando, to be insert in the Original, and all subsequent Seasines, and bearing Provisions for the Wives of Successours, not exceeding such proportion of the Fee, and for Children only to affect such a proportion of the Free Rent: Or if persons having no near relations of value, prefer others of their Name or Kin to their Estates: Or in case of mutual Tailzies, such Clauses limited as aforesaid, may be much more tolerate.

But Clauses of that nature have never been attempted, but in proper Tailzies where they are diverse nominat Branches, which are neither Heirs of Line, nor Heirs Male to one another; and where the main design is to preserve the Tailzie, for when all the Branches are of far relation, the preference of the first is not much above the rest; and therefore, the other Branches have by such Clauses, jus acquisitum, and are not simply Heirs, but partly Creditors to the first Branch; and therefore, though there were no Clause irritant, they might reduce alienations meerly gratuitous or fraudulent, especially when done not by the Heirs of Line or Heirs Male of him who constitute the Tailzie, for these are always in every Tailzie in the first place, and while the Fee continues in them, it is rather a simple Fee then Tailzied, as it becomes again, when all the Branches of the Tailzie fail.

The perpetuities of Estates where they have been long accustomed, have [...] their Inconvenience; & therefore, divices have been found out, to [...] them ineffectual: Only the Majoratus of Spain hath been most [...] and [...], that the King Nobilitating a Person of Merit and [...], either by the Kings Gift, or his own Right, that Estate can neither be [Page] [Page] [Page] alienate or burdened, but remains alimentary for preservation of the Dignity of that Family.

But these perpetuities in England are now easily evacuat; First, by Warrands to sell, purchased in Parliament, which pass without much difficulty; and if they become frequent with us, it is like we will find the same remeid: they are also evacuat by a simulat Action of fine and recovery, whereby the purchaser pretends that he is unwarrantably dispossest of such Lands by the present Fiar, who coludes and is silent, having received a Price or other consideration, so that these Sentences, though Collusive, must be irrevocable.

In Tailzies, the Heirs Male or Heirs of Line of every Branch, being the Issue of the Stipes of that Branch, do succeed; and therefore, there is a good Caution by the Law of England, that after the possibility of Issue is extinct, the present Fiar, can do no more as to the Fee, but what a Liferenter could do. The next Branch being ordinarly altogether strangers to that Fiar, little care will be taken to preserve the Fee.

In the Tailzie of Stormount, the whole Estate was not comprehended, and it was distinctly provided, that in case any of the Heirs of Tailzie for the time should contraveen, that the Right should be divolved on that person who would succeed, if the contraveener were dead: But in such Tailzies, formerly it was not so clearly ordered, being only provided, that the contraveener should lose his Right, and the next Heir of Tailzie should have place, whereby it remained dubious, whether the next Branch of the Tailzie were meaned, so that the contraveener losed his own Interest, and all descending of him: Or whether he losed the Interest of all descending of that Branch: Or whether he losed only his own personal Interest, wherein the design of the Constituter of the Tailzie might be dubious enough.

59. To sum up this important Subject of Tailzies, let us consider the effects thereof, according to the several ordinary Tenors of the same, and how far the Fiar or his Heirs of tailzie is bound up thereby; we must then distinguish betwixt Tailzies having Clauses not to alter, burden or alienat: And these that are simple without any express restrictive Clause. Secondly, Betwixt Tailzies made freely, and these that are made for onerous Causes. Thirdly, Betwixt these that have Clauses resolutive or irritant, and these that have only such Clauses by way of Obligation, Provision or Condition.

As to the first Case, It is a general Rule, that quisque est rei suae moderator & arbiter, every man may dispose of his own at his pleasure, either to take effect in his life, or after his death, and so may provide his Lands to what Heirs he pleaseth, and may change the Succession as oft as he will, which will be compleated by Resigning from himself and his Heirs in the Fee in favours of himself, and such other Heirs as he pleaseth to name in the Procuratory, whereupon Resignation being accepted by a Superiour, and new Infeftment granted accordingly, the Succession is effectually altered; yea any obliegement to take his Lands so holden, will obliege the former heirs to enter, and to denude themselves for Implement of that obliegement, in favours of the heirs therein exprest; and if the Superiour refuse to accept the Resignation, altering the Succession, a Bond of borrowed Money, though granted only upon design to alter the Succession, will be the ground of Adjudication of the Land, and being assigned to the Fiar himself, and to such heirs as he pleaseth, the Superiour will [Page] be forced to receive him accordingly; so that the first constituter of a Tailzie, or any heir succeeding to him may change it at their pleasure, unless the Tailzie be for an onerous Cause, as when Tailzies are mutual, then the first constitutors of the mutual Tailzies cannot alter the same, although their Debts may affect the same; yet no fraudulent or gratuitous deed can alter or evacuat such Tailzies; and therefore, a mutual Contract betwixt two brethren, oblieging them, that what Lands they should succeed to, or acquire, should be taken to the Heirs of their body, whilks failzing, to the Brother and the heirs of his Body, &c. though thereafter either Brother took their Lands, otherways to their heirs whatsomever, whereby Sisters having succeeded to one of these brothers, they were decerned to denude themselves in favours of the other Brother, January 14. 1631. Mr. John Sharp contra Helen Sharp.

But if the Cause onerous be of less import, then to grant and continue a Tailzie, it will import no more then once perfecting the Infeftment by such a Tailzie, whereby the hope of Succession ariseth to these parties in whose favours the fiar is oblieged to take the Tailzy, but he was not found oblieged to continue the same, but that he might alter it thereafter, without refounding the Money he got for granting it, being but of that value, as was equal only to the hope of Succession, which behoved to be understood of alteration, sine dolo, July 15. 1636. Mr. David Drummond contra Drummond.

Heirs of Provision by Contracts of Marriage, are in part ouerous, being granted for a Tocher, and the interest of the Wife concerned; therefore, they cannot be alterred by the Husband at his pleasure, but do exclude all fraudulent, or meerly gratuitous alterations, as hath been shown, Section fourty three.

But if there bean express Obliegement not to alter the Tailzie, albeit that will not give Title to the Heirs of Blood of the present Fiar, to quarrel his deed or alteration; yet it will give interest to any other Branch of the Tailzie, whether to the person nominat or his heirs, to quarrel and reduce such alterations, though it will not exclude alterations by Appryzing or Adjudication, for debts truly borrowed by the Fiar; and therefore, a Tailzie of a sum of Money, lent in thir terms, to be payed to the Creditor and the heirs of his Body; whilks failing, to the Father and the heirs of hsi Body; whilks failing, to a person named and his heirs and assigneys whatsomever, with a provision, that the Creditor and his heirs should do no deed hurtful to the Tailzie, nor the Debitor should not pay without consent of the heir of Tailzie named, was found to give interest to that person as heir of Tailzie, to declare that the sum was unwarrantably uplifted, or payed without his consent or order of Law, by consigning it to be imployed in the same terms, and that though he was heir of Tailzie to the uplifter, that he was not oblieged to fulfil his deed or warrand his Discharge, being contrair to the terms of the Tailzie; as to which terms he was Creditor, reserving always to lawful Creditors, how far they could affect the sum for the Fiars Debt, February 3. 1674. Drummond contra Drummond. And a Clause in a Bond, whereby a Woman oblieged her self to resign Lands in favours of her self and the heirs of her Body, whilks failing, to the heirs of her Father, and oblieging her self to do nothing contrary to that succession, whereupon Inhibition was used before her Marriage, was found effectual against her and her Husband whom she Married thereafter, and Disponed the Lands to him and his heirs, asbeing a voluntary deed, without an equivalent [Page] cause onerous, albeit the Fathers heirs behoved to be the Womans heir of Tailzie, January 28. 1668. Alexander Binnie contra Margaret Binnie.

Yet these restricting Clauses without irritancy, though conceived as Provisions or Conditions, if they be not in the Investiture, albeit they be in prior Obligations, Dispositions or Contracts, there is no pretence thence to affect the Fee as a real burden, and even though they be contained in the Investiture, seing Clauses irritant uses to be added thereto, they are understood to be but personal Obliegements, whereupon no diligence having followed, they cannot be effectual against singular Successors, whether by Legal or Voluntary Dispositions: And as to such restrictions with Clauses irritant, we shall add no more thereunto, then what hath been said.

Property being thus Constitute by Infeftment, it is to be considered what are the particulars it comprehends and implys, though not exprest, wherein this is a general Rule, that Lands being Disponed with part and pertinent, all is carried thereby that falls under the Denomination of the Lands Disponed, a caelo ad centrum, and all that in the time of the Disposition was accustomed to follow it, not only as servitudes, but even discontiguous parcels of Land which were not known, as distincta tenementa, or parts of any other Tenement, except what the Law reserves, or the express provision of the Superiour.

60. The Law reserves all these things which are called regalia, or Jura publica, which the Law appropriateth to Princes and States, and exempeth from privat use, unless the same be expresly granted and Disponed by the King; and if the Superiour be a Subject, if he have any of these Regalia from the King, they remain with his Superiority, unless he expresly Dispone them to his Vassal, the Superiour may have them from the King, either expresly in any Tenement holden of the King, or tacitly, when Lands are erected by the King, to him in a Barrony, or any higher Dignity, whereby many of these regalia, are comprehended. Barronia being nomen Universitatis, yet that will not comprehend,

First, Mines and Minerals of Gold or Silver, or Lead of that fineness, that three half-pennies of Silver may be fined out of the pound of Lead, which Mines are declared to belong to the King, wherever they can be found, Par. 1424. cap. 12. But Mines of Iron, Copper and Lead of less fineness, belong to the Proprietar, and are not accounted with us Regalia, though in some other Countreys they be.

Secondly, Neither do Treasures found in the Ground belong to the Kings Vassals, though their Lands be erected in Barronies, unless they were exprest. A Treasure is Money hid in the Ground, the owner whereof is not known.

Thirdly, Though all Proprietars have the priviledge of Fowling within their own Ground, yet Swans are peculiarly reserved to the King; and therefore, the priviledge to kill Swans, is not carryed under the name of Barrony, unless they were particularly exprest.

Fourthly, Confiscat Goods are not carried, even under the name of Barrony, unless they be exprest.

61. Yet there are other regalia, which are carried under the name of Barrony, though not exprest, as Jurisdictions and Courts, Fortalices, Salmond Fishing, Forrests, [Page] and Hunting of Deer; and Ports with their pettie Customs, established by the Kings grant, or long Possession, for repairing and upholding these Ports; which therein differ from Creiks or Stations, which are natural; but Ports are builded artificially, and need reparation.

62. Jurisdiction and Courts are comprehended in Barrony, in so far as concerns Civil Jurisdiction and Blood-wits, or lesser Crimes, but will not reach to Capital Punishment, unless the same be exprest, as it uses to be when the Priviledge of Pit and Gallows are exprest, or Out-sang and In-sang Thief, which seems to extend to the punishing of no more Crimes but Theft; and these who have only In-sang Theft, can only punish Thieves taken in the Fact.

Though Courts be exprest, they will extend to nothing Criminal, no not to Blood-wits, unless these be exprest; but only to Civil Debates requisite for the Propriatar, as to determine differences amongst his Tenents, Neighbourhead, Multars and smaller Matters; or to constitute a Baily, who may judge betwixt the Propriatar and his Tenents, as to his Rents, Duties and Services; and also may determine differences amongst his Tenents.

But all Jurisdiction is Cumulative with, and not Exclusive of the Superiors Jurisdiction, so that there is place of Prevention. The first Atatcher, if he proceed is preferred: and if the Superior and Vassall atatch together, the Superior is preferred.

63. The Courts of Vassals, though they be Barrons, and have the Priviledge of Capital Punishment, are not of the same Extent and Importance, as the Sentence of the Judges ordinary of the Kingdom; such as Sheriffs, Stewarts, Bailiffs of Royaltie, Regality and Burghs. For first, The extent of their Jurisdiction is not so ample. Secondly, The Jurisdiction of all Barrons and Free holders, was of old subordinat to the Sheriffs and other Judges ordinary, within whose Jurisdiction the Lands lay, Par. 1503. cap. 95. And then there was place for falsing of Doom, or appeal to the Sheriff-court, who was to warn the Parties upon fifteen days, and make the Suiters of the Sheriffdom Ward thereupon. Whereby it appears, that the Free-holders of the King, who owed Suit to the Sheriff-court; at least an Inquest of them were to concur with the Sheriff in discussing the appeal from the Baron or Free-holder: But now these Appeals or falsing of Dooms from any Court to another, have been antiquated, and wholly in desuetude since the Introduction of Advocati ons, which is a far more excellent remeed; for thereby Causes are not stopped at the choice or humor of parties: But the reasons of Advocation are specially considered by the Lords, whether they be relevant, and have such Instructions as can be expected before discussing; and the Subjects are further secured by the late Act of Parliament, that poinding cannot proceed without a charge be given and expired, which in all Decreets, proceeding upon Citation, requires fifteen days: In which, address may bemade to the Lords. Thirdly, Decreets of Barons have no Execution by Horning, which goeth of course upon the Decreets, Precepts and Executions of other Judges ordinary; so that all the Execution upon their Sentences, is only poinding, or corporal Punishment. As to which, if there be any process for Capital Punishment, the Lords will very easily grant Advocation, as they do advocat Causes from Inferiour Judges, not only upon Incompotency, but upon Intricacy and Importance: So there being nothing more Important then the life of Man, they would easily advocat such Processe, wherein [Page] [Page] [Page] Barons should not proceed summarily to Execution. But both they and other Inferiour Judges ordinary, should after Sentence at least abide Terms of Law by the space of fifteen days, that the Lords may give remeed by Advocation or Suspension of Execution: For though the Lords have not Criminal Jurisdiction, they do ordinarly advocat, and by the same reason may suspend Criminal Processe, to the effect the same may be remitted to competent and unsuspect Judges; so that if there were any doubtfulness in the case, the Lords would remit the Cause to the Justices. Fourthly, The Courts of Barons or Free-holders are not Courts of record, in which writes use to be registrat.

64. As the Courts of Barons and Free-holders have these Restrictions more then the Inferiour Judges, so they have this advantage ordinarly, that all the Profits and Issues of their Courts belong to themselves; whereas, Sheriffs, Stewarts and Baliffes of Royalty are countable to the King, seeing these are the Kings Courts: But Baliffes of Regality are not countable, because though they be the Kings Courts, yet the King hath gifted the Profites of the Court by the Erection of the Regality. If then an Infeftment contain Courts, the Profites thereof are carried therewith, though not exprest; but ordinarly they bear cum curiis earumque exitibus. And therefore the Amerciaments of Courts, or there other Issues, or there Priviledge on the breakers of Arreeistments, loosing their Tacks to their Masters within their Barronies are not comprehended within publick Confiscations reserved to the King.

65. Fortalices are also inter regalia, and are not carried by the Fee, unless exprest, or at least the Lands be erected in Barrony. By Fortalices are understood, all Strengths built for publick Defence; whether that appear by common Fame, or Reputation, such as all the Kings Castles, whereof many are now in privat hands, as Proprietars, or Heretable Keepers thereof, or Constables of the same; such are the Castles of Dunstafnage, Carrick, Skipnes, and others belonging to the Earl of Argyl; the Constabulary of Forfar, belonging to the Earl of Strathmore; the Constabulary of Dundie, now belonging to the Lord Hattoun: And when these Castles are disponed, either in Property or custody, the Infeftments thereof carry therewith, not only the Bounds of the Castle, but the Dependencies thereof, as Gardens, Orchards, Parkes, Meadows, and other ground possest by the King or Keeper for the use of the Castle, and all Rents, Annuities, Jurisdictions and Priviledges thereunto belonging; which may be instructed by their Charters, their Court-books, or other Writes or Instruments, and even by Witnesses, proving long Possession; albeit the Infeftments of Constabulary, bear only in general, Officium constabularii cum feodis & divoriis ejusdem, which was found to extend to the proclaiming and riding of Fairs, anterior to the Constitution of the Office, and exercing Criminal Jurisdiction in the Town where the Fairs were held, during these Fairs, but not to extend to other Fairs recently granted by the King, or to Jurisdiction at other times, July 18. 1676. Earl of Kinghorn contra Town of Forfar. The like was done in the Process, betwixt Hattoun and the Town of Dundie, in anno 1679. wherein multitudes of Witnesses were examined upon either part. And the Emoluments, Priviledges, and Jurisdiction of the Constabulary, were decerned according to the Probation; and Particularly, 20 shillings Sterling yearly, for which the Town of Dundie counted in Exchequer, as belonging to the Constable, which was found to belong to the Office, albeit there was a Discharge thereof granted to the Town by Scrymzour, Constable of Dundie, which [Page] was not found effectual against Hattoun, his singular Successor in the Office by Apprysing, December 9. 1679. inter eosdem.

66. The Case is more doubtful as to other Fortalices, which are not repute to have been the Kings Castles. Craig's opinion is, that all strong holds are presumed to have been builded for publick Defence, and not for privat Safetie: wherein turris pinnata is comprehended, having Turrets or Rounds upon the Angles; from whence, Shot may be directed alongst all the Walls. And therefore much more may Castles with Bartizens or Bands, that is strong and high Walls surrounding the Castle: Or if the Castle be built upon a place naturally strong, which may give suspition to the King to be an occasion of Rebellion, and not to be patent and accessible at his pleasure; and most of all, if there were regular Fortifications of Stone or Earth. Certainly such Fortresses or Fortifications, whereby places are made of that strength, which is accustomed to secure against publick Enemies in War, may not be builded without the King's Warrand; and if otherwise built, may be demolished, and the Builder punished: but long possession presumes a Warrand. And as such Fortalices may be presumed to have been at first the Kings, from the very Inspection of the Fortalice and its proper use, so long Possession may take off that Presumption: and that they have been built mainly for privat use in times of trouble, with the Kings consent. But we need not insist in these Questions, seeing Towrs and Fortalices do now pass in course in Charters: Yet, though these were exprest, if it appear the Fortress hath belonged to the King, and can be comprehended in the annexed Property, the Right of them will only resolve into an heretable keeping: so that the King in time of War or Insurrections, may make use of such strong holds, and put Garisons therein, seeing keeping doth not exclude the Kings own necessary use: neither will the expressing of Fortalices generally, impower the Vassal to build such Strengths as are proper for publick War; because the Clause can only import such Fortalices as then were built.

But I see no ground to extend Fortalices to all houses, with Batlements, or with Turrets, or Rounds, which can only infer private safety against Robbers, Plunderers, or flying Parties; but nothing proper for a Seige, or publick Defence of a Kingdom: and therefore these may pass as Houses or Pertinents.

And as to that ground Craig adduces, That it is Treason to hold any Fortalice against the King, or to deny Him, or these commissioned by Him access by armed force: and yet delivery of any other privat Right may be refused to the King without hazard. Whence he inferreth, that the King must have greater Right and Interest in all such Fortalices than in other things. This consequence is not good; for that which infers Treason, is the holding out of the House, and denying access to the King by armed Force, which will be treasonable in any House, whether it have Battlements or Turrets or not; but cannot infer that all Houses with Battlements or Turrets, were built for publick defence, and did once belong to the King; which recent Custom doth further clear, there being nothing more ordinary, then to build Houses with Turrets or Rounds upon the Angles, without Warrand, Quarrel, or Suspition; these being rather for Ornament then for Strength.

67. Forrests are likewise inter Regalia, being places destinat for Deer for the Kings use and pleasure in Hunting, which cannot be extended generally [Page] to Woods, but only to such where Deer have been keeped: for certainly, Woods are partes fundi privati, and are not inter Regalia, in any Nation, but Forrests for keeping of Deer, remain inteir Regalia, altho the Wood should fail: And wherever Deer are keeped as proper, and others debarred from Hunting there, it is presumed to have been a Forrest proper to the King. And though the Lands being in Baronia, may carry the Priviledge and Office of Forrestry, which gives the Baron right to hunt, kill, and make use of the Deer: Yet he will be but held as Keeper, or Forrester, which will not exclude the King to hunt and kill the Deer for his own proper use; for the property of the Forrest will never be understood, if it be not very expresly granted.

Forrests have great Priviledges, and peculiar Customs; for whereas no man is oblieged to herd his Cattel off other mens ground or Corns, or to be answerable for the Skaith they do, longer then in hayning time, while the Corns are upon the Ground: And if any man have a minde to keep his neighbours goods off his Ground, he may do it; But he must herd his Ground, and may turn off his neighbours Goods without wronging them, but cannot put them in Pondfold. Yet if any mans Goods be found in Forrests, they become escheat, and are confiscat; two thirds to the King, and one third to the Forrester: And if any Baron or Landed-man, have hained Woods, or Forrests of their own, they may escheat all Goods that bees found therein to their own use, Par. 1535. cap. 12. Where privat Forrests of Subjects, are only understood such as are inclosed with a sufficient Dyke: The words of the Statute bears, Hained Woods or Forrests, which cannot be hained without inclosure; but the Kings Forrests are large tracts of Ground, which neither have been, nor can be inclosed: and therefore all the neighbouring Heretors and Possessors, must either herd their Goods off these Forrests, or loss them. Upon this account it was, that the King having by a Signature under his hand, grantend a Forrestry to the Laird of Fascally; the Exchequer, before passing thereof, desired the Lords of Session to consider and report what by Law was the Priviledge, Conveniency, or Inconveniency of Forrests: and they having heard the Obtainer of the Forrest, and the neighbouring Heretors, did declare the Priviledge of a Forrest to be as aforesaid, June 21. 1680. Whereupon the Exchequer did represent to the King, the Inconveniency to grant new Forrests.

The Comptroller had the Inspection of the Kings Parks and Forrests; and it was lawful to the Comptroller, or any having the Kings Warand, to intromet with all Goods in the Kings Forrest, not put in by the Comptroler, or these having power from him, and to apply the whole to the Kings use, Par. 1592. cap. 198. And by the former Statute, the Forrester or Keeper is prohibite to put any Cattel in the Forrest belonging to himself: So that if the Keeper first seize upon Goods in the Forrest, he hath the third; but if the Comptroller, or these having Warrand from the King, does [...] seize, the Keeper hath no share.

There are many more Customes and Priviledges of the Kings Forrests and Chaces in England, where the Forrester or Keeper hath only the Branches of Trees, and the Bark thereof, and such as are fallen or decayed: and as Skeen observes, that he may take a Tree as high as his head; but our heretable Keepers have much more Priviledge, and may make use of the Wood and Deer, so as not to destroy either, and with a reservation for the Kings proper use.

[Page]68 The hunting or killing of Deer seems to be inter Regalia with us, except these who have them within proper inclosures, for otherways the Kings Forrest having no inclosure, the Dear by straying abroad, would easily be destroyed; and therefore, though every man may hunt them off his Ground, by which they will be forced back to some Forrest, yet they may not kill them.

69. Salmond Fishing is also inter regalia; and therefore, passeth not ordinarly as pertinent, and ought to be exprest in the Infeftment; yet in some cases Salmond-fishing hath been found constitute without special expression, but only by the common Clause, cum piscationibus, and long Possession, June 29. 1593. Lesly of Creik contra Forbes of Thainstoun; in which case it was found, that Salmond-fishing is only inter regalia, as it is a Casuality, fluminis publici, such as are Navigable Rivers, wherein there is a common use of Passage and Transportation, in like manner, where Lands are Erected in a Barrony, or any other dignity, Salmond-fishing may be carryed by the the common clause, cum piscationibus, as when it bears Fishing in salt and fresh water, though without mention of Salmond-fishing, Hope, Fshing, Laird of Glenurchy contra Alexander Cambel. So an Infeftment to a Burgh-royal, bearing, cum piscationibus & piscariis, with immemorial Possession, was found to give them right to Salmondfishing and Cruives, though none of them were exprest, January 26. 1665. Heretors of Don contra the Town of Aberdene. January 13. 1681. Brown of Nuntoun contra the Town of Kirkcudbright. It was also found constitute by the Infeftment of a Sheriffship, and fourty years Possession, though the Infeftments bore only Emoluments in general, December 13. 1677. Earl of Murray contra the Feuers upon the Water of Ness, Marquess of Huntly and Town of Inverness. It was also found Constitute by a Bishops Charter of Londs, cum piscariis, bearing a reeddendo of Salmond, though th Bishops right from the King, was not produced, but presumed, and being a Dignity prefected by long Possession of his Vassal, January 13. 1680. Brown of Nuntoun contra the Town of Kirkcudbright. And likewise, long Possession by the space of fourty years, was found to give right to a Salmond-fishing upon both sides of the Water, and drawing the same upon both sides, though the Infeftment bore, but fishing upon one side, Hope, fishing, Lady Monymusk contra Forbes of Barns. A Clause, cum piscationibus, was found to be a Title for Prescription in Baronia, and that fourty years uninterrupted possession constitutes the right of Salmond-fishing, February 7. 1672. Fullurtoun contra Earl of Eglintoun: It is more dubious what the meaning of the Clause, cum piscationibus, simply or of fishing in salt Water can Import, seing there are common freedoms of every Nation to Fish into the Sea, or into Brooks or Rivers for common fishes; and therefore, needs no special Concession from the King or other Superiour, but the use thereof may be first; that it may be the Title or foundation of prescription of Salmond-fishing, not only in fresh-water, but in the Sea, at the Water-mouth where they are frequently taken: And also, that in other fishings, if a prescription run of interrupting and hindering others to fish whatsoever sort of fish, it will constitute a property thereof, which could not consist without this clause or the like, as a Title; neither could it be comprehended as Annex, or Connex of Lands, or as a Servitude, being a distinct right, having so little respect to Land.

70. There is a special way of fishing by Cruives or Zaires, both in fresh water and salt, all such Cruives are absolutely prohibite to be set within Rivers, in so far as the Tide flowes, as being destructive to the frey of all fishes. Parliament [Page] [Page] [Page] 1424. cap. 11. renewed Par. 1477. cap. 73. Par. 1581. cap. 111. And as to other Cruives in fresh water, they are also prohibite by the said last Statute, except such as are Infeft in Cruives, Lynes, or Loups, within fresh water, who are to enjoy the same according to their Rights, keeping Saturdays Slop, and the due distance betwixt the Hecks, the distance of the Hecks by the Act of Parliament, 1477. cap. 73. is exprest to be three inches conform to the Statute made by King David; but the Act of Parliament 1489. cap. 15. expresseth the distance to be five inches, conform to King Davids Act: And in both these Statutes, besides the distances aforesaids, Saturdays Slop is appointed, and likewise, that the mid-stream by the space of five foot be always free; and that no Cruives be made use of in forbidden time of year, when Salmond may not be taken, which is declared to be from the Feast of the Assumption of the Virgin Mary, unto the Feast of Saint Andrews in Winter, Parliament 1424. cap. 35.

Few debates have occurred concerning Cruives, notwithstanding the great notice thereof by so many of our Kings, One did lately occur, and was fully debated, in presentia, betwixt the Heretors of the Water of Don and the Town of Aberdene, which was mainly decided on January 26. 1665. The case was thus, The Town of Aberdene having changed a Cruive-dyke to another place within their own bounds, and built the same there again of new, whereupon the Heretors who had right to the Salmond-fishing upon the Water of Don, above these Cruives, raised a Declarator against them, wherein, after large disputes concerning Saturdays Slop, and the mid-stream, and the distance of the Hecks, and the height of the Cruive-dyke, and whether it ought to be built sloping or perpendicular, and whether it might be changed to the prejudice of the Heretors; The Lords found, that the Town of Aberdene might change the Cruive-Dyke, keeping it within their own bounds, and having no more Dykes but one; but found, that seing they had a Cruive past memory without interruption, which had determined the height and frame thereof, they found that the new Dyke behoved to be built in all things conform to the old, and with no more detriment to the saids Heretors fishing, then was formerly before the water had pooled at the old Dike; and so it was not determined how high a Cruive-dyke might be, or whether it behoved to be sloping or not, where prescription had not determined, which is very seldom: It was also found, that the distance of the Hecks ought to be three inches, conform to the Act of King James the third, Par. 1477. cap. 73. and not five inches, according to the Act of King James the fourth, Par. 1489. cap. 15. which mentions five inches, which the Lords found to be a mistake in the Transcribing, or Printing of the Act of Parliament, in respect that both this and the former Act relates to the Statute of King David as the pattern thereof, which mentions but three inches, and that Hecks of five inches wide will be of no use, nor hold in any Salmond; The Lords also found, that the Saturdays Slop behoved to be observed, not only in one Cruive, but in all the Cruives of the Dyke, and that by pulling up the Hecks of each Cruive by the breadth of an ell, to continue from Saturday at six a Clok, till Monday at Sunrising; and the Lords found, that part of the Statute concerning the mid-stream, to be indeed distinct from Saturdays Slop, but they found that part of the Statute concerning the mid-stream to be in desuetude, in all the Cruives of the Kingdom, and that it is not repeated by the Act of King James the sixth, Par. 1584. cap. 111. and therefore, found the same not obligatory, notwithstanding that in the late Act of Parliament, 1661. there is an Act Ratifying all the old Statutes concerning Cruives, which was alledged to revive that point of the mid-stream, which the Lords did not respect [Page] as a general Law, albeit the Confirmation did run in these terms, because it past the Parliament without notice, as an ordinary Confirmation, at the impetration of their pursuers, and did not pass the Articles, and was not appointed to be Printed as a publick Law.

71. Milns are not carried as part and pertinent, because they are esteemed as separata tenementa, requiring a special Seasine, unless the Lands be in Barronia, for then Infeftment in the Land, carries the Milns thereon; yet a Miln being built upon a Liferenters Land, after her Infeftment, bearing, cum molendinis, was found to belong to the Relict, though Milns was not in the Dispositive Clause; Nor was she in Conjunct-fee of a Barrony; but she was not found to have right to the astricted Multures of any Lands, but her Liferent Lands, February 16. 1666. Lady Otter contra Laird of Otter.

72. The Priviledge of Brewing being designed for publick use, for common Hostlaries, the inspection whereof is committed to the Judges ordinary, Magistrates of Burghs, Sheriffs, Bailies and Barrons, who are appointed to settle Hostlaries in convenient places, and to visite their measures if they be sufficient, and the goodness of their Ale, Par. 1535. cap. 17. And the saids Magistrates to Burgh or Landward, are ordained to see reasonable prices for Meat and Drink in Hostlaries, with power to deprive them of their priviledge, if they transgress, so that a Barrony carries that priviledge, though not exprest; but Infeftments of other Tenements carry it not, unless it be expresly granted by the King immediatly or by progress, that is, that all the Superiours interveening betwixt and the King, have that priviledge, July 25. 1626. Stuart contra Brewers; but in possessorio, the Proprietars Infeftment bearing, cum brueriis, will be sufficient, and presume the progress, unless that priviledge be craved to be reduced, wherein the Superiours must be called.

73. All other interest of Fees are carried as part and pertinent, though they be not exprest; and albeit Woods and Lochs, use oft to be exprest, yet they are comprehended under parts and pertinents; and therefore, the Master of the Ground hath not only right to the Water in Lochs, but to the Ground thereof, and may Drain the same, unless servitudes be fixed to Water-gangs of Milns, or other Works, and the Ground of the Loch, and all that is upon it, or under it, is a part of the Fee: But if the Loch be not wholly within the Fee, but partly within or adjacent to the Fee of another, then unless the Loch be exprest, it will be divided amongst the Fiars whose Lands front therupon.

The parts of Fees are only exprest in bounding Charters, but in all others the parts are only known by the common reputation of the Neighbour-hood, what they comprehend under the Designations exprest in the Infeftments, and by Possession, as part and pertinent of the Lands Designed in the Infeftment, whether they have but one common Designation, as such a Barrony or Tenement, or if there be an enumeration of their parts, by distinct Names, which doth not exclude other parts, though belonging to none of the parts enumerat; there is only this difference, that expresse Infeftments are preferable to these which alledge but part and pertinent, much more if it be alledged to be separatum tenementum, requiring a distinct Infeftment; and yet prescription, as part and pertinent, will exclude an Infeftment as a separat Tenement: But where there are March-stones set, it is a great convenience to preserve peaceable Possession; and though it cannot be proven when these Marchs were set, yet [Page] their being repute as March-stones, will be sufficient to defend at any time, within prescription: But Lands are oftimes so large, comprehending Mures and Mountains, that March-stones cannot be set; for remeid whereof, the Lords of Session by an Act of Sederunt, 1580. Ratified in Par. 1587. cap. 42. Ordained all Molestations in Property or Commonty, in possessorso, to be before Sheriffs, Bailies of Regalitie, and other inferior ordinar Judges where the Lands ly, and for that effect, the Lords will direct Letters of Cognition to proceed upon fifteen days warning, by an Inquest of persons who best know the Matter, the most part thereof being Landed-men, having at least, four Ploughs of Land, or three hundred merks of irredeemable Rent, and the rest substantious famous Zeamans of the same Paroch, and failing thereof, of the Paroch nearest adjacent; and if both parties have Cognitions raised before Litiscontestation on either, the half of the Assyzers shall be taken of these summoned for either party; or in case there be not a sufficient number of them habile, the Judge shall supplie the same, and the odd man to be chosen by lot: which Inquest shall visit the ground, and shall return their verdict upon oath, both upon the Clames and exceptions of the parties; and in case the Judge ordinar be suspect, or that the Lands ly in divers Jurisdictions, the Lords are to appoint unsuspect Judges to be past under the quarter Seal There are only excepted the actions belonging to the members of the Colledge of Justice, which are to be before the Lords; yet the Lords are accustomed to grant Commissions to some of their own number, where questions arise concerning the parts or Marches of Tenements, to visit the Ground, and there to receive witnesses, hinc inde, both as to Possession and Interruption, which the Lords do advise, and determine without an Inquest.

Parts of Tenements in possessorio, are sustained by the present peaceable Possession for some time; for seven years peaceable Possession will sustain the Right of the whole till Reduction: And fourty years Possession as part and pertinent, is sufficient, in petitorio, for the point of Right, and will exclude an Infeftment express, yea, though it be an Infeftment, as distinctum tenementum, November 14. 1671. Walter Young contra William Carmichael: But if there be interruptions, and that either party hath had some Possession, the express Infeftment will be preferable, and any lawful Interruption will preserve an Infeftment of a separate Tenement; but if neither party be expresly Infeft in the Lands in question, interruption by either party will not exclude prescription, because there is not a prior special Right, valid of it self, without Possession; and therefore, if both parties have had mutual or promiscuous Possession, each Possessing when they could, and turning off the other, that part of the Land so possest, will continue as a promiscuous Commonty, which frequently falls out about the Marches of large Tenements, and was so determined betwixt the Lord Strathoord and Sir Thomas Stuart of Gairntully; if neither party have an express or several Infeftment, Discontiguity will not exclude part and pertinent, though, if the question be with him, to whom the Land is Contiguous, less Probation will prefer him, Craig l. 2. Dieges. 3. relates a case in his time betwixt the Earl of Angus and Hoom of Polwart, where Discontiguity did not exclude part and pertinent, not being known as a distinct Tenement.

Pertinents comprehends all the Natural Fruits, for Corns are accounted as Moveable, and as no part of the Ground, as hath been shown in the former Title, Section second. And also all servitudes; so a servitude of a Pasturage, in another Heretors Wood, was sustained as a Pertinent by long Possession, Spots. Servitude, Laird of Knockdolian contra Tennents of Partick. And Part and Pertinent being exprest in a minute of Sale, it was found to carry common [Page] Pasturage in a Mure, which was a Commonty to a Barrony, whereof the Lands sold was a part, February 14. 1668. William Borthwick contra Lord Borthwick. And in the case betwixt the Laird of Haining and Town of Selkirk, decided February 15. 1668. A Barrony of the Kings, cum pertinentibus & cum pascuis & pasturis, was found to carry common Pasturage in the Mure of the Barrony, and that the last fourty years Possession did presume the like Possession in the Feuars, from the obtaining their Feues; and that interruptions by the Town whose Infeftment was but general, cum communiis, did not exclude the Pasturage of the Feuers, who had also made interruptions against the Town.

74. Craig, l. 2. Dieges. 8. Debates this question, whether Wood and Coal be parts of the Ground, or only Pertinent as Fruit thereof, for if these be parts of the Ground, Conjunct-feers or Liferenters will have no share thereof, nor Donatars of Ward, Non-entry, or Liferent-escheat, so that the question is very important, wherein he relates two Decisions, one betwixt the Lord Seatoun and his Mother, who being served to a Terce, was found to have right to the third of a Coal-work, constantly going for sale in the Defuncts time; and another betwixt Ramsay of Dalhousie and Mary Ballantine his Predecessors Relict, in relation to a Wood which the Fiar was found to have the only Right to Sell, and his opinion is, that both are parts of the Fee, and that no Conjunct-fiar, Tercer, Superiour or his Donatar hath any interest therein, as being no part of the Fruits; he pursues the same question as to Wodsetters, who are Infeft in Fee but under Reversion, to whom he attributes a greater interest, that they may make use of Coal as their Authour did, yet only for their proper uses. and as to an Appryzer, he relates the case of Sir James Hamiltoun, who having Appryzed the Estate of Camnethen, and cut down all the Woods, he was found to have no Right to the Woods during the Legal, for then Appryzing were not satisfied by intromission, so that during the Legal, they had nothing but the Fruits, for which they were not countable: Now the case is altered by the Act of Parliament 1621. whereby the Appryzers Intromission in so far as exceeds his annual, is imputed to the principal sum; and therefore, he may continue in the profite of Coals and Woods, as his Debitor was accustomed.

But as to Liferenters by Terce, or by distinct Liferent by provision, where the Husband himself did not preserve the Wood, to be sold together, as Sylva cedua, but cutted parts of it for his own and his Tennents use, for Reparation of their Houses; Liferenters and Tercers may do the same. And where Woods are divided in so many Haggs, that they yeeld a yearly profit, in that case the Heretor hath rather used them as Fruits, then as Parts; so that Liferenters, Tercers and Donatars, many claim the same; yea, if a Coal be a constant going Coal without apparent hazard of exhausting, it is like Conjunct-fiars, Tercers, or Donatars, will not be excluded therefrom, not exceeding the measure and method accustomed by the Fiar: But otherways, Coal is to be considered only as a part, and is carried as a part, though not exprest, nor in Barrony, as Craig in the forecited place observeth, to have been decided betwixt the Sheriff of Air and Chambers of Gadgirth. And a party first Infeft in Land with the pertinents, without mention of Coal, was preferred to an express Infeftment only of the Coal-heughs of that Land, January 30. 1662. Lord Burley contra John Sim.

75. Let us now express the meaning of the Specialities, ordinarly insert in Infeftments, cum domibus aedificiis, comprehends all Houses and Buildings, as [Page] Dykes of Yards or Parks, which though dry, unsemented Stone cannot be altered by the seller, after the vendition. And there is a new priviledge for incouragement of inclosing, that where the Inclosnr falls to be upon the March of any other Inheritance, the other Heretor, though making no Inclosure, shall be at equal expense of that part of the Dyke which Marcheth both, Par. 1661. cap. 41. which was sustained, though the March was a Stripe of Water, being sometimes dry, July 21. 1669. Earl of Crawford contra Rig. But how far this Clause will be extended to Fortalices, hath been now showen. And though Charters do frequently bear, Mannor-Places, yet both is carried under the name of part and pertinent.

Cum mollendinis multuris & eorum sequelis, Milns and Multures have been spoken to already: But as to Multures, they are to be considered amongst Servitudes real, Title 17. under Thirlage.

76. Cum aucupationibus, venationibus, piscationilius, Signifie Priviledges, to kill Fowles, Fishes and wild Beasts, upon the Fiars own Ground, from which he may debar others, indirectly by hindering them to come upon his Ground, except upon the publick high-wayes, or such privat ways only in favours of those to whom they are granted, which is seldom done, but ordinarly permitted; yet if Laborrows were used, these might infer a contravention; but by this Clause, the Vassal hath no Property in the wild Beasts, Fowles or Fishes, which belong to none, but become proper to these who take them, except Fishes inclosed in Ponds, Deer in Parks, or Fowles in Vollaries, for these are proper, only by excluding of others to come upon their Ground: The Vassal hath the sole occasion of taking such as are found there; neither doth this Clause extend generally, for thereby Swan or Deer may not at all be killed or taken, nor Salmond, or their Fry, unless that power be exprest, or that the Land be in Barrony: Nor can Fowl or Hares be taken in the time or manner prohibit by Law, and albeit some do adject Fishing in salt Water, and in fresh, yet that imports nothing, no man being excluded from Sailing and Fishing upon the Sea, which even in Lochs and Creiks is publick to all that Kingdom or Nation; albeit other Nations may be excluded from Fishing, so far as any bound can be perceived in the Sea, for in so far, Kingdoms and Nations have appropriat the Sea, and made it publick peculiar to themselves, as to Fishing and Profites thence arising, though passage cannot justly be denyed upon the Land, as upon the Sea, except to enemies. Yet Salmond-fishing in salt water and fresh, gives not only priviledges within Rivers, but at Water-mouths in the Sea.

Cum petariis, turbariis, signifies the priviledge of Fewel, by Peats and Turss in Mosses and Mures.

77. Cuniculis, cuniculariis, Cunnings and Cunningares, Craig doubteth, whether these may be made indifferently by all Vassals, except a priviledge be derived from the King, because of the great damage the Cunnings do to the Neighbourhood: But there is with us no restraint, but upon the contrary, a Command that every Lord and Laird make Cunningares, Par. 1503. cap. 74.

78. Cum columbis columbariis, Doves and Dovecoats, though they are carried as Pertinents, yet are they restrained by Act of Parliament, 1617. cap. 19. to such as have two Chalders of Victual in Rent or Teind within two Miles of the Dovecoat.

[Page] Cum fabrilibus Brasinis, are Smiddies and Kilnes for making of Mault. Genestis, are Whins or Broom. Sylvis nemoribus, Virgultis, Lignis, are several kinds of Woods or Timber.

Cum lapicidinis lapide & calce, are all kinds of Stone, and Quarries thereof.

Of Courts and their Issues we have spoken already, and likewise of Bloodwits.

79. Cum libero introitu, & exitu, doth not only signifie the passage by the high-ways, but such other passages as are necessary and convenient for the Fiar, through the ground of the Superiour, or any other where ways are Constitute, by Concession or Prescription.

80. Herzelds also being the best aught, as the best Horse, Ox or Cow of the Tennent dying upon the Ground, is introduced by custom, derived from the Germans, as the word of their Language, expressing the same evidenceth; which signifieth the gratuity left by the Labourers of the Ground to their Master, and which is due by custom, whether left or not; and therefore, rather from custom, then from the nature of the Fee. And we have neither Rule nor Example for paying it by any, but by the Labourers of the Ground, so that though it be not exprest, it is not reserved to the Superiour, but belongs to the Vassal, as Skeen observeth; but whereas he seemeth to make a herzeld due by Tennents, possessing four Oxen-gang of Land, to their Masters going to the War, by poor Tennents, possessing only four ongat of Land or less, such not being able by reason of poverty, to go in person with him; yet the constant Custom layeth Herezelds most upon Tennents possessing more Lands, and generally upon all who are not Cottars, not paying immediately to the Master, but to his Tennent dwelling upon the Ground, and there is no difference whether he be Mailer or Fermer, only due at the Tennents death.

The Herezeld was found due to the Lady Liferenter, though the Defunct had the Room in Steelbow, Hope, Herezeld, Lady Tockrig contra Oliver Baird. But not where the Defunct Tennent was warned and decerned to remove, Hope, Ibid. Walter Callender contra his Tennents. And Craig observeth, lib. 2. Dieges. 8. That a Herezeld being taken, the Tennents Successor is not to be removed for a year, so it was found, March 20. 1629. Auchnacloich contra Mathie.

81. Steelbow Goods set with Lands upon these terms, that the like number of Goods shall be restored at the issue of the Tack, do not pass by Disposition of Lands, as pertinents thereof, unless they were exprest, but do remain as moveables arrestable, December 4. 1638. Lady Westmerland contra Earl of Home. January 28. 1642. [...] Dunda, contra George Brown; and so they fall under single Escheat, and cannot be taken from the Tennent till his Tack run out, Decem. 6. 1628. Lawson contra Lady Boghal.

Having considered the nature, tenor, and import of the several kinds of Feess, it is now proper to consider the legal effects thereof, which are either, injudicio possessorio, or petitorio.

[Page]82. In Possessorio, all Infeftments cled with lawful Possession, during the time prescribed by Law or Custom, are valide and effectual, either in pursuit or defence, ay and while they be reduced, and thereby not only is the Fiar, or these deriving right from him, secure to possess, and cannot be impeded, or disquicted by any other right, though it would be a prior and better Right, in petitorio; but thereupon all Possessory Actions, may effectually proceed for Mails and Duties for removings of Tennents or Possessors, for Perambulation or Cognition of Marches, much more for Intrusion, succeeding in the vice of removed Tennents, or Ejection, as to which, Possession alone is sufficient.

The motive Introductory of this Priviledge in possessory Judgments is, because Infeftments are ordinarly granted subalternly, there being many Superiors betwixt and the Supreme, and each Superior keepeth his own Infeftments, and gives to his Vassal out a Charter and Seasine holding of himself: and therefore no perfect right of the Ground can be instructed, but by a Deduction from the King the suprem Superior, or by Prescription; And therefore in Petitorio, whereby the full Validity of the Right is declared or decerned, before a full Issue, all the interveening Superiors must be called to produce their Rights till the common Superior, from whom both Parties derive right; so that neither Party can quarrel his [...], which requires a long course of time. And therefore, he who by Infeftment is suffered to possess for a considerable course of time unquarrelled, the Law presumes his Right is good, and he is not only secure, not to be comptable for the Rents and profites he has enjoyed, which require no course of time, but bonae fidei, Possessor facit fructus conjumptos suos, Of which in the former Title, §. 28. But he is even secure, for all that he shall enjoy, until in a petitory Judgement by a Declarator or Reduction, he be put in mala fide by the Production of another Right, appearing evidently to be better and exclusive of his, till which, he is not to doubt of his own Right, but may safely and quietly enjoy and spend the Fruits. The time required by Law or Custom for attaining this Priviledge was undetermined, and in arbitrio judicis at first; but it was not sustained upon two years possession, July 17. 1610. Auchterlony contra Annan. It was sustained upon fifeteen years possession ordinarly; and then upon fourteen years possession, July 16. 1623. Sybald contra Stuart And upon ten years possession, November 19. 1623. Hamilton contra Dick. March 29. 1624. Monnypenny contra Tenents. It was also sustained upon seven years, possession, Decemb. 10. 1623. Irving contra Gordon, Hope, confirm. Earl of Arran contra Tenents of Camely, and Earl of Seaforth. And it was once sustained upon six years possession, March 13. 1627. Feurd contra Stivenson. Yea, once upon three years possession, Hope, Possession, Murray of Lochmaben contra his Tennents. But now of a long time, it hath been fixed to seven years possession; and it was not only sustained as to Lands, either as to the Fiars or Liferenters, but also to Multures, where the Lands and Quantities of Multures were particularly exprest: But it was not sustained upon an Apprizing without Infeftment or Charge, Feb. 6. 1668. Mr. George Johnstoun contra Charles Erskin. Neither was it sustained upon obtaining Decreets, or lifting of seven years Rent together, but continuing in possession by the space of seven years, by labouring or uplifting the Rent, January 25. 1672. Harper contra Armour. Neither upon possession as part and pertinent, the possession being vitious and violent, June 25. 1674. Mr. Heugh Maxwel contra Ferguson. The like where the possession was interverted, June 24. 1679. Menzies of Sckian contra Campbel of Torerick. Neither upon Apprizing and Infeftment, against an other Apprizer within year and day, July 17. 1675. Balie Baird contra Bailie Justice. Neither was [Page] it sustained against an Apprizing, for the avail of a Marriage being debitum sundi, December 17. 1673. Patrick Hadden contra John More. Neither against the King nor His Donatar, seeing the King needs no Reduction, and cannot be prejudged by the neglect of His Officers not pursuing in seven years, January 28. 1679. Laird of Blair contra Lady Heslehead. Neither against a Liferenter, unless the Possession had been seven years after her Husband's death. Neither against recourse upon Infeftment of Warrandice after Eviction, which requires no Reduction, January 9. 1666. Elizabeth Broun contra John Scot. The like, unless there had been seven years possession after the Eviction, February 20. 1668. Mr. John Forbes contra Innes. Neither is it ever sustained against Infeftments of Annualrents, Feu-duties, or other debita fundi, June 29. 1662. Adamsons contra Lord Balmirrino. Neither have Annualrents the benefite of Possessory Judgements for them, more then against them. But it was not found relevant to exclude a Possessory Judgement, that there was Interruption by Citation, not being within the last seven years, July 15. 1668. Earl of Wintoun contra Gordon of Letterfary. Nor because the matter became litigious by a Denunciation and Apprising, June 17. 1678. Sir William Stuart contra Murrays.

It uses to be contraverted, whether seven years possession be relevant, against an Infeftment cled with possession immediatly before the seven years: As to which, there have been Decisions upon both parts, wherein the Reconciliation may be, that if the seven years possession entered not by order of Law, or by consent of these who were then possessors, but entered in the void possession, or obtained the Rents from the Tennents of consent; such possession was vicious, because the former possessor continued to possess animo; but if the former possessor had long forborn to possess before the seven years, or that the subsequent possessor entered by authority of Law, or consent of the former possessor, there is no reason to make difference, whether his Competitor was in possession before or not.

83. Charter and Seasine are sufficient, both for pursute and defence, where there is not another Infeftment that comes in competition But when two Infeftments of the same subject compete, if neither have had seven years lawful and peaceable possession; then the point of Right comes to be debated without Reduction, and either party must propone their alledgeances upon their Authors Rights, in the same way as in Declarators of Right; and whatsoever points are found relevant for either party, or where the Rights alledged on are ordained to be produced before the relevancy be discust, terms will be assigned to either party, and they will get incident diligences by Exhibition against their Authors to produce, and ordinary diligences for producing their own or their predecessors Rights: and whatever the event be, either party will be secure, as to the by-gone Fruits consumed, bona fide.

The effect of Infeftments in the point of Right is, that by the first perfected Infeftment, with the several requisites aforesaid, granted by him who had power, the Property is established, and the Proprietar will be preferred, at least in petitorio to all posterior Rights; but if the granter have no power, as not being validly insest himself, or being impeded by Inhibition or Interdiction, or by anterior diligence making the matter litigious, he cannot validly confer a Right.

Concerning Interdictions we have spoken before, Tit. 6. Litigiousness falleth [Page] in amongst the effects of legal diligence. But it will be proper here to speak of Inhibitions, seing the effect thereof reacheth only as to heretable Rights, and cometh not so properly elsewhere under consideration.

84. Inhibition is by Letters under the Signet, prohibiting the party inhibite to dilapidate or dispone any of his Lands, Heretages, &c. Which is understood, till the cause, for which the Letters were direct mentioned therein, be satisfied. It proceedeth summarily upon Supplication, and production of any ground thereof, whether Obligation or Process: and though it pass of course, yet sometimes is refused, as to a Wife upon the Contract against her Husband, Jan. 11. 1625. Hamiltoun Supplicant. And to an appearand Heir, against his Father upon his Fathers Contract of Marriage, whereby it was provided, that his Father should be interdicted to certain persons then dead, January 16. 1622. Silvertoun-hill Supplicant; but being past of course against an appearand Heir, it was found valid, because he was entered before the debate thereupon, July 5. 1623. Kirkwood contra Belshes. It was refused upon the warrandice of a Discharge from the dischargers fact and deed only, unless the Supplicant show a particular hazard, February 4. 1623. Patrick Forbes contra William Dick.

The effect of Inhibitions reacheth only deeds done by the Persons inhibite after the Inhibition, and doth not reach any deeds done thereafter by his Heirs and Successors; but these must be of new Inhibite, Hope, Inhibition, John Pirycon. Secondly, it hath no effect against moveables, albeit growing upon the Ground the time of the Execution of the Inhibition, though the Style thereof bear not to dilapidat Lunds, Heretages, Goods or Geir, March 22. 1623. Laird of Braico contra Ogilvie. Hope, Inhibition, Aikin contra Anderson; yet it will reduce a moveable Bond, in so far as it is the ground of an Appryzing, but prejudice of personal Execution, or against moveables, July 2. 1630. Dowglas contra Johnstoun. But it may proceed upon a moveable Bond, Ibid. July 2. 1625. Porteous contra Elliot, where reduction was sustained, to the effect, Appryzing may proceed upon the moveable Bond, though no Appryzing or other real right had then followed upon the said Bond.

Inhibition is only effectual against posterior voluntary rights, granted by the person Inhibite, but not against Appryzings, Adjudications and Infeftments thereupon, though posterior to the Inhibition, if they procced upon a debt prior to the Inhibition; yea though the date of a Disposition was prior to the Inhibition, yet the same being granted to the Purchaser for himself, and to the behove of others; That Clause being filled up with another hand, was presumed to be filled up after the Inhibition, unless the contrary were proven, to have been filled up before the Inhibition by Witnesses, above exception, Jan. 15. 1672. Lady Lucia Hamiltoun contra the Creditors of Monkcastle. Neither will it be effectual against an Infeftment after the Inhibition, proceeding upon a Disposition prior thereto, or upon an obliegement to grant such an Insestment, being prior to the Inhibition, Hope, Inhibition, Patrick Stirling contra Tennents of Lethendy: Here the posterior Infeftment was of the property; and the prior obliegement was to grant an Annualrent, which was to exceed the value of the property: But where the prior debt bore an obliegement to Infeft in an Annualrent generally out of the debitors Lands, the disposition of the property was reduced as posterior, though upon a debt prior, Jan. 21. 1629. Scot contra Turnbul. And an Inhibition was found not effectual against a postenor Infeftment, though it proceeded upon a prior Bond, meerly personal, and [Page] bore no obliegement to Infeft, Hope, Inhibition, Laird of Tillibairn contra Laird of Clunic. Inhibition was not found effectual against Dispositions posterior, proceeding upon Bonds prior, bearing obliegements to Infeft generally or particularly, July 22. 1675. Sir George Gordoun con. Seaton, Feb. 6. 1635 Ross con. William Dick. But Inhibitions extend not to posterior Renunciations of Wodsets, which are deeds necessary upon payment, though the Style of the Inhibition bore, renunciation, July 16. 1667. Mr. John Elleis con. Keith, whereby Creditors were much prejudged; for remeid whereof, the Lords by Act of Sederunt, of the 19. of Feb. 1680. did declare, that Creditors using [...] against their Debitors Infeft in Wodset, or Annualrent, if they shall make intintation by Instrument of a Nottar, to the persons who have right to the Reversions of the saids Wodsetts or Annualrents, That the Wodsetter or Annualrenter stands Inhibit at their Instance, and shall produce in presence of the party and Nottar, the Inhibition duly Registrate, that they will not sustain Renunciations or grants of Redemption, although upon true payment, not being made bona fide; but after Intimation, as aforesaid, unless the Redemption proceed by Process, whereunto the user of the Inhibition must be called.

Inhibitions must be execute by Messengers (as the Style thereof bears) against the person Inhibite, personally or at his Dwelling-place, and against the Leiges, at the Mercat-cross of the Head-burgh of the Shire where the person Inhibite dwells, Par. 1581. cap. 118. and therefore, an Inhibition was found null, because the Executions bore not a Copie given to the partie Inhibite, albeit it bore, a Copie affixed upon the Cross; though the Executions were mended by the Messenger upon the Margent, bearing a Coppie given, not being so Registrate, albeit it was offered to be proven by the Witnesses infert, that a Copie was trulie given, July 28. 1671. Sir John Keith contra Sir George Johnstoun; and the Inhibition with the Executions, must within fourty days after the Execution thereof, be Registrat in the Register of Hornings, where the Inhibite resides, or where the most part of his Lands lyes, Act aforesaid; but if the Inhibite person dwell within Stewartry, or Bailiery of Royalty or Regality, the Inhibition must be execute at the Mercat Cross thereof, and Registrate in the Clerks Books there: Otherways in any of these Cases, if the saids Acts be omitted, the Inhibition is null, Par. 1597. cap. 264. By the Act 265. Pa. 1597. Registration of Inhibitions, Hornings and Relaxations, are ordained, to be either Judiciallie, or before a Nottar and four Witnesses, beside the ordinarie Clerk, and in case Registration be refused, the same may be made in the Books of the next Sheriff or Bailie, or Books of Council. But by the 13. Act, Pa. 1600. the foresaid Act is rescinded, and the registration in the Sheriff or Bailies Books, or by the Clerk-register, or his Deputs, in the Books of Council, are declared sufficient.

An Inhibition was found null by Exception, because the Letters bore only Warrand to Charge the person at the Mercat-Cross, as out of the Countrie; and the Execution was against the party Inhibite personally, Jan. 24. 1627. Erskin contra Erskin, and reduced upon the same ground; because the Execution against the person Inhibite, was at his Dwelling-house, and the Warrand was to have been at the Mercat-cross; albeit it bore, to Inhibite at the Mercat-Cross of Edinburgh, and Pear and Shoar of Leith, and all other places needful, March 19. 1628. James Lamb contra Blackburn; in which cases, it was found null, unless truly execute, both against the Lieges and against the party, and that the Execution at the Cross served not both, Hope Inhibition, Sym contra Coldingknows. Hope Inhibition, Lamb contra Blackburn; and also found null, because not Execute at the Head-burgh of the Regality, where the person Inhibite dwelt, but of the [Page] Shyre; and that not only as to Lands within the Regality, but other Lands within the Shyre, Jan. 30. 1629. Stirling contra Panter; and found null, because not Registrat in the Shyre or Regality where the Lands lay, though Registrat in the Shyre where the Inhibite dwelt, Ja. 20. 1632. Halyburtoun contra Monteith; but sustained, though Execute at the Cross, where the Inhibite dwelt; & Execute a year thereafter at the Cross where the Lands lay, and Registrate in both; although in the last, there was no Execution against the party Inhibite, but only against the Leiges, Spots. Inhibition, Heirs of the Laird of Fairnie contra Laird of Aitoun.

Seing the effect of Inhibition is only for satisfying the ground, whereupon it proceeded; therefore Inhibition raised upon a Bond, not to sell a Reversion without consent of the Wodsetter, was found not to reduce a posterior Assignation to the Reversion simply, but only so far as the Wodsetter was interessed or prejudged, Hope, Inhibition, Turnbul contra Scot. Inhibition doth not only extend to the Lands that the Inhibited persons had then in the Jurisdiction where it is published, but to these acquired after, it being a personal prohibition, December 15. 1665. Mr. John Elleis contra Keith. February 27. 1667. inter eosdem. Inhibition extends not to Lands be falling to the person Inhibit in other Jurisdictions, July 18. 1662. William Swintoun contra Inhibition is effectual to reduce Rights posterior to the date thereof, by the executions of publication, albeit before the Registration of the Inhibition, the Rights in question were granted, July 22. 1675. Sir George Gordoun contra Seatoun. An Inhibition was found null, because the Execution bore not publick Reading, and three Oyesses at the Mercat Cross, which was not admitted to be supplied by probation of the witnesses, July 11. 1676. Stevinson contra James Innes. But where the Executions bore, that the Messenger made lawful Publication, and Reading of the Letters; the Lords upon inspection of the Registers, finding that this last Style was frequent; whereas in the former case, the Executions bore only generally, that the Messenger lawfully Inhibite without Oyes or Reading the Letters, and that there was no such Stile of Executions; therefore the Lords admitted the witnesses insert in the Executions of this last Inhibition, to prove that the three Oyesses were truly made immediatly before reading of the Letters, June 21. 1681. Innes contra Trotter. And Executions of Inhibition at the Mercat Cross, are declared null, if there were not a Coppy left affixed upon the Cross, December 19. 1678. Iohn Inglis contra Haddoway. In this case an Inhibition was not found null, because the Executions bore, to be at the dwelling-house, without designing the same; the Defender designing the dwelling-house, and byding by the same as the true Dwelling-house, December 22. 1676. inter eosdem. The like, where the Designation in the body of the Inhibition was Merchant Burgess of Edinburgh, which was presumed his Residence, unless the contrary were proven, July 7. 1676. Quintine Findlay contra Little of Libertoun.

TITLE XIV. Superiority where, of its Casualities, Non-entry, Relief, Compositions for Entries, Ward, Marriage and Liferent Escheat.

[Page]

1. The Superiours Dominium directum.

2. How Property is established in the King.

3. Superiours may exerce all acts of Property, except against their Vassals.

4. How the Properly coming in the person of the Superiour, is established.

5. Superiours cannot interpose betwixt them and their Vassals.

6. How far Superiours need to instruct their Title?

7. Superiours have personal action against intromettors with the Rent of the Land, for their reddendo

8. They have also real action for the same, by Painding of the Ground.

9. Jurisdiction of Superiours.

10. Superiority carrieth to Heirs and singular Successor, all bygone Casualities not separat by Gifts or Decreets.

11. Superiours of Kirk-lands need not instruct a consent to the surrender.

12. Superiours must receive Appryzers or Adjudgers, or pay the Debt. salvo juresuo.

[Page] [Page] [Page] 13. He must receive the Kings Donatar upon presentation Gratis.

14. He must receive his subvassal, whom his immediat Vassal refused to enter.

15. How far Superiours may extend gifts of their own Ward against their Vassals.

16. Superiours need not accept Resignation or Confirmation, and if they do, it is salvo jure suo.

17. Superiority falling to more persons the eldest heir or greatest interest only receives the Vassals.

18. Non-entry falls when Inseftment is not renewed by every Vassals heir or singular successor or upon Resignation.

19. Non-entry falls by Reduction or nullity of Infeftments, or retours.

20. Burgage falls not in Non-entrie, as to the Burgh or particular persons.

21. The effect of the general Declarator of Non-entry.

22. The effect of Non-entrie, after Citation in the general Declarator.

23. Exceptions against Non-entry, as to the Feu-dutie or retoured mail.

24. Exceptions against Non-entrie, as to the full Rent.

25. Whether Non-entrie after Ward, requires Declarator.

26. The Original of Relief.

27. The Custom of England and France, as to Relief.

28. The quantitie of Relief with us.

29. Whether Relief be due during Nonentrie.

30. Whether Relief is due when the heir is entered, whether the Fee be burdened with Conjunct-fee, or Liferent.

31. Relief stops not the heirs Seasine.

32. Compositions for the Entrie of Appryzers or Adjudgers.

33. The Original of Ward.

34. The effect of Ward as to the heirs person.

35. The effect of Ward as to the fee.

36. The restrictions of Ward.

37. The value of the Marriage of heirs of Ward-vassals.

38. The true interest of Superiours in the Marriage of their Vassals.

39. The single value of Marriage, not penal but favourable.

40. Double value penal and unfavourable, with the exceptions against it.

41. Single value found due where the heir was Married before his Predecessor died by precipitation.

42. The quantity of the single value in heirs male or female.

43. Marriage is debitum fundi.

44. It belongs to the eldest Superiour.

45. The Royal Prerogative prefers the King to all others, as to the Marriage, of the Vassal.

46. Marriage is due by the heirs of Appryzers.

47. Exceptions against the value of marriage.

48. The rise of Liferent-escheat.

49. It extends to all kinds of Liferents.

50. Liferents of fees not having Infeftment, or not owing fidelity to a Subject, belong to the King.

51. Liferent escheat of sub-vassals, to whom they belong.

52. Liferent Escheat is not excluded by voluntary Infeftments, after Denunciation, not being for implement of a special Obliegement, to Infeft before Denunciation.

[Page] 53. Liferent Escheat is excluded by Appryzing for debts, anterior to the Rebellion, there being Infeftments, or Charge, in cursu rebellionis.

54. Liferent Esche it extends not to Burgage or mortification.

55. But extends to Ministers Stipends.

56. Liferent Escheat is made Effectual by Declarator.

HAVING now shown what is the interest of the Vassal in the Fee, it will be the more easie to find out what the Superiours Right of the Superiority retaineth; for what is proper to the Fee, and is not Disponed to the Vassal, is reserved to the Superiour, and it is either Constitute as belonging to the Superiour constantly, or casually.

1. The constant Right of the Superiour standeth mainly in these particulars; First, Superiority it self is dominium directum, as the Tenentry is but dominium utile (as before is shown) and therefore, the Superiour must be Infeft, as well as the Vassal, and that in the Lands and Tenement it self, without mention of the Superiority which followeth, but upon the Concession of the Fee in Tenentry, though sometimes through the ignorance of Writers, Infeftments bear expresly to be of the Superiority.

2. Only the Soveraign Authority, as the common Fountain of all Rights of the Ground, needs no Infeftment, but hath his Right founded in jure communi, and is not Feudal but Allodial; and when the Right of Lands fall to the King, by the Casuality of his Superiority, as Forefaulture, Recognition, Bastardry or last heir, if the Lands be holden immediatly of the King, they are ipso facto, consolidat with the Superiority, and the Declarators required thereanent, do not Constitute, but declare the Kings Right, without prejudice of what is consumed, bona fide: But where they are not holden immediatly of the King, the Right thereof is perfected by Gift and Presentation, whereby the immediat Superiour is oblieged to receive the Donatar by Infeftment, like to that of his former Vassal; yet the Kings Right by the Casuality, though it be not perfected, is real and effectual against all singular Successours, whereby deeds of Treason and Recognition, being in Facts ordinarly proven by Witnesses: Purchasers cannot be secured by any Register; and therefore, must secure themselves by the Kings Confirmation, & novo damus. But where the King succeeds in any Fee to a Subject, as to Property or Superiority, before he can alienat the same, he must be served Heir in special thereunto; so King CHARLES the first was served Heir to Queen Ann his Mother in the Lordship [Page] of Dumfermling, in which King James Infeft her in Fee, to her and her Heirs, by a Morning-gift, the first day after his Marriage with her; and King Charles the second was served Heir to Charles Duke of Lennox in the Earldom of Lennox: In which Service, the Chancellour and fourteen of the Lords of Session, were the Inquest, the youngest Lord being left out, because there could be no more but fifteen: But the King needs no Infeftment upon such Retours; but if he acquire any Lands holden immediatly of himself, the Instrument of Resignation must be Registrat; and if holden of a Subject, there ariseth no real Right to a Donatar till he be Infeft upon the Kings Presentation, and his Seasine Registrat; by both which, the certainty of Land-rights is preserved.

3. Secondly, Superiority carrieth a Right to all Actions following the Land, against any other then the Vassal; for seing Superiours are Infeft in the Lands, they can only be repelled from such Actions, by the Rights granted to their Vassals, but by no others, and so may remove Possessors, who can show no Right; this was found, though the Superiours Infeftment, bore him only to be Infeft in the Superiority of the Lands, November 19. 1624. Lag contra his Tennents.

4. If a Superiour become Fiar by Succession, or Acquisition, for Establishing the Property in his Person, he may either be Infeft upon his own Precept or the Kings, November 26. 1668. Daughters of Mr. Robert Mortoun.

5. But a Superiour cannot interpose betwixt himself and his Vassals, by Infefting another in the Lands to be holden of himself, Such infeftment was found null by Exception, January 30. 1671. Dowglas of Kelhead contra Vassals.

Superiours must receive and Infeft their Sub-vassals upon the refusal, or incapacity of the Vassal, and may at any time after, receive the immediat Vassal, or his Successour; or another, if the immediat Vassals Right be extinct, or acquired by the Superiour, which is no unwarrantable Interposition, which is repelled as contrary to the Nature of the Feudal Contract and Right, it being inconsistent that the Superiour should both give his Superiority to another, and claim it himself, Dans & retinens nihil dat; And if that were allowed, interposed Vassals might be infinitely multiplied, November 26. 1672. Earl of Argyle contra Mcleod; in which case, the late Marquess of Argyle being forefault, Mcleod who was Argyles Vassal, was retoured and Infeft in the Lands, as holden immediatly of the King, which did not hinder the King to Interpose this Earl of Argile as Donatar to his Fathers forefaulture, seing the King had done no deed to accept Mcleod as his immediat Vassal; but that he was Infeft by Precepts out of the Chanclery, passing of course.

6. Superiours nor their donatars need not instruct the Superiours Right; but the Vassal must acknowledge it, or disclaim him upon his peril, so it was found in the Casuality of Marriage, February 25. 1662. Arbuthnet contra Keiths, which will not hold, if the Right of Superiority be newly acquired, and no Infeftment given to the Vassal, or his Predecessors by vertue thereof.

The Superiours Infeftment gives him interest to pursue Reductions and Improbations, against all parties, even against his own Vassals, who will be forced to produce their rights, under the Certification, to be declared null; or false and feigned, though, when they are produced, they may defend them.

[Page]7. Superiority carrieth a right to the Service and Duty contained in the Vassals reddendo, and that not only personally against the Vassal, upon any personal Obligation, or Contract in Write; but also by vertue of Intromission, in meddling with the Fruits and Profits of the Land, for all such intromettors may be pursued, and distressed personally for the Duties contained in the reddendo, which being granted to Masters of the Ground, for their Tack Duty against Tennents, and all intromettors with the rents, is much more competent to the Superiour, for his Feu-duty or other Service in kind; how far this will be extended to Blensh-duty, hath been shown in the former Title. And as to Services which are annual, as winning and leading of Peats, &c. these are not due, if they be not required yearly in due time, whether they be due by Vassals to the Superiour, or Tennents to their Master. January penult. 1624. Carnowsie contra Keith. So Service of Harrage and Carriage in a Feu-duty, was found not due, but when demanded within the year, June 27. 1662. Mr. David Watson contra Mr. James Elleis.

8. But also the Superiority carrieth the right to the duty of the reddendo, really against the ground of the Fee, for which he hath Action of Poinding of the Ground, against the Vassal and all singular Successors to him, whereby he may appryze the Goods upon the Ground, or the Ground-right and Property of the Lands, the saids Duties being liquidat, upon repayment whereof, the Lands are redeemable as in other Appryzings.

9. Superiority carrieth the Right of Jurisdiction over the Vassals Lands and Inhabitants thereof, if the same be granted to the Superiour in his own Infeftment, either implicitely as being a Barrony, Lordship or Earldom, or expresly, having the power of Courts and their Issues; and though the Superiour grant the same to the Vassal, yet that is not exclusive of his own right, but cumulative therewith; how far Superiority carrieth the right of Thirlage of the Vassals Lands to their Superiours Milns, when the Vassals have not granted to them the priviledge of Milns and Multars, will appear amongst Servitudes, of which hereafter.

10. Superiority carries all the Casualities thereof, requiring Declarator to Heirs and singular Successors, hoc ipso, that they have the Superiority established in their person, and do not fall to the Executors of the Superiour, as to bygones, before his death, unless gifted or liquidat by Sentence, March 5. 1611. Dowglas contra Captain Crawford. February 19. 1635. Cunninghame contra Stuart. July 11. 1673. Robert Fa contra Lord Balmerino and Laird of Pourie. But Feu-duties, or any Casuality may be separat from the Superiority, by Sentence or Assignation; and therefore, a Disposition of the Superiority, was found to imply an Assignation to the Feu-duties bygone, which being to the vassal himself, needed no intimation, and was valid against a singular Successor Infeft in the Lands in Superiority, December 14. 1676. Earl of Argile contra Lord Mcdonald.

11. A Superiour of Kirk-lands pursuing his vassal for his reddendo, was not excluded till he instructed that he consented to the surrender, conform to the Act of Parliament 1633. annexing the Superiority of Kirk-lands to the Crown, reserving the Feu-duties to the Lords of Erection, who consented to the surrender, which was presumed in possessorio, June 27. 1662. Mr. David Watson contra Mr. James Elleis.

[Page] [Page] [Page]12. Superiours are oblieged to receive Appryzers or Adjudgers for a years Duty, albeit the Superiour alledge a better Right then the Appryzer; but the Infeftment to bear, salvo jure cujuslibet & suo, July 4. 1667. George Shein contra James Chrystie. Yet a Superiour having received an Appryzer, was not found excluded from any right to the Property, though he made no reservation thereof, seing his receiving was necessary, July 19. 1664. Hospital of Glasgow contra Robert Campbel. But a Superiour being charged to receive an Adjudger, was found to have his option, either to receive him for a years Rent, or to pay the sum adjudged, for getting Assignation to the Adjudication, being redeemable by the Vassal from the Superiour, and without any years Entry to be payed at Redemption, seing the Vassal was not changed, as is provided, Par. 1439. cap. 36. June 10. 1671. Sir Francis Scot of Thirlestain contra Lord Drumlanerk.

13. And a Superiour is also oblieged to receive a Donatar upon the Kings Presentation, gratis, without present payment of the Non-entry duties, till declarator, and if he refuse, he loses his Superiority during his Life, June 25. 1680. Laird of Blair contra Lord Montgomerie.

14. A Superiour must also receive his Sub-vassal, whom his immediat Vassal refused to Enter without further instructing of the Vassals Right, but by receipt of the Feu-duty, by him as Superiour, wherein the mediat Superiour supplet vicem, of the immediat salvo jure, June 28. 1672. Menzies contra Laird of [...].

Yet a Superiour cannot exclude an Appryzer or Adjudger within the legal, from the Rent of the [...], till he pay a years rent, December 3. 1672. Mr. Hendry Hay contra Earlstoun.

15. And if a Superiour or any to his behove, take the gift of his own Ward, he was found to have no interest to extend it further against his Vissal, Infeft with absolute warrandice, then to a proportional part of the Composition and Expenses, February 15. 1665. Boyd of Penkil cintra Tennents of Carslooth. The like, where the Ward had fallen after the Vassals Right; for, if it had fallen before, he could have nothing, December 1. 1676. Lord Lindsay contra Bargallon.

16. Superiours are not oblieged to receive upon Resignation, or by Confirmation, and having accepted Resignation, it did not exclude the marriage of the Resigners Heir, there being no Infeftment upon the Resignation before the Resigners death, November 14. 1677. Sir William Purves contra Strachan of Kinadie.

17. Superiority falling to more Persons, doth not obliege the Vassal to take Infeftment of them all, but if heirs portioners, of the eldest, July 30. 1678. Lady Lus contra Inglis. And by the same reason, if the Superiority fall to many singular Successors, by Appryzing or otherways, the Vassal needs only take Infeftment of the greatest Interest.

18. The first and most common Casuality of Superiority is Non-entry, whereby the Fee being void, and no Infeftment renewed thereof, through the Vassals neglect, being capable of Entry thereto, the Profits thereof belong to the Superiour. By the common Feudal Customs there was not only an Investiture requisite at the Constitution of the Fee, but it behoved to be renewed, either at the change of the Vassal, or at the change of the Superiour, Guidilinus, de [Page]jure nov. Pars 2. cap. 6. Zoesius, de feudis, cap. 12. But our Custom requires no Infeftment at the change of the Superiour, but only at the change of the Vassal; for we require no oaths of fidelity, but fidelity it self is imported due without an oath: But elsewhere that oath is required, and being personal, it ought to be renewed, both at the change of the Vassal and of the Superiour: but with us there being no Fee without Infeftment, nulla sasina, nusla terra; therefore, the Vassal must have the Infeftment renewed. The renovation of Infeftment to Heirs in France and England is not requisite, but [...] sasit [...], as they express it, by which a special retour perfecteth the Heirs right in his Fee, with a great deal of ease, which is not consonant to the common Feudal Customes, whereby, if the Vassal within year and day after his predecessors death, require not to be Entered by his Superiour, and offer his fidelity, he forefaults his Fee, l. 2. Feudorum tit. 24. which severity we use not, for the Vassal loseth not his Fee by Non-entry, nor the whole Fruits of it during that time: But our Custome is such, if by any means the Fee be void, the Vassals right ceaseth during that time, and the Fee is in the hands of the Superiour; and therefore, in retours to that Article of the Brieve; It is answered, that the Lands are in the hands of such a man, Superiour: And though the Infeftment of the Predecessor against others then the Superiour, be sufficient to maintain the Right and Possession of the Vassal; as to his Superiour it hath no effect at all, after special Declarator, till the Vassal Enter.

The Fee may be thus void, first by the minority of the Heir, whereby he cannot Enter by reason of Ward, but this is exprest by the name of Ward and Non-entry, though it may signifie the Fees, being void, whether necessarly or voluntarly; yet it is appropriat to the latter, and contra distinguished to Ward.

The Fee becomes void by the voluntary outlying of the Vassals Heir, or by the vassals Resignation in the hands of his Superiour, for new Infeftment to be given to himself, or to any other; for till that Infeftment be taken, the Fee is also in Non-entry; for in that case, the Resignation putteth the Fee in the Superiours hand, upon whom there is an obliegement to renew the Infeftment, to the person in whose favours the Resignation was granted, upon which he may be compelled by a personal action so to do, and which is carried to that persons Heir, by a general service as other personal Heretable Rights, or Dispositions.

19. Or by the Reduction or nullity of the Infeftment, or retour of any person formerly Infeft, which is more rigorous then the rest, seing the vassal had thereby a colourable Title, and was bonae fidei Possessor, seing Reductions use not to be drawn back, adpraeterita: So reduction of retours was sustained at the Superiours instance, to give him the benefit of Non-entry, July 12. 1625. Lord Cathcart contra Laird of Kerse. Februany last, 1628. Earl of Nithisdail contra Westraw, and therefore, it must be considered, what the nature of the Right will import. If Non-entry had its rise from ingratitude or a penalty with us, by the negligence of the Vassal, it could hardly take place in this case; for unless such infeftments had proceeded upon the Fraud, or gross ignorance of the Vassal himself, it could not be called voluntary Non-entry, which stood upon some informality, unknown to the Vassal, or his Predecessor: But seing the ground of this Non-entry is from the Nature of the Right, which cannot consist without Infeftment; therefore, by such nullity it must follow, that while there was no Infeftment, or a null Infeftment, the Vassal had no [Page] interest, neither will there be hazard of rigour; because, it can but extend to the retoured Duties, and is eleided by all the ways that other Non-entries are, and specially by the Superiours Homologation of the Infeftment, if the nullity were in prejudice of the Superiour, as when Lands are retoured to less retour mail then the due; or Feu-duties, or other Duties in the reddenda, are diminished; for it is not rare, that that which is null, as to some persons and cases, may be valid as to others from these nullities being injuries to the Superiour; Non-entry wil follow, if there be no valid Seasine; then Non-entry will take place, though Charter and Precept be granted voluntarly, seing Seasine was not taken thereupon.

20. Non-entry taketh place whenever the Fee is void, whether it be holden Ward, Blanch, or Feu: But that which is holden in Burgage, or is mortified, requireth no Renovation of the Infeftment, because Societies and Incorporations die not, which is extended to the particular Tenements within Burgh, holden Burgage, which are thereby holden of the King, and the Magistrates of the Burgh, give the Infeftment as his Bailies.

21. The effect of Non-entry is attained by a Declarator of Non-entry, the Style whereof beareth, that the Tenement is void by the death of such a person, who died last Infeft, and ought to be so declared, and that the fruits and profits thereof do belong to the Superiour, by reason of Non-entry: Yet because the case of the Vassal is favourable, Decreet is only granted, declaring the Non-entry, and finding only the Feu-duties due in Lands holding Feu, July. 19. 1631. Earl of Kinghorn contra George Strang: Or the retoured Males in Lands holding Ward or Blansh, which have any such retour: Or otherways, the whole Duties of the Fee are carried, the reason hereof is, because Feues are Locations, and the Feu-duty is the Rent or Pension; and therefore, in favorabilibus, that is interpret to be the Rent: So likewise in other Lands, the retour was a valuation of the Lands, as they were worth and payed at that time; The first whereof was called the old Extent, and it is exprest by Merk-lands, or Poundlands. The other is the new retour, which though it be different in divers Shires; yet being once a Rent, in this favourable case, the general Declarator reacheth no further; yea, though there be no retour of the particular parcel of Land in question; yet if there be a retour of the Tenement or Barrony, whereof it is a part, that common retour will be divided according to the present Rent, and a proportion thereof stated upon this parcel, as its retour, as was found in the former case, Earl of Kinghorn contra Strang. The like, Feb. 5. 1623. Mark Ker con. Scot of Hartwoodmires. Hence it is, that an Annualrent, because it hath no retour distinct, but it retoured, Quod valetseipsum; therefore, if it be in Non-entry, it is carried by the general Declarator, and the Non-entry was found to carry the whole profite of the Annualrent by exception, in a poinding of the Ground without any Declarator, March 23. 1631. Somervel con. Somervel of Drum: Yea, though the Annualrent be due by the Superiours consent, yet it falls in Non-entry, though it be due still personally by the personal obliegement; where there is any. In this Declarator, the Superiour producing his Infeftment, needs not instruct the Defender, his Vassal; and though the Lands in question be not expresly in the Superiours Infeftment, but claimed by him as part and pertinent, he needs not instruct the same to be so, unless the Vassal disclaim him as Superiour in that part, Spots. Non-entry, Lord Yester con. his Vassals: Neither needs he instruct that the Lands were void, since the time libelled, because that is a Negative and proves it self, unless the Vassal instruct that it was full.

[Page]The [...] of general Declarator is not personal against the Vassal, to pay the [...] Mails, &c. but is real against the ground of the Tenement, for granting Letters to Poynd and Apprise, and so the calling of an appearand Heir is sufficient, Spots. Escheat, Balmiranoch contra his Vassals. But if the appearand Heir be not called, but a person notourly known to have no relation, it is a relevant defence, competent to any Party called, though deriving no right from that Defunct, Nicol. Non-entry Sir Mungo Murruy.

22. And though Craig insinuateth, that the Action is real, and the ground may be poynded for the whole Duties, yet posterior Decisions have upon good grounds cleared, that as to these, the Superior is but as the Master of the Ground, and as he is in the case of Ward, and therefore the Ground cannot be poynded. Neither is any lyable but the intrometters with the Fruits, Spots. Non-entry, Gray contra Murray. Without this Declarator of Nonentry, the Superior or his Donatar cannot enter in possession of this voyd Fie, and though he possess, he is comptable to the Vassal for the Mails and duties, Hope, Nonentry, John Brown contra Mcculloch of Barholme, Febr. 3. 1631. Thomas Ogilvy contra Murray of Halmyro.

But after Declarator of Non-entry is obtained, the Superior may enter in possession, any lawful way he pleaseth, and may dispose of the Fruits and profites of the Tenements, by himself or his donatar, and as the proprietar might out-put and in-put Tenents therein, and hath the full profites and duties thereof, which may be pursued as other ordinary Actions, though it useth to to be pursued under the name of Special Declarator, which takes effect from the date of the Summonds, whereupon the general Declarator proceeded; because the Decreet of General Declarator, is only for the by-gone Mails as aforesaid, and therefore reacheth not after the date of the Summonds, after which the whole Mails and duties are due, not only in Ward holdings and blench, but also in Fews. As it was found, that before general Declarator, the Few-duty was only due, so that after general Declarator, the whole profites, July 19. 1631. Earl of Kinghorn contra George Strang, Julie 25. 1667. Mr. John Harper contra his Vassals, Julie 11. 1672. Robert Fa contra Lord Balmiranoch, and Laird of Powrie.

23. Non-entry is excluded, first by the entry of the Vassal and his Infeftment, during the time thereof, even though the same was granted by him who was Superior, after his Predecessor was denuded four ages before, which must be in respect, the new Superiors right was not known, as neither being Registrat, nor any Intimation nor Action thereupon, Hope, Non-entry John Arthur contra Laird of Blebo. And if the Vasal be Infeft upon a Charter from his predecessors, to be holden of the Superior, if the Superior Confirm it, the Infeftment is valid, and excludes the Non-entry from the date thereof and not from the date of the Confirmation, being simple, Hope Non-entry, Bartoun and Harvie contra Laird of Delspro. 2. Nonentry is excluded by Feus, terces of Reliques, Liferents of Husbands surviving their Wives, by the courtesie of Scotland. These are effectual by Law, and are introduced without the Superiors consent. It is excluded also by his express consent, by Liferents or conjunct Infeftments holden of him, though the Vassal may enter to the Fee, yet the Liferent excludes the profites; and therefore, during the simple Liferent, the Superior cannot obtain Declarator of Non-entry. 3. By the Superiors con ent, it is also excluded by precepts of clare constat, which acknowledge [Page] [Page] [Page] the person who died last, Vest and Seased as of Fie, during whose time the Non-entry cannot be claimed. And likewise, by receiving the Vassal with a novo damus, renouncing expresly Non-entry, if it was granted by the Superior, before the right was transmitted from him to the Donatar 5. It is excluded by the Superiors tacite, or presumed consent, by granting subsequent Infeftments, for the space of 40. years, , March 19. 1629. Earl of Angus and Dowglas contra Earl of Annandale, June 29. 1629. Sir Mungo Murray contra Laird of Inchmartine, Hope, Non-entry, John Art [...]r contra Laird of Blebo: for thereby it is presumed that the Non-entry is relinquished, not being claimed nor reserved all that time; Which Craig observes to have been found upon Infeftments, continued by the space of 36. years, but the best Term, as being ordinary and known in Law, is 40. years; And this is not by reason of prescription, which would only cut off profites of Non-entry preceeding the 40. years, but this would take it away, during and after the 40. years. The like is very rationally observed by Craig, to be inferred by three Subsequent Seasines, having the same presumption as three subsequent Discharges have to infer exoneration of all bygones; but these must be of three subsequent Heirs, and not by receiving three singular Successors, the Non-entry returning to the Vassal or his Heirs, they cannot make use of it against the Subvassals, especially if they be lyable to warrant the Subvassals as to Non-entry or by absolute warrandice generally, for thereby the right to the Non-entry is, jus superveniens authori accrescens successori; but the Subvassals must pay their proportion of Expenses for the Gift. But Non-entry is not excluded, because it was gifted to the appearand Heir of a Superior of a Subvassal: which Superior was obliedged in warrandice to his Subvassal, seing he was not Heir, spots. Nonentry. The like though the appearand Heir consented to the Subvassal before the Gift, Laird of Craichlaw contra Gordown of Barnernie, and Mackie. Neither is it excluded by any base Infeftment, not being Feu, though confirmed by the Superior, if it hold not of the Superior for such Confirmations, import only a passing from Recognition. As is shown in the Last Title, concerning Confirmations. But Fews exclude Non-entry, while they were allowed by the Acts of Parliament, as there is also shown, neither is it excluded by Tacts set by the Vassal, which though they stand as real Rights against Purchasers by Statute, yet have no effect against Superiors in prejudice of their proper Casualities: Neither is it elided by Charters or Precepts granted by the Superior, though containing warrandice, till Infeftment thereupon, March 20. 1630. John Hay contra Laird of Achnames. Neither was it excluded by Apprysing and Charge thereupon, without offer of a years Rent of the Land, or Annualrent of the Money, Feb. 3. 1681. Hendry Keir contra Hendryson. Neither is it excluded, because the Vassal was not in mora, being hindred by a Question of Bastardry against him, Spots. Nonentry, [...] contra Naiper of Wrightshouses. Nor doth the Vassals Minority stop Non-entry of Lands not being Ward, nor restore the Minor as Lesed. For as hath been now shown, It is not the negligence of the Vassal, but the nature of the right that infers Non-entry: yet there is no doubt if it be by the Superiors fault, it will be a personal Exclusion against him, Non-entry is most favourable, when extended as to the retoured duties. But as to the full Rents it is capable of many other exceptions, and doth not alwayes run from the Citation in the General Declarator, as if a Superior raise his Declarator, and also Reduction of the Vassals Seasine, though he reduce the Seasine, he will not have the full Rents till the Decreet of Reduction and Declarator, Novemb. 26 1672. Earl of Argyle contra Laird of Macleud: yea if the Superior do not insist, but only use Citation, which [Page] may be at the Vassals dwelling house, and never come to knowledge; or the Vassal being a Pupil without any Tutor, it is not like the Lords would sustain the whole Duties from the Citation, but from the time the Vassal becomes contumacious. And Queensberry having interposed Kelhead, betwixt him and his Vassals, who thereupon pursued Declarator of Non-entry, though the Infeftment was found null, yet the Disposition was found to carry a Gift to the Casualities of the Superiority, and the Vassals were only found lyable for the Rent after the Interloquitor, sustaining the disposition as a gift of Nonentry, and where a Tailzie was found to exclude a second Branch, so long as there was hope of a former Branch, the Lands were found in Non-entry, as to the retoured Mail, but not as to the full Rent, seing the Heir did not forbear to enter through wilfulness, but of necessity, Julie 24. 1677. Lord Melvil and David Melvil his Son, contra Sir William Bruce. And where a Singular Successor to the Superior pursued Non-entry, it was not sustained till he produced his progress from the acknowledged Superior. the full duties were not found due from the Citation, Julie 18. 1680. Earl of Queensberry contra Irwin of Cove. And Craig relates, that where the Defunct died in Battle, for his Superior, Non-entry should have no place. We shall not here speak of common exceptions which extinguish all Rights as prescription, homologation, or the priviledge of these who are absent, reipublicae causa. As to the Question, whether Non-entry Subsequent to Ward, whereby the Superior or his Donatar, is in possession requireth any Declarator. Craig and Skeen upon the word Non-entry, are for the negative; and since Had. and Durie observe, March 23. 1622. Lesly contra Pitcaple, that the Lords found, that where the Superior pursued both for the Ward, and subsequent Non-entry, that he or his Donatars, not being in possession by the Ward, behoved to declare the Non-entry, which would only carry the retoured Mails till Declarator.

The next Casuality of the Superiority is, the releef due by the Vassal to his Superior for his entering him in the Fie, as the lawfull successor of the Vassal. And though relees be only considerable in Ward-holdings, and uses to be subjoyned to Ward; yet all Fies which require Renovation, are lyable to releef; and therefore Releef is here immediatly subjoyned to Nonentry.

26. Releef is generally treated upon by the Fewdists. The Original whereof Cujace ascribeth to the constitution of the Emperor Leo, extant in the Novels, bearing it to be the custom of several places, that the superior should have that years Rent, in which he receives a new Vassal in his Clientel, which therefore, by most of the Feudal Customs, is extended to the singular Successors of the Vassal, who in some places, pay for their Entry the fifth of the price of the Fie, and a fifth of that fifth; whereby, if the price were 100. Crowns, the composition for the Entry would be 24. Crowns.

27. But by the Customs of England and France, the Heir of the Vassal, if he be Minor, payes no releef, but he and his Fie are in the hands of the Superior, as in Ward or Custody, whereby the Superior hath the whole profites, more then is fit for the Education and Intertainment of the Minor Valsal, which ceaseth with his Majority, and there is no releef due. But if the Vassals Heir at his Death, be Major, his Fie is lyable to his Superior for releef; [Page] [Page] [Page] which distinction is mentioned in the English Magna Charta, the quantity of the releef by Heirs in England, is in Ward-holdings or Military Fies 100. Pounds Sterling for an Earldome, 100. Merks for a Baronry, and 100. Shillings for any other Military Fie, which is oblieged to maintain one Souldier. And if the Fie be less, and lyable only for a share of the entertainment of a Souldier it is lyable Proportionally.

Relief, by the custom of France, is for a Barrony, 100. Franks, and for any other Military Fie, 15. But if it answer not to the entertainment of one Souldier, it payes for every Aiker, 12. Deniers; but if it be not a Military Fie, but that which the English calls Sockage, the Reddendo whereof is not Military service, but some other payment or performance, which is doubled the first year after the death of the Vassal, the one half thereof is, the releef which is a real burden, for which the Superior may Poynd or distrenzie all goods upon the ground.

But as to singular Successors, the most ancient Feudal Customs, making them only to descend to the Issue of the first Vassal whose Collaterals had no right, but were like our kindly Tenents, by the propinquity of blood: yet by the favour of the Superior, they were oftimes admitted in the lie, and were only lyable for relief. If the Superior did receive a stranger upon the resignation of his Vassal, he was to pay a relief, which in some places was the fiftieth part of the Price. And by the Custom of France, it is the thirteenth part.

From the Original of Relief, the reason of its name may be conjectured; and these who appropriat it to Ward-holdings interpret it to be called relief, from redeeming or Relieving the Fie out of the hands of the Superior. But relief being a general Feudal name, and many Nations not allowing the Superior the whole profites of the Fie, in the minority of the Heir, and giving a relief in the case of singular Successors; that derivation must be too narrow. And it seems most quadrant to the common Feudal Customs, that relief should import a subsidie or aid to the Superior.

We have the more largely considered the rise and Customs of Nations concerning relief, because though it frequently occurs with us, yet it hath been alwise kindly transacted betwixt the Superior and Vassal. And there is scarce a contraversie or decision, observed about it by any since the Institution of the Colledge of Justice, so that we must rest in the common custom used betwixt Superior and Vassal, the Nature of this Casuality, and the opinions of some few of our Lawyers who have written upon it; Craig, lib. I. Dieges 20. handles the matter of relief, and sayeth, by our ancient custom, there was no relief due after Ward. And that it was the common opinion of Lawyers at that time, that relief had only place in Ward-holdings; And that it imported a years rent of the Fie, being the full profites thereof, when the Superior or his Donatar were in Possession by the Ward. But in other cases, only a years rent, by the favourable accompt, that is one years new retoured duty of the Fie, as it is retoured by it self, or the share of the retour of any Barrony or Tenement whereof it is a part. But Craig, with good reasoa holds relief to be due at the renovation of every Fie, to the Heirs of the Investiture, for the duplication of the Feu-dutie in Feus, is due at the entry of every Heir. And that without an express Clause in the Reddendo, by the Feudal custom, which is generally acknowledged. And [Page] even when the Duplication is exprest, it doth ordinarly bear, secundam consuetudinent Feudorum: And Sir Thomas Hope, in his Title of Ward, is of the same Opinion, in respect that the Precepts issued out of the Chanclery, for Infefting of Heirs, even in Feues, or Blensh-holdings, it bears, capiendo securitatem, for the double of the Feu, or Blensh-duty.

28. And as to the quantity of the relief, Hope in that Title, holdeth it only to be the retoured dutie, without exception when the Vassal or his Donatar was in Possession. And Sir John Skeen in his Title, De verborum significatione, asserteth the same. It is also provided by Act of Parliament, 1587. That the full avail of the Relief be taken and counted for in Exchequer, by Sheriffs, Stewarts and Bailies, without accepting any composition; and that Charges be directed against persons who have gotten Precepts of Seasine, or the Sheriffs or their Deputs, or both, to Poind for the sums contained in the Book of Responde; which is a Book of Record in the Chanclery, drawn off the Precepts of Seasine to all Heirs, and mentioning such a Sheriff or Bailie where the [...], Respondere: That is, to count in Exchequer for the Sums, which by the Precepts of Seasine direct to him, he is ordered to take security for which sums would be Liquid, and known according to the new retour, and the Feu or Blensh-duty; but could not be known otherways, then by a Process of Liquidation, proving the full yearly Rent of the Fee, as to which the Sheriff might not compone or Transact; and it is generally acknowledged, that when the full Rent becomes due, there is no real execution, by Poinding of the Ground; but the Superiour hath the full benefite of the Fee, as when it is in Ward; and therefore, the relief which is debitum fundi, must only be the retour duty.

Conform to this Statute it was found, that the relief might be recovered, either by real action of Poinding of the Ground, or personally against the vassal, who had taken his Precept of Seasme out of the Chanclery, though he had not taken infeftment there upon, March 12. 1678. Laird of Lauriestoun contra the Sherif of Mearns; and therefore, though in Craigs time, relief was only thought to affect the Fee, and not the personal Estate of the vassal, this Statute clears the contrary.

29. Relief is not due while the Fee is in the Non-entry; seing then the Rent belongs to the Superiour, the favourable Rent or retoured Duty, while the Fee is void through necessity and negligence; and the full Rent when by contempt or wilfulness, the Vassals appearand Heir being cited, doth not enter: But I have never heard of one retoured Duty demanded for the Non-entry, and another for the relief, or any relief required where a years Non-entry was exacted: But if the Vassals Heir be Entered after the next Term from the Defuncts death, the relief may at least be demanded for the other subsequent Term.

30. If the Fee be possest by a Relict Conjunctfiar, the Vassals Heir needs not Enter during her life, for her Conjunctfee doth exclude all Casualities during her life: Or if it be in possession of a Husband by the Courtesie of Scotland; yet these will not exclude the Fair, to Enter to the Property burdened with these Liferents, and it is oftimes necessary for him to secure his Creditors; in which case it is most favourable that the Superiour should have a years retoured Daty, as he would have gotten it after the Conjunctfiars death; and therefore, much more where the Fee is wholly burdened with a Liferent, by the constitution or consent of the Superiour.

[Page] [Page] [Page]31. The capiendo securitatem will be in all Precepts, notwithstanding these Liferents, and it will not stop the Seasine of the Heir, till he pay the relief to the Superiour, whether King or Subject; but security by sufficient Caution must be received.

32. In place of the relief to the Superiour by the Vassals singular Successor, we have a Composition introduced by Statute, 1469. cap. 36. whereby Superiours are oblieged to receive Appryzers for a years rent of the Lands Appryzed: For before that Statute, no Superiour could be compelled to receive any other Vassal, then the Heir of the First Vassal, provided by the Investiture; for though in Dispositions, Lands are ordinarly disponed to the Purchaser, his Heirs and Assignays; yet Assignays use not to be repeated in the Charters, and the meaning of that Clause in Dispositions, hath been several times Interpret, that the Disposition may be Assigned or Transferred: But Infeftment being once taken, Assignays have no farther interest; and that Clause doth not save Recognition, when the Ward-vassal Infefts any other in the Fee then his Heir apparent, as was found in the case of the Lady Carnagie con. Lord Cranburn. And though a Disposition have no mention of Assignays; yet before Infeftment, while it remains personal, it is assignable, and a Superiour who granted a Disposition by a minute, was discerned to receive the Assignay to the Minute, though he was not in Freindship with him, Jan. 29. 1623. Ogilvie contra Kinloch of Bandoch. This Statute was by Custom extended to Adjudications, being the same in effect, but different in form from Appryzings; for the design of the Statute being to Satisfie Creditors by a Judicial alienation of the Debitors Lands, ex paritate rationis; it was extended against the Debitors appearand Heir, who being Charged to Enter Heir, did not Enter; and therefore, Lands were Adjudged from him, to which he might have Entered, either for his Predecessors debt or his own; whereupon the Superiour is descerned to receive the Creditor Adjudger, whether for sums of Money, or for Implement of Dispositions, and Obliegements to Infeft: But the Custom allowed not a years Rent to Superiours for receiving Adjudgers, till the years Rent was also extended to Adjudications by Act of Parliament, Decem. 3. 1669.

The Lords of Session have always taken latitude in the modification of the years Rent, especially if the sum Appryzed or Adjudged for be small, and the Lands he great; and they have allowed the Appryzer or Adjudger, his option during the legal, to take Infeftment or not; and yet not to be excluded from the Rents of the Lands, till he be satisfied, Decem. 3. 1672. Mr. Hendry Hay contra Laird of Farlstoun, Vide Tit. 13. §. 29. But the Appryzer runs that hazard, that if the Debitor die before he be satisfied, if the Land be holden Ward, it will fall in Ward, and relief by the Debitors death, and in Non-entry; for there is no reason that the Casualities of the Superiority should neither fall by the Appryzer nor by the Debitor.

There is not the like reason, that the Liferent-escheat of the Debitor should exclude the Appryzer, if it fell after the Appryzing and Charge; for the Liferent-escheat falls to the Superiour, with all the burdens which affected it by the Vassal, even with the burden of his Tacks; and therefore, Appryzing with a Charge way be as effectual as these, July 24. 1632. James Rule con. Laird of Billie.

The Superiour can have only one years Rent from all the Appryzers or Adjudgers. But now since Appryzers and Adjudgers within year and day, [Page] come in pari passu, where one needs only to be Infeft or to Charge; there is less reason to give an easie modification of the years Rent to the first Appryzer or Adjudger, insisting for Infeftment then before; because one Infeftment serves for all, and he who advanceth the same, gets relief of the rest, before they have access to the Rents.

33. The prime Casulity of Fees is Ward, which is not competent to all Superiours; Ward is only competent in Fees holden in Military Service which have their Denomination from this Casuality, being therefore called Wardholdings, and that not by the Tenor of the Investiture, which seldom mentioneth Ward, but by the Nature of it; for when the Fee is holdeu for Military Service, or as the English better express by Knight Service, extending not only to following in War, but to Council and Assistance in Peace, then when the Vassal is unfit for such Service, the Fee is open and remaineth in the hands of the Superiour, or his Donatar; and though this capacity might be in some sooner; yet it is fixed in men to their majority, at twenty one years compleat; and in Women, till they become fourteen years compleat; for then they are capable of Husbands, who may do the Service required in the Fee, Decem. 20. 1609. and Jan. 27. 1610. Lady Kilbirnie contra the Heirs of Fairlie. What Fees are holden Ward we have cleared in the former Title. It now remains, that we hold forth the effect of this Casuality.

24. Ward reacheth the Custody of the Person, and of his Lands holden Ward, it hath its denomination rather from the former; for Ward is as much as Guard or Custody: The Superiour or his Donatar is by the Nature of this Right, as a Tutor to the Vassals Heir; Craig observeth, that he is preserable to all other Tutors, except only the Father of the Heir, whose Fee descends by the Mother, or some other person; and that he is oblieged as other Tutors, to pursue the rights of the heir; but the course of time having turned this Right from its ancient Institution, so that the Superiour hath less enjoyment of Service, but more of Profite of the Fee: there is the less regard to the Pupils Education, with or by the Superiour, to the effect he might be fitted for his Service; and therefore, other Tutors, not only for the administration of the Pupilsmeans, but even for the Custody and Education of his Person will be preferred; though of old, the Donatar of the Ward was preferred to the Tutor in Custody of the Pupils Person, Sinclar, June 15. 1543. Laird Auchnames contra Laird of Elphinstoun Ledingtoun. March 16. 1565. and July 12. 1566. Weir contra Lochart. Yet later Decisions have favoured Tutors more, and preferred them, Nicol. ubi pupuli educari, Mr. James Chalmers contra Elizabeth Howstoun Lady Gadgirth. Neither have I ever observed, that Superiours or their Donatars were made lyable as Tutors, for Administration of their Pupils Affairs.

35. The main effect of Ward then is, that thereby the Superiour or his Donatar have, during that time, the full fruits and profites of the Fee, and may remove Tennents, and do all other deeds that the Proprietar might have done, and was accustomed to do as to continue the profites of a Wood, if there be constant cutting, as being divided in so many Hags, that the first is ready by the last be cut: Or going Heughs, as they were accustomed by the Vassal; but he cannor cut more then the accustomed yearly Hags of Wood, or put in more Coalziers then the Vassal had at his death, and ordinarly before; and he may remove and in put Tennents, and that without any preceding declarator or favourable account, esteeming the retour Mail for the Rent, as in Nonentry; [Page] but he may immediatly pursue actions for Mails and Duties, removing, &c. unless the Ward be Taxed; and then the Superiour can have no more then the Duties to which it is Taxed. But for it, he hath not only the Vassal, and all Intromettors with the Fruits, personally; But he may also Poynd the Ground for the Taxed Duty, as Craig affirmeth in this Title.

36. Yet the reach of the Ward by the Nature of the Fee, cannot extend to alienation, or consumption of the Substance of the Fee, or any part or pertinent thereof, and this is cleared by the Statute, Parliament 1491. cap. 25. Whereby Donatars must find Caution not to destroy the Biggings, Woods, Stanks, Parks, Meadows, or Dovecoats, but to keep them in such kind as they get them.

Ward is also restrained by the Statutes confirming Feues, of which formerly; and these stand valid against the Superiour, during the Ward; so do also all Infeftments holden of him, either by Resignation or Confirmation; but not Infeftments to be holden of his Vassal, unless Confirmed by him; for albeit, Confirmations by the King, which pass of course, do not take away the Casualities of Ward, &c. of the Kings Vassals, which affect the Fee of the Subvassals; yet the Confirmation of other Superiours of Sub-vassals rights, doth take off from him the Ward, if the right be Feu only generally, without mention of the Ward, seing the Act 1606. doth only annul Feues set by Vassals, holding Ward of Subjects without their Superiours consent, which was so found, albeit the Feu was under reversion, that it was free of the Ward and Marriage of the Vassal as to the subvassal feuer, but did only affect the Vassals interest, viz. the Feu duty, reversion and back-tack, July 2. 1672. Earl of Eglintoun contra the Laird Greenock.

Ward is also restrained by the Terce and Liferent of Husbands, by the Courtesie of Scotland, both which are introduced by Law, and are valid without the Superiours consent.

But Rentals and Tacks set by the Vassal, have only this effect against the Superiour or his Donatar, that the Tennents or Labourers shall not be removed till the next Whitsonday, after the beginning of the Ward, paying the old accustomed Duty, Par. 1491. cap. 26. But then the Superiour or his Donatar may remove them, notwithstanding their Tacks be unexpired, which therefore sleep during the Ward, but revive against the setter and his Heirs, and endure as many years after the Ward, as they were excluded by the Ward, Sinclar, May 21. 1549. Laird of Durie contra Robert Steuart. Ledingtoun December 16. 1569. Kings Donatar contra Tennents of Drorgan. July 4. 1611. Laird of Couter contra Where also the Terce was found relevant to exclude the Superiour; yet Ward is not excluded by Annualrents holden of the Vassal, March 11. 1629. James Weyms contra Kincraig. But now since the Act of Parliament 1606. Prohibiting Feues without consent of the Superiour; these did not exclude the Ward or other Casualities of the Superiority, as to Fees not holden of the King, which was even extended to the Fees holden of the Prince, Hope, Ward, Lady Cathcart contra Vassals of Cathcart. And after the Act of Parliament, 1633. extending the foresaid Act to Ward-lands holden of the King and Prince; Feues then granted till the year, 1641. when the effect of that Act, being before suspended by Act of Parliament, 1640. was taken away. And so Feues of Lands holden of the King or Prince, were valid [Page] till the rescissory Act, 1661. whereby the said Parliament 1641. was rescinded, Par. 1661. cap. 15. So that now Feues of Lands holden of the King, Prince, or any other Superiour, without their consent, do not exclude it or other Casualities of the Superiority, except such Feues as were granted the several times they were allowed by Law; but a Charter upon an Apprizing did exclude the Ward, though no Infeftment was taken thereupon, during the Vassals life, as Hope observes, Title Ward, Hamiltoun contra Tenents of Newburgh; because the Superiours Charter without Seasine did import a Gift of the Casualities, which might befall to the Superiour; and he there observes, that a Ward was excluded by Appryzing and Infeftment thereupon, whereby the Defunct was denuded, albeit it was to the behove of his Heir, Laird of Ley contra Laird of Barro.

During the Legal, the Superiour or Donatar, as before the Infeftment upon the Apprysing, they might pay the Appryzer, and take his right: So after, they may redeem him and exclude him, it being against reason, that by Appryzing (suppose of a great Tenement) for a small debt, the Superiour should be simply excluded, and it may be upon design; if an Appryzer Possess, his Ward falls, and not the former Vassals, though the Legal be not expired; but after the Ward is fallen, though the Superiour received an Appryzer Appryzing from the Heir without Protestation; yet it was found not to prejudge the Ward by the death of the former Vassal, July 9. 1664. Hospital of Glasgow contra Robert Campbel. But a Superiour was not excluded from the Ward by his Vassalt death, because an Appryzer had charged him to Enter him, during that vassals life, seing that Charge could not make the Apprizer vassal, by whose death, Ward would fall, and thereby make the Superiour lose this Casuality by the death of both the old Vassal and the appryzer, unless the Superiour had been in mora aut culpa, which was not found, unless a years rent of the Land, or Annualrent of the Money: And a Charter were offered, with a Bond to pay what further the Lords should modifie, February 19. 1669. Black contra David Trinch.

If an Appryzing be satisfied or extinct by Intromission, the Ward-lands appryzed become in the Superiours hands by Ward, till the Majority of the heir, July 20. 1671. Lindsay of Mount contra Maxwel of Kirkonel: In which case, the Appryzer was not found oblieged to restrict to his Annualrent, to the effect, that the Donatar of Ward might have the superplus, by the Act of Parl 1661. cap. 62. betwixt Debitor and Creditor, whereby there is a power given to the Lords of Session to cause Appryzers restrict to their Annualrent, which is only personal, in favours of the debitor, if he demand it.

The benefite of Ward is also burdened with the Mentainance and Sustentation of the Heir, by vertue of the foresaid Act, 1491. cap. 25 whereby a reasonable Sustentation according to the quantity of the Heritage is appointed to the Heir, if he have not Lands Blensh or Feu to sustain him, and that by the Superiour and his Donatar, and Conjunctfiars and Liferenters of his Estate; the quantity whereof is to be modified by the Lords, according to the quality of the Heir, and so found, not only when the Heir had no means, but though he had, if it was not sufficient to entertain him, the superplus was modified out of the Ward-lands, and Lands Liferented proportionably, March 16. 1622. Heirs of Miltoun contra Calderwood.

We shall say no more of the Aliment of Heirs by Ward Superiours, or [Page] their Donatars in this place; but you may see it in its proper place, Title 27. Section third.

Thus it appeareth in what way the Casuality of Ward is excluded, burdened or restricted, being always by Law, or by the consent and deed of the Superiour; but no private deed of the Vassal without the Superiours consent, or appointment of Law, can burden the Fee when it is in the hands of the Superiour, by Ward, &c. So that Servitudes introduced by the Vassal, as Thirlage, ways and the like, are not effectual against the Superiour, or his Donatar, when the Fee is in their hands; Unless such Servitudes be introduced by Prescription of fourty years, or immemorial Possession, whereunto all parties having interest their consent is presumed; and therefore, in that case there is more ground for sustaining of the Servitude, even against the Superiour, who might at least have used civil interruption.

Marches set by the Vassal of consent, or by Cognition, whereto the Superiour is not called, hath no effect in his prejudice during the Ward, Feb. 8. 1662. Lord Torphichen contra

As to the personal debts of the Vassal, whether Heretable or moveable, they do not affect the Fee, though in Ward, albeit Craig Dieges. 20. relateth, that of old it was otherways, and that the Superiour had the Ward, with the burden of intertaining the Heir, and with the paying of the Annualrents of his Heretable debts, and that the Custom of Wards in France is such: Yet there is no appearance that the custom hath ever been so with us, since the reign of King Malcolm, who gave out all his Lands to his Subjects, and reserved only to himself, for sustaining of the Royal Dignity, the Ward and Marriage of his Vassals, which at that time were very considerable, when most of all the Lands in Scotland were holden by simple Ward; but since, a great part hath been changed into blensh, or Taxed Ward, or given out in Burgage and Mortifications, or in Feues.

The Casuality of Ward may be enjoyed immediatly by the Superiour, but is more ordinarly gifted to Donatars, not only by the King, but by other Superiours; which Donatars may do whatsoever the Superiour himself might, because they Act by his Right, and are in effect his Assigneys: So that if gifts be granted to more Donatars, the first Intimation or Diligence will be preferred.

Gifts of Ward and Non-entry were accustomed of old, to be granted by the Exchequer together, bearing, not only for bygones, but for time coming, till the Entry of the [...] Heir or Heirs: And albeit Gifts of Ward run still in the same Style; yet by the Acts and Customs of Exchequer, Ward and Non-entry are several Casualities, and pass by several Gifts; and notwithstanding the foresaid Clause, the Gift of Ward reacheth only during the time of the Ward, and three terms thereafter, if the Lands run in Non-entry; but ward was not found to give right to three Terms full Rent, here the Donatar was not in Possession during the Ward, Novemb. 2. 1680. Laird of Dun contra Viscount of Arbuthnet. And albeit the Gift contain relief, yet that Casuality, as Hope observeth, is always demanded by the Exchequer, and counted for by the Sheriff, being but a small duty of the retoured mail, as the gratuity to the Superiour at the Vassals Entry: In that same place, he saith, that under the Gift of a simple Ward, is not comprehended Taxed Ward, which being Taxed, is as a Feu duty, and rather as a part of the Kings ordinar Revenue, then a Casuality: Upon [Page] which ground, the Earl of Kinghorn, as Tutor to the Earl of Errol, having gotten a gift of his Ward, without mention of Taxt-ward, he was necessitat again to take a new Gift for the Taxt-ward, and gave a considerable Composition, and did not adventure to put the matter to debate before the Lords of Session, whether his first Gift would have been extended to Taxt-ward or not.

37. The fourth Casuality of Superiority, is the interest of Superiours in the Marriage of their Ward-vassals, which doth arise from the Nature of the Feudal Contract in proper Fees, whereby the Vassal oweth the Superiour, faithfulness and Military Service, and is thereby in his Clientele, which could Import no more then that he should not Contract affinity by Marriage, with any that were in enmity with his Superiour; for thereby his Fidelity might become suspect, which would take place, not only in the first Marriage of the Vassal, but as to any subsequent Marriage, though he had Succession by a former Marriage, and might take place in the Marriage of the Vassals eldest Son, even in his life, and might be considered as an Act of Ingratitude, if the enmity betwixt the Superiour and the Family with whom the Vassal was to marry, were known to him, and might import a breach of his Fidelity, if the Superiour did prohibit him to match with that Family which was in open and known enmity to him: The Superiour might also have Interest in his Vassals Marriage, when he had the custody of his Person, as a Tutorial Trust for the good of the Vassal.

38. But Time and Custom hath given Superiours a far different interest in the Marriage of their Vassals, here and in England, of which there is no mention in the common Feudal Customs, nor is it in use in other Kingdoms; for albeit, by the Custom of France, female Heirs in the Kings Custody, must require the consent of the King or his Procurator, yet the not doing so, infers not the value of their Marriage, as in England; and with us it is become a power in the Superiour, to exact out of his Vassals Fee, the value of a Tocher, suitable to the whole means and Estate of the Vassal, if he Marry without his consent, and the double value being solemnly required, to Marry a suitable person without disparagement, if he doth not obey, but Marry another; this Custom was introduced in England, in the Reign of King Henry the third.

It is commonly held to have been introduced in Scotland, in the Reign of King Malcolm the second, who gave out all his Lands in Scotland in Fee, and reserved to himself, for the ordinar support of the Royal Dignity, the Ward and Marriage of his Vassals, whence the marriage was designed as a profit to the Crown, and by example was derived to the Subjects, who giving their Lands Ward, were understood to give the same with the like Priviledge of the value of their Vassals Marriage, which doth never take effect till the Vassal be Major; for during his Minority, his Superiour or his Donatar, have the full profites of his Fee, over and above the expenses of his Education, and mentainance according to the Vassals quality, if he have no other Estate which is not Ward, the profits whereof may be sufficient to Entertain and Educate him; or in so far as these profits come short; for no Minor is oblieged to spend his Stock upon his mentainance; nor may his Tutors or Curators securely do the same.

Therefore the true Interest of Superiours in their Vassals Marriage, should now be the Tocher suitable to the Vassals Estate, Marrying after his Predecessours [Page] death, if he had not been Married before; for the value of the Marriage being due but once, and not for every Marriage, if the first Marriage fall not after the Defunct Vassals death, it should not be demanded, nor any account called for of the profite of the Marriage, falling before he could be Vassal, though it hath been claimed, where the Vassal was Widow at his Predecessors death, having no Children of the former Marriage; but it came not to be determined by the Session, though it was demanded by the Commissioners of the Thesaury, from Sir Robert Barcley of Pearstoun.

And albeit the Vassal never marry, yet if he be solemnly required by Instrument to Marry a suitable Person without disparagement, if he live to his majority, though he never Marry, his Fee will be lyable to the value of his Marriage, albeit he willingly ly out uninfeft, not by the Superiours fault, but his own; for though Creditors have a remeid by a Charge, to enter Heir within fourty dayes, with certification, that all execution shall pass, as if the debitor were Entered; yet there is no Reason or Practice to extend the same to Superiours, albeit Craig think that it may be so extended, and that the Marriage is not due, unless by that means, the Heir required to Marry be Entered, or at least charged to Enter; but by a solemn debate and Decision betwixt French of Frenchland and Thorniedykes, upon the 11. of July 1622. the Lords found that the Marriage was due, if the appearand Heir became Marriagable, though dying in minority, when they were not Entered Heirs: But in that case, the Heirs were Female; and it does not appear whether they were past fourteen, at which time their Ward ceasseth, and they are in the same case as men, when they pass twenty one; neither doth it appear whether they were required to marry or not; and therefore, we shall not thence conclude, that a marriage is due by the appearand Heirs being marriagable, though dying uninfeft and in minority, against which, Craigs opinion is very positive, l. 2. Dieges. Yet from this Decision, and from that betwixt Dickson of Headrig and the Kings Donatar, decided, November 14. 1635. we may conclude, that there may be more marriages exacted by the death of one Ward-vassal, having several appearand Heirs, of which none were Entered; and it being debated, whether the marriage would be due, though the Vassal died unmarried and unrequired to marry, in the case of Archibald Campbel contra Laird of Mcnaghtoun, Decem. 3. 1677. the Lords proceeded no further, but did only determine, that the single value is not penal but favourable.

39. And therefore, the single value of the Vassals marriage needs not be pursued penally, because the Vassal married without the Superiours consent, or being required, and living till majority, though not Entered by his fault, did not marry; but may be pursued as a Casuality, and profite due to the Superiour, for the Vassals marriage, marrying after his Predecessors death: Or being required to marry, did live unmarried past his majority, or married without his Superiours consent; by which, all the unhandsome formalities, accustomed to reach a double value, might be abated; for the single value would be due, if the Vassal live to majority and never marry; and if he did marry without the Superiours consent, the double would be due; and for obtaining the Superiours consent, it would be necessarly consequent, that the Vassal should confer with the Superiour, and propose to him whom he inclined to marry, and if the Superiour consented not thereto, he should condescend upon his reasons, and offer another fitter person.

[Page]40. All which being exprest by Instrument, the Session would judge who were in the right, and would be very favourable in the single value, but would not sustain the double, if the Superiour did without reason refuse his consent, without necessity of the ordinary form of Requisition, offering a particular person, and opportunity of a visit and conference, and a day and place to marry, not being within thirty days; and a second Instrument, bringing that person to the place of conference; first to offer her consent, so that if the Vassal at the first fight did demand of her if she would marry him, she behoved immodestly enough to consent without acquaintance, without consideration or affections; and then openly to appear at the Church, and offer her self again, which no fit and modest person would be induced to do; and therefore, these are meer formalities, without any design to offer a suitable person; so that there is no reason the Superiour should lose the single value, for any defect in these formalities; nor that he should have the double value for using the same without any just design, or desire of acceptance; and therefore, the double value hath been seldom found due, and so takes no place without the solemnity of an Instrument of Requisition by a Nottar, observing all the formalities of producing the Donatars Gift, if he do personally require, and both the Gift and Procuratory, if he require it by his Procurator, and the offering of a person by name, and an unsuspected place for view and conference, and another day and Church for solemnizing the marriage, and at that day a new Instrument presenting the Woman, and waiting for the Vassal till one of the Clock, wherein there is the greatest exactness observed as to the double value; but there was no necessity found to make the requisition to Curators, whose consent is not required to the marriage of Minors; as was found in the case of the Heirs of Thorniedike. But the double value was not found due, where the Superiour or his Donatar appeared not at the day appointed, for interview, Hope, marriage, Earl of Angus contra Hugh Nisbit: Nor where the Instrument of requisition mentioned not the Gift produced, though it was offered to be proven by witnesses, that it was truly produced, albeit it was not called for, March 8. 1627. Earl of Rothes contra Balsour, Hope, marriage, Drummond contra Laird of Manner. The double value was not sustained, because the place appointed for interview, was the Donatars Lodging, July 3. 1622. French contra Heirs of Thorniedike. Neither was it found effectual till the Heir married another, and after the Ward was ended, December 20. 1609. and January 27. 1610. Laird of Kilburnie contra Heretrix of Fairlie. Neither was the double value found due, where the Heir remained several years marriageable, and the Requisition was made after the Heir was aggreed to be married with another, and the day of the marriage was set, albeit the Contract of marriage was not subscribed, & separatim, because the woman offered, was agreed in marriage with another man, and both were found probable by the communers, Feb 22, 1678. Drummond of Machanie contra Stuart of Innernytie.

And even when the double value is sustained, it makes but a small addition ordinarly to the single value, which is two or three years free Rent, or Annualrent, deducing Liferents; or Annualrents real or personal of the vassals hail Estate, and the double value adds ordinarly but a fourth.

41. The single value is due though the vassal was married before his Predecessors death, being by a fraudulent precipitation, the Predecessor being then moribundus, and dying within some few days, and no previous Treaty or Proclamation, February 20. 1677. Lord Thesaurer and Advocat contra [Page] Lord Colvil. There are several cases to the same purpose, observed by Sir John Skeen.

42. There is no regard had in the modification of the value of the marriages, what Tocher the vassal actually got, or any personal consideration, but only an ordinary Tocher for such an Estate; it was modified to two years and an half, in the case of Innernytie, and to two years in the case of Zeaman of Dryburgh, July 13. and 28. 1680. in which case the vassals Rent, and Annualrent, being referred to his oath, he did depone thereupon, Qualificate, that he had so much debt, and such burdens, which was not sustained by way of quality, without Probation.

Neither is the marriage of Heirs Female esteemed the worth of their Estate, which ostentimes is disponed, nomine dotis, but only such a sum for them all, as would have been modified for the Marriage of one man, as was found in the case of the Heirs of Fairly and Thorniedikes, and so was found, June 14. 1673. Mr. George Gibson contra Janet Ramsay.

43. But the Marriage of Heirs is debitum fundi, and the Tennents Goods may be Poinded therefore, for their Terms mail; or otherways the Groundright and Property may be Appryzed, both being done after the Ward is ended, which in men is at the age of twenty one compleat; and in Women, at the age of fourteen compleat. This Appryzing or Adjudication, will be drawn back to the time that the marriage was due, and preferred to any legal diligence since that time; as all Appryzings, super debito fundi, are, December 17. 1673. Patrick Hadden contra John Moor. But it doth not affect the appearand Heir personally, not being in Possession, nor is the Tocher he got after his Predecessors death, accounted as a part of his Estate, being marriageable before that time, but only the Estate he had when he married, or was required to marry, January 5. 1681. Laird of Dun contra Viscount of Arbuthnet.

44. The value of the marriage is, jus indivisibile, and belongs not to every Superiour, of whom the Vassal holds Ward-lands, but to the most ancient Superiour.

45. The King by his Royal Prerogative hath the Marriage of the Wardvassal, whensoever he becomes immediat Superiour, if before the marriage fell due, though the Lands holden of the King were Taxed to a small sum for the marriage, July 19. 1672. Earl of Argile contra Mcleod. And though the Vassal hold some Lands of the King simple Ward, and others Taxed Ward, the full value is due; but the Taxed value is deduced as a part of it, February 24. 1675. Kings Advocat contra Laird of Innernytie: Yea, a marriage was found due by a Vassal in the principality, albeit he held Lands immediatly of the King, Taxed Ward, in respect of the non-existence of a Prince; during which, the King acts not as Administrator or Curator hareditatis jacentis, of the Prince, but proprio jure, as Soveraign Prince, and Stewart of Scotland, Jan. 1680. Sir William Purves contra the Laird of Lus.

46. A marriage was found due by the Heir of an Appryzer, who died Infeft, albeit within the Legal, unless the Appryzing were proven to be satisfied in the Defunct Vassals time, July 13. 1680. Kings Advocat contra Zeaman of Dryburgh.

[Page]To come now to the exceptions exclusive of the value of marriage, it was not found relevant, that the Vassal died in the War, by the Act of Parliament, 1641. seing there was a pacification after that Act, and it was not renewed thereafter, July 9. 1672. Lord Hattoun contra Earl of Northesk. Neither because the Vassal died in the Kings Service, seing the Acts to that purpose were only temporary, January 20. 1681. Captain Paterson contra Tweedie of Whitehaugh.

The next exception is the consent of the Superiour, which was not inferred by the Superiours being present at the marriage, as was found in the case of the Earl of Argile contra M`naughtoun: Nor by receiving a Vassal upon Appryzing: Neither by Entering the Vassals Heir though without reservation; these being Acts to which the Superiour might be compelled by Charges of Horning upon Appryzings, or on Precepts out of the Chanclery upon retours, even though these were not actually used, but that the Superiour gave Precept of clare constat; yea, his subscriving witness in the Vassals Contract of marriage, after gifting of the same, was not sustained, Feb. 25. 1662. [...] contra Keiths. So that it seems no less then a consent as Superiour, will exclude the marriage.

The most exceptions are upon the informalities of the Instrument of requisition.

But the most ordinary and material exception is disparagement, which doth not consist in equality of Estate or Tocher, but in the inequality of Blood, wherein if a Zeaman be offered to a Burgess, or a Burgess to a Barron, it is commonly interpret disparagement; but a Barron to any Superiour Dignity of a Subject, imports no disparagement: Or if there be great disparity in age, or that the party offered, hath any considerable defect, as the want of a Member; or have any loathsom or perpetual disease, which are all the grounds of disparagement, mentioned by Craig; buthe thinks not Claudication to infer disparagement, and it is like, as to the single value, the disparagement behoved to be very gross; but as to the double value, any just ground of aversion seems to be be sufficient, as deformity, even hardness of Favour; or any vulgar reproach of Inchastity, Insobriety, or other Vice: It will also be a temporal exception, if requisition be made before the Vassal be mariageable, which is the age of fourteen compleat in men, and twelve compleat in women, which may become an absolute exclusion, if the party so required die unmarried; and though the party marry to another, it will but infer the single value.

The value of marriage is due to the Superiour, if the Heir was not married at his Predecessors death, whether minor or major, marrying without consent of the Superiour or his Donatar, or that being or becoming major, and required, they marry not at all.

48. The last common Casuality of Superiours, is the Liferent-escheat of the Vassal, when the Vassal is denunced Rebel, for disobedience of the Law, which because it is intimate by three blasts of an Horn, is called Horning, if he continue so unrestored, or unrelaxed year and day, his Liferent is Escheat, or foresaulted unto his several Superiours, of whom he held his Fees; this may seem a penalty for disobedience to Law, and is so as to Fees holden of the King; yet if it had no other ground, the Liferent could not befall to the Superiour, but to the King, whose Command was disobeyed, as Forefaulture and single Escheat do; but the original of it is, that Rebellion is like, Capitis [Page]diminutio, or Civitatis amissio, amongst the Romans, whereby such person cannot stand in Judgement, and they are civiliter mortui, and thereby their Fees become void, and return to their Superiours, and so is declared, Parl. 1535. cap. 31.

49. Liferent-escheat carries the profit of all Fees and Liferents, whether constitute by Conjunct-fee, Infeftments, Terce or Liferent-tack, during the life of the Rebel, having remained year and day at the Horn (though thereafter he be relaxed) during his natural life, even though he be not infeft and entered as Heir the time of his denunciation, July 3. 1624. Moor contra Hannay and the Earl of Galloway. Yea, though there be no Infeftment, if by Contract or Disposition, there be any heretable Right or Life-rent provided, even though there were no Infeftment required, as a Terce by paction without service or kenning, Hope Horning Maxwel and Gordoun contra Lochinvar. So Life-rent Tacks of Lands or Teinds fall under escheat, without prejudice to these who have right to such Tacks after the Life-renters, Parl. 1617. cap. 15. These Tacks befall to the Master of the ground; and Life-rents by Terce or Courtesie, fall to the Superiour of the Land; for these Life-renters are his vassals during life, and owe him fidelity and a reddendo.

50. Whensoever there is not Infeftment actually expede, the denunciation makes not the Liferent to belong to that person of whom the Liferent should have been holden; but to the King, as an Annual-rent due by Contract or Disposition, to be holden of the Disponer, Decemb. 20. 1609. Hay contra Laurie; July 1, 1626. Halyburtoun contra Stewart; January 22. 1675. Menzies of Castlehill, contra Kennedy of Auchtifardel. So likewise, Life-rent Escheat of a Minister causeth his Stipend and Profit of his Manse and Gleib, though locally within Regality, to fall not to the Lord of Regality; but if there be Infeftment, it falleth to the immediat Superior, albeit it proceed upon Disposition containing obliegement for double Infeftments, and that not only till the publick Infeftment be taken, but even thereafter during the Vassals life, January 23. 1624. Meldrum contra Meldrum, seing here the Life-rent was gifted and declared before the publick Infeftment was taken. And likewise an Annual-rent due by a heretable Bond, bearing a clause to infeft the Creditor in an Annual-rent, without mention of particular Lands or manner of Holding, was found to fall in Life-rent Escheat to the Kings Donatar after year and day; but it was not determined, whether if the Sum were payed or consigned, it behoved to be re-imployed for the Kings Donatars use during the Creditors life; whereon, and in the case of redemption of Wodsetts, most of the Lords were of a contrary opinion, July 1. 1626. Haliburton contra Stewart. It was found to be re-imployed for the Superior during the Wodsetters lifetime, June 29. 1661. Tailfer contra Maxtoun and Cunninghame.

51. Life-rent Escheat of the Vassal carries the Life-rent of the sub-vassal, falling after the denunciation of the Vassal, and being year and day at the Horn, February 26. 1623. Clunie contra Bishop of Dunkeld, July 24. 1632. James Ruel contra Laird of Billi; because then the Superiour is in place of the vassal: but where the sub-vassals Life-rent fell before the vassals own Liferent, it was found carried by the vassals single Escheat, February 13. 1661. Symson contra Laird of Moncur.

Life-rent Escheat falleth by the vassals Rebellion, and the year and day subsequent is only allowed to purge the Rebellion by Relaxation, which being used year and day after the Rebellion, hath no effect as to the Life-rent Escheat of such Lands as belong to the Rebel the time of the denunciation, though it have effect as to his Moveables: Therefore, the vassals voluntary [Page] deed prejudgeth not the Superior of his Life-rent Escheat, not only such deeds as are done after year and day from the denunciation, but which are done at any time after the denunciation, if Relaxation be not used within year and day; which is to be extended to these cases

52. First, no Infeftment, following upon a debt contracted by the Rebel after the Rebellion, though the Infeftment be accomplished within the year, will exclude the Life-rent escheat, or prejudge the Superior, if Relaxation be not used within year and day, whether the Infeftment proceed upon the Rebels own Disposition, or upon Apprising; for in both cases, it is the voluntar deed of the Rebel that prejudges the Superiour: For, albeit the Apprising be a deed of Law and necessary, yet it proceeds upon a Debt voluntarily contracted after Rebellion, such Debts will not exclude the single escheat, and therefore ought not to exclude the Life-rent escheat, which was so found, though the Infeftment was granted to a Son and his Wife for a competent Tocher, Spots. Escheat Panmure contra Laird and Lady Ghight. 2. The Debts or Obliegements of the vassal, though they preceed the denunciation, no Infeftment granted by him, in cursu rebellionis, for satisfying these anterior Debts, will exclude the Life-rent Escheat, unless he had been specially oblieged to grant such an Infeftment before the Rebellion; for then the granting of it after, is not a voluntary, but a necessary deed, which he might be compelled to grant, January 23. 1627. James Vallance contra Thomas Porteous: In which case, an Infeftment for an onerous debt before Rebellion, was not found sufficient to exclude the Life-rent, seing there was no anterior Obliegement to grant that Infeftment; which is the more confirmed by the parity of the case of Inhibitions, which annull Infeftments after the the Inhibition, though granted for satisfying anterior debts: but if there was an anterior Obliegement, the Infeftment conform thereto, though after the Inhibition, is valid, as not being a voluntary, but a necessary deed, Vide Title Infeftments, § Inhibition.

Thirdly, Dispositions and Obliegements to grant Infeftments anterior to the Rebellion, and Infeftment thereupon posterior, do not exclude the Liferent Escheat, unless the Infeftment be taken in cursu rebellionis; and so a Contract of Wodset long before Rebellion, clad with thirty eight years possession before denunciation, was not found sufficient to exclude the Life-rent Escheat, December 3. 1634. Mr. James Lindsay contra Scot. Neither a Charter and Inhibition thereupon, seing there was not Seasine taken within year and day, December 3. 1623. Jonet Herris contra Glendinning. Neither a base Infeftment before denunciation, there being no possession thereon till year and day, March 19. 1633. Laird of Kentoun contra Blackcadder; February 21. 1667. Robert Miln contra Clerkson.

53. Fourthly, Apprisings or Adjudications, though for a debt anterior to the Rebellion, exclude not Life-rent Escheat, unless Infeftment or Charge against the Superiour be used thereupon within year and day after Rebellion; For without Infeftment or Charge, Apprising is no real Right: And therefore, though it were led before Rebellion against a vassal, if Infeftment or Charge follow not in cursu rebellionis, it excludes not the vassals Life-rent Escheat to fall to the Superior or Donatar, July 14. 1622. Rollo contra Laird of Kellie, albeit Infeftment follow upon the Apprising before the Life-rent was gifted, Hope Horning and Escheat, Sir Patrick Murray contra Adamson. Neither did an Apprising upon a denunciation, begun in cursu rebellionis, but not perfected, exclude the Life-rent Escheat, February 16. 1631. Cranstoun contra Scot. But if Apprising or Adjudication be led for sums prior to the rebellion, and be compleat by Infeftment or Charge in cursu rebellionis, albeit they be deduced after rebellion, they exclude the Liferent Escheat, as is insinuat in the Limitations [Page] in the former decisions, and was so decided, February 13. 1611. Tenants of Lochauld contra Yonmig and Sir George Arskine.

Liferent-escheat being one of the Casualities of Superiority, only introduced by statute or custom, there is this difference of that which hath been said of Non-entry, Ward or Recognition, which are Casualities arising from the nature of the feudal Contract, that Liferent Escheat flowing not thence, but upon the Vassals rebellion and disobedience to Law, which is not against the Superior or any delinquence against the feudal Contract, the Vassals Liferent Escheat gives the Superior no more then the Vassal himself had the time of his denunciation, and so all real Rights compleat by possession, whether Infeftments or Tacks, are not prejudged by the subsequent Life-rent Escheat, as was found, January 19. 1672. Mr. William Beatoun contra Scot of Letham. In Feues, so far as is allowed by Law, the Vassals Life-rent will reach no more then the Feu-duties of Feues set by the Vassal before his denunciation: But any subaltern base Infeftment, not cled with possession before rebellion, is excluded by the Life-rent, March 19, 1633. Laird of Rentoun con. Blackcader; Feb. 21. 1667. Robert Miln con. Clerkson; in which case it was found, that possession not being attained in cursu rebellionis during the year, it was not effectual. If a [...] be set, without diminution of the Rental, for the old Tack-dutie, it will not be excluded by the Life-rent, though it be set after denunciation, as was found in a Tack after denunciation within the year, Hope, Horning, Charters contra Mclelland; Spots. Escheat, Tillibairn contra Dalziel. The like of a Tack set to a kindly Tenant, Hope, Horning, Paton contra Drumrash: For, in such cases, setting of Tacks is a necessary administration for the good of both Superiour and Vassal, and to shun debate concerning prejudice and unanswerable Tack-duties, as in other cases of administration of beneficed persons; so if there Tacks be set without diminution of the Rental, they are good.

54. Liferent-escheat extends it self to all Fees, whether holden Ward, Blensh or Feu, but not to Burgage and Mortification, because the Fiar is a Society and Incorporation, which dieth not; and therefore, have no Liferent-escheat: And though Denunciation may be used against the persons administrating the same, even for that which is due by the Incorporation, and as they represent it; yet that being supposed their fault and negligence, doth not prejudge the Society, as Magistrates of Burghs, Masters of Colledges, Incumbents in common or collegiat Kirks, Chapters or Convents, sede vacante.

55. But where a Beneficed person having a distinct Benefice, or a Stipendary, is denunced for his own debt, his Liferent-escheat falleth, and therewith the profites, during his life or incumbency, because though the Fee be not in him, yet he hath a distinct Liferent thereof, which is not so in the former case, where both Fee and profites are in the Society.

56. Liferent-escheat is made effectual by a general declarator, finding the Vassal to be denunced, and year and day past by production of the Horning, but there is no necessity to prove him Vassal, unless he be a singular Successor in the Superiority, not acknowledged by the Vassal; or in case the vassal disclaim, herein is no mention of profites; but this Declarator being obtained, the Fee is void from the Denunciation; and the Superiour or his Donatar have access to the Mails and Duties thereof, and to set and remove the same, and to do all deeds accustomed by the vassal himself, in the same manner as Ward: This useth to be done by a special Declarator, which is now accustomed to be in one Process with the general Declarator. As to the Profites, Vide Title 25.

TITLE XV. Annualrent where, of Pensions, and Poinding of the Ground.

[Page]

1. Description of Annualrent.

2. Therise of Annualrent.

3. The manner of constituting Annualrents.

4. The kinds of holding of Annualrents.

5. Liferent-escheat of Annualrenters.

6. Kinds of Annualrents amongst the English.

7. The difference of Feu Annuals, Ground Annuals and Top Annuals.

8. Poinding of the Ground.

9. The extent thereof.

10. Who must be cited in Poinding of the Ground.

11. The effect of Poinding the Ground as to Ground rights.

12. The Order of Poinding Moveables, by several Annualrenters.

13. Annualrents are effectual, personally against intrometters.

14. Annualrents are moveable as to bygones.

15. Extinction of Annualrents.

16. Ecclesiastick Pensions affect the Benefice:

17. Pensions by secular Persons, how far effectual.

18. The Kings Pensions are not Arrestable.

[Page]WHETHER Annualrent by infeftment be a distinct Right of property; or whether it be only a Servitude upon the ground, leaving the name of Property to the ground Right, as Craig esteemeth, l. 1. Dieges. 10. §. last. it is not worth much Debate; but in either case it falleth fitly here under Consideration, after Property and Superiority, and before unquestionable Servitudes.

1. Annualrent is so called, because it returneth to be payed every year at one or two Terms; and therefore it is called Rent; and because it is yearly so payed, it is called annualrent.

The English extend these Rents to Rents due by Lease or Tack; but with us, annualrents are only Constitute by Infeftment; and though the Disposition or provision thereof, may be sufficient against the Constituent or his Heirs, it is not effectual against their singular Successors, and is no real Right of the Ground.

2. The Rise of annualrents is from the Prohibition of Usury in the Canon Law, which they extend to the taking of any annual, or profite for Money or any other thing, in Lieu whereof those who were unfit for Trading, or mannaging the Property of Lands, bought annualrents, either irredeemably, or under reversion, it had the same effect with the personal obliegement for annualrent; and therefore, it is still retained, where annualrent according to the rates prescribed by Statute or Custom is allowed by personal obligation, and is not Usury; and the Infeftment of annualrent, is in security thereof.

Annualrents may be constitute, either of Money, Victual, or other Fungible, and that either in Fee and Heritage, or in Liferent; and either by a several Infeftment, or by Reservations in Infeftments of Property: In which cases, the Proprietars Seasine serveth both.

3. Infeftments of annualrents in most things do agree with the Infeftments of property, in the manner of Constituting thereof, by Charter or Disposition and Seasine; in which the symbol and token of the Delivery of Possession of the annualrent, when Money is, a penny Money; and when Victual, a parcel thereof. Yet an old Infeftment of annualrent was sustained, though it bore, only Seasine to be given, according to the solemnities used in such cases; albeit it was given thirty six years before, and no Possession thereby, March 23. 1631. Somervel contra Somervel of Drum. And being once validat by Possession, it was not excluded by the Infeftment of Property of the present Heretor, though the annualrenter shew not the Infeftment of him who Constitute the annualrent, with the Proprietar his authors Infeftment; so that it did not appear whether both Infeftments flowed from one common author, seing the Infeftment of annualrent [Page] was prior to the Infeftment of Property, it was not excluded thereby, February 7. 1667. Smeitoun contra Tarbet.

4. Annualrent may be either holden Ward, or Blensh, or by Mortification, and useth not to be holden Feu or Burgage, and is most frequently Blensh for a Penny; but if no holding be exprest, it is held to be Ward; and therefore, the Casualities of the Superiority befall to the Superiour, according to the kind of the holding, as in Property; so that being Ward or Blensh, it falleth in Non-entry, in the hands of the Superiour, without Declarator, and so ceasseth during that time, even though the constituent as Debitor, be Superiour, though he may be lyable personally, upon any personal obliegement, for paying thereof, March 23. 1631. Somervel contra Somervel.

Annualrents may be either base, or publick by Resignation or Confirmation, as to the requisits to accomplish it when base, it is fully shown before, Title 13. §. Base Infeftments.

5. So likewise annualrent falling in Liferent escheat, belongs to the Superiour, during the annualrenters Life; and if it be redeemed, the Profite of the Money comes in place thereof, as followeth, a pari, from a Wodsett redeemed, which was fallen in Liferent-escheat; and therefore, the Money was ordained to be imployed upon annualrent for the Superiour, during the Life of the Wodsetter, June 29. 1661. Tailziefer contra Maxtoun and Cunninghame.

6. The English distinguish Rent in Rent-Service, Rent-Charge, and Rent-Seck; Rent-service is that which is due by the reddendo of an Infeftment of property, as a Feu or Blensh duty; this is a part of the Infeftment of Property, but hath the same effect by poinding of the Ground, as other Annualrents; Rentcharge is that which not being by reddendo, yet is so Constitute, that the Annualrenter may, brevi manu (his Terms being past) poind the Ground therefore, we have no such Annualrent, for we admit of no distress without publick Authority; but all execution must proceed by Decreet and Precept.

Rent-seck is so called, as reditus siccus, because it is dry, having no effect without Sentence; such are our Annualrents.

7. There is a distinction of Annualrents mentioned, Par. 1551. c. 10. in feu Annuals, Ground-annuals, and Top-annuals, which Craig thinketh to quadrat with the English distinction of Rents: But the consideration of that Act and Ordinance, in relation to the Articles there exprest, will make it appear, that the case being there of Tennents within Burgh, the Feu Annual is that which is due by the reddendo of the Property, either of the Ground before the House was built, or the Ground and House together.

Ground-annuals is a distinct several annualrent, Constitute upon the Ground, before the House was built; and the Top-annualrent is out of the House, which is the more clear, that when such Tenements were destroyed, the least abatement was of the Feu-annual, or Feu-duty; and therefore, the Proprietar repairing the Tenement, was to pay the Feu-annuals, with abatement of a sixth part; and the Ground-annual, as being more ancient then the Topannual, [Page] [Page] [Page] suffered an abatement of a fifth part, and the Top-annual of a fourth part.

8. The chief effect of Annualrents, either by reddendo in Property, or several Infeftments, is by poinding of the Ground, upon which the Annualrent is constitute, and that by an ordinary Action, whereby the Annualrenter pursueth upon Letters to Poind and Appryze all Goods upon the Ground, for payment of his Annualrent; and also for Poinding and Appryzing the Groundright and Property it self.

As to the first member, the English Custom extendeth it to all goods that shall happen to be upon the Ground at the Term, if they have but lain down thereupon.

And our ancient custom extendeth it to all Goods of the Possessors, & invecta & illata, by them, without retrinching it to what the Tennent is due to the Proprietar, Constituent of the Annualrent; and the Poinding in this case was extended to purge a Spuilzie, November 21. 1628. Watson contra Reid. June 26. 1628. Laird of Ednem contra Tennents of Ednem, where the pursuit was rather declaratory to establish the pursuers Right, then for present Possession or Execution.

But thereafter the Lords have been accustomed to interpose with Chargers upon Decreets of Poinding of the Ground, to restrict the same in favours of Tennents, to their Terms mails from the Statute, 1469. cap. 36. bearing, that the Cattel of poor men, Inhabitants of the Ground, shall not be poinded for the Landlords debt, where the Mail extends not to the avail thereof; and though the Act seemeth Correctory of an evil Custom, to poind the Tennents Goods for the Masters debt, yet the same reason, equity, and favour of their Rusticity, craves the Extension of it to these debita fundi; and therefore, it was so restricted, the Tennents producing their Tacks, or offering to depone upon their Rent summarly, without taking a Term; but it was not found requisite that the Annualrenter should either lybel or prove the quantity of the Rent, February 14. 1674. Lady Pitfoddels contra the Laird of Pitfoddels and Tennents: In which case it was found, that if the Tennents the time of the poinding had compeared and produced their Tacks, or had offered to make Faith what the Rent was, if more had been poinded for, then equivalent to their Rent, it would have been a Spuilzie; but they should not only depone what their Rent is, but what is resting of it; for the poinding of the Ground, or the Brieve of distress, is only restricted by the Act of Parliament, for remeid of that inconvenience, that was sometime in use; that where sums are to be payed by the Brieve or Distress against the Lord owner of the Ground, the Goods and Cattel of poor men, Inhabitants of the Ground were taken and distrenzied for the Lords debt, where the Mail extends not to the avail of the debt; and therefore, it is ordained, that the Tennent shall not be distrenzied for the Lords debt where the Mail exetnds not to the avail of the debt; further then his Terms Mail extends to. And therefore, in so far as the Tennents Mails are resting, the poinding may proceed: And likewise for the current Terms, though not yet come: that is, if the Rent be Victual, payable all at one Term, the poinding may proceed for the value of the victual, according to the Rate of the Victual, communibus annis, in the several places of the Countrey, as men use to buy, or Wodset, or by the feirs of that place: Neither cantacks absolutely secure the tenents, if they be posterior to the Infeftment of Annualrent; in which case, if they [Page] be within the true value of the Land, the [...] or others poinding, pro debitis fundi, cannot be prejudged by Collusive Tacks, or such as are granted with considerable diminution of the true worth: So that the poinding may proceed for one year or Terms Mail, as the Lands are worth the time of the poinding. But in this case the poinding cannot proceed summarly, till it be cognosced by Declarator, or Reduction of the Tacks, which may frequently occur, Tennents being oft accustomed to suspend in Decreets for poinding the Ground. Poinding of the Ground was found to take no effect against Corns, standing upon the Ground, having been poinded before by a third party, for a Debt, Hope poinding, Paterson contra Patrick Adam.

10. In poinding of the Ground, the Proprietar the time of the Summonds, must be called, albeit his Infeftment be base, but not the Superiour, January 19. 1636. Oliphant contra Oliphant. And is sufficient to call the Wodsetter without the Reverser, February 1. 1631. Gilbert Williamson contra Hendrie Cunninghame. The Tennents also must be called, in so far as concerns their Goods, but the present Heretors, and Tennents being once Discerned, the Decreet will be effectual against all singular Successors, and subsequent Tennents without a new Decreet of Transferrence, Hope, poinding of the Ground, Forrester contra Tennents. November 21. 1628. Watson contra Reid. June 26. 1662. Adamson contra Lord Balmerino. But poinding of the Ground upon Annualrents may proceed summarly, without declaring the Right in a petitorie Judgement, though the Annualrenter hath not been in possession for seven years; and a posterior Annualrenter in possession seven years, was not found preferable, because Annualrents being debita fundi, have neither prejudice nor profite by Possession, as in a possessory Judgement, which is only competent upon Infeftments of Property or Tacks, January 9. 1668. old Lady Clerkingtoun contra Clerkingtoun and the young Lady.

And a poinding of the ground may proceed against the appear and Heir, without a Charge to enter Heir, January 2. 1667. Oliphant contra Hamiltoun.

11. As to the Ground-right and Property of the Land, Appryzing upon Infeftment of Annualrent is not only effectual against the Proprietar, but against any other Appryzing for personal debt, and Infeftment thereupon, being after the Original Infeftment of the Annualrent; though before the appryzing thereon, Hope, poinding and appryzing, Tennents of Clunie contra Tarachtrie, Slowand and Glendoning. And it is the singularity of this Right, that the Infeftment of Annualrent being once Established, appryzing thereupon will be preferred to all interveening Rights and Diligences, even though they proceed upon posterior Infeftments and Annualrents. And though by the late Act of Parliament, Appryzings within year and day, come in pari passu, there is an express exception of Annualrents; and therefore, an appryzing proceeding upon a personal Obliegement and Requisition, both for Principal and Annual, and within year and day of other appryzings, the Appryzer was allowed to pass from his appryzing, as to the Annualrents prior to the Appryzing; and these were preferred to all the appryzings, and his appryzing was brought in, pari passu, for the Principal sum and Annualrents after the appryzing, December 22. 1671. Campbel contra Yea, an Infeftment of Annualrent being betwixt the first effectual appryzing, and the subsequent appryzings within year and day, was brought in, pari passu, with these appryzings, as to the whole right, as being in a matter dubious, upon a new Statute, the Annualrenter having rested thereupon, and not having appryzed [Page] for his principal sum; which if he had done, he would clearly have come in, pari passu, February 6. 1673. Brown of Colstoun contra Edward Nicolas.

There is a case proposed by Sir Thomas Hope, viz. If one having Right to some years of an Annualrent by Liferent, or otherways should appryze for these years, and that appryzing expyre, whether that appryzing expired will carry the right of Property, not only from him who constitute the Annualrent, but from the Fiar of the Annualrent himself, so that the Infeftment of annualrent should become extinct, which seems to be resolved affirmatively, because of the nature of the Right; for the Infeftment of annualrent, being jus sed ignobilius, becomes extinct, if the annualrenter there upon do appryze the Property, and be Infeft: and therefore, whoever appryzeth for years of the annualrent, the Infeftment thereof, unless it be taken away by satisfaction, or redemption, extinguisheth the Infeftment of annualrent, without distinction, whether the appryzing be led for any years belonging to the Fiar, Liferenter, or any other: and whereas the difficulty seems to be, that the Liferenter cannot prejudge the Fiar of the annualrent, or appryze more from the Fiar of the Land than he had; It is answered, the Fiar needs not be prejudged, because he hath a virtual Reversion, and might thereby redeem from the Annualrenter and take the Liferenters Right: Neither doth the appryzing exclude the annualrent it self, as to years posterior, by the Tenor of the appryzing, but by the nature of the right constitute to that very end, that an Apprising for any years of the Annualrent is drawn back ad suam causam, viz. The original Infeftment of the Annualrent; and so excludes all posterior Infeftments: and therefore, extinguisheth not only these, but even the Infeftment of Annualrent it self ceaseth, by accession of the property, ut juris nobilioris; but if the Fiar of the Annualrent were neglective in so dubious a case, it is like the Lords would repone him, satisfying the Liferenter. In the case of competition, the Infeftment of Annualrent it self will be preferred to the posterior Rights, though no Apprising followed, January 29. 1635. Sir James Hamiltoun of Brownhill contra Wilson. Infeftments of Annualrents have the priviledge and preference, though they be made use of by way of competition, without Apprising thereupon: Yea, though requisition was made, and an Apprising led upon the Sum whereunto the Annualrent was accessory, yet it was found, the Appriser might, pro loco & tempore, pass from that Apprising, and upon the Annualrent it self be preferred, January 24. 1663. Robert Graham contra John Ross.

12. But as to apprising of Moveables or Rents, the Lords use in competitions to give so much time to the first Annualrenter, and so to the rest after each term, that they only may poind; and so they decerned the first Annualrenter to poind within twenty dayes of each term, and the second within the next twenty dayes, Feb. 15. 1662. Ladies Mouswall elder and younger, competing. The like allowing the first Annualrenter fourty dayes after each term, July 26. 1662. Sir John Aiton contra Adam Wat. But as to the Apprising of the Property, the first Annualrenter may apprise when he pleaseth, and then is preferable to all others; but the regulating of the poinding of Moveables is in favour of the poor Labourers. The like, June 26. 1662. Adamson contra Lord Balmerino, where it was found, that the Annualrenter might affect any part of the ground in solidum, albeit now belonging to several Heretors; but so, as the Heretor of the ground affected, behoved to have Assignation to the Decreet for obtaining relief.

[Page]13. Annualrents long ago had no effect but poinding of the ground, and could not come in to hinder Arresters of the duties for the Proprietars debt, March 24. 1626. Gray contra Graham; but thereafter were ordained to be a sufficient Title against all intromettors with the Duties personally, March 15. 1637. Richard Guthrie contra Earl of Galloway. Annualrents were found lyable to publick Burdens, proportional with the superplus Rent belonging to the Fiar, June 23. 1675. David Bruce contra James Bruce. This annualrent was not for security of a Stock. The like was found of a Liferent Annualrent, June 18. 1663. Margaret Fleming contra James Gillis.

14. Annualrents, as to bygones, are moveable and so arrestable, and belong to Executors, December 15. 1630. Ogilvie contra Ogilvie: Yet it will be more competent and suitable to pursue it personally against intrometters with the Rents, or Postessors, then by a real Action of poinding the ground; Annualrents are supprest by Wodset of the Land, or other more noble Right in the person of the Annualrenter, unless that Right were evicted.

15. An Infeftment of Annualrent redeemable, was found extinct by a Renunciation registrat in the Register of Reversions, and that against a singular Successor, though there was no resignation of the Annualrent, January 7. 1680. John Mcclellan contra Mushet. An annualrent was also found extinct, by the annualrenters intrometting with the Rents of the Lands, out of which the Annualrent was payable equivalent to the principal Sum, for security whereof the annualrent was constitute; which intromission was sound probable by witnesses, though it was silver-rent, Feb. 4. 1671. Wishart contra Elizabeth Arthur. And therefore, singnlar Successors succeeding in annualrents, either by voluntary Disposition, or by Apprising or Adjudication, cannot be secure by inspection of Registers, as they may be for Lands; but they run the hazard of satisfaction of the principal Sum for which the Annualrent is granted, wherewith it falls in consequence: For, no provident man will buy an annualrent given for security of a principal Sum, but either upon necessity, for satisfying a prior debt, or upon great advantage; in both which cases, he should take his hazard, Scire debet cum quo contrahit, as all Purchasers of personal Rights must do.

Pensions resemble Annualrents, or the seuda ex camera or ex cavena, mentioned by the Feudists; for thereby, a yearly Rent is constitute to be payed out of the Constituents Lands, generally or particularly: Yet these Pensions, not having Infeftment, have but the nature of Assignations, and so are not valid against singular Successors.

16. Except only Ecclesiastick Pensions, constitute by Prelates, which are valid against their Successors in Office, but not unless they be cloathed with Possession or Decreets conform, in the Constituents life, Par. 1592. cap. 137. And so a Pension granted by a Bishop with power to assign, was found valid to the Assigney, after the first Pensioners death, against the succeeding Bishop, and to be no dilapidation, July 21. 1625. Minister of Kirklistoun contra Patrick Whitelaw; yea, though the Pension bore a power to assign etiam in articulo mortis, December 17. 1628. Chalmers contra Craigievar: But in this case, the Pensioner granting Assignation, reserving his own Life-rent, or to take effect after his death, whereby both might at once have interest therein, the Assignation was found null by exception, though having Decreet conform, and thirty years possession. The like Hope, Assignation, Abernethie contra [Page] Lady Drumlanerk. But now, by the Act of Par. 1606. cap. 3. Archbishops and Bishops are disabled to grant Pensions to affect their Benefices, further then themselves have right to the Benefice, but do not prejudge their Successors in Office. Yet Pensions granted by beneficed persons, are not only due during their life, but out of their annat after their death, February 28. 1628. Bairns of the Bishop of Galloway contra Andrew Couper.

17. Pensions granted by secular persons, though they contain Assignations to the duties of the Lands specially, and have Decreet conform, were found ineffectual against singular Successors in the Land, July 9. 1629. Urquhart contra the Earl of Caithness, December 11. 1662. Andrew Clappertoun contra Laird of Ednem; neither against the Lady Tercer of the Constituent, March 27. 1634. Countess of Dumfermling contra Earl of Dumsermling.

A Decreet conform being obtained against the granter of a Pension, his Tenants and Chamberlains, is effectual against subsequent Chamberlains, without new Decreet or Transference, yet must be transferred against the Constituents Heir and his Chamberlain, though it would be valid, being an Ecclesiastick Pension, against his Successor, December 7. 1630. Earl of Carrict contra Duke of Lennox, Spots. hic, Alexander Weyms contra Chamberlain of the Duke of Lennox.

A Pension, bearing for love and special service done and to be done, was found effectual, though the Pensioner removed and did not that service, his removal being necessary by transportation, March 25. 1629. Doctor Strang contra Lord Couper. The like of a Pension granted to an Advocat, for services done and to be done, which was found valid during his life, though he left Pleading, December 3. 1662. Mr. John Alexander contra Mr. Roderick Mcleod. The like of a Pension, for service done and to be done, though the service was not done when not required: nor was it excluded by the Pensioners pursuing Processes at his own instance against the Constituent, upon a probable ground, though the Constituent was assoiled, June 26. 1678. Mr. William Weir Advocat contra the Earl of Callendar.

18. Pensions granted by the King are declared not arrestable in the Thesaurers hands by Act of Sederunt, June 11. 1613. The reason thereof must be, because such are ordinarly alimentary, and alwayes for the Kings special service, which would be impeded, by hindering payment of the Pension.

TITLE XVI. LIFERENTS, Where, of Conjunctfees, Terces, and Liferents by the Courtesie of Scotland.

[Page]

1. Servitudes personal by the Roman Law.

2. Servitudes personal by our Custom.

3. Clauses of Conquest, of Liferent, or fee of Lands acquired during marriages, how far extended.

4. All Liferents must be salva rei substantia.

5. Liferenters are burdened with aliment of Heirs.

6. Liferents without Infeftment are not effectual against singular successors.

7. The effect of Assignations to Liferents.

8. Liferents are not prejudged by Tacks or other deeds of the Fiar being posterior.

9. What Terms do belong to Liferenters.

10. Conjunctsees.

11. Liferenters by Conjunctsee have all the Casualities of Superiority.

[Page] 12. Terce.

13. Services of Terces.

14. Kenning to Terces.

15. The effect of Terces.

16. The extent of Terces.

17. Exceptions against Terces.

18. Burdens of Terces.

19. Liferents by the courtesie of Scotland.

20. Publick burdens.

FROM the Feudal Rights of Property, we proceed to Servitudes, burdening the [...]; these are either personal or real: Personal Servitudes are, whereby the property of one is subservient to the person of another: Real Servitude is, whereby a Tenement is subservient to another Tenement, and to persons; But as, and while they have Right to the Tenement Dominant, as Thirleage, Pasturage, Ways, Passages, &c. and the like.

Servitudes personal for term of Life, are therefore called Liferents, Servitudes for an indefinite time are such, which either may or uses to be Constitute for a longer or shorter time, such are Pensions Ecclesiastick, Rentals and Tacks, which, though they be in their nature but personal Rights: Yet by Statute or Custom, they have the effect of real Rights, of which hereafter. Teinds also must come in as Servitudes, though they are accounted a distinct Right.

1. The Roman Law divideth personal Servitudes into Usufruct, Use, and Habitation. Usufruct is the power of disposal of the use and fruits, saving the Substance of the thing, which if it be restrained to these persons, and their proper use, without making profite, or disponing to others it is called the use; and because of some special Consideration in the Law of that use of Houses, Habitation is a distinct Servitude from other uses.

2. All Servitudes with us come under some of the kinds before named. Personal Servitudes are either constitute by the deeds of men, or by the Law, which provideth a competent portion to either of the surviving Spouses out of the Lands and Tenements of the other during the Survivers Life; as if the Wife survive, she hath the third of her Husbands Tenements: and if the Husband survive, he hath the Liferent of the Wifes whole Tenements, and that provisione[Page]legis alone. But other Liferents constitute for surviving Spouses, or otherways are provisione hominis: So may the Terce or Liferent by Courtesie be provided, and some things altered from the course of Law; but oftner Liferents are constitute by Conjunctfee, and most ordinarly otherways, which therefore retain the common name of Liferents appropriat thereto, and distinct from Conjunctfees.

3. Liferents are sometimes provided particularly, and sometimes generally for the whole, or such a share of the Conquest, during the Marriage, which though not fulfilled by the Husband in his Life, is effectual against his Heirs, and is not accounted a fraudulent provision, though it be the whole Conquest, even amongst Merchants, yea it was found effectual for recovering the rents of the Conquest Lands without Infeftment, against the Husbands Heir, in the case of the Relict of Johnstoun Merchant in Glasgow. And where a Husband purchased Lands in favours of his eldest Son, being then an Infant, and not to himself, yet his Relict was found to have Right to her Liferent thereof, as being a fraudulent deed in prejudice of the obliegement of Conquest, July 3. 1627. Countess of Dumfermling contra the Earl of Dumfermling her Son. But these provisions of Conquest do not hinder the Husband acquirer to denude himself wlthout Fraud, for any onerous or just cause, as selling for a price, or disponing to Children, whether it be the appearand Heir by ordinary Terms of Contracts of Marriage, to younger Children, or to Wives of subsequent Marriages, June 16. 1676. Katharin Mitchel contra the Children of Thomas Litlejohn. And such a Clause being of all sums acquired during a second Marriage, was found to annul an universal Legacie to the eldest Son of the first Marriage, but not to annul competent provisions to the Bairns of the first Marriage, June 19. 1677. Murrays contra Murrays. The like, January 3. 1679. Mr. Alexander Gibson contra Elizabeth Thomson. Yea, a Clause providing the present Stock and all the Conquest to the Bairns of the Marriage; whilks failing, the one half to the mans Heirs, the other to the wifes Heirs, was found to make the man Fiar, and not to hinder him to provide his whole means, which were very great to his Bairns of a subsequent Marriage, there being no Bairns surviving of the former marriage, December 1. and 21. 1680. Alexander Anderson contra Andrew Bruce. But as to such Clauses, Conquest is only understood where the Husband acquired more then he had the time of the Clause, but not when he sold some Lands and acquired others of no greater value, June 27. 1676. Earl of Dumfermling contra Earl of Callender: yea a Clause of Conquest in a Wifes Contract of Marriage, who was otherways sufficiently provided, was found to be with the burden of the Annualrent of a sum, which the Husband declared under his hand to be a part of the price of the Lands acquired, remaining due to the seller, Decem. 20. 1665. Lady Kilbocho contra Laird of Kilbocho.

4. This is common to all kinds of Liferents, and involved in the nature thereof, that they must be salva rei substantia, which by Statute is especially extended to Conjunctfiars and Liferenters, that they must be countable, and find surety not to wast or destroy the Biggings, Orchards, Woods, Stanks, Parks, Meadows or Dovecoats, but that they hold them in such like kind, as they receive them, Par. 1491. cap. 25. which is confirmed and declared to proceed upon twenty one days by Sheriffs, Bailies of Burghs or Regalities, under pain of Confiscation of the Liferent-right to the Kings use, Parliament 1535. cap. 14. And though the Narrative of the Statute expresseth Conjunctfiars and Liferenters, giving Caution as being most ordinary by provision of men; yet [Page] the Statutory part is general, at least may be extended to Terces and Liferents by the Courtesie. So a Liferenter was Charged Summarly to uphold the [...] Liferented, and to leave it in as good case as she found it, without precognition, how it was the time of her Entry, March 28. 1626. George Foulis contra Isobel Allan. By Act of Parl. 1594. cap. 226. Anent ruinous Tenements within Burgh, which being cognosced by an In quest to be ruinous, as become or which may become within a short time uninhabitable, the same must be repaired, by the Liferenter or the Fiar may enter in Possession, finding Caution within the Burgh to pay the Liferenter the Mail thereof, as the samine gave or might give the time of the precognition; but this Act was not found to derogat from the former Acts, nor that Precognition was requisit before finding Caution, except in Tenements within Burgh, decayed before the Liferenters entry, as was found in the foresaid case, George Foulis contra Isobel Allan. Neither was the Liferenter freed from Caution upon her offer to quite the Possession to the Heretor for paying of the Rent, the Tenement not being ruinous at her Entry.

5. It is also common to Liferents and Conjunctfees, that the Liferent-right is lyable with the Superiour of Ward-lands or his Donatar, for an Aliment to the Heir, to be modified by the Lords proportionally according to the quantity of the Land in Ward and Liferent, by the said Statute 1491. cap. 23. Vide Tit. Heirs §. 3.

6. Liferents are either Constitute by way of Reservation, in Infeftments of Property, or otherways by a several Infeftment, but it cannot become a real Right, and be effectual against singular Successours, without Infeftment; though most Servitudes may be Constitute by Disposition and Possession.

7. Yea, though Liferents being Constitute by Infeftment, may be conveyed by Assignation, because there can be no subaltern or renewed Infeftment of a Liferent, which is only personal to the Liferenter, and the Right is incommunicable, yet the Fruits and Profits arising thence are communicable and assignable.

8. It is also common to Liferents, that nothing done after their Infeftment, by the Constituent or his singular Successor, can prejudge the Liferenter: And so an Appryzer from the Husband was found lyable to the Liferenter, for the true worth of the Liferent-lands, and not according as he set them, though they were never set before, except the Appryzer had set the Lands wholly, or near to the worth, March 9. 1631. Lady Huttonhall contra Lairds of Moristoun and Touch.

9. A Liferenters Executors was found to have right to the Mertimas Term, though the Liferenter died upon the Mertimas day in the afternoon, February 16. 1642. Executors of the Lady Bruntoun contra Heir of the Bishop of Glasgow. And they have right to the whole Cropt and Profite of the Land laboured and sown by themselves, or which was in Mansing and not set to Tenents, though the Liferenter died before Mertimas, December 14. 1621. William [...] contra James Nisbit. A Liferenters Executors was found to have right to the whole years Rent of a Miln Liferented by her, she having survived Martimas, and that Miln Rents were not due, de die in diem, but as Land-rents, not as house mails, though the conventional Terms of the Miln Rent was after [Page] Martimas, viz. one Term at Candlemess after the Separation, and the other at Whitsonday thereafter, July 20. 1671. Guthry contra Laird of Mckerstoun. But a Liferenter Infeft in an Annualrent of Victual provided to be payed yearly betwixt Zule and Candlemess, her Husband having died after Martimas and before Candlemess, she was found to have no share of her Annualrent for that Cropt, January 12. 1681. Katharine Trotter Lady Craiglieth contra Rochhead Lady Prestoungrange.

10. A Conjunctfee or Conjunct-infeftment, is that which is granted to more persons joyntly; which if it be provided to them and their Heirs simply, it maketh them and their Heirs to have equal right, pro indiviso; and they are all equally Fiars. and after the death of any of them, their Portions belong to their Heirs; but the Liferent of the Deceassing accresseth not to the Survivers; but when Conjunct-infeftments are provided to Husbands and Wives, the longest liver of them two and their Heirs: There the Law presumes, that the Heirs are the mans Heirs; and by that Interpretation, the wife by the Conjunctfee is but Liferenter; and generally Heirs of man and wife in all things except Moveable Rights, are ever understood to be the mans Heirs, propter eminentiam masculini sexus; so was it found in an Assignation to a Reversion, granted to a man and his wife and their Heirs, that thereby the mans Heirs (first these of the Marriage, and next his other Heirs whatsomever) were understood, Hope Husband and Wife, Walter Collestoun contra Pitfoddels: Yet though this be presumptio juris, it admits contrary more pregnant evidences, as a Reversion granted to a man and wife and their Heirs, found to Constitute the wife Fiar, because she was Heretrix of the Wodset Lands, Hope Liferent, Kincaid contra Menzies of Pitfoddels.

But to prevent this question, the provision ordinarly is to the longest liver of them two and their Heirs, whilks failing, to such particular Heirs exprest; whereby these are commonly esteemed Fiars, whose Heirs what some ever are substitute. And yet a sum provided to a man and his Wife, and the Heirs betwixt them, whilks failing, to divide betwixt the man and wifes Heirs, was found not to Constitute the wife Fiar of the half, but only Liferenter; and the wifes Heirs of line to be Heirs of provision to the man, and that the sum was Disposeable by him, and Arrestable by his Creditors, January 29. 1639. Graham contra Park and Gerdon. So strong is this presumption, that there is no more meaned to be granted to Wives, but their Liferent-right and no part of the Fee, unless the provision bear expresly, a power to the wife to Dispone, and if it be adjected at any time, during her life, the Fee will remain in the man, and that power in the wife will rather be understood as a Faculty, like to the power given to Commissioners to Dispone Lands, then an Act of Property, unless that the provision bear, a power to the wife and her Heirs to Dispone; but a Conjunctfee to future Spouses of Conquest, during the Marriage, in these Terms, The one half thereof to be disponed upon as the Wife shall think fit, being in a minut of Contract, expressing no Heirs, but being a short draught, the Lady being of great quality, having about 22000. Merks yearly in Liferent, beside Money and Moveables; and the Husband being a Noblemans Son, having gained an Estate of 7000. Merks yearly, in the Ware which he had lest; the Clause was found to be understood, and extended so, as to make both future Spouses equal Fiars, seeing the Conquest was mainly to arise out of the wifes Liferent, June 27. 1676. Earl of Dumfermling contra Earl of Callender.

[Page]If a Conjunct-infeftment be granted to two or more, the longest liver of them, and express no Heirs, but a liferent to them all, the same accresseth to the Survivers; or if it be a Right of Lands or Annualrents to a man and his Wife, the longest liver of them two, and to their Son named and his Heirs; the man and his wife are both liferenters, and the Son is Fiar only, unless the right be for security of Sums of money, and then the person named is but as Heir substitute, the Father is Fiar, even though the Son were infeft with the Father and Mother, January 14. 1663. Thomas Bog contra Sir Thomas Nicolson, July 23. 1675. Moor of Anistoun, contra Laird of Lamingtoun.

11. The main difference betwixt Conjunct-fees and other Life-rents, is that the Conjunct-fiar, though by interpretation Liferenter only, and so may not alienat or waste; yet by the nature of the right and custom, they have the benefit of all Casualities befalling during their life, and may dispose thereof; which will not only be effectual during their life, but simply for that individual casuality. So Conjunct-fiars may receive and enter the Heirs of Vassals, and have the benefit of their Ward, Non-entry, Liferent-escheat, and may grant Gifts thereof effectually, even as to the time after their death. So also a Conjunct-siar, infeft with her Husband in Lands cum Sylvis, was found thereby to have right to make use of the Woods for her and her Tennants use, January 10. 1610. Hunter and others contra Relict of Gadgirth, Vide Title 13. § 41.

Liferenters have not these Casualities of Superiority; yet a Baron having disponed his Barony, reserving his Liferent, was thereby found to have right to receive the Heirs of his Vassals, but not singular Successors, Ianuary 11. 1611. Crawfurd contra Laird of Glaspen. And there is reason, that the Fiar disponing with reservation to himself, whereby his own Infeftment stands pro tanto, should have greater power then a Liferent apart or by reservation, not being before infeft, conjunctfees though publick, as ordinarly they are; and thereby, as to the Superiour, the Fee is full, and the casualities of Ward and Non-entry excluded: yet the Heir may enter to the Property, and compel the Superiour to receive him.

12. Terce is the third of the Tenements, in which the Husband died infeft, as of Fee provided to his Wife surviving by Law or Custom, though there be no provision or paction for that purpose. The original hereof, as hath been shown before amongst the interest of Marriage, is from that obligation upon the Husband to provide for his Wife; which therefore positive Law hath determined to a third of his Moveables, if there be Children in the Family, and if there be none, to a half: but in either case, she hath a third of his Tenements. And though as Craig observeth, by our ancient custom, Terce extended only to a third of the Tenements a Husband had the time of the Marriage; yet since, it extends to a third of those he stands infeft in as of fee the time of his death; and so, when he is denuded before his death, the Terce is excluded. Yea, a base Infeftment without possession, granted by a Husband to his Creditor, was found to exclude his Wife from a Terce of that Land, January 27. 1669. Bell of Belford contra Lady Rutherford. This provision of Law is more equitable and proportionable, then ordinarly are their provision by Contract of the Husband, who being carried with affection, doth oft-times provide his Wife to the prejudice of their Children, and ruine of their Estate, which this Terce keepeth alwayes proportionable, and maketh the Wife sharer of the Industry and Fortune of the man, and therefore more [Page] careful over it; and upon the contrary, giving out but small Provisions to their Wives at their Marriage, when oft-times they do but begin to have Estates, which they increase not according to the increase of their Fortune; but the Law doth more fitly order the Wifes Provision to be increased or decreased, according to the condition of the man.

13. The Terce taketh place ordinarly, where the Husband died infeft as of Fee; and it hath no effect, till the Widow take Brieves out of the Chancelery, directed to Sheriffs or Bailies to call an Inquest of fifteen sworn men, and thereby to serve the Brieve; which hath two Heads, the one, That the bearer was lawful wife to the defunct; the other, that he died in fee of such Tenemnts. This is a pleadable Brieve, and hath no retour; but Service alone is sufficient enough to give the Wife interest that other Liferenters have. It was specially statute, That where the Marriage was not questioned in the Husbands life, and the Widow was holden and repute his lawful Wife in his Time; no exception in the contrary shall be sustained in the service of the Brieve, but she shall be served and injoy the Terce, till it be declared in a petitory judgement, That she was not lawful Wife, Par. 1503. cap. 77.

14. The Brieve being thus served, the Sheriff or Bailiff must also, if it be demanded, ken the Relict to her Terce, which is ordinarly done by the Sun or the Shade; That is, whether the division shall begin at the east or the west, and so the division of the Tenements proceed by Aikers, two befalling to the Heir, and one to the Relict, wherein there ought to be Marches set, and Instruments taken thereupon, which is as a Seasine; but this division being most inconvenient, except the whole interest were used to be set in Aikerdale, it is not exclusive of other divisions by the worth of the Lands or the Rent, so many Rooms being designed for the Tercer, the rest remaining for the Fiar. This way of kenning would be valid, and much better; but it is not necessary to divide, at serving the Brieve, to constitute the Terce; for the Service giveth sufficient Title to the third of the Mails and Duties of every Room, March 5. 1632. Relick of Veatch of Dawick contra.

15. But that thereby she cannot remove possessors is, because she brooketh the Terce pro indiviso with the Heir, till it be be kenned, or otherwayes divided; and the Terce being served, gives right not only to the years thereafter, but preceeding, since the Husbands death, November 20. 1624. Tennants contra Crawford and Flemming: and so the Tercer may pursue the Heretor or other intromettor, for all by-gones of the third of the Duty, not as they were at the Husbands death, but as they were bettered by the fiar, Feb. 13. 1628. Countess of Dumfermling contra Earl of Dumfermling, and that without deduction of Factor-fee, March 27. 1634. inter eosdem. The Tercer being served, hath interest to pursue for Commission to cognosce pasturage Lands what Soums they may hold, that she may have the third Soum, or else to divide, January 18. 1628. contra Mackenzie.

The division of the Terce from the two thirds, may be in the most convenient way, wherein all Dwelling-houses, or Kilns and Barns, and other Houses for service, will come in as they may be most conveniently divided. This is the most ordinary way of Terces by Service, as said is, when the Husband died infeft in Fee.

16. Terce takes place, not only in Lands, but also in Annualrents, wherein [Page] the Husband died infeft as of Fee, Novemb. 30. 1627. Tennants of Easthouses contra Hepburn; but not to the Terce of Annualrents of Bands, whereupon no Infeftment followed, June 24. 1663. Elizabeth Scrimzeour contra Murrays. It is also extended to Infeftments of Teinds, Feb. 13. 1628. Countess of Dumfermling contra Earl of Dumfermling: But it is not extended to Tenements or Lands within Burgh or holden Burgage; neither to Superiority or Feu-duties, or other Casualities thereof; nor to Tacks, ibidem; neither to Patronage or Advocation of Kirks; neither doth Terce extend to Reversions.

If the Fiar, whose Land is lyable to a Terce, die, and his Wife have right to another Terce, which is called the lesser Terce, though the Husband died infeft as of Fee of the whole Tenement, she hath not a third of the whole, but a third of these two thirds, which were unaffected with the greater Terce, till the former Tercers death, Craig, lib. 2. dieges. 22. proposeth two cases, in which the Relict will have a Terce, though the Husband died not infeft as of Fee; The first is, if the Husband infeft his appearand Heir in his Estate, if there be no Liferent provided to his wife by a Contract; in that case, the Relict will have a Terce, which is most just, albeit it will not proceed summarly by a Brieve, which bears only warrand for a Terce of the Tenements in which the Husband died infeft as of Fee: But it may proceed by Reduction or Declarator, and would not only have effect against the appearand Heir, but against any gratuitous Disposition, reserving the Husbands own Liferent; for such deeds would be found fraudulent, and contrary to the nature of the obligation of Husbands to provide their Wives, unless there remained Tenements, out of which a reasonable Terce might remain to the Relict, according to her quality. The other case is, when a Father, by his Sons Contract of Marriage, is oblieged to infeft his Son in Fee in certain Lands; if the Sons Relict be no otherwayes provided, she may claim a Terce of these Lands, though the Father did not perform his obliegement, which may be construed as fraudulent and in her prejudice.

17. Terce is excluded by all wayes whereby the Marriage was dissolved, upon adultery or desertion; or by the death of either party, within year and day without Children, or may be found null, of which formerly, amongst Conjugal Interests, Tit. 4. And also, by whatsoever way the Husband is sine frande divested, the Terce is excluded: as by a Crime inferring Forefaulture or Recognition by the Husband or his Superiour, though not declared before his death, or by the Ward and Non-entry of his immediat Superiour.

There was one decision observed by Spotswood and Hope, betwixt the Relict of John Cranstoun and Crichtonn, That an Apprising without Infeftment, did exclude a Relict from her Terce: it were hard to sustain that in all cases, even though there were a Charge against the Superiour upon the Apprising; which as it would not exclude the Superiour from the Ward, Non-entry or Relief, So neither should it exclude a Relict from her Terce, unless she had a Conjunct-fee or Life-rent by consent, equivalent to a tertia rationabilis: And though our custom hath far deborded from the ancient design of Terces, whereby a reasonable Terce was appointed; and if any voluntary Liferent were granted, Craig observes, that it was ever understood to be no more, but for clearing and securing the Tercer against the trouble and difficulty of recovering possession by a Service, and therefore was alwayes retrenched unto the Terce. Yet now, not only real voluntary Provisions are sustained, though of the Husbands whole Estate and Conquest, albeit granted in aestu [Page]amoris, with this temperament only, That if the Heir have no other Estate, the Liferenter must intertain and educat him, according to his quality, by Act of Parliament, which is more extensive then a simple aliment; but she is also lyable, super jure Naturae, to aliment her other Children, if they have no provisions. But Custom hath so far proceeded, as not only to allow voluntary provisions, how great soever, but therewith to add a Terce of any other distinct Tenement, unless the voluntary Liferent were accepted in satisfaction of the Terce, which indeed were reasonable in many cases. The voluntary Liferent being oftimes small and suitable to the Estate the parties have when they Marry, but cannot make a rationabilis tertia; if by Conquest, their Estate should grow great, neither is it reasonable, that though the voluntary provision be never so great, that a Terce should be given, though litle remained to the Heir, only because by Ignorance or negligence, the clause in satisfaction were not adjected: Which satisfaction may not only be proved by Write, but by Presumption, from the design of parties, in the Contracts of Marriage, which are uberrimae fidei; For suppose, which is ordinary enough, that a Liferent of Lands are provided by the Contract of Marriage; yet some Lands are not mentioned, but there is a Clause adjected for the Liferent of the whole Conquest, were it rationabilis terlia, to give the Wife a third of that which is omitted, though she had a particular Liferent of more, and the whole Conquest, though never so considerable; Yea, it came lately to be [...], whether a Liferenter Infeft in an Annualrent, out of her Husbands Estate, consisting of one Tenement, lying Contigue, the Annualrent being two thirds of the Rent thereof, because it bore not, in satisfaction of a Terce. The Relict did also claim a Terce out of that same one Tenement, which is yet sub judice.

But so far as I can understand by former Decisions, it hath not yet been determined, whether Relicts should have a reasonable Terce, according to the Terms of the ancient Law, inducing Terces: Or whether she should have a Terce proportionable, or suiteable, or not; though she be already suitably provided, if she have not expresly accepted her former provision, in satisfaction of her Terce: Which Terce, is most favourable when suitable; and therefore, takes place in the two cases before mentioned, even beyond the Letter of the Law; and therefore, if it were unproportionable, to the quality of the Husband and Wife, who might have a great Estate in Money, and little Land, a voluntary Provision out of any Tenement, should not exclude a Terce, out of the remanent of the same Tenement, or of any other Tenement, unless the Relict were sufficiently provided before. There is one Interloquter betwixt Jean Crightoun and Kirkhouse her Son, wherein it was alledged, that she was sufficiently provided, to more then a Terce of her Husbands Estate, which was repelled; but the Case was, in possessorio, where the Relict was already served, and kenned to a Terce, and was pursuing the Tennents; so that the Service and Kenning, being a standing Sentence, doth not determine what might be done, in petiterio; Neither was that allegeance proponed, and offered to be proven, but only alledged informative; whereas the Defence proponed was, that the Relicts provision was but a minut of Contract, bearing, to be extended with all Clauses requisite, whereof there was a Process of Extension depending, including the acceptance, in satisfaction of the Terce, as being ordinary; but it was replyed, that that Clause was omitted in the full Contract already extended: But now by the late Act of Par. 1681. cap. 1. there is no place for a Terce, where there is a provision for the wife of liferent, unless a Terce be expresly reserved.

[Page] Craig proposeth another case, whether the [...] would have a Terce of Lands competent in Fee to her Husband, and so possest by him, though by fraud or neglegence, he never Infeft himself, which he says is the opinion of Litletoun, and it is not without much ground, though it hath not come to be decided with us, voluntary Liferents in satisfaction being so ordinary; for though the appearand Heir not entering, cannot burden the Fee with his debt, yet his jus apparentiae, gives him or his Executors, right to the Fruits during all his life, whereunto it would be suitable enough, that though his voluntary provisions to his Wife could not affect the Fee; yet the legal provision of a reasonable Terce might.

By the Custome of England Relicts loose their Terces, by falling in publick and atrocious Crimes, as Treason, Murder, Witchcraft, although they be restored by the King, by way of grace, because thereby the memory of their husbands, and fame of their Children are disgraced; I know no such Point to have been drawn in question with us. Craig in the forecited place holds, that if the Fiar Transact for his own or his Superiours Forefaulture, or Recognition, or obtain a Gift thereof, it should accress to the Tercer, whose provision is onerous, importing Warrandice; and therefore, might be effectuall against the Fiar, if he represent the Husband; and in all distresses, Relief doth import what the party distressed truly payed out.

A Terce of Wodset Lands, wherein the Husband died Infeft, was not found elieded, because the Husband Required, or Charged for the Money, not being denuded before his death, Feb. 16. 1642. Veich contra Veich of Dawick. But the wifes third continues as to the third of the Annualrent of the Money in lieu of the Lands Redeemed by the heir after his predecessors death.

Terce is not excluded by Ward, Non entry or Liferent-escheat of the Husband, as hath been more fully shown before, Title Superiority.

18. Terce is burdened proportianally by all, debita fundi, affecting the whole Tenement as Annualrent, Thirlage, Pasturage, but with no other debts of the Defunct, being personal, though they be Heretable and have provision of Infeftment.

19. Liferent by the Courtesie or Curiliaty of Scotland, is the Liferent competent to the Husband of the Wifes Lands and Hereditaments: It is introduced by our Common Law, which is our most ancient Custom, wheroef no beginning is known in the same way, as the Terce of the surviving Wife, whereby without any paction or provision, [...] enjoys the third of her deceassed Husbands Heretable Rights, wherein he [...] Invested as of Fee, during her life; so the Husband Liferents the whole Lands and Hereditaments of the wife, wherein she died Infeft in Fee, and that without any Service or Kenning, as in Terces, but Summarly, by vertue of his having been Husband to the Defunct; neither is there any difference, whether the Defunct wife had a prior Husband or not; or whether her hereditament be Ward, Blensh, Feu, or Burgage.

The original of this Liferent by the Courtesie, as Craig observeth, lib. 2. dieges. 22. is from the Rescript of the Emperour Constantine, whereby the Father had the Usufruct of the heretage of his Children, befalling to them as heirs to their Mother; and therefore, the Courtesie takes no place but where there [Page] were Children of the Marriage, one or more, which attained that maturity as to be heard cry or weep,; for then the Law regardeth not how long the Children live, or whether they do Survive their Mother, but hoc ipso, that they are born at maturity, they are heirs appearand of the Fee; and the Liferent is established in their Father: In this the Courtesie of Husbands differs from the Terce of Wives; for the Wife hath her Terce, if either the Marriage continue undissolved year and day, or though it continue not so long, if a Child was born of the marriage, heard cry and weep, though the Child had been begotten before the Marriage, yea, though it had been born before the Marriage, being Legitimat by the subsequent Marriage, how short soever it endured the wife should have her Terce. But the Courtesie takes no place, unless a ripe Child beborn, though the Marriage should continue for many years, so that the being of Children procreat and born to maturity, is the chief motive introductory of this Law.

Skeen in his Title, de verborum significatione, upon the word Curialitas, limiteth the Courtesie to the Lands or Hereditament, into which wives succeed as heirs to their Predecessors, whether before, or during the Marriage, which Craig in the foresaid place doth likewise follow, and doth exclude the Husband from the Liferent of the wifes Land; to which the wife had right by any Contract, as titulo emptionis, which will not exclude the husband, where the wises Predecessor Infefts her, per praeceptionem haereditatis. If a Father should Infeft his Daughter, reserving his own Liferent, with power ro Dispose, she is not thereby heir active, nor is that Estate accompted Heretage but Conquest; yet she is heir passive, and there is more reason that the husband should enjoy his Liferent of that Estate, then if his Wife had been therein heir of Provision or Tailzie, whereby failing her and her Issue, another Branch, not nearest of blood to her, might readily succeed, so that if her Children were dead before her self, her heirs of Tailzie would have much more reason to question her husbands Liferent by the Courtesie, then his own Children as heirs of line would have to contravert his Liferent of the Estate, wherein she was Infeft by her Father or any of her Predecessors, to which she was appearand heir; but there have been few Debates or Decisions, or limitations thereof, which would clear this and other points thereanent.

The Law hath well fixed the maturity of the Children by their crying or weeping, and hath not left it to the conjecture of witnesses, whether the Child was ripe or not, both as to the Courtesie, Terce and Dissolution of the Marriage within the year; in all which cases, the Law alloweth Women Witnesses, as being necessary in the case of the death of the Children, at the time of their Birth.

Liferenters were found free of the Reparation of Ministers Manses, by the Act of Parliament 1662. cap. Ordaining Heretors to build or repair Manses to the value of 1000. Pounds; whereof no share of relief was found due by the Liferenters, they not being exprest, November 14. 1679. Minister of contra Laird and Lady Beanstoun: Yet if the whole Estate were Liferented by Conjunctfee, the Conjunctfiar might be liable as Fiar in that case, when the Heretor had no profite of the Land; and if the whole were affected with a separat Liferent, the effect would be the same, seing what the Heretor would be lyable to, would diminish his Aliment, which behoved to be made up by the Liferenter.

[Page]Liferent by the Courtesie hath the same extensions and limitations sa terces, it affects all the wifes Lands, not Acquired by a singular Title; it is not excluded by the Ward, but it is excluded during the Non-entry, or by Liferent-Escheat; and also by the Ward of the Superiour, or the Forefaulture or Recognition, either of the Superiour or Wife, it is burdened with all real burdens by Infeftment or Tack, and with the Aliment of the Wifes Heir, if he have not aliunde; It is also excluded by the Dissolution of the Marriage within year and day, by Divorce, or by the Husbands desertion of the Wife, though Divorce followed not: Or by his Adultery, or other atrocious Crimes.

20. Amongst personal Servitudes may be numbered publick Burdens, imposed by the King and Parliament for publick use, such as Taxations, which by the Acts imposing them, are declared real, affecting the Ground, and that thereupon the Ground may be poinded; and so consequently do affect singular Successors: The extraordinary burdens of Mentainance; and Sess imposed by the Parliament, during the troubles, had not that Clause therein of Poinding the Ground, and so were not found debita fundi, but debita fructuum, nor do they affect singular Successors, July 13. 1664. Grahame of Hiltoun contra the Heretors of Clackmannan.

TITLE XVII. Servitudes Real.

[Page]

1. Requisites to Constitute real Servitudes by consent.

2. How Prescription Constituteth Servitude.

3. How far Servitudes are effectual against the Superiour.

4. Extinction of Servitudes.

5. Kinds of Servitudes.

6. Servitudes of Support.

7 Stillicides.

8. Sinks.

9. Servitudes of Prospect or Light.

10. Wayes.

11. Watering.

12. Watergang.

13. Feualling.

14. Pasturage.

15. Thirleage.

16. Several ways of Constituting Thirlage.

17. Several Cases in which Thirlage is not Constitute.

18. The effect and extent of Thirlage.

19. The import of several Clauses of Thirlage.

20. Invecta & illata, or tholing Fire and Water.

21. Sequels.

22. Miln Service.

23. Priviledge of Milns.

24. How Thirlage becomes extinct.

25. In Multure, Seed, or Horse Corn, are to be deduced, but no other expence of Labouring.

26. Thirlage Constitute by a Vassal, not effectual against the Superiour.

27. Deductions for insufficiency of the Miln, breaking down of the Damn or Frost.

[Page]SERVITUDES are distinguished in Real and Personal, though neither of them be personal Rights; yet these Servitudes whereby one Tenement is subservient to another Tenement, and to persons only as having Right to, and for the use of that Tenement, are called real Servitudes, as not being subservient directly to persons, but to things: And the other are called Personal; because thereby the Tenement is subservient directly to Persons, and not with respect to any other thing, as Liferents, &c.

Before we come to the particular kinds of these real Servitudes, it will be fit to enquire how such Servitudes are Constitute; and next how they are Destitute and Ceass.

1. As to the first, these Servitudes require no Infeftment, though they may be Constitute by Infeftments, yet there is no necessity of Infeftment, to their Constitution.

Secondly, Real Servitudes cannot be Constitute by any personal Right, as by Contract, Paction, Testament or Legacy, neither by Disposition or Assignation alone; the reason is, because they are real Rights, and cannot be Constitute by any personal Right, which though they be oftimes the remote cause of real Rights, yet there is more requisite to their Constitution; and therefore, though such personal Rights may be sufficient against the granters thereof, by a personal Objection, whereby they cannot come against their own deed, yet they are not sufficient against singular Successors, neither do they affect the Ground.

Thirdly, All real Servitudes are Constitute by Possession or Use; for things corporeal are said only to be Possest; therefore Incorporeal Rights, as Servitudes have rather use then Possession to Consumate them, which though it be the last requisite to accomplish Servitudes, yet is not sufficient alone, but must have another Title, either by the express consent of the Proprietar, or by Prescription; there is no difference in what way the consent be adhibite, so it be in Write; and the Obliegement to grant any Servitude with Possession, is equivalent to the formal Disposition or grant thereof, as it is in the most of these Rights, which do essentially require nothing else, but Consent alone, or Consent with Possession, and not any other Solemnity, as Obliegements to grant Assignations, Discharges, Renunciations, are equivalent to these Rights themselves, when formally made.

2. The Civilians debate much, whether Servitudes can be introduced by prescription, and whether in that case there be requisite a Title and the Proprietars [Page] Knowledge, wherein we need not insist, seing our Prescription being only by Statute upon the course of fourty years, in most cases presumeth both a Title and Knowledge, but theirs being upon ten years, against those who are present, may require more, yet many, even of the learnedest of them, account Prescription sufficient, without Title, or any other then presumed Knowledge.

With us, the Servitude of a way to the Kirk, was not found Constitute by Possession thirty years, but by immemorial Possession, going and coming that way uninterrupted, without any Write; for here the way was claimed at the nearest to the Kirk; whether the Desenders Lands were under Cropt or not: For though a way to the Kirk be due to all parties in the Paroch, without Consent or Prescription, yet it must be with the least detriment to the interjacent Lands, and so cannot always be the nearest way, but must go about Corns; and though thirty or fourty years Alternative, was not sustained to Constitute a way thorow Lands, even under [...] yet fourty years is equivalent, and always [...] to immemorial Possession; in the same case, [...] gtoun observes, That a convement way to the Kirk, without going through Corns, was sustained without prescription; And the like would be sustained for Passage to Mercat Towns, or [...] Ports. A servitude of laying over a Miln Damn upon another Heretors Land, was found Constitute by Possession fourty years, whereby the Heretor of the Miln was found to have Right; that when the Water did wash away the Ground from the end of the Damn, to lengthen the same upon the Servient Tenement, so that it might be made effectual with the least detriment, and that he was not lyable for any damage by washing away the ground of the Servient Tenement, by occasion of his Damn, July 20. 1677. Laird of Gairletoun contra Laird of Smeatoun. June 27. 1623. Gilbert Neilson contra Sheriff of Galloway. It must be adverted, that when such Servitudes are said to be Constitute by sole prescription, without Write, it is to be understood, without Write from the Proprietar of the Servient Tenement; for ordinarly there is this much Title in Write for these Servitudes, that the party having Right thereto is Infeft in the Tenement with the Pertinents, under which Servitudes are comprehended. Or with common [...] trage, by which he hath not only such Pasturage as he hath been long in Possession of, upon the Lands of his Superiour or Author, but fourty years Possession therewith, is sufficient against any other, who can be said in no case to have done any deed for the Constituting of the Servitude; and it was so found in the case of the Town of Pearth, concerning the Isle of Sleiples. But this long Possession is not estimat by deeds done by the Proprietar of the Servient Tenement, as he who brings his Grain to another mans [...], for [...] so many years; these deeds of his do not Constitute a Thirleage upon his Lands, unless he suffer the Proprietar or Tennent of the Miln, to cause him or his Tennents either to bring their Grain by Process, or otherways: And he who opens a Window in his Dyke or Wall, whereby his neighbour hath a Prospect, doth not thereby put himself under a Servitude: But if he suffer his neighbour to break a Window in his Wall, and enjoy it till prescription be run, his suffering introduceth that Servitude.

3. As to these who can impose Servitude, when they are Constitute by express consent. They cannot be Constitute without consent of the [...] and if the Superiour consent not, they will not be effectual against him, if the [...] be open and return to him by Right of Superiority, for a time, or for [...]. Liferenters cannot Constitute a Servitude, to have a real [Page] Right against singular Successors, or beyond the endurance of that Liferent or Wodset; much less can Tennents, yet both can begin or continue to make up Prescription.

But when Servitudes are Constitute by Prescription, the knowledge even of the Superiour is presumed, who though he had not the full Right, yet might have interrupted.

4. Servitudes are extinct by the Proprietar of the Tenement dominant his Renunciation, or contrary consent in Write, without any other Solemnity; and there needs here no other Possession, then that Possession the Proprietar of the servient Tenement hath of his Tenement, whereby he may make free use thereof; for he who Possesseth Naturally or Corporeally, Possesseth to all effects and uses, unless there be impediment by any opposite standing Right.

Servitudes are also extinct by Prescription of Liberty; for as Servitudes by Prescription take away the Liberty or free use of the Tenement servient: So Liberty is recovered in the same way; for though in the short prescription in the Civil Law, simple forbearance of the Servitude, will not import prescription, unless some contrary Acts that may hinder the use of it, were done by the Proprietar of the servient Tenement: Yet in our long Prescription of fourty years simple forbearance of the use may suffice, as presuming the will of the party to be, to relinquish the Servitude, and to suffer Liberty to be recovered; and when the Servitude is Constitute by Write, the same will be the effect, seing the Write and Obliegement prescrive not being used, or acclaimed fourty years.

5. To descend now to the kindes of Servitudes, there may be as many as there are wayes, whereby the liberty of a House or Tenement may be restrained in favours of another Tenement; for Liberty and Servitude are contraries, and the abatement of the one, is the beeing or inlargement of the other.

Servitudes, in respect of the subject matter, are either in reference to City-Tenements, such as houses for Habitation, not for the use of Agriculture or Pasturage, whether they be in Towns or Villages, or not: And in Countrey-Tenements, such as Fields and Grounds, and all houses for the use thereof, as Stables, Barns, Byers, Kilns, wheresoever situate in Town or Countrey.

Servitudes upon City-tenements are very many, whereof we shall point at the prime; They are either positive or negative. A positive Servitude is that, whereby the servient Tenement is not only restrained of its liberty, but is constrained to suffer some things to be done to the behove of the dominant Tenement, contrary to its Liberty. Negative Servitude is, whereby the freedom of the servient Tenement is only restrained.

6. The prime positive Servitude of City-tenements is, the Servitude of support, whereby the servient Tenement is lyable to bear any burden for the use of the dominant; and that either by laying on the weight upon its walls, or other parts thereof; or by putting in Jeests or other means of support in the walls of the same, which the Romans called servitutem tigni immissi; or otherwayes, this Servitude may be, by bearing the pressure or putt of any [Page] Building for the use of the dominant Tenement, as of a Vault or Pend, or the like: Such is the servitude of Superstructure, whereby any Building may be built upon the servient Tenement; like unto which is now frequent in Edinburgh, when one Tenement is built above another at divers times; or divers Stories or Contignations of the same Tenement, are bought by divers Proprietars, and thereby the upper becomes a distinct Tenement, and hath a Servitude upon the lower Tenements, whereby they must support it.

The question useth to be moved here, Whether the owner of the servient Tenement be oblieged to uphold or repair his Tenement, that it may be sufficient to support the dominant Tenement. There are opinions of the learned and probable reasons upon both parts; for the affirmative maketh the common rule, that when any thing is granted, all things are understood to be granted therewith that are necessary thereto: So he who constituteth upon his Tenement, a Servitude of support, must make it effectual. And for the negative, Servitudes are odious, and not to be extended beyond what is expresly granted or accustomed, to which we incline; and therefore, it would be adverted how the Servitude is constitute, that if it appear, the Constituent hath granted this Servitude, so as to uphold it; or if by custom, he hath been made to uphold it, not upon the account of his own Tenement, but of the dominant, he must so continue; and it is not only a personal obligation, but a part of the Servitude passing with the servient Tenement, even to singular Successors: But if it appear not so constitute, it will import no more then a Tolerance, to lay on or impute the burden of the dominant Tenement upon the servient, which therefore the owner of the servient neither can hinder nor prejudge; but he is not oblieged to do any positive deed, by reparation of his own Tenement, to that purpose, but the owner of the dominant Tenement hath right to repair it for his own use, by reason of his Servitude, and the owner of the servient Tenement cannot hinder it; yet in what he thereby advantageth the servient Tenement, he hath upon the owner thereof the obligation of recompence, in quantum lucratus.

If it be objected, that within Burgh, the owners of the inferiour and supporting Tenements are oblieged to repair for the behove of the superiour Tenements, the owners whereof may legally inforce Reparation; yet, it inferreth not this to be the nature of the Servitude, but a positive Statute or Custom of the Burgh for the publick good thereof, which is concerned in upholding Tenements. But mainly, the reason of it is, because when divers owners have parts of the same Tenement, it cannot be said to be a perfect division, because the Roof remaineth Roof to both, and the Ground supporteth both; and therefore, by the nature of communion, there are mutual obligations upon both, viz. That the owner of the lower Tenement must uphold his Tenement as a Foundation to the upper, and the owner of the upper Tenement must uphold his Tenement, as a Roof and Cover to the lower: Both which, though they have the resemblance of Servitudes, and pass with the thing to singular Successors; yet they are rather personal obligations, such as pass in communion even to singular Successors of either party.

7. The next positive City-servitude is, of Stillicides or Sinks: Stillicide is the easing-drop which falleth off any house or building, or the rain turned off a Tenement either by dropping or by spout; concerning which, consider what may be done freely without any Servitude; for thereby it will easily appear, what Servitudes are competent herein. The [Page] main question is, Whether the owner of any Ground may build Houses or Buildings closs to the march of his own Ground, whereby his easing-drop will fall upon his neighbours Ground, or if by spout, he may make the rain that falls upon his own Tenement, run over upon his neighbours. And though it may appear from that common rule, Cujus est solum, ejus est usque ad Coelum, that thereby the owner may build upon any part of his own Ground what he will, even though it be to the detriment of his neighbours prospect or light: yet, no man may dispose so upon his own Ground, as to put any positive prejudice, hurt or damnage upon his neighbours; as if he should alter the course of any River or Water, running within his own Ground, so that it cause an alteration thereof in his neighbours Ground, or by damming of the water, make it run upon his neighbours: And therefore, he may not so build upon his own ground, as by gathering the water from its natural way, he should make it fall together upon his neighbours ground; otherwayes, any neighbour might take away both the Profit and the Pleasure of his neighbours Tenement, or closs, by Spouts or Kennels carrying in the rain water thereupon in abundance. And albeit it be not so palpable in the Easing-drop as in Spouts, what the neighbours detriment may be, yet the very Roof of the house is a considerable gathering of the water: and therefore, every man ought so to build, as that the drops of the building may fall upon his own Ground, which commonly in neighbourhood is counted two foot and a half within the Marches, according to the ancient Roman custom, auctore Marciano. If it were not so, but that the first builder might build to his March, no question the second might do the like; and so there should be no way to convey the drop, without much detriment to both. And though either might, by a Spout, keep the water from falling upon his neighbours ground; yet, that Spout might fail, and at least his neighbonr be put to the trouble of an Action, to cause him keep it right, which his neighbour cannot inforce upon him. But, as the Romans account it as a delinquence, & damnum infectum, as a damage like to befall, though not befalling when any thing was built, to hang over the high way, or whereby a neighbour might have probable damage: and therefore, either caused the doer to demolish it, or to find Caution not to damnifie his neighbour: So from that same ground of equity and expediencie, it ought to be in this case. There is an exception here of Towns and Villages, which for common conveniency, do allow Houses to be built closs together, which is tacitly imported in the incorporation of Towns, or union of Villages, in which, the custom of the place must be the rule.

8. What hath been said of Stillicides, holdeth more apparently in Sinks, either for conveying of water-filth, or any thing else, upon or thorow the neighbours Tenements, which cannot be done, unless there be a Servitude thereupon either by consent or prescription.

9. Negative Urbane Servitudes, do chiefly concern the light view or prospect of Tenements; for the owner of every Ground may build thereupon at his displeasure, though thereby he hinder the view and prospect from his neighbours Tenement, or the coming of the Sun-beams or light thereto, which being but in relation to the extrinsick benefite of that which is not in, but without the Tenement, is not accounted a positive damage, from which the owners of neighbouring Tenements must abstain, as in the case of Stillicides and Sinks, and so much the rather; for common utility would be highly impaired, if the first builder might hinder his neighbour to build upon his own [Page] Ground, upon pretence that thereby his light or prospect were hindred; So that it is free for the owner to build what he will, though thereby he darken his neighbours Tenement. For helping the inconveniency that may ensue by this liberty of building, two Servitudes use to be introduced, both restraining the owners liberty; the one is, by giving light or prospect to the dominant Tenement, whereby the building upon the servient Tenement may neither be lifted higher, nor any building where there are none, or any Window or In-let, whereby there may be prospect from the dominant Tenement to, or through the servient, may be marred or altered: the other is, whereby the prospect or view of the servient Tenement is restrained, in that there may be no building thereupon, or Windows opened therein, which may look to the House, Closs or Garden of the dominant Tenement.

These Servitudes of light or prospect cannot be introduced by the injoyment and use thereof, though time out of minde: but there must be either consent or prescription, by hindering the owner of the servient Tenement to use his freedom; for the first builder, though he have light or view for an hundred years through his neighbours ground, doth not thereby nut a Servitude upon his neighbour; but if he have been in use to hinder his neighbour to take away that prospect in any lawful way, by reiterat acts during the time of prescription. And therefore, though two Purchasers bought Houses from the same Owner, neither of them was found to be astricted not to build as high as they pleased, albeit to the prejudice of the light and view of the other, Hope Servitudes, Somervel contra Somervel.

The Predial or Countrey Servitudes, whereby one Ground or Field is subservient to another, may be as manifold as the free use of the one may be restrained or impaired, for the profite or pleasure of the other; the chief of which in use with us are Wayes, Watering, Watergangs, Fewelling, Pasturage, Thirlage.

10. Wayes are a part of the reservation from Property, and the necessary vestige of the ancient community of the earth: Of which before, Tit. 12. § 16. and, which are understood as the common pertinents of all grounds, free Ish and Entry are implyed in the very right of Property, though not exprest: but that doth not infer Wayes or Passages from every part of the dominant Ground, thorow every part of the servient, which would make both unprofitable, but it must be in the way, lest hurtful to either. And now by long custom it is every where determined, and can be no further claimed, then according to ancient custom: and it is a necessary effect of Property, rather then a Servitude, seing it is mutual and equal to either ground, whereof the one cannot be called dominant and the other servient, untill custom or consent have so determined, that the wayes which are constitute are more profitable to one Tenement, and more burdensom to another, whereby this becometh the servient, and that the dominant.

Wayes are distinguished by the Romans, according to the measure or burdensomness of them in three kindes: The first and least is, a Road for a man to walk or ride by, which they call Iter; the second called Actus, is a way for Carts; the third which retaineth the common name, is, whereby droves may pass. Of these, the greater comprehends the lesser; our custom sticketh not to this distinction, but measureth the way according to the end for which it was constitute, and by the use for which it was introduced, as having only a [Page] Foot-road, or only a way for leading of Loads upon Horse-back, or a way for leading of Carts, or a way for driving of Cattel; It is observed accordingly. There is another Distinction of Ways amongst the Romans; and with us, in publick and private Ways; publick Ways are these which are constitute for publick use, and which go from one publick place to another, as from one Burgh to another; or from a Burgh to a publick Port; This is called a a High-way, And by the Romans, an Imperial or Pretorian way: And with us, the Kings High-way, for preservation whereof, there are express Statutes, Parliament 1555. cap. 53. Par. 1592. cap. 156. And this is patent to all the Leidges, without respect to any Land, yea and to all Strangers having freedom of Traffick.

Privat Ways are these which are Constitute by privat Parties, for private use, whereof both are, or at least one end is to a private place, and is a proper Servitude to the use of that place for which it is Constitute; So a Way, the one end whereof is at a publick Place; may be a privat way, if the other end thereof be from, or for the use of a private place; as a Way from a privat place to a City or Church, which doth not fall in to any publick Way; for in so far it remaineth private, and cannot be made use of, but for the behove of the place or ground from which it comes; but it is not the largeness or latitude of the Way, that makes a publick or private Way: For a private Way may be as large as a publick. Private Ways are Constitute as other Servitudes by Prescription, by going and coming that way uninterrupted, time out of minde, or fourty years without Write, or any other Right.

Private parties may repair these Ways becoming difficult; so an Heretor having a Way to the Kirk, and to a Royal Burgh, at a Foord where there was an old Bridge, was found (the Foord becoming difficult) to have right to rebuild the Bridge, though the one end of it was but upon his Land, and the other end upon his neighbours who withstood it, Nicol. de servitudibus, Sir James Cleiland contra Cleiland.

11. Watering is a Servitude of taking water, proper to one Ground for the use of another, whether it be for the Cattel of the dominant Ground, which is most ordinary, or for other uses thereof, and it doth ordinarly carry, a way for these Cattel to come to that Water thorow the Servient Ground; but if it be only a Way to publick Water in Rivers or publick Lochs, it differeth nothing from the Servitude of a Way, unless with the Way, there be also the making use of the private Water in the Fountains, Ponds, or other places proper to the servient Ground.

12. A Watergang is a Servitude, of conveying Water thorow the servient Ground, for the use of the Dominant; and if the Water be proper, and belong to the Servient Ground, the Servitude is the greater, but hath no different name; such are the Aquaeducts to Milns and other uses; for without such a Servitude, Water may not be altered or diverted from its course, as was found, where the Water-course was the March betwixt the Heretors, that the one could not change its old Channel (though it returned thereto again) without consent of the other, though he alledged no prejudice, but the want of the pleasure of the Water, and Fishing of Trouts, and that thereafter he might make use of it upon his side, June 25. 1624. Ballantine contra Cranstoun. It was also found, that an Heretor might not divert the Water from [Page] its own course upon his own Ground, to the prejudice of others having the right of Fishing therein, Hope, de actionibus in factum, Bairdie contra Stonehouse.

13. Feweling is a Servitude of suffering Fewel to be taken from the servient Ground for the use of the Dominant and Inhabitants thereof. And it is ordinarly in Peats, Turffs and Heather; and it doth necessarly import Fields to win the Feuel upon, and a way to bring it away, though these be not exprest. This Servitude is sometimes Constitute indefinitely upon a whole Moss or Muire, and sometimes upon a particular place thereof, and accordingly it is to be regulate by the consent or custom which did Constitute it. The like is in the Way for carrying the Feuel, which sometimes is a Cart-way, sometimes only a Load-way.

Feweling is presumed to be comprehended under Pasturage, though not exprest; as the Minor Servitudes are involved in the Major, yet this presumption is taken off by contrary Custom, or express paction, for they are not inseparable, asiter & actus, are under via, there being no end nor Interest to hinder a man to go or ride, where a Cart or Drove doth pass; but where common Pasturage is Constitute, it is a several and separable Interest to break the ground for Fewel, Feal or Divet, which in so far exclude the other party, and appropriats that part of the Grassto the Feweler; and so it was found, that a Servitude of Pasturage introduced by fourty years peaceable Possession of the Pasturage, was not to be extended to Feal and Divet, seing the Acquirer was interrupted in these, February 15. 1668. Laird of Hayning contra Town of Selkirk. And where the Servitude was only Constitute for Feal, Divet, Clay and Stone, in a large Muir indefinitely, it was not found to hinder the Proprietar to rive out a part of the Muire, leaving enough that might serve that Servitude for ever unplewed, and with condition, that if that sufficed not, more of the Muire should be left Lee again, wherein respect was had to the publick utility of making a large Muire to be profitable, June 21. 1667. John Watson contra Feuers of Dunkennan. The like was found in a Servitude of Fewelling upon a Muire of vast bounds, that it did not hinder the Proprietar to Plow: But the most convenient places for Fewelling were appointed to be laid aside, as they were adjacent to the Dominant Tenements, so that they might be secure of perpetual Feweling, which the proprietar might never plow, January 20. 1680. Earl of Southesk contra Melgunt and others. But in all these by the nature of the Servitude, they should not be extended further then for the use of the Dominant ground, and so not applicable by the Heretor of the Dominant ground, to any other not inhabiting the Dominant Field; yet if Custom and Prescription hath been to the contrary, it over-rules all; and so it was found, that an Heretor or his Tennents, having right to a common Muire, not only might win Fewel there for his own use, but sell it to others, June 21. 1611, Moniemusk contra Pitfoddels.

14. Pasturage is a Servitude, whereby the Grass of the ground servient, is applyed to the use of the ground Dominant, and this sometimes reacheth to the full benefite of the Grass; so that the Proprietar hath no share thereof, but the benefite of the Tillage and other pertinents beside the Grass, whereby he may Till when he pleaseth, or open the Ground for other effects of Property, as to win Coal or Stone, unless by consent or Custom it be otherways regular; but so far as remains Grass, belongs wholly to the other. But most ordinarly Pasturage is in common, either to the Proprietar and him that hath the Servitude: [Page] Or to many having acquired the Servitnde promiscuously, though with exclusion of the Proprietar from Grassing; and that again is either for an indefinite number of sums, or definitly for a certain number exprest.

Common Pasturage is ordinarly Constitute by the Charter of the Dominant ground, expressing the Clause (with common Pasturage) which, when general, hath no other effect then the common Clauses of Charters, to give the Right of any pasturage belonging to the Fee (if any be) But if it be cled with immemorial or fourty years Possession, by the Act of Prescription, it carrieth unquestionably the Right of Pasturage, upon any ground belonging to the Superiour, and upon which he might, the time of the Charter, have Constitute a Pasturage: Yet it is more dubious, whether long Possession can introduce Pasturage upon ground not belonging to the Superiour, granter of the Charter; and it hath been found that it hath been so Constitute; yea though the Clause of common Pasturage be not in the Charter, but only the Land Disponed with parts and pertinents, with long Possession, Spots. Servitudes, Knockdolian contra Tennents of Partick. The like was formerly found in the case of the Town of Pearth anent the Isle of Sleiples.

Pasturage may also be constitute by a Contract cled with Possession, without any Seasine, which is effectual, even against singular Successours, Jan. 26. 1622. Turnbul contra Laird of Blanernie.

Pasturage being constitute in reference to the Dominant ground, though it be indefinite and promiscuous, must be regulate and proportionat according to the use of the several Dominant grounds, having right thereto proportional to the Rent thereof, or the Goods it may hold, and Fodder in Winter. Thus a Comontie was ordained, to be visited and soumed, and proportionat to every Room, having priviledge therein, Nicol. de communi, the Laird of Sessnock contra Nimnto, absent. And though the pasturage hath been never so long promiscuously used, without any determinat soums, but that all have put to it what they pleased, that cannot be constitute by prescription, as a right being contrary to the very nature and substance of the Servitude, whereby the pasturage would be destroyed and unprofitable to all, if not regulable and restrainable to what it might hold, and that by proportion; for though some have been in use to put more Goods, and some fewer; yet unless the quantities had been determinat and fixed, others could not be excluded from their proportion, but such as by fourty years forbearance, are wholly excluded.

It is accustomed in some places, to regulate common pasturage by souming and rouming, which is the determining of the several soums it may hold by particular proportion to every Room of the Dominant Tenement, but none of the parties interressed can compel the rest to divide, seing it would be frequently to the disadvantage of severals of the parties Interressed, as when common pasturage is in a common Muire, inclosed with a Dyke, and so needeth none, at least but one herd for them all, which if it were divided, of times the several proportions of most interressed, could not be worth a several hird, especially when the property remains in another, though burdened with this Servitude, even though the proprietar retain a share in the common Pasturage, yet he alone is proprietar; and if any Stone or Coal were found there, it would belong to him alone: But it is otherways in the Community of the full property, where, after division any party may Till and use all Acts of Property. [Page] A Servitude of Pasturage of a definite number of Sheep upon large Muirs, was found not to give Interest to cause the Heretor or Tennents soum the same, that the ground might not be overflocked, to the prejudice of the Servitude, January 23. 1679. Mr. Alexander Dunlop contra Laird of Drumelzier.

Where Pasturage is Constitute upon ground, a part of which hath been plowed before the Constitution, it does not hinder the Master of the ground to Plow other places, then what was formerly Plowed, but he may Plow as much as he pleaseth, yet so that whenever the Plowed ground lies Lee, the pasturage will reach the same, Jan. 20. 1680. Earl of Southesk contra Melgam and other Heretors about Munrew-mount.

15. The chief and most frequent Servitude in Scotland is Thirlage, or a restriction of Lands to Milns, wherein the Miln is Dominant, and the Lands astricted are servient. For as hath been shown before, a Miln is a distinct Tenement from Land, and is not comprehended under the name of part and pertinent thereof, unless there be an Erection in Barony, Lordships, &c.

Milns at first were built, as sometimes they are yet, without any astriction or Thirlage, but only to gain by the Work thereof, an equivalent hire, and so it is a voluntary personal Contract of Location and conduction, none being oblieged to grind their Grain thereat; but such only come as please, and for such hire as parties do accord: Yet these who come to a Miln without astriction, and without express paction, are understood thereby to agree to the ordinary Multures of Corns not astricted, which are called Outen-Town-Multures: But now most Lands are astricted to certain Milns, and for a certain quantity of Multure, far beyond the value of the work or grinding of the Corns; but upon other considerations, whereby it is a part of the Rent of the Lands astricted, as when an Heretor astricts his own Tennents to his own or anothers Miln, it is a part of their Rent, for the more Multure they pay, they pay the less Rent; and so it is alike to them, whether it be great or small, or otherways. When a Superiour gives out Lands upon condition of Thirlage, the Multures are a part of the reddendo or price: and it is a general rule, that none can thirle Lands but he that is Fiar, and hath power of disposal thereof; and therefore, astriction though it be not favourable, but hath the ordinary odium that other Servitudes have, yet it is not to be accounted an unjust and intollerable Bondage.

16. There are many questions about Thirlage, which may be reduced to these two heads; first, How Thirlage is constitute and instructed. Secondly, How far it is to be extended; As for the first, we shall proceed from the ways more evident to these, which are more dubious; and first positively, and then negatively.

The first and most unquestionable way of constitution of Thirlage is, when an Heretor Thirleth his own Lands to his own Miln, by consent of his Tennents, whereby the Multure becomes a part of the Rent. Secondly, When an Heretor dispones his Lands with express condition of Thirlage thereof to his Miln, or to any other Miln. Thirdly, When the Heretor of Milns or Lands, Feues and dispones the Miln with the Multure of his own Lands, per expressum, all these ways are not contraverse constitutions of thirlage, whether they be in an Infeftment, Contract, bond, or other personal right, for these being cled with Possession, are sufficient to constitute a Servitude, though the right of the Miln, being a separate Fee. [...] Infeftment, Fourthly, When the Heretor [Page] of the Miln [...] or Dispones the same with the Multures used and wont, though he do not express out of what Lands, it is sufficient to constitute a Thirlage upon the Lands, which were wont to pay in Towns Multure, being then his own Lands; or to convey the right of the Multures of other Lands, being formerly astricted. But where a Barrony was principally disponed with the Miln thereof, and the Multures of the Miln used and wont; it was not found to extend to the Multures of another Barrony, holden of another Superiour, though in use to come to that Miln, December 11. 1666. Earl of Cassils contra Tennents of Dalmortoun and John Whiteford. Fifthly, Thirlage of a whole Barrony is inferred by Infeftment in the Miln of the Barrony, with the Multures of the said Miln being granted by the Heretor, both of the Miln and Barrony, whereby these parts of the Barrony that were not in use of astricted Multures before, were thereby astricted, and that according to the use of the rest of the Barrony, Jan. 31. 1611. Wilson contra Warrock, here the constitution bore not, used and wont, but Multures of the Miln generally. The like where the Infeftment bore only, the Miln of the Barrony, with astricted Multures, not repeating Multures of the Barrony, July 9. 1611. Alexander Moncrief contra Borthwick and Pittinweem. Sixthly, Thirlage is constitute without Infeftment, or any Write subscrived by the Heretor of the Lands astricted, but only by an Act or Rolment of Barron Court, bearing, the Heretors consent, and fourty years possession conform, Hope, Milns and Multures, Earl of Murray contra Earlesmiln. The like by Decreet against the Possessors, their Master not being called, or consenting, but his Bailie inacting them to pay Multure with long possession, Ibid. Mr. Andrew Miln contra Patrick Falconer. Seventhly, A dry Multure was found constitute and instructed by use of payment, fourty years without any other adminicle, because it could not be constructed as a free or voluntary deed, as other Multures may be, Hope, Milns and Multures, James Dog contra Maxwel and the Tennents of Prestoun. July 23. 1675. Sir George Kinaird contra Mr. John Drummond. Eighthly, Thirlage is inferred of Lands within Barronies of the Kings Property to the Milns, holden and repute to be the Milns of that Barrony, only as being in use, past memory of man to do deeds of Thirlage, as paying of Multures, laying in of Damns, February 5. 1635. Dog contra Mushet. January 8. 1662. James Stuart contra Feuars of Aberlednoch. January 4. 1662. John Nicolson contra Feuars of Tillicoutrie. Nor was it found relevant, that the Feuars had right, cum molendinis, in the tenendas, which was but past of course in Exchequer, in the common Clause, as was found in the foresaid case, January 8. 1662. James Stuart contra Feuars of Aberlednoch. The reason hereof is, because the Kings Rights are Constitute, Jure Coronae, without Infeftment or other Write, which is not requisite, or accustomed to be keeped; and therefore, the presumption from long possession is sufficient, Craig, l. 2. Dieges. 8. Relateth it as the opinion of some, that immemorial Possession is sufficient to instruct the Thirlage of Kirklands, in the same way as of the Kings Lands, to which he assenteth not; but the reason seemeth much to be the same, especially after the Reformation, when the Evidents of the Kirk were lost or destroyed: So that long possession hath been sufficient to instruct the right of Propperty of Kirklands; and may much more instruct this Servitude, unless Milns and Multures had been granted to the Feuars anterior to the Feu of the Miln. But unquestionably, Thirlage is easilier sustained in Kirk-lands then others, as it was sustained, being by an infeftment of a Miln, cum Multuris generally; and the Bishops Precepts to his Tennents to pay their Multures to that Miln, with long Possession, though without consent of the Chapter, Decemb. 7. 1665. David Veatch contra John Duncan.

[Page]17. As to the negative, first, Thirlage is not inferred by use of coming to the Miln, and paying Multures there at, though immemorial, even though the Multures payed were as great as the thirle Multures, March 13. 1635. Gilchrist contra Menzies. The reason hereof is, because such payment is but voluntatis, non necessitatis; and therefore, can no more infer a Servitude, then they who, past memory, came such a way to a Town, were astricted only to come that way: But Infeftment in a Miln, with the astricted Multures of such Lands per expressum, and fourty years possession of paying the insucken Multures, was found to constitute the Thirlage, though the Feuars were infeft cum molendinis, before the Feu of the Miln, and sometimes went to other Milns, which not being frequent, and for some whole years, was found but clandestine, and such as occurs in all Thirlages, and no legal interruption, June 29. 1665. Heretors of the Miln of Kythick contra Feuars.

Secondly, Thirlage is not inferred, because the Lands are a part of the Superiors Barony, having a Miln of the Barony, where the Vassals Infeftment contains cum Molendinis & Multuris, or a Feu-duty pro omni alio onere, or such a Feu-duty allanerly, Novemb. 26. 1631. Oliphant contra Earl of Marshal. But where the Barons Disposition contained not these Clauses, his giving a subaltern Infeftment of a part of his Barony, which part was thirled to the Miln before, it was not found liberat, but continued thirled to the Miln of the Barony, though the Miln and Multures of the Barony were disponed thereafter to another, July 17. 1629. Newlistoun contra Inglis. For, if the Vassal had acquired that part of the Barony with the Multures, it would have been exprest particularly or generally, seing thereby the seller behoved to diminish the rental of his Miln.

Thirdly, Thirlage of a Barony or any part thereof, was not inferred by a Disposition or Infeftment of a Miln granted by the Baron, though it be the only Miln of the Barony, seing he expressed not it to be so, nor expressed any Lands nor the Multures thereof, but only dispo ed the Miln with the pertinents, July 12. 1621. William Douglas contra Earl of Murray. In this case, there were several acts of Court thirling the Tennants, and long possession, which was not insisted on, but only the act of Court, which was not found sufficient, seing it was only by a Bailie, without warrand or consent of the Heretor, albeit cled with fourty years possession. But, a Decreet against the Tennants for astricted Multures, and immemorial possession, was found to constitute Thirlage to the Miln of the Barony, albeit the defender was infeft cum molendinis, prior to the Infeftment of the Heretor of the Miln, and did sometimes go to other Milns, but clandestinely, and sometimes was brought back by force, June 24. 1665. Colonel Montgomery contra Wallace and others which did not import Interruption, which was not found by clandestine abstraction, but by paying no Multure, at least for a whole year.

Fourthly, Thirlage is not inferred by any deed of Tennants, Possessors, Wodsetters, Liferenters, or any other but the Fiar; and therefore, there will be no Process sustained against the Tennants for Multures, unless the Fiar be called, February 9. 1628. Laird of Wardess contra Laird of Dunkincie or at least, that there have been prior Decreets wherein he was called, constituting the Thirlage, and all [...] and Acts otherwayes are null by exception, if quarrelled within prescription.

Fifthly, Thirlage of Lands to another mans Miln, doth not infer a Thirlage [Page] of the Teinds of these Lands, though acquired by the Heretor who thirled the Lands, July 7. 1635. Laird of Innerweek contra Hamiltouns. The like in molendino Regio, where no write was shown, but possession, to consttute the Thirlage, which was found not to extend the Teinds, January 8. 1662. James Stewart contra Feuars of Aberledno. The like where the Clause of thirlage bore, omnium granorum crescentium super terris suis: Here the Heretor of the Lands thirled had no right to the Teind, Spots. Milns and Multures, Laird of Wauchtoun contra Hoom of Foord. The like where the Clause in a Charter, granted by an Abbot to his Feuars, bore the astriction, omnium granorum, which was found to extend to the Teinds which then belonged to the Abbot; and the Teind was found thirled, when a Feu-duty was payed both for Stock and Teind, January 21. 1681. Greirson contra Gordoun of Spado. Nor will the exception of Teind be sustained in Milns belonging to Kirkmen, having right to both Stock and Teind.

18. The next point proposed, was the effect and extent of Thirlage, being constitute, which is exceeding various; for clearing whereof, advert, That thirlage is either introduced and instructed by Custom and Prescription, or by Paction and Write; when it is by Prescription and Custom, it is wholly regulat by Custom, and the Heretor of the Miln and his Tennents, can get no more, and wil get less then they instruct to be their ancient custom, which holds where thirlage is constitute by write, but generally with the multures, sequels, and services used and wont, for then also custom must rule it, and the Heretor of the miln will not be put to prove what the custom was before that Write, though it relate to custom past; but long custom present will be sufficient presumption and proof of what was that preterit custom, if the contrary cannot be proven; and though it should be proven, yet fourty years possession will alter the case, and either increase the Servitude or the Freedom.

If the Servitude be constitute by Writ, special regard is had to the tenor of the Writ, which therefore varieth thirlage accordingly; So thirlage simply exprest in the Writ, without mention of all Grain growing upon the ground, was found to extend to all Corns growing thereupon, abstracted to other Milns, or sold, though they had payed no Multure past memory for sold Corns, June 26. 1635. Laird of Wauchtoun contra Hoom of Foord.

19. A Clause of thirlage bearing, Una cum Multuris omnium terrarum intra Parochiam, found not to extend to other Corns bought-in, and not growing within the sucken, Hope, Milns and Multures, Giles Murray contra Tennants of Drumsei. A Clause of thirlage, thirling an Heretors tennants to another mans Miln, and all the Tennants Grain growing upon the Land, found not to extend to that Heretors Farm-bear, whether delivered to him, or sold by him to his tennants or others, but that the same was Multure-free, but yet was thirled, and behoved to come to the Miln and pay the smal duties only, Hope, Milns and Multures, Lord Keith contra Nathaniel Keith: Which is also observed, with this further, that invecta & illata were not thereby thirled, Spots. de servitutibus. A Clause of thirlage omnium granorum crescentium, was found not to extend to the Heretors Farms who had so thirled his Lands, not being grund at any other Miln, but sold or otherwayes made use of: Neither to Corns not growing within the thirle, though tholing fire and water, or garnelled there, July 11. 1621. Keith contra Tennants of Peterhead. A Clause of thirlage granted by a Town to a Miln, expressing invecta & illata, found to be extended to all Corns Kilned or Steeped within the Thirle, though not brought to the Miln, nor use made of within the thirle, Spoos. de servitute, Ruthven contra Cuthbert of Drakies. Thirlage of invecta & illata constitute by a Towns Charter, found effectual as to the Grain that grew in the thirle of that Miln, [Page] and was lyable for a greater multure, as grana crescentia, so that these Corns being bought by the Town, fell to pay both the ordinary multure, as growing in the Thirle, and a lesser multure by a several Thirlage by the Towns Charter, thirling, omnia invecta & illata in their Town, to that same miln, seing the Town might shun the inconvenience of double multure, by buying only Corns, which grew not in the Thirle of that miln, Decemb. 11. 1678. Sir Andrew Ramsay contra the Town of Kirkaldie.

20. In this case invecta & illata, was found to import mault made within the Liberties of the Town, or Brewed within the same, but not to meal where they did not buy the Corn, but bought the meal, though it was baken in the Town, in respect it was so proven to be the custom, November 24. 1680. inter eosdem. But the quantity of abstract multures being referred to the Towns mens oathes, they were not found olieged to depone that they had payed the whole Multures of years long bygone; but only if they knew and remembered, that any part of it was not payed, and what that part of it was, December 12. 1679. inter eosdem: But ordinarly, invecta & illata, or tholing Fire and Water is only interpret of Steeping and Killing, but not of Baking or Brewing.

A Clause in Feuars Charters Thirling them to the Superiours Milns of such a Paroch, whereof there were four, was found not to be put in the option of the Feuars, to go to any of the four, but to keep to the particular Miln, to which they were accustomed, in respect the Milns had several Suckens, and the Feuars were in use fourty years to pay Multures, and do all services thereto, as was found, 1663. as to the Miln of Catharine. And the like found, as to the Miln of Dalsangan, another Miln of Mauchlein about the same time.

Thirlage being constitute, or determined by custom, doth ordinarly carry, not only Multures of the Grain growing within the Sucken, but those that thole fire and water within the same, by being kilned and steeped, and in some places brown within the same.

The quantity of the Multure, if it be not determined by Write, is determined by use of payment of the Barrony or Sucken, though a part thereof in question, payed less formerly, which did only liberat them from bygones, July 20. 1610. Neilson of Craigcaffie contra Tennents of Innermesson.

21. Beside the Multures Thirlage, is extended to Sequels, which being expressed in Thirlage, is understood to be the Knaveship, Bannock, or lock payable besides the Multures, to the Milners and their Servants for their service, according to the use of the several Milns, though these be not exprest, March 22. 1628. Adamson of Braco contra Tennents of Shallie. The like before, even where the Corns were abstracted, Spots. Milns, March 22. 1628. And where the Thirlage is by use and custom, these small Duties are accordingly due beside the Multure.

22. Thirlage also carries service to the Miln, as carrying home of Miln-stones, upholding the Damns, Watergates, and of the Miln-house, which are Services diverse, and regulat according to the customs of the several Milns.

The Thirlage constitute by Infeftment of a Miln, cum mutturis & sequelis, [Page] found to give right to the ordinary Miln Services to the Miln-damn and Miln-stones, by paction or prescription, the same were taken away, February 27. 1668. Maitland contra Lesly.

In proving of the customs of these Duties to Milns, there is no necessity to prove fourty years constant custom, but diverse years custom, in [...], unless a contrary custom be proven by the Thirled, Nicol. de servitute, [...] contra Ballachan.

But it was found, that an Heretor of a Miln being Infeft, and in possession of the Miln, with the Multures of the Lands in question, [...], he hath the benefite of a possessory Judgement, with seven years [...], and so it will stand and be effectual, till it be reduced notwithstanding an anterior Infeftment, cum mollendinis, June 28. 1636. Maxwel contra Maxwel.

23. Thirlage also is esteemed by some, to carry this priviledge, that the Heretor of the Miln may, brevi manu, cast down any other Miln bigged within the Thirle: But Craigs opinion is in the contrary, in the forecited place, and it was so found, where the Miln so bigged had gone fifteen days, Spots. Husband and Wife, Laird of Ludquharn contra Earl of Marischal. But whether it may not be hindered, while the new Miln is in building, is not so clear, at least it may be civily interrupted, nunciatione novi operis. In respect of the favour of going Milns; these are not to be destroyed, for the publick use of the Countrie; from which ground it is, that the Water-gang of a Miln, passing thorow an Heretors Land, was not suffered to be stopped, though it was without consent or prescription, not being to his prejudice, Hope, Milns, Laird of Bass contra Laird of Balgown. But though Milns may not be stopped, brevi manu yet building a Miln within the Thirle on pretence to get Voluntary Multure; and that the builder will still bring his own Corns to the other Miln, is unwarrantable, and contrary the common custom of destroying Querns, which might have the same pretence, nor could it be known what were Clandestinely grund at the new Miln, within the old Thirle; but Halyards being building a Miln near to Breast-miln, who craved summarly to stop him, by Supplication to the Lords, they did refuse to stop, because it was not clear that his Land were Thirled, July 29. 1673.

Thirlage hath also this effect in someplaces, that when any person is apprehended, abstracting Corn, the Horse and Corn may be seazed upon, braevi manu, and the Corns confiscated to the Milner; and Craig relates in the forecited place, that it is the ordinary custom in France, that Corns are Escheat to the Lord, and may be seazed summarly. It is related by Craig, l. 2. Dieg. 8. out of the Statutes of King William, that there ought to be a Master and two Servants in every Miln, sworn to be faithful to the Master of the Ground and his men, and that the common Multure, not determined by Infeftment, is the twentieth Grain; and that all Grain that shall be set down upon the Ground of another Thirle, shall pay Multure there; and that when a Horse carrying Grain, out of the Thirle is taken, the Grain is escheat to the Miller, and the Horse to the Master; and that he who removes from the Thirle, shall have his Seed Multure free: These are most part over-ruled by custom, as hath been before showen.

This far I find it amongst our customes, that the Spuilzie of a Horse was elided, because he was seazed upon, taking Corns out of the Thirle to another [Page] Miln, as was the custom of that place, and that after carrying back thereof, the Horse was offered that same night, January 22. 1635. Menzies contra Mckie, Thirlage, omnium granorum crescentium, upon such a Tenement, found to extend, not only to the Tennents, but to the Mains, July 29. 1673. Dundas of Breastmiln contra Skeen of Halyards.

24. It remains that we confider how Thirlage being Constitute, is destitute or taken off; and that is in the like manner as it was constitute, either by prescription, whereby Liberty is recovered to the Thirled Lands, which needs no positive Act to deny the Multures, but simple forbearance to lift or seek them is enough, or otherways by any Discharge or Renunciation, without further solemnity, for in that way also it is constitute; but the most ordinary way of taking off Thirlage, is by granting a Charter, containing Milns and Multures in the tenendas, which was not found good as to the Kings Feuars, because past in Exchequer without notice, as the common Style, January 8. 1662. James Stuart contra Feuars of Aberledno; which is more evident, when Milns and Multures are in the dispositive Clause; it hath the like effect when the Miln and Multure is disponed to one party, and by a prior Disposition or Infeftment, the same Lands which were of old of the Thirle, are granted to the Vassals thereof, cum molendanis & multuris, for thereby the posterior Infeftment of the Miln and Multures, is a non habente potestatem and ineffectual, Novemb. 26. 1631. Mr. William Olephant contra Earl Marischal.

25. In Thirlage there is only allowance or deduction of Seed and Horse-corn, but nothing for Expenses of Labouring, Jan. 14. 1662. Nicolson contra Feuars of Tillicoutrie.

26. Thirlage by a Vassal was not found effectual against the Superiour, when the Lands fell in his hands by Ward, unless the Superiour had consented, Decem. 11. 1666. Earl of Cassils contra Tennents of Dalmortoun. Thirlage by a Vassals Charter, found not to make him lyable for the Abstraction of his Tennents, but only the Tennents themselves, Decemb. 10. 1667. Earl of Cassils contra Sheriff of Galloway.

27. If it be questioned whether Multure be due when the Miln is unable to work by Frost, breaking of the Damn, or otherways, it must be distinguished, that if the insufficiency of the Miln or the want Servants be through the fault of the Heretor, or his milner, these of the Thirle may go to other milns, and they will not only be free of small duties, but they may retain for the Reparation of their damnage; such Out-sucken multures as they payed at the miln they went to, but if the insufficiency be by accident, without the milners fault, they may go elsewhere with what is necessary for the Interim, and will be free of the small duties thereof, but of no part of the multure, because as hath been shown before, multures are now a distinct Rent, and are not as the hire of the work, but besides the multure, the small duties are the hire; and therefore, the milners failzie can only take away these small duties, it was so found, February 9. 1666. Heretrix of John smiln contra Feuars.

TITLE XVIII. TEINDS, Where, of Benefices, Stipends, Presentation, Collation, Institution, Tacks, Annats, and Patronage.

[Page]

1. Teinds affect all Intrometters, but not singular Successors.

2. The rise of Teinds.

3. The first division of Parochs.

4. Whether Teinds be jure divino.

5. Kinds of Teinds.

6. We have no personal Teinds and Viccarage, is local according to the custome of the several places.

7. What Lands are Teind-free.

8. Teinds might not be Feued after the Lateran Council.

9. Teinds are not annexed to the Crown.

10. Teinds included.

11. Surrender of Teinds to the King and his Decreet Arbitral, for valuing and selling thereof.

12. Commission for valuating of Teinds.

13. Annuitie of Teinds.

14. The Rule for valuing Teinds.

15. Benefices.

16. Decimae debentur Parocho:

17. Consent of the Chapter, Convent, or Prebend, how far requisite.

[Page] 18. Diminution of the Rental of Benefices.

19. Consent of Patrons.

20. Tacks by Colledges.

21. The present condition of Teinds.

22. Drawn Teinds.

23. Spuilzie of Teinds and Inhibitions.

24. Rentalled Teind bolls.

25. The interest of Bishops in their Benefices.

26. The interest of Ministers in Benenefices.

27. Kirks Patrimonial, or Patronate.

28. Presentation and Collation.

29. The effect of Possession as to Benefices and Stipends.

30. Stipends Allocat, and unallecate.

31. Teinds change as the Lands are in Grass, Corn or other Cropt.

32. Teinds are not debita fundi.

33. The Legal terms of benefices and Stipends.

34. The Annat.

35. Patronage.

TEINDS being a burden, affecting Lands, and profites thereof; and being also a disrinct Right from the Lands, do, most fitly fall under Consideration here, and either as a Servitude subjoyned to the preceeding Servitudes, or as a several Right requires the same Order.

1. Teinds do affect all Intrometters with the Stock and Teind jointly, or with the Teind severally; but though they be valued, they are not debita fundi, affecting singular Successors, for which the ground can be poinded, February 20. 1662. Earl of Callender contra Andrew Monro. Neither do they affect the present Heretor, while a Liferenter possesseth, June 24. 1663. Menzies contra Laird of Glenurchie.

Teinds, as the Word denoteth, signifieth the tenth of that which is Teinded; and besides the civil Decimations that have been imposed by Soveraigns upon their Subjects, as a Tribute for defraying of publick Charges; there have been anciently and frequently Teinds granted for Sacred and Pious uses; So Abraham gave to Melchisedec, the Teind of the spoil of his Enemies, Gen. 14. 20. Jacob voweth to God also the tenth of all that God should give him, Gen. 28. 22. And it is evident that the Lord appointed the tenths of Israel for the Levites, whom he had set apart for himself, who were to give a [Page] tenth thereof to the Priests, who served at the Altar, Numb. 18. 26, and 28: The Teinds did so continue till the alteration of the Jewish Church. The Heathens also did Consecrate their Teinds to their Idols, and payed them to their Priests: Thus Plinius, Cap. 14, and 19. observeth: And Herodot observeth in his first Book, the like of Syrus.

3. Aristus Bishop of Rome, who was the first who divided the Ministerial Charge by Parochs; the Church before not being so distribute to the several Ministers; this Order being so convenient, that by appropriation of a fixed Pastour to a certain flock, no Pastor might be idle, and no flock neglected. It hath run over the Christian World, and the Teinds of these Parochs have been payed to the Pastors and Ministers of the Church.

4. From these and the like grounds, most of Papists, and some of Protestant Divines, have concluded Teinds to be jure divino, as being Institute and Consecrate by God himself, having a moral and perpetual foundation, that these who are set apart from worldly affairs, to the service of God, should have a competent Liveliehood from these for whom they serve, but the determination of the Quota, to be the tenth part rather then any other proportion, is a positive Law that God manifested, and was observed before the written Word; and was retained by the Heathens, even after they had deviat from the true God: But most of the Protestant Divines, hold Teinds to be the voluntary Dedication and Consecration of men, for Pious uses, and to have continued in a tenth part from the example of Abraham, the father of the faithful, and of the Divine Constitution, in the Judicial Law; but there is no Divine moral Precept in the Word for Teinds, of which there is no mention in the New Testament, even where the mentainance of Ministers is purposely spoken to; but only that these who serve at the Altar should live by the Alter. That these who sow Spiritual things, should reap Temporal things, which doth hold forth a moral duty of Recompense, to provide a competent Liveliehood for these who are separat from the World for our cause, but doth not infer a tenth part or any other determinat proportion, but what is convenient.

5. Teinds are defined by the Canonists, to be a tenth part of all profites and increase; and they are of three kinds, personal, predial and mixed: Personal are the Teinds of the profite of personal industry, as by Trading, Negotiation, Artifice, Science: Predial are of the natural Fruits of the Ground or Water: mixed are of the Industrial Fruits of the Ground.

6. But our custom alloweth of no personal Teinds; and of these predial and mixed, such only which have been in use, according to the Custom of the several places; such are Teind Fish, for which the buyers of the Fish were found liable, because of that custom past memory, February 15. 1631. Brice Semple and Schaw contra Brown. But where the Fishers were fourty years in Possession of Fishing, without Teind, in such a Bay, it was found sufficient to liberate them, November 24. 1665. Bishop of the Isles contra the Laird of Greenock and others: also in other places, there is no Teind of Fishes; in some places, Hay, Staigs, Swine, Lint, Hemp are Teinded, in other places not, but generally, Victual is Teinded, and Stirks, Lambs, Wool and Milk.

7. The Viccarage Teinds is local, according to the custom of every Benefice or Paroch, and therefore, was suftained for the Viccarage of Salt, and so much out of each Loom, but not upon thirteen years Possession, but only upon prescription [Page] by fourty years Possession, November 29. 1678. Mr. John Birnie contra Earl of Neth [...]sda [...] and his Tennents: Yea, in the same Paroch there was found diversity of the Viccarage, some places having no Viccarage of Cows and other places paying Viccarage of Milk, and Wool for Sheep; and other places paying Viccarage of Hay, Goose and Grice, July 7. 1677. Parson of Prestounhaugh contra his Parochioners. And Viccarage was not found due out of Yards, which were a part of the Chanrions Portions, unless it were proven that they had been in use of payment of Viccarage before.

7. Some Lands also by long custom, are Teind-free, as Temple-lands, being out of use of payment of Teinds for fifty years, were found free for all time thereafter, Hope, Teinds, Earl of Wigtoun contra Lady Torwood. Gleibs and Manses are also Teind-free. And the Teinds of Lands belonging to the Cystertian Order, Hospitlers and Templers, were Teind-free, and so continue in their Feuars, though the priviledge was only as to what these Orders laboured themselves; yet the Teind was found to belong to their many Feuars, for what the Feuars themselves labour, July 15. 1664. Thomas Crawford contra Laird of Prestoungrange.

8. Teinds were prohibite to be set in Feu to Lay-men, by the Lateran Council, held by Pope Innocent the second, or any way to be alienate from the Church: Though Church-lands might be set Feu, these being accounted but the Temporality, and the Teinds the Spirituality, as flowing from a Spiritual ground or Divine Right.

9. Teinds are also acknowledged with us to be the Patrimony of the Kirk, Par. 1567. cap. 10. and they are not annexed to the Crown, as the temporality of Benefices are. Par. 1587. cap. 29.

10. Yet decimae inclusae are here excepted, for these are Feued with the Stock, and can be only such, as time out of mind have gone along with the Stock, and never have been drawn nor separate; and therefore, are so ordinarly exprest, decimae, inclusae, nunquam antea separatae; and therefore, such are presumed to have been Feued out with the Stock, before the Lateran Council, and so consistent with the Canons: But if it can be proven that once they were separate by Church-men, though they had right both to Stock and Teind, and were Feued with Teinds included, they are not valide decimae inclusae, which no Church-man could Feu after the said Council. Neither can the King constitute Feus, de novo cum decimis inclusis, so that these Teinds included, are estimate as no Teinds, long custom being fufficient to make Lands Teind-free; and therefore, they have never come in with Teinds or Benefices in any burden, affecting Teinds by Law, as Ministers Stipends, &c.

11. About the time of Abolition of Popery in Scotland, the Popish Clergie did grant more frequently long Tacks of their Teinds: the King also gave Donatives of Teinds and erected them with Church-lands into Barronies and Lordships, so that there remained little of them, no way able to entertain the Ministers; and much Contraversie was like to arise about them, till all parties having interest submitted and surrendered the same to the King. First, By the general surrender of Erections and Teinds, Secondly, By a particular surrender of some Beneficed persons. Thirdly, Of the Bishops. Fourthly, Of the Burrows. The King, upon the 2. of September 1629. Ordered the whole matter to this effect, that the whole Teinds should be consolidat with the Stock, being always affected with competent Stipends to Ministers, &c. And that [Page] therefore, the Titular or the Tacks-man of the Teinds, having perpetual or hereditable Right, should sell the same to the Heretors, at nine years puchase; and where the Right was temporary or defective, the price thereof should be made less accordingly.

12. And for that effect, a Commission was granted for valuation of Teinds, and for disponing thereof as aforesaid, and for modifying and localling Stipendsto the Ministers: His Majesty reserved to Himself only a yearly Annuity of ten shilling Scots out of each Boll of Wheat and Barley, eight shilling of Pease and Rie, six shilling of Oats where the Boll rendered a Boll of Meal, and proportionally less where it rendered less: these Decreets were Ratified and prosecuted by several Acts of Parliament, 1633. cap. 8, 15, 17, 19. And 1641. cap. 30. Par. 1647. cap. 32. Par. 1649. cap. 46. Par. 1661. cap. 61. there was an exception in the Act 1633. cap. 19, which ordained the Teinds of all Abbacies and other Benefices, except the Teinds pertaining to Bishopriks and other Benefices, which fell not under the submission; in which, there is a Clause, that the saids Bishops and Beneficed persons, should enjoy the Fruits and Rents of their several Benefices, as they were possessed by them, the time of the said Submission, and therefore, where they did draw the Teinds by the space of fifteen years before the year 1628. or at least seven years of the saids fifteen years, or had the same in rentalled Bolls, they should so continue and not be valued, which provision is repeated, Par. 1662. cap. 9. all this proved for the most part ineffectual; for compelling Titulars and Tacksmen of Teinds to sell their interest in other mens Teinds, to the proper Heretors; because these Commissioners, allowing them an option to allocat whom they pleased, for the payment of the Ministers Stipend; few ventured to pursue them for Vendition, least they might be excluded be allocation, which they were willing to avert, by giving the dearest Rates; but if the Stipend had been laid proportionally upon all, the Kings favour had been more effectual and equal; but buying of Teinds being thereby retarded, the great work of these Commissioners was to value, modifie and allocat Stipends, when the Tack-duties of the Tacksmen, were not found sufficient to make up theStipend; the Commission did increass the Tack-duties upon the tacksmen, and in recompense thereof, prorogat their Tacks, whereby they, though at first being but slender Rights, by many nineteen years Prorogations became little less then Heretable Rights.

13. The Annuities of Teinds not being annexed to the Crown, were disponed by King Charles the first, to James Livingstoun, a Groom of His Bedchamber, to be uplifted by him till he was satisfied of the sum of Which Right was purchased by the Earl of Lowdoun, and did receive many stops, and took litle effect till the Kings return, who gave a Commission to the late Earl of Lowdoun, to transact for the bygone Annuities, and to Dispone them with the full Right thereof in all time coming, and his Disposition with consent of two Members of Exchequer was declared sufficient Rights to the buyers, and were appointed to be Recorded in the Books of Exchequer, that the sums gotten therefore might be known, and imputed unto the sum, for which the Right to the Annuity was granted; according to which, many have bought their Annuities. The Commission did also give power to value the Teinds, that the Annuity might be known, and to uplift and compone for the bygone, and the Current Annuities until they were sold, and accordingly Collectors were appointed by the Earl of Lowdoun, in several places of the Kingdom. The like Commission was renewed to James Earl [Page] of Lowdoun, after his Fathers death, who did make some progress therein, in the same way as his Father had done, but a stop was put thereto by the Kings Warrant, in anno 1674. which doth yet still continue: and with this stop, by a Proclamation from the King, all the arrears of the Annuity before the year 1660. were simply Discharged.

14. The Rule prescribed by the King, for valuation of Teinds, to fix them to a constant yearly duty, was this, that where the Teinds were severally known from the Stock, and set by Tack or Rental, the same should be also valued severally, deducing a fifth part for the ease of the Heretor, because frequently the Church-men had drawn the rate of the Teind above the just value, by their Stocked and Rental Bolls: But where the Stock and Teind were not severally known, the fifth part of the Rent was decerned to be for the Teind.

15. Teinds by the Canon Law, were all constitute into Benefices, which follow the several Offices in the Roman Church, which were either Prelacies or inferiour to Prelacies: Prelacies were the sewho had Chapters and Convents, And therefore, one had the Prelacy or preserence amongst the rest of their Colleagues, such were Arch-Bishops, Bishops, Abbots, Priors, Prioresses: Abbots and Priors had the Prelacy amongst the Mouks, of several Monasteries, as the Prioresses had over the Nuns.

There were also some few Monasteries which keeped the name of Monasteries or Ministries, and the Prelate was called Minister, of which there are four in Scotland; the Minister of Fale, Peebles, Scotland-wall, and the Trinity-friers of Aberdene: Next unto these, were the Provosts of Collegiat Kirks, instituted for singing of Mess, specially for their Founders and Patrons; these Provosts governing their Prebend, who were skilful in Musick, and had their several Stalls in which they sat, for the more orderly singing of their parts of musick, from which these Prebends were designed of the first, second, or other Stall. Some of the Colledge-Kirks were founded by the King and great Families: The Chapel-Royal is a Collegiat-Church, Governed by the Dean of the Chapel; which Office is now annexed to the Bishop of Dumblain, under whom are the Prebends of the Chapel-Royal. The Earl of Fife sounded the Colledge Kirk of Kirkheugh. The Earl of March founded the Colledge-Kirk of Dumbar. The Earl of Bothwel, the Colledge-Kirk of Chrightoun. The Earl of Lennox, the Colledge-Kirk of Dumbarten. The Earl of Ross, the Colledge Kirk of Tain. Other Families Erected Chapels, Officiat by one Chaplain: Inferiour to these Prelacies, were Parsons, Viccars, Chaplains, Prebendars, these had Patrons, whose advice and protection, they used in stead of a Chapter and Convent which Prelacies only had.

16. The general rule by the Canon Law was, that decinta debentur parocho de jure, the Parsonage Teinds to the Parson; the Viccarage, or small Teind to the Viccar; and where no other appeared to instruct Right, the Teinds were ipso jure, due to parsons and Viccars, it was so found; and that the Kings Gift was not sufficient to carry the Right of Teinds, from the imcumbents, unless mortification thereof to any other Office or Benefice possession thereof by another Office were instructed, June 27. 1665. Alexander Ferguson contra Stuart of Ascog.

[Page]The Bishops and such Prelacies as had curam animarum, had Chapters; and the Priors, Prioresses, Abbots, &c. had Convents, whose consent in all masters of Benefices being Chapterly conveened, was necessary, and in evidence thereof, the Seals of the Chapter or Convent were appended. Viccars were either such as were substitute by Parsons and other Clerks, or such as had a distinct Office; and therefore, were not changeable by their Constituents, and were called Viccars of cure cum cura animarum; or perpetual Viccars: Chaplains were Clerks, having curam institute for their accommodation who were far from ordinary Churches; and therefore, were Erected upon the Expenses of the Founders, who were therefore Patrons; and of all other Patrons supposed to have greatest interest in these Benefice; so that after the Reformation, these Chaplanries and Prebendaries, were declared to return and be disposed upon by their Patrons, to Bursers of Colledges, Par. 1592. cap. 158. Likeways Prebendars were such as had Prebendam or a Benefice, which was at first a common name, but was made special by use to these Clerks, who had no other special name.

These Prebendars were either cum cura animarum, or sine cura, as Parsons preparing for orders, most of them were Institute in Colledge-Kirks, for singing of Mess, specially for the Founder and his Family, over whom was a Provest, having the power of Prelacy; in these also the Patrons were held as Founders, and had the chief Interest in the Benefice, which therefore, after the Reformation, returned as void to them; the chief Prebendars were these of the Kings Chapel-Royal; the intent of Constitution of these Offices, as aforesaid, was mainly to secure the Benefice and Patrimony of the Church against Dilapidation, the incumbents being Administrators, or at best Liferenters, night other ways have wronged their Successors, in favours of their Friends and Relations; and therefore, Prelates could do nothing of moment, without consent of their Chapters or Convents, or other Beneficed persons, without consent of their Patrons. Though these Offices were abolished by the Reformation, there was no other way fallen upon, for managing of Benefices, but by giving Secular persons the Designations of these Offices, who therefore were called Titulars, because they had the naked Title without the Office of Bishops, Priors, Abbots, Provests, &c. who in Lieu of the consent of Chapters and Convents, appended only the common Seal thereof; and when Bishops were set up again, and Chapters appointed for them, the consent of the major part thereof was requisite, with the Seal; Yet it was not necessary that they should be Chapterly conveened, Parliament 1606. cap. 3.

17. But before the Reformation, according to the Canon Law, there were these Restraints upon Beneficed persons, in order to their Benefices, as to Teinds, they could grant no Feus at all, neither could they grant Tacks without consent of the Chapter or Convents of Prelats, the members whereof were found sufficiently proven by Feues, and Presentations granted by Prelates, and subscribed by these persons as members of the Convent, without necessity to show the Erection or Foundation, or these persons Admission, and that there were no more members of the Convent, then the eight subscribing several Writes, June 24. 1623. Laird of Drumlanring contra Maxvel of Hills. Spots. Kirkmen, Parson of Kinkel contra Laird of Coulter. The consent of most part of Prebenders, was necessary, not reckoning the Prebenders, that were out of the Countrey; this was also observed by the Earl of Haddingtoun, March 10. 1612. inter eosdem.

[Page]The consent of the Chapter was found, not only necessary to the Deeds of the Prelat, but to the Deeds of the members of the Chapters; and so a Tack set by a Dean, though of Teinds mortified to a Colledge, whereof the Principal was Dean, was found null, for want of the Chapters consent, Spots. Kirkmen, Colledge of Aberdene contra Lord Frazer; where he observes, that the same was found twice before, yet it was not found necessary to the Tacks of the several members of the new Erected Chapters of St. Andrews, whereof many Ministers were of laick Patronage, Hope, Teinds, Tennents of Craighal contra Mr. Walter Kinninmont. But the old priviledge of the Bishop of St. Andrews, which is yet ccontinued is, that the appending of his Seal is sufficient, both for him and the Chapter, without necessity of their subscription, Par. 1606. cap. 3.

18. Secondly, Beneficed persons were restrained from setting Tacks of their Teinds, even with consent of their Chapters, with Diminution of their Rental; and therefore, Ministers provided to Benefices, granting pensions, tacks or feues of their Benefices, with Diminution of the Rental, they found at their Entry, the same are declared null, and they to be deprived, Par. 1581. cap. 101. And also all Beneficed persons were ordained to find Caution to leave their Benefices in as good case as they found them; and all Tacks, provisions, or changing of Victual in Money. in Diminution of the Rental, which was at their Entry declared null, Par. 1585. cap. 11. But by Act of Par. 1606. cap. 3. It is declared lawful to the Bishops to set as many Tacks of the Fruits and Duties belonging to their Benefice, either short or long Tacks as they please, and for as many years as they think expedient; which may subsist of the Law without Restraint or Limitation of any time; which Tack being once set, shall be accounted, the Rental not to be diminished thereafter; but there is no restriction in relation to any Rental, preceeding the said Act; but it is only recommended to the Bishops to set to a competent avail near the worth; but by the Act of Par. 1617. cap. 4. Bishops are prohibit to set Tacks for longer space then nineteen years: And all Pensions or Tacks of the thirds of Benefices, which then belonged to the Church, set in Diminution of the Rental, payed at the first assumption of the Benefice, were declared null, par. 1597. cap. 240.

19. Thirdly, inferiour Beneficed persons could set no longer Tacks of any part of their Benefice, then three years without consent of the Patron, par. 1594. cap. 200. which was extended to Deeds done by Provests and Prebendars, though having a resemblance with Prelacies, seing the Patron hath so great Interest, Hope, Patron, Laird of Drumlanrig contra Cowhil and others. And Beneficed persons below Prelats, are discharged to set Tacks of any part of their Benefice longer then their life, and five years after; and if these Tacks be not Registrate in a Book keeped by the Clerk-Register for that effect, within fourty days after the date thereof, they are null, par. 1617. cap. 4. Yet in these long Tacks, the consent of the Patron is still necessary; and therefore, a Tack of Teinds, without consent of the Patron, was only found valid as to three years, and null as to the rest of the years contained therein, July 18. 1668. Mr. George Johnstoun contra of Howdoun. And a Tack of Teinds for more then three years without consent of the Patron, was sustained by his subsequent consent, having accepted a Right to the Tack, and obtained prorogation thereupon, January 19. 1669. Earl of Athol contra Rohertson of Strouan.

[Page]20. A TackofTeinds set by an University for a definite time, with an obliegement to renew the same in all time thereafter, was found not effectual after the definite time, though the same Rent was received for years after, which was not sustained as homologation, but as tacite relocation, July 13. 1669. Old Colledge of Aberdeen contra the Town of Aberdeen.

21. To come to the condition of Teinds, as it now stands: a great part of them is in the hands of the Heretors to whom the Stock belongs; a part also is in the hands of Titulars and Lords of Erection, and tacksmen having right to other Heretors teinds, who have ordinarly prorogation of their tacks; the rest belongs to Ministers, or Royal Burghs, for the maintainance of their Ministers, Colledges or Hospitals. Of these teinds which are not in the Heretors own hand; some are drawn in kinde, ipsa corpora; some are in old stocked rental Bolls; some are in tack or use of payment, and others under Valuation. We need to say nothing, as to teinds that are in the hands of Heretors to whom the Stock belongs, about which there can be little controversie, except in the case of new Erections or Augmentations; for teinds, through whatsoever hands they pass, carry alwayes along with them, as a burden affecting them, competent Stipends for the Ministers who are or shall be erected. Neither is there any other debate concerning teinds orderly valued, being thereby liquidate and clear; nor concerning these teinds which are in tack during the tack, further then hath been said before of the Requisites for setting such tacks. It remains to consider drawn teinds and rentalled teind Bolls, and conclude with the present interest of Ministers and Patrons.

22. As to the drawn Teinds, the manner thereof is prescribed, Par. 1617. cap. 9. That the possessors may require the teind-master, once for teinding of Croft or In-sield Corn; next, for teinding Barley; thirdly, for Out-field Corn, within eight dayes after the shearing of these three several kindes of Corn; or at least, when the same are shorn till about a tenth part, to come and teind the same within four dayes; and the teind-master, if he dwell not within the Paroch, is ordained to have a servant for teinding, and to intimat his name publickly the last Sabboth of July, or first Sabboth of August: So that upon requisition to the teind-master personally, or at his dwelling-place in the Paroch, or to his servant so designed, the possessor might proceed to the teinding of his own Corns; and if the teind-master resided not in the Paroch, nor had any servant designed, or if upon intimation they appeared not, the possessor might before witnesses teind his own Corns, and was only oblieged to keep the teind skaithless for eight dayes after the separation; but if any medled with the teinds any other way, he is lyable for wrongous intromission.

23. Spuilzie of teinds is only competent in the case of violence, where the teind-master being in present possession and use of drawing the teind, doth orderly come to teind, and is debarred by force; or when the teindmaster, being in use that same year or the former year to draw the teind, any other intrometteth therewith. The former act is like Ejection, and this is like Intrusion, especially if the Teind-master have used Inhibition by publick Letters, published at the Paroch-Church where the Teinds lye, as an intimation to all parties having interest, to forbear medling with the Teinds, otherwayes then by order of Law, which may be execute by any person as Sheriff in that part, January 27. 1666. Earl of Eglintoun contra Laird of Cunninghamhead.

[Page]This Inhibition is the competent legal way to take off tacite relocation, when Teinds have been set in Tack, and the Tack expired; and when they are in use of payment of certain duty, and hath then the same effect that Warning hath in relation to Tennants of Lands, and being once duly used, it interrupts tacite relocation, or use of payment, not only for the years wherein it is used, but for all other subsequent years, March 18. 1628. Lord Blantyre contra Parochioners of Bothwel. But the Titular may not by force draw the Teinds after Inhibition, but must pursue therefore where there was any pretence of title, else it is a Spuilzie in him, January 27. 1665. Laird of Bairfoord and Beanstoun contra Lord Kingstoun..

Upon Process, Spuilzie was sustained against the Heretor, receiving a joint duty for Stock and Teind, March 16. 1627. John Inglis contra Gilbert Kirkwood: But it is not effectual to infer Spuilzie against Tennants, continuing to pay their Masters a joint duty for Stock and Teind, as they were in use before, though the Inhibition was particularly intimat to the tennents, seing they knew not how to distinguish the proportion of Stock and Teind, having still payed a joint duty promiscuously for both, December 12. 1627. Arbuthnet contra tennants of Fairnieflat. But the priviledge of tennants paying to their Masters for stock and teind jointly, was not extended to a Merchant buying a whole Cropt together, who was found lyable for the teind, though he payed before any diligence, June 24. 1662. Mr. Alexander Verner contra George Allan. In like manner, Merchants buying the Herring where they were taken in the Isles, were found lyable for the teind by immemorial possession, so to uplift the teind-fish from the Merchants, who bought whole boat-fulls of the Herring green, December 13. 1664. Bishop of the Isles contra the Merchants of Edinburgh. But, as Warning, so Inhibition of Teinds is taken off by accepting the old duty thereafter, or of the ordinary taxation accustomed to be payed for the tack-duty, Hope, teinds, Lord Garleis contra tennants of Whitehorn, or by a small part of the old tack-duty, ibidem, Mr. Andrew Balfour contra Lord Balmerino, John Glendinning contra tennants of Partoun.

24. Rentalled teind-bolls is, when the teinds have been liquidate and settled for so many Bolls yearly by Rental, or old use of payment which presumeth a Rental. By this means, the beneficed persons gained an advantage of the possessors; and therefore, by the Kings Decreet Arbitral, such teinds which are separat, and severally set or known from the Stock, had a diverse and dearer valuation; and therefore, rentalled teind-bolls were found due by use of payment immediately preceeding the debate, though exceeding the worth of the teind, till the teind in kind were offered, and intimation made that the party would not continue the use of payment of rentalled Bolls, March 22. 1626. Lennox of Branshogle contra tennants of Balfroon.

Teind-bolls were found due according to the old Rental, though a lesser quantity was received by a Minister for several years: Here the Bishop to whose Bishoprick the Teinds of that Paroch were annexed, opposed the alteration of the old rentalled Bolls, whereof a part only was allocat to, and received by the Minister, July 3. 1630. Mr. George Summer contra Stewart of Balgillo. The like where there was a Decreet formerly for the Teind-bolls, but prejudice to offer the Teind in kinde in time coming, Feb. 20. 1633. Colledge of Glasgow contra Mr. James Stewart.

[Page]25. The interest of Bishops in their Benefices, is much alike with Ministers as to their entry, which is regulat by their Consecration or Translation, which if before Whitsonday, gives them the benesit of that year; and if after Whitsonday, it gives them the half. During their incumbence, they have not only the Fruits and Rents of the Benefice, but the power to set Tacks for nineteen years, with consent of their Chapters, Vide § 17. and to receive Vassals, and to constitute Commissars; all which are effectual after their death or removal. They have also the Quots of Testaments confirmed by all their Commissars during their life, or within the time of their Ann after their death; but they have no Quots of Testaments not then confirmed, although the persons died in their life, or during their Ann, because the Quot is due for the Confirmation, as was found, July 6. 1676. Bishop of Edinburgh contra Captain Wishart: and for the same reason, they have not the Compositions or Duplications of Heirs, Apprisers or Adjudgers, whom they do not actually receive in their life, which will not belong to Executours, or fall within their Ann, but to the next Intrant, who only can receive these Vassals.

26. The Interest of Ministers in the Teinds may be considered, either in their entry during their incumbency, or after their removal. In all which, the Ministers interest is of two kindes; for either he hath the Benefice, Parsonage or Viccarage, or hath only a Stipend modified thereof; for these Benefices did ordinarly belong to the incumbents of particular Paroches, and sollowed the Office of serving the Cure there: and therefore, when these Benefices were not erected in Temporal Baronies and Lordships, or otherwayes so affected by Titles, Tacks or new Erections, that the Ministers thereby could not have a competency, they betook themselves to the Benefice, and had the same Right and Priviledges as to them, as beneficed persons formerly had, and might set Tacks thereof in the same way, and with the same restriction, as is before declared. But more frequently, the Ministers had modified Stipends, which were appointed by the King and Parliament to be modified out of the Teinds, whatever the Title or Interest of any other person were therein; which they could not reach, if they took them to the Benefice it self, as they might have done by the Act of Par. 1581. cap. 102. Ordaining, That all Benefices of Cure under Prelacies, should be provided only in favours of able Ministers.

27. The Interest of Ministers was according to the nature of the Benefices whereunto they were to have right, or out of which their Stipends were to be modified; for all Kirks were either Patrimonial, or Patronat, and by clearing Patronage, it will easily appear what Kirks are Patrimonial: For, this distinction is taken from that of persons in the Civil Law, in these who are ingenui or fully free, and libertini or become free, but with some acknowledgements and services to the Authors of their freedom, who were therefore called their Patrons: So there stood the like relation betwixt Patrons and Kirks patronat, as betwixt Patrons and Libertines, the ground whereof was an eminent good deed done by the Patron or his Predecessor to that Kirk, especially these acknowledged in Law,

Patronum faciunt, Dos, AEdificatio, fundus.

Signifying the building of the Church, or giving of the Stipend, or of the Ground necessary for the Church, Church-yard, Manse or Gleib, were the grounds for constituting the Patronage, which were sufficiently instructed by custom of the Kirks, acknowledging such a Patron.

[Page]It was lately contraverted who should be patron of a second Minister, whose Stipend was constitute, not out of the Teinds, but by Contribution, and ingagement of a Town for the greatest part, and the Heretors of the Landwart paroch for the rest; whether the patronage and power to present that second Minister, should belong to the patron of the Kirk, having the unquestionable power of presenting the first Minister, or the Contributers, in which competition, the patron of the Kirk was preferred, because the contributers had never been in possession of presenting, nor had reserved the patronage nor power of presenting in the erection of the second Minister, which was only by an Act of the Bishop and presbytry, bearing the shares contributed for a second Minister; but neither Reservation nor protestation by them concerning the patronage or power of presenting the second Minister; nor was any thing of custom or possession to show the meaning of the parties, November 18. 1680. Town of Haddingtoun contra the Earl of Haddingtoun. This case will not prejudge Erections of second Ministers in most of other Towns in the Kingdom, where the Erection doth bear reservation of the patronage. But for clearing of the derived Right from the first patron, especially to singular successors, the patronage was ordinarly conveyed by Infeftments, carrying expresly, Advocation, Donation, and right of patronage of such Kirks. Such Kirks then as acknowledged no patron are fully free; and these are provided, not by presentation, but the ordinar conveyeth, pleno jure, whereby the Incumbent hath right to the Benefice, and full Fruites: But in Mensal Kirks, the Incumbent hath but a Stipend, and these belong to the proper patrimony of Prelats, who have right to the Fruits thereof, as a part of their own Benefice; and therefore, are called patrimonial or mensal.

Patronage is also, either Laick or Ecclesiastick; Laick is that which belongs to secular persons; Ecclesiastick, that which belongs to Church-men, as when a Bishop hath the right of presentation to a Kirk, not in his own Diocess; there he presents, but another must confer as Ordinar, and so he is but Ecclesiastick patron.

28. Kirks patronat required for the entry of Ministers, a presentation of the patron, presenting a person to the Church and Benefice, to be tryed by Church-men having that power, and giving him the right of the Benefice, or Stipend, being found qualified, and Collation of the Office and Institution therein by Church-men upon tryal, without which, the Incumbent could have no right; yet where the Bishop had the power of Collation and Institution and to confer, pleno jure, a Gift from the Bishop, conferring and admitting, was found sufficient without a distinct Presentation and Collation, July 4. 1627. Minister of Sklate contra parochioners. But in Kirks not patronat, Institution and Collation was sufficient. And of late, the Act of Ordination or Admission of Ministers by presbytries, served for all: But in Benefices without cure, as prebendries or Chaplanries, presentation is sufficient without Collation and Institution, March 14. 1622. Scot contra Penman.

29. Ministers being thus Entred, have Right to their Benefices or Stipends, during their incumbency, which they need not instruct by Write, but it is sufficient to prove by Witnesses, that the Minister or his predecessors have been in possession of that which is contraverted, as a part of the Benefice or Stipend of that Kirk, and that is commonly holden and repute to be a part thereof; for there being no competent way to preserve the Rights and Evidents [Page] of the Kirk amongst successors in Office, as there is of other Rights amongst other Successors. The Canon Law attributeth much more to possession then the Civil; for thereby possessor decennalis, or triennalis, nontenetur docere detitulo: Which was not only extended to instruct that the thing possessed belonged to the Benefice, but that the incumbent had sufficient right; and therefore, liberated prebendars from production of their provisions, in the case of improbation, Hope, improbation, Bishop of Galloway and Dean of the Chapel-Royal contra the prebendars: This presumption would not be elided by any extrinsick Right; Yea, it will liberate from preduction of any written Right in Reduction and Improbation, where there is no Right extent: But if a Right be found by the oaths of Church-men or others, to be extent in their hands, the same will be presumed to be the Right, by which they posses; and it may be improven by a positive probation, but not by a presumptive probation, by way of certification, concluding it false, because the possessors declined to produce it, or to abide by it; when the Right is produced, any exception may be proponed upon any thing contained therein; and therefore, an Annualrent of ten Chalders of Victual, mortified by the King to the Chapel-royal was excluded by a Redemption thereof, granted by the King voluntarly upon payment, when the Bishops were supprest, in respect the mortification boresuch a Right mortified, which had therein a Reversion; and therefore, after, Redemption, thirteen years possession could not relieve, the Right being Redeemed: Neither could the Act of Restitution of Bishops, restoring them to the Rights and possession they had before 1637. seing that could not hinder another party ro redeem, July 11. 1676. Bishop of Dumblain contra Francis Kinloch. A Ministers Stipend, as to the use of payment and quantity, was found probable by witnesses without write, in possessorio, as was lalely found, Ministers Relict contra Earl of Caithness. As to the time sufficient to give a possessory Judgement in Benefices or Stipends upon possession, without Evidents in write; but being holden and repute as a part of the Benefice: The Canon Law, Regula Cancellariae, 33. determines it to three years peaceable possession, which is rather as to the Incumbents Right; that after three years possession, he cannot be questioned during his Life. I find not our Decisions so clear in it, but it cannot exceed seven years possession, which gives a possessory Judgement in Infeftment of property, &c. it was so found, November 25. 1665. James Petrie contra John Mitchelson, The like about that same time, Mr. Alexander Ferguson contra Lievtennant Collonel Alexander Agnew.

Ministers also during their Incumbencie, may set Tacks according to the Rules for setting of Tacks, by Beneficed persons before exprest, which are valide and effectual, though the Incumbent be deprived or transported, par. 1592. cap. 115.

30. Ministers Stipend are ordinarly allocat out of the Teinds of particular Lands, and when they are allocat, all Intrometters with the Teinds of these Lands allocat are lyable for the Stipend, not proportionally with other Intrometters, but in so far as their whole Intromission can reach, even though they made payment before they were charged by the Minister, which they alledged was bona fide, to the Heretor or Tacksman, February 19. 1629. Kirk contra Gilchrist. And if there be no Allocation, the Stipend is a burden, affecting the whole Teind, out of which it is modified; and the Minister may take [Page] himself, either to the Heretor or possessor, Spots. Kirk-men, Mr. Andrew Ker contra William Gilchrist. December 3. 1664. Mr. J. Hutcheson contra Earl of Cassils: In which case it was found, that the Minister might take himself to any of the Heretors of the Paroch for the whole Teind, inso far as his modified Stipend went, seing he had no Locality, and that the Heretor distrest, behoved to seek his relief proportionally from the rest. And a Minister was found to have right to pursue an Heretor for his Stipend, payed out of his Lands; and that accepting an Assignation to a part of the Tennents duties, did not liberat the Heretor further then what the Minister received, unless the Assignation bore, in full satisfaction, November 9. 1677. Mr. John Rutherford contra Murray of Skirling. Yea, though an Heretor was but an Appryzer of the Stock and Teinds, he was found lyable personally, though he had not intrometted, and though he offered to assign as much of the Rent, December 20. 1622. Sir John Prestoun contra Sir John Ker. And though the intrometter was but a Wodsetter, both of Stock and Teind, having no more but his Annualrent, and there being sufficient Teind beside the Wodset, March 21. 1633. Mr William Keith contra James Gray and others. But where a Liferenter possessed, she was only found lyable, not the Fiar, June 24. 1663. Menzies contra Laird of Glenurchie.

31. But Teinds before valuation, are only due according to the Cropt and Goods, without restraining the Heretor in the free use of his Ground, who may leave it all Grass, though it had never been so long Corn, and may Stock it with yeld Goods, which will yield no Viccarage; and therefore, having inclosed a parcel of Ground, and sown it with Kail, Carrets, and Herbs, the same was found Teind free, unless these were accustomed to pay Teind in that place, June 9. 1676. Alexander Burnet contra William Gibb.

32, Even after valuation, Teinds are not debita fundi, nor do affect singular Successors, as to bygones before their Right, February 28. 1662. Earl of Callender contra Andrew Monro.

33. The legal terms of Benefices and Stipends, whereby they are due to the Incumbents, are Whitsonday at which the Fruits are held to be fully sown, and Michaelmess, at which they are presumed to be fully separate; and therefore, if the Incumbents Entry be before Whitsonday, he hath that whole year, So if he be Deposed or transported before Whitsonday, he hath no part of that year, if after Whitsonday and before Michaelmess, he hath the half, July 24. 1662. Mr. Patrick Weims contra Cunninghame. If after Michaelmess, he hath the whole: But if the Incumbent die he hath further interest in his Benefice, even after his death.

34. Ministers dying, their Wives, Bairns, or Executors, have the Annat of their Beneficeor Stipends, which is acknowledged to be their ancient Right, Parl. 1571. cap. 41. whereby it is declared, that Beneficed persons dying, shall have right to the fruits of their Benefice upon the ground, and the Annat thereafter to pertain to their Executors: But the question is, what the Annat importeth, there is a Letter concerning it written by the King to the General Assembly, and ratified by them. All do agree, that if the Incumbent die after Michaelmess, he hath right to that whole year by his Service, and to the half of the next year by the Annat: But if he die before Michaelmess, he hath right to the half of the Stipend, if he survived Whitsonday, proprio jure, And to the other [Page] half, as the Ann which his Executors have right to; but all the question is, when the Incumbent doth not only survive Michaelmess, whereby he hath the half of the next year; but if he survive the last of Dec. whether he hath right to the whole Stipend of that year; as to which, that Rule hath been sustained, in favorabilibus annus incaptus habetur, pro completo; & therefore, the Ann was the whose year, which was so decided, July 5. 1662. Executors of Mr. James Fairlie contra his Parochioners; but the Anns of Bishops and Ministers, are now brought to a much more equal way by Act of [...], August 23. 1672. whereby it is Statute, that the Ann in alltime thereafter, shall be half a years Rent of the Benefice or Stipend, over and above what is due to the Defunct for his Incumbency, viz. if he survive Whitsonday, he shall have the half of that year for his incumbency, and the other half for his Ann, and if he survive Michaelmess, he shall have the half of the next year for his Ann; whereas before if he survived Michaelmess, and lived but till the last of December, his Ann was but the half of the next year; but if he lived till the first of January, his Ann was that whole year, whereby the next Incumbent had nothing to expect for a year, during which the Kirk was like to ly Vacant.

The Annat divides betwixt the Relict and nearest of Kin, if there be no Bairns, and is extended to the profite of the Gleib, if there be no new Intrant, July 19. 1664. Elizabeth Scrimzour Relict of Mr. John Murray contra his Executors: But where there is an Intrant, the Gleib belongs to him, and is not part of the Ann, nor did belong to the former Minister, unless it had been sown by him, and the Cropt upon it, at the Entry of the Intrant, July 6. 1665. Mr. John Colvil contra Lord Balnterino. Where it was also found, that the Defunct had his Ann, though he had neither Wife nor Bairns.

35. To conclude this Title with the Interest of Patrons in Benefices, we have already shown their Original and Kindes, their interest in the Benefices or Stipends, is, first the Right of Presentation of a qualified person for the Ministry, whom the Presbytrie behoved to try and admit, if he were qualified: whereanent the Patron might appeal to the Synod, and thence to the General Assembly; and if that person be still rejected, he must present another, which must be done within six moneths after the Vacancy, may come to his knowledge: Otherways the Kirk may admit a qualified person for that time, Par. 1592. cap. 115. Par. 1606. cap. 2. Par. 1609. cap. 12. Since the Restitution of Bishops; Presentations must be directed to them in their several Diocesses.

Secondly, During the Vacancy without the Patrons default, but by the default of the Presbytery, refusing to admit a qualified person, he had power [...] detain the whole Fruits of the Benefice in his own hands, as is clear in the said last Act, Par. 1592. cap. 115.

Thirdly, Patrons are Tutors and Guardians to their Church, without whose consent the Incumbent can set no Tack longer then for three years, Par. 1594. Cap. 200. Patrons had also an indirect interest in their own Benefices, where the Ministers had an ordinary Stipend, settled to them by long custom or modification, yet far within the worth of the Benefice.

The Patrons used to present them to the Benefice, but withal took Tack of them to confident persons to their own behove, carrying the superplus of the profite of the Benefice, over and above the accustomed Stipend of their predecessors, [Page] which hath not been quarrelled as a Symoniacal Paction or Dilapidation. It seems also, that Patrons for resemblance of personal Patronages ought to be Alimented out of the Benefice, if they come to necessity, according as their Benefice may bear, though there hath occurred no occasion to question or try this point, but by the Act of Par. July 23. 1644. Session 1. c. 20. The power of disposing of the vacant Benefice or Stipend, was taken from the Patron and Stated in the Presbytrie and Paroch to be disposed upon for pious uses and by Act of par. 1949. c. 39. The power of presentation is also taken away, yet thetitle [...] unsitly design that Act an abolution of patronage, for there is no more there taken away but the power of presentation: but on the contrary, where the patron could have no Interest in the Benefice of Teinds, but indirectly as aforesaid, that declares the Heretable Right of the Teinds, over and above the Stipend, to be in the Patron, but with necessity to dispone the same to the Heretors, for six years purchase, but these Acts are now Rescinded, and patrons returned to their ancient Rights, but they are excluded from the Fruits in the Vacancie, which are applyed to pious uses, for seven years, and thereafter during his Majesties pleasure, par. 1661. cap. 52. and the Vacancies for seven years after the year 1672. are applyed to Universities, par. 1672. cap. 20.

Ecclesiastical Benefices were so ordinarly patronat, that there were scarce any free, but all were presumed o be patronat; and where the right of patronage did not appear to be established in any other, the Pope was presumed patron before the Reformation; and after the Reformation, the King is presumed patron, jure Corona, where the right of another patron appeareth not. There are other patronages belong to the King, jure privato, as when the King or his predecessors acquired any rights of patronages from any private person; or when the King or his predecessors founded or doted the Benefice; or when any Lands or Baronies fall in the Kings hand as Superiour, by recognition or forefaulture, all such having annexed thereto, or comprehended therein, the Advocation, Donation and Right of patronage of any Kirk, the King doth thereby become patron; all those patronages are at the Kings dispose, and transmissible to any Subject by the Kings proper deed, either annexing or incorporating the same in Baronies or Lordships, or by distinct Gifts, for the patronage doth ordinarly pass as annexed to Lands, Charters of Burghs, Baronies, or Lordships, yet they may pass without Infeftments, as jura incorporalia.

But there are other patronages which by Act of Parliament, are annexed to the Crown, either expresly, or when Baronies, Lordships, or Benefices are annexed to the Crown, if therein patronages of any Benefice were comprehended, they are annexed though not exprest; for Barony or Benefice are nomina universitatis, being united and erected; and therefore, the Barony or Benefice, without expressing Patronage, do carry the same by Resignation, Appryzing, Adjudication, Recognition or-Forefaulture, as well as Salmond fishing or Milns: But these Patronages being a part of the annexed Patrimony of the Crown, cannot be disposed by the King, without a publick Law, or by a special Act of Dissolution for particular reasons of publick good, anterior to the Kings Gift and Ratifications in Parliament, which pass of course, and are accounted but private Rights, which will not establish the same, though in the [Page] Ratification there be a Clause of Dissolution, which is always understood to be as a private Right and not a publick Law.

The Patronages of all Bishopricks belong to the King, who designs the person to be Bishop, and though the Chapter may use the formality of Election, they do not refuse the Kings Designation: The order of this Election is prescrived, Parliament 1617. cap. 1. where the Dean and Chapter are ordained to choose the person, whom the King pleases to nominat and recommend, he always being an uctual Minister of the Kirk, who being Elected, hath sufficient right to the Spirituality of his Benefice, but not to the Temporality, till he have a Charter from the King, and do homage, and swear obedience to him; but the Arch-bishop of Saint Andrews is to be elected by the Bishops of Dunkel, Aberdene, Brichen, Dumblane, Ross, Murray, Orknay, Caithness, the Principal of Saint Leanards Colledge, the Arch-Dean of Saint Andrews, the Viccars of Saint Andrews, Leuchers and Couper, or most part of them, Parliament 1617. cap. 2. And by the same Act the Arch-Bishop of Glasgow is to be Elected by the Bishop of Galloway, Argile and Isles, and the ordinar Chapter of Glasgow, or most of them, the Bishop of Galloway being Conveener of the Electors; and now the Bishop of Edinburgh since that Bishoprick was Erected, is by the Erection made an Elector and Conveener.

The King is also Patron of many Laick Patronages, and there are several other Laick Patronages belonging to Subjects, Ecclesiastick Patronages belong now only to the Bishops, to whom some Kirks are patrimonial or Mensal, the Fruits whereof are a part of the Bishops Benefice, and the several Paroch Kirks are not distinct Benefices, but partes beneficii, but most be served by the Bishop himself, or a Minister who is a Stipendiary, and by the 19. Act Parl. 1633. all Ministers are appointed to be provided with sufficient Stipends, being eight Chalders of Victual, or eight hundereth Merks at least, except in singular cases, referred to the Commissioners for plantation of Kirks, who are authorized as Commissioners of Parliament, to value Teinds, modifie Stipends, and grant Localities for fixing thereof upon particular Lands.

The Bishops have the Patronage of some Kirks without their Diocies, and do present to the Bishop of that Diocie, but if the Bishop should acquire any patronage of a Kirk within his own Diocie, that Kirk cannot be Patronat, but becomes free, and is conferred by the Bishop, pleno jure, for he cannot present to himself, yet by the Collation, the person Collated is not a Stipendiar, but is Parson or Viccar, and hath the full benefite of the Fruits, except in so far as they are restricted by Tacks, set lawfully by them or their Predecessors.

The common Kirks which were to be provided by the Bishops and their Chapters in common, were not properly Patronat by Presentations, but by Nominations and Collations, yet the Incumbents were not Stipendiaries, but enjoyed these Kirks as Benefices. But after the Reformation, when Bishops and Chapters were supprest, these common Kirks were declared to be of the same nature with other Parsonages and Viccarages, and to be conferred by Presentations of the lawful Patrons and Collation, whereby they become then Patronate; the King, or these to whom he gave right being Patrons; but after the Restitution of Bishops and Chapters, Parliament 1617. cap. 2. these common Kirks were restored to their ancient condition. Colledge Kirks were Benefices, whereof the King was Patron, except some few which belonged to Subjects, [Page] Chaplainries, and Altarages were under Patronage of the Founders or their Successors.

Before the Reformation there were but few inferior benefices below Prelacies, viz. Collegiat and common Kirks, Parsonage and Viccarages, which are but very few, and many be found by the Stent Rolls, whereby eveny Parsonage and Viccarage are Taxed apart, as distinct Benefices; the far greater part of all the Teinds of Scotland did belong to Prelacies, such as Bishopricks and Abbacies, and all the paroch Kirks which belong to them, are not distinct benefices, but a part of their patrimony, and were served by themselves, their Viccars, or their Substitutes, without any fixed maintenance, but ad placitum, so that there was no patronages of all these Kirks, and the ordinar provision thereof was, the Viccarage or small Teind, and sometimes Viccar pensions out of the parsonage Teinds.

After the Reformation all monasteries being supprest, they return to the King, jure Coronae, as to their whole benefices, both the Teinds or Spitituality, and Lands and Baronies or other Temporal Rights; but the King gifted the most part of these benefices, both Spirituality and Temporality, to the Nobility and Gentry, and Erected the same in Temporal Baronies and Lordships, but with burden of competent provisions to the Ministers of all the Kirks, which were parts of the patrimony of the saids great benefices, whereby the Lords of Erection, coming in place of these Monasteries, had right to all the Teinds of the Kirks, which were the patrimony thereof; and the Abbots and Priors, did nominate their Viccars in these Kirks, so the Lords of Erection did nominate the Ministers to the same, and presented them to the Church-men, to be tryed and admitted, and thereupon assumed the Title of patrons, though properly they were not such, because the Ministers had no benefices, but were Stipendaries, having no Rights to the Fruits till the year 1587. when the Temporalities of all benefices belonging to Arch-bishops, Bishops, Priors, Prioresses, or whatsomever Ecclesiastical benefite belonging to any Abbay, Cloister, Friers, Monks, Channons, Common-kirks, and Collegiat kirks, were annexed unto the Crown, with several exceptions, Act 29. par. 1587. and though that Act seem only to annex the Temporality then belonging to these Church-men, and not to extend to the Temporalities already Erected to secular persons, yet by the exceptions of the many Erections therein contained, it hath been ever held as an Annexation of all the Temporalities that did belong to these benefices: but the Spirituality or Teinds, are declared not to be annexed, but by the Act, 115, Parliament 1592. Erections either of kirk-lands or Teinds in Temporal Lordships, after the said Act of Annexation, are declared null, except such parts and portions of the kirk-lands, already erected in Temporal Lordships, to such persons, as since the Act of Annexation, have received the honours of Lords of parliament, and have sitten and votted in parliament, as Temporal Lords, whence the question ariseth, whether that exception derogates only from this Act, or also from the said general Act of Annexation, but by the 195. Act parliament 1594. all Erections since the said general Act of Annexation, not excepted in the said Act, are declared null, which doth also leave a doubt as to to the Erections, preceeding the said Act of Annexation; and by the second Act, parliament 1606. Restoring bishops, it is declared for the better satisfaction of His Majesties Subjects and faithful Servants, whom His Majesty hath rewarded with Erections, Feues, patronages, Teinds and Confirmations of Teinds, patronages and other Rights of Abbacies, and that they may not be put in mistrust, [Page] [Page] [Page] therefore ratifies the hail Erections, Infeftments, Confirmations, Patronages, Tacks, and other securities of Benefices, not being Bishopricks given, disponed, and confirmed by His Majesty, during the Parliament, 1587. before or sinsine, agreeable to the saids Laws and Acts of Parliament, and faithfully promits, in verbo principis, never to quarrel the same, which seems to give further ground to Erections, though qualified with that provision, that the saids Erections be conform to the Acts of Annexation and Laws made sinsine, whereby the same might only extend to the Erections, excepted and warranted in the said Act of Annexation, which excepts several Erections formerly made, and leaves some Kirk-lands to the Kings dispose, by subsequent Erection: In this case did King James leave the condition of Kirk-lands, Teinds and Patronages.

King Charles the first coming to the Crown, and being informed of the great Benefite His Father might have made by suppressing of Popery, and the Popish Benefices, if He had not gifted them away before He consider, did resolve to recover the same to the Crown; and therefore made a very ample Revocation of all Deeds done in prejudice of the Crown, or any of His Royal Progenitors, and in the year 1627. there was a Reduction intended of all Erections of Kirk-lands, Teinds, Patronages, which did pertain to whatsomever Abbacy, Priory or other Benefice, and Acts of Parliament Ratifying the same, with all Infeftments of Heretable Offices or Regalities: Which Revocation and Process having made a great noise, the King gave Commission to several Noblemen, and others, to endeavour an agreement with these who had right to Erections, or any right to Kirklands or Teinds, whereupon there was a Submission made by many persons who had right to Kirk-lands and Teinds, containing a Procuratory of Resignation in the Kings hands, ad perpetuam remanentiam, of the Superiority of all Lands, and other Temporal Rights, pertaining to whatsomever Erection of the Temporality of Benefices, reserving and excepting the Property of all the saids Lands, and others whereunto they had right, before or after; the saids Erections, paying the ancient Feu-duties to His Majesty, that were payable to Kirk-men, and that such demains and mensal Lands of the saids Benefices, as were never set in Feu or Rental by the ancient Titulars, before the Act of Annexation, nor by the King, and were then possessed by any of the Lords of Erection, should be Feued to them and no others, for such Feu-duties as His Majesties Commissioners should appoint; they did thereby also submit to His Majesty, what satisfaction He should give them for the Feu-duties, and other constant Rent of the Superiorities Resigned; and all rights of Teithes that they had, that His Majesty might appoint the quantity, rate and price thereof, to be payed by the Heretors to the saids Titulars of Erection, with a burden of Annuity to the King, excepting the Teinds of the Surrenderers own proper Lands, being always subject to His Majesties Annuity: Which Submission His Majesty accepted, and there followed thereupon an Instrument of Resignation at Whitehall, May 14. 1628. There was also a Submission made by the Bishops, of all Teinds belonging to them, or their Patrimonial Kirks, providing they be not damnified in their Benefices, as they were then possessed, either in quantity or quality, whether the samine were payed in Rental Bolls, or drawn Teind, so that the Submission did only reach to Teinds that were in Tack, or other use of payment, and whereof the Bishops or beneficed Persons, were not then in Possession by Rental Bolls, or drawn Teind; this Submission was in Anno 1628. There is also a Submission by the Burrows of their Teinds, in the same year; and [Page] a fourth Submission, by several persons having right to Teinds, in Anno 1629.

The King did pronounce His Decreet Arbitral, upon the Submission of the Lords of Erection, upon the second of September one thousand six hundred and twenty nine, whereby He Ordains the Lords of Erection to have ten years Purchase for the Feu-duties; and all their constant Rents, consisting of Victual or Money; the Victual being reckoned at an hundred Merks the Chalder, deducing so much of the Feu-duties, as were equivalent to the Blensh-duties, contained in the Infeftments of Erection, for which nothing was to be payed; and allowing the Lords of Erection to retain the Feu-duties untill they were redeemed: His Majesty did also decern, that each Heretor shall have his own Teinds, that such as have right to other mens Teinds, shall after valuation thereof, whereby the fifth part of the constant Rent, which each Land pays in Stock and Teind, is declared to be the Teind; and where the Teind is valued severally, that the Heretor shall have the fifth part of the yearly value thereof, deduced for the Kings ease; and the price of the said Teind for an Heretable Right, was made nine years purchase: And for other Right of Teinds, inferiour to Heretable Rights proportionably according to the worth thereof, to be determined by a Commission to be granted by His Majesty to that effect, and that both for Tacks of Teinds and Patronages. There are also Decreets by His Majesty upon the other Submission, to the same purpose, and by the tenth and fourteenth Act, Par. 1633. the Superiorities of all Kirk-lands are annexed to the Crown, except these belonging to Bishops, with the Feu-duties of the said Superiorities, reserving to the Lords and Titulars of Erections, who subscribed the general Surrender of Submissions. Their Feu-duties till they be redeemed at ten years purchase, and reserving to them the Property holden of His Majesty, for payment of the Feu-duties contained in the old Infeftments, preceeding the Annexation.

By the 12. Act Par. 1633. the King restricts his general Revocation in October 1625. Registrate in the Books of Secret Council, February 9. 1626. in a Proclamation then emitted; and another, July 21. 1626. to the annulling all pretended Rights to the Property of the Crown, as well annexed as not annexed, whereof an account hath been made in Exchequer, and of the principality unlawfully disponed by His Predecessors, against the Laws and Acts then standing; and to the annulling of Erections and other Dispositions of whatsoever Lands, Teinds, Patronages, and Benefices, formerly belonging to the Kirk, and since annexed to the Crown, and any other Lands and Benefices, Mortified to pious uses, and of Regalities and Heretable Offices, and the change from Ward to Blensh or Taxt-ward, since the year, 1540.

Upon this progress it may be questioned, whether the Patronages that formerly belonged to Church-men, and were annexed to the Lands, Burrows or Benefices, and thereafter were erected in Temporal Estates, do belong to the King or Lords of Erection. And next, whether these more improper Patronages of the Patrimonial Kirks of Abbacies, whereby the Lords of Erection coming in the Abbots place, do claim the Right of Presentation, or Nomination of Stipendiary Ministers to these Kirks, do belong to them or the King.

[Page]As to the first, there seems less difficulty that the Patronage which did belong to Abbots of Kirks, which were not of their Patrimony, but whereof they had only jus presentandi, do belong to the King, because such Patronages are annexed to the Crown, by the general Act of Annexation, which though it does not mention Patronages, yet the Barony or Benefice wherein such Patronages were comprehended, were expresly annexed: And Barony or Benefice, being nomina universitatis, will comprehend Patronages Incorporate therein, or annexed thereto, so that without Dissolution, no Subject can pretend right to the Ecclesiastick Patronages of Abbots, Priors, &c. and as to the Lords of erection, who fall under the exceptions of the general Act of Annexation, they having submitted and surrendered all their Titles of erection to the King, and particularly their Patronages; and thereupon the King having by His Decreet Arbitral, Ratified in Parliament, reserved only to them their Property, Lands and Teinds, and Feu-duties till they be redeemed; and the Superiority being again annexed, which is the dominium directum of these ecclesiastical Baronies, the ecclesiastick Patronage of the Abbots comprehended, in nomine Barroniae, do therewith belong to the King unless they have been Disponed after Dissolutlon; or a Subjects Title to the Advocation, Donation, or Right of Patronage of such Kirks, be perfited by prescription; for the act of prescription, 1617. hath no exception of the Kings Right, to which the prior act that the King should not be prejudged by the neglect of His Officers, doth not extend, but that interruption within the fourty year, is requisite even for the King, the form whereof was ordered by the Lords of Session, and approven by Parliament, 1633. cap. 12. But there is much more difficulty as to the other point concerning the Patronage of these Kirks, that were parts of the Patrimony of the Abbots, which before the Reformation were not Kirks patronat, but patrimonial; but thereafter being dissolved, and declared distinct Paroch Kirks. The Abbots power of nomination of Viccars in these kirks, became to be exercised by Presentations to the Kirks, which Presentations were given by the King to some Kirks, even where there were erections; but in most erections, the Lords of erection did present, as coming in place of the Abbots, and did in their Original or subsequent Right, insert the Patronage of some, or all of the Patrimonial Kirks of these Abbacies; and where the Right of Patronage is not exprest, the Lords of erection have but small ground to pretend to these; and where they are exprest and perfited by Prescription, they are secure, so that the question will remain as to the power of presentation, to the patrimonial Kirks of Abbacies, where prescription hath not cleared the question, but that sometimes the King, sometimes the Lords of Erection have presented, which was largely debated in November 1677. concerning the Patronage of the Kirk of Allan, whereunto the Laird of Watertoun had presented as deriving Right to an erection prior to the Act of Annexation, and having desired from the Council, Letters to Charge the Bishop to grant Collation upon the foresaid Act of Parliament, ordaining Bishops to try and Collate upon the Patrons presentation, the matter was remitted by the Privy Council, to the Lords of Session, in respect that the Officers of State, did claim right to that patronage, as belonging to the King, whereupon the Lords did at first, sist any further progress in admitting either the person presented by the King, or by Watertoun, till the matter were discussed, but after hearing, the Cause at length in their presence, Wattertoun having alledged that his Author had an erection, bearing the Patronage of this Kirk, per expressum; and that such Patronages were not annexed to the Crown, because they were not comprehended in the Abbots Rights; such Kirks not being [Page] then Patronat but Patrimonial, and that the King in his Decrect Arbitral had determined nothing anent Patronages, but that the Lords of erection had always enjoyed the same, and that the Lords of erection retaining the right of the Teinds, the patronage belong to them as consequent to the Teinds, out of which the provisions for the Kirk is payable, and it being answered for the King, that though the Abbots had not the formal Right of presentation, because the Kirks were not then patronat, yet they had the right of Nomination, or substitution of the Viccars who served in these Kirks, in place of whom are now the Stipendiary Ministers; these new patronages arise form the Dissolution of these Abbacies into distinct parochs, must belong to the King, and the power of nomination or presentation of these Stipendiars, was comprehended in, and annexed with these Benefices to the Crown, by the first Act of Annexation, but especially by the Annexations, 1633. whereby upon the surrender of the Lords of erection, of all their Rights, and specially of their Patronages; the King by his Decreet Arbitral, had decerned to them only ten years purchase for the Feu-duty, and nine years purchase for the Teind, they could pretend to no more, and so to no right of Patronage. Likeas the King in the Interruption made by the 12 Act of Parliament 1633. did expressly declare, that he will insist in his general Revocation, as to the particulars enumerat in the Act of Interruption, whereof patronage is one: In this debate the Lords being desirous that the matter might be determined upon the clearest grounds, and to know if prescription had cleared the matter, and either party having alledged possession, the Lords before answer, Ordained either party to adduce all the evidence they could, whether the King or Wattertoun and his authors had been in possession, how long and what way.

TITLE XIX. TACKS, Where, of Rentals, tacite Relocation and Removing.

[Page]

1. The nature of Tacks.

2. How Tacks become as real Right, effectual against singular Successors.

3. Who may grant Tacks.

4. How Tacks may be set.

5. The tenor of Tacks.

6. The effect of obliegements to set tacks.

7. Tacks become real Rights by possession.

8. Tacks in Wodests after Redemption become valid.

9. The extent and effects of Tacks.

10. Tacks-men in possession need not dispute the setters right, disputing as Heretable proprietar.

11. The effect of Tacks, whereof the Tack duty is payable to Creditors.

12. Tacks are good active Titles for Mails and Duties.

13. The effect of Tacks set to Husband and Wife.

14. Kinds of Tacks.

15. Rentals.

16. The effect of Assignations or Subtacks of Rentals or other Tacks.

17. The effect of Sub-tacks, as to Tutors and Donatars.

18. The effect of Rentals in Court Books, or Rental Books only.

19. The endurance of Rentals.

[Page] 20. The effect of Grassoums.

21. How far Rentals become void by Alegnation, Assignation or Subtack.

22. Defect of Sub-tacks.

23. Tacite Relocation.

24. How Tacks fall in escheat.

25. Tacks sleep during Ward and Non-entry of the setter, and are valid against his LiferentEsheat.

26. Tacks are Strictissimi juris, and extend not to Heirs, or voluntary Assignays, or Sub-tacks, or Removing, but when exprest, except Tacks for Liferent or equivalent.

27. Tacks without Ish are null.

28. How far Tacks to endure till a sum be payed are valid.

29. Tacks are null without a Tack Duty.

30. Tacks are valid though not expressing the Entry.

31. Tennents must labour and not waste or open the ground for any Minerals.

32. Tacks become void by two years not payment of the TackDuty.

33. Or for not finding Caution to pay the Tack-duty bygome, and in time to come.

34. Or by the Tennents Renounciation.

35. By contrary consent of both parties.

36. By deeds contrary to the Tack.

37. Or by removing.

38. Summar Removing without warning, in what cases.

39. The old way of Removing Tennents.

40. Warning of Tennents to Remove.

41. The active Title in Removeings.

42. Exceptions against Removings, not instantly Verified, are not receiveable till Caution be found for the Violent profites.

43. Defences against Removing and replys thereto.

44. Violent profites.

45. Succeeding in the Vice of Tennents Removed.

[Page]1. ATACk of it self is no more then a personal Contract of Location, whereby Land or any other thing having profite, or fruit, is set to the Tacks-man for enjoying the fruit or profite thereof, for a hyre, which is called the Tack-duty; which therefore did only obliege the Setter and his Heirs, to make it effectual to the Tacks-man, but did not introduce any real Right, affecting the thing set, and carried therewith to singular Successours.

2. But so soon as the thing set ceassed to be the setters, the Tacks could not reach it: Thus it was with us tillthe Statute, Par. 1449. cap. 18. whereby purchasers and singular Successors were disenabled to brake the Tacks set to the Tennents: By this Statute, Tacks become as real Rights, affecting the ground: And because they cannot come the length to be esteemed as Rights of Property, they are ranked here amongst Servitudes personal; for as Liferent-rights are real Rights, putting a Servitude upon Hereditaments to the person of the Liferenter, during life, whereof a Liferent-tack is a kind; so other Tacks do subject the thing set to the Tacks-man for a time, and affect the same, though it pass to singular Successors, albeit the Statute only expresseth, that buyers shall not break Tacks, and is in favours of the poor Labourers of the ground, for whose security it was chiefly intended; yet it is extended against all singular Successors, whether by Sale, Exchange, Appryzing, Adjudication, or any other way, as the Statute beares, in whose hands soever the Lands come; and also in favours of all Tacks-men, whether they be labourers of the: ground or not; whereby Tacks are now become the most ordinary and important Rights; and if the great favour of this Statute made them not in other thingsto be strictly interpret, they would render Infeftments of small effect.

That we may proceed orderly in this matter, we shall consider; First, The constitution of Tacks. Secondly, The extent and effect of them. Thirdly, The kindes of them. Fourthly, The restricstions and defects of them. Fifthly, The avoiding and removing of them.

As to the First, Tacks are also called Assedations, as a setting or setling of the Tenement in the Land, the English call them Leasses. Some Tacks are also called Rentals, as being the constitution of a fixed Rent, and they are of longer endurance then ordinary Tacks, being of one or more Liserents, and have somewhat special in them, of which hereafter.

3. As to the Constitution of a Tack, consider; First, Who may Constitute it. Secondly, Of what. Thirdly, How. For the First, to the Constitution of an effectual Tack, the setter must not only have all the Capacities requisite to Contract, but he must have right to the thing set, and [Page] power to administrate, which being Tacks, may either be granted by Commission, if it be special, as to the Tacks, or at least as to matters of great importance; and a general Clause for others, or otherways by Tutors, Curators, or other Administrators of the affairs of others, concerning whom Craig lib. 2. Dieg. 10. moveth and removeth this doubt, whether Tutors, &c. may set Tacks for longer time then during their Office, which he resolveth negatively, even though it were without the Minors Detriment, continuing the ancient Tack-duty, seing he is so far hurt as not to have the free disposal of his own: The subject whereof, Tacks are ordinarly set are Lands; but it may be any other thing having fruite or profite, as a Fishing, an Office, or a Casuality.

As to the manner of Constituting Tacks, they must be considered in themselves; First, As personal Rights. Secondly, As by the Statute becoming real; as they are personal Rights, the consent of the setter, and Tack-man agreeing in the rent, is sufficient.

4. But as Tacks are become real Rights, there is a necessity of write, except in a Tack of one year, which may be verbal, but if the agreement be for more years, the setter may resile; and though the Tacks-man be in possession, if he resile, it will have no effect as to subsequent years, July 16. 1636. Alexander Keith Contra his Tennents; the like though the Tennent possessed and builded Houses conform to the agreement, yet the penalty of paying a years rent by the failzier to the observer, was found to stand, July 15. 1637. Mr. Andrew Skein contra But if once there be a Tack, the setters promise not to remove the Tennent during his life, was found effectual, and not to be resiled from, Nicol. de migrando, Lumbsden contra Black.

5. The write requisite to constitute a Tack, requireth not many Solemnities; but if the thing set, the Parties, the Rent and the Time, be cleared, the Tack will be valid: It was ordinarly granted by the setter to the Tacksman for such a Duty, without any mutual obliegement upon his part, like unto a Charter; but because the Tennent not being bound, might at the end of any year before Whitsonday, renounce such a Tack and be free, as being in his favour, therefore they are now ordinarly by Contract, whereby the Tacks-man as well as the Setter, is oblieged to stand thereto.

6. Craig saith in the fore-cited place, Pactum de assedatione facienda, & ipsa assedatio, parificantur, praecipue si possessio sequatur, which is unquestionable as to the setter and his heirs; and was also found against a singular Successor, by a personal obliegement in a Contract of Marriage, providing Lands to a wise, and warranding the same free of all Teinds, except such a quantity which was in use to be payed, whereby a posteriour Assignation to the Tack of these Teinds was excluded, March 20. 1629. Laird of Finmouth contra Weyms. The like of a Tack and Decreet Arbitral, decerning a Tack to be granted: This was in a Spuilzie, Hope, Spuilzie John Crawford contra

7. As a Tack becometh a real Right, it must necessarily be cled with possession, but requireth no Seasine or Instrument, or other solemnity, July 11. 1627. Wallace contra Harvie, January 22. 1611. Laird of Pitsligo contra Philorth. The like, though the Tacks-man was in possession, yet not by vertue of the Tack, but by vertue of a Wodset, though the Tack was renewed the time of [Page] the time of the Wodset, Hope removing, Walter Ord contra Tennents of Fydie; and therefore, a posterior Tack being first cled with possession, was preferred to a prior Tack, June 23. 1627. Mr. John Mcmillan contra Gordoun of Troquhan.

8. Yet a Tack after redemption of Wodsett Lands, is valide against singular Successors, as a part of the Reversion, though it attain no possession before the setter be denuded: But it is contrary in a Back-tack, appointed to follow a Redemption of an Annualrent for it, and [...] Lands are diverse, and the possession thereof diverse, Nicolson removing, Gawin Hamiltoun contra Alexander and others; but the prorogation of a Tack is the renovation of it, and hath the same effect, as a new Tack of that date, for the years in the prorogation.

9. As to the extension and effect of Tacks, they are little less then of Infeftments, for thereby the Tacks-man is maintained against all parties having interest till the Tack be out-run, and be warned, even though set by a Liferenter, it will maintain the Tennent against the Fiar, either from removing till warning, or from paying more then the Liferenters Tack duty, though it be small, July 6. 1610. Mr. Robert Bruce contra Captain Bruce. Yea, though the Tack-duty was elusory, set by an Appriser to a person being no labourer of the ground, February 3. 1631. Blaues contra Winrham. The reason why Tacks by Liferenters are effectual, for the year in which the Liferenter died; because by Act of Parliament, Tennents can only be warned to remove fourty dayes preceeding Whitsonday; So that if the Liferenters live till thirty nine dayes before Whitsonday, their Tennents cannot be removed, but brooks per tacitam relocationem, till the new time of warning.

10. A Tack hath also the benefit of a possessory judgement upon seven years peaceable possession, as an Infeftment, without necessity to dispute the setters right, July 13. 1636. Bishop of Edinburgh contra Gilbert Brown, which was found where the Tack did bear to be granted by the setter as heretable Proprietar. Otherwayes, a Tack by a Liferenter, Tennent or Donator, might claim the benefit, December 1. 1676. Mr. Patrick Home contra Sir Laurence Scot. And therefore, if it were alledged, that the setter or liferenter had any other temporary title, it would be admitted without Reduction, if the Liferenter or beneficed person granter thereof were dead.

11. A Tack set by an Heretor for a Tack-duty to be payed to his Creditors, was found a real Right effectual to the Tennents; but whether it would be found a real right in favours of the Creditors in the same cause, it was first determined negativè, and thereafter affirmative: But it is not like, the Lords would continue it, not being the habile way to secure Creditors, and being a great mean of insecurity to purchasers, February 13. 1627. Samuel contra Samuel. The negative is also observed by Spots Tacks, James Morison contra Brown of Nunlands.

A Tack was preferred to an Apprising, whereof the denunciation was fix dayes after the date of the Tack, though the Apprising was led before possession upon the Tack, March 25. 1628. Peter Blackburn contra William Gibsone.

[Page]12. A Tack is a sufficient Title for Mails and Duties, and against all poffessors, and it is obligator against the setters Heir for the profit of the Land, though the Tacksman was never in possession, nor used diligence therefore during the setters life, which was a long time, July 13. 1610. Porterfield contra Ker; and in some cases, it is a good title for removing.

13. A Tack set by a Husband and his Wife, whereof the duty was payable to the longest liver of them two, found to give her right to the Tack-duty after his death against his Heir, though she had no other right of the Lands, and was otherwayes sufficiently provided, February 14. 1637. Home contra Hepburn.

A Tack set to a man and his wife for nineteen years, found to belong to the wife as Liferenter, if she survive, and not to be disposable by the Husband without her consent, Spots. Marriage, William Gourlay contra Jean Megill.

14. As to the third point proposed, concerning several kindes of Tacks, they are either verbal or by write. Liferent-tacks are for certain years; ordinary Tacks or Rentals, principal Tacks or Sub-tacks, express Tacks or by tacite relocation; and these which are set by Wodsetters to the granters of the Wodset, are called back-tacks, amongst which there are few specialities but what concerns Rentals, Sub-tacks or tacite Relocations.

15. A Rental is a Tack set to kindly Tennents, which are the Successors of the ancient possessors, or these who are received by the Heretor, with the like priviledge as if they were ancient possessors: And therefore, when Tacks are set to persons, acknowledging or constituting them kindly Tennents, they are equiparat to these that are set expresly under the name of Rentals.

16. Such Tacks are understood to comprehend more kindeness and friendship in the Tennent to his Master, then other Tennents; And therefore, the Rentaller may not assign them, nor introduce a sub-tennent, unless the Rental bear expresly that power, but may himself remain upon the ground as colonus, the same being in his own labourage. And Rentals are strictly interpret as to this point, but are more favourably extended then other Tacks, as to any other point; because of the kindness and friendship designed to the Rentaller thereby: and no Tack is accounted a Rental unless it bear so, or that the Teunent is acknowledged as kindly Tennent. And albeit after the expiring of Rentals, there successors have no right to maintain them in possession; yet frequently of favour they are continued, and pay grass-sums at the renovation of their Rentals, wherein they have ordinarly considerable ease.

17. And therefore, the ordinary Tacks must contain an express and terminat endurance, otherwayes they are null, not only as to singular successors, but even as to the setter and his Heirs, because they are not constitute habili modo. And therefore, if they have no time, they laste but for a year; and if they have no determinate time of ish, they last no longer; and they do not ordinarly give power of Assignation or Sub-tack, unless this be exprest: Yet the granting of them does not annul the Tack, but only the Assignation or Sub-tack, without warrant annuls these, but they annul Rentals, like to the alienations ofWard-vassals.

[Page]18. Rentals do require write, not only as a probation, but as a solemnity in their constitution, and can be granted by none but the Heretor of the Ground; but if they be renewed by Tutors for the accustomed Grassums, it may be accounted as an Act of lawful administration, much rather then that Tutors should have power to expell the kindly tennents. It hath not come in controversie, whether Donatars of Ward, Non-entry, or Liferenters may expel kindly Tennents: Or whether their Title would not be relevant to defend in removings against them, though not against the Heretor, wherein this would make for them, that all these temporary possessors have not, plenum dominium, and can but make use of the Fee as the proprietars did, though they may out-put and in-put ordinary tennents.

The old Decisions have varied whether a Rental be sufficient, being in the Heretors Court or Rental Book, though the Rentaller can show no original subscribed by the Heretor; yet there are Decisions for it, more then against it, July 5. 1625. Maxwel contra Grahame. Nicol. removing, Lady Lugtoun contra hertennents.

19. Some old Decisions sustain Rentals only for a year, when they mention no endurance, though they be set expresly as Rentals, which do not quadrat to the nature and design of Rentals, whereby the Rentaller being entered, is only to be understood to be for his Life; and his Successors ever to be in his Masters power, to renew or not to renew, according to the Rentaler and his Successors carriage, except the Contract be very clear and express; and therefore, a Rental set to the Rentaller and his heirs, without expressing a certain number of heirs, was found only to stand during the life of the Rentaller, July 5. 1625. Laird of Aitoun contra Lady Wedderburn. Hope rental, Lord Seatoun contra his tennents. Nicol. removing, Laird of Corsbie contra Donaldson. And where a rental bore to Heirs indefinitely, the right of the first heir wassustained by the custom of the Barony, March 15. 1631. Earl of Galloway contra Burgesses of Wigtoun. And a Rental bearing to the Rentallers heirs Heretable, ad perpetuam remanentiam, was sustained as to the first heir of the rentaller, without necessity to alledge, custom so to set, March 13. 1632. Achannay of Kirkdale contra Aitoun. Albeit the tenor of it was contrary the nature of a Tack, and might have been excluded, as to any Heirs, and sustained only as to the rentaller himself, unless the custome of the Barony had altered the case, which, in dubio, is always to be respected.

20. Grassum do presume kindliness; and in some Baronies these are renewed, both at the death of the Heretor, and at the death of the tennent; but more ordinarly at the death of the tennent only; yet in either case if the grassum be received from the tennent, and thereby he acknowledged by write, as a kindly tennent, he cannot be removed by the Heretor or his heirs, even though he had not a formal Rental, because the matter is not intire by receipt of the Grassum; and therefore, there is no locus penetentiae, upon restoring thereof, especially as to the Successors of old tennents, paying Grassum before; and therefore, Rentals expresly so granted; or to tennents Constitute kindly tennents, though they contain no Ish, should not be annulled for want of an Ish, which is implyed in the nature of a Rental to be a Life-rent; and it would be far contrary to that favour, that in other cases is allowed them to sustain them, but as verbal Tacks, lasting for a year; Upon this ground it is, that a Rental granted to a man and his wife, not bearing, the longest liver, nor any issue was yet found to Constitute them both Rentallers, [Page] during their life, and their wife surviving to enjoy the same, February 20. 1629. Laird of Ley younger contra Kirkwood.

21. Rentals do ordinarly contain a Clause, not to subset, assign, or annalzie, which if it be contraveened, not only the assignation or sub-tack is void, but the Rental it self, February 28. 1610. John Hamiltoun contra Thomas Boid. The like being subset, as to a part, pro tanto, Hope rentals, Lord Douglas contra Walkinshaw. But if the Assignation or Sub-tack was to the Major part, it did annul the whole Rental, November 13. 22. Laird of Craigie Wallace contra his Tennents. Yea, though the Subtack was only granted for certain years, and these expyred before the pursuit, Hope rentals, Earl of Roxburgh contra Ker. This is so far extended, as being in the nature of a Rental, without any such Clause, that it falleth in whole in the same manner, as Ward-lands recognosce by alienating or subsetting the whole, or major part if Possession follow, and that by exception or reply, March 15. 1631. Earl of Galloway contra Burgesses of Wigtoun. Though the alienation was by Excambion, and was conditional, if the Heretor consented, else to be null. The like where the Rentaller had given a Disposition of the Rentalled Room, whereupon the acquirer was in possession, which was found to annull the Rental, albeit it bore Assigneys and to exclude a Sub-tack by the Rentaller to that same party before any contraversie moved, February 21. 1632. Laird of Johnstoun contra Jamison. The like though the Sub-tennents offered to repone the Rentaller, November 13. 1622. Bonar contra Nicolson. The like upon an Assignation of an Rental, though it contained a power to sub-set, and in-put and out-put Tennents, March 21. 1623. Laird of Craigie Wallace contra his Tennents. But this taketh no place if the Sub-tack be set to the Rentallers eldest son who was to succeed, March 19. 1622. Earl of Roxburgh contra Robert Gray. It will also be elided, if the Heretor receive duty from the Assigney as Assigney, Hopehic, Laird of Craigie contra his Tennents. But it will not be inferred by the Rentallers entering another in Possession, without granting him a Right in Write, July 5. 1625. Laird of Aitoun contra Laird of Wedderburn, last of January 1633. Laird of Cleghorn contra Crawfoord; unless the Rental contain an obliegement to put no other in Possession; and then it became null by granting tollerance, and that by exception against the person having tollerance, without calling the Rentaller, July 15. 1628. Maxwel contra A Rental setting the keeping of a House, Yard, and others, to the Rentaller and his Heirs, as kindly Tennents, was not found null by demolishing the House and Yard, whereby the Rentaller failed in his duty, and in the cause of granting the Rental, January 29. 1628. Duke of Lennox contra Houstoun.

22. A Sub-tack is that which is granted by the principal Tacks-man to his Subtennent, who doth not thereby become Tennent to the setter of the principal Tack, this is competent to Tacks-men, where Lands are set to them or their Subtennents, or that they have power to out-put and in-put Tennents; and it is like a subaltern Infeftment, it hath the same effect to defend the possession as the principal Tack it self, if it be cled with possession, and cannot be taken away by any Renounciation granted by the principal Tacks-man, though his Tack bore not Assigneys (but though it be not observed, it hath born either power to in-put Tennents or Sub-tennents) July 14. 1625. Earl of Mortoun contra his Tennents: Yea, when the principal Tack was reduced for not production, the Sub-tacks-men not having been called, the Sub-tack was sustained as a defence, notwithstanding the Reduction, seing the Heretor had consented to the Sub-tack, December 13. 1626. Earl of Galloway contra[Page] [Page] [Page]Meculloch: Yet otherways, the Heretor is not oblieged to know the Subtack, nor to call the Subtacksmen, in the Reduction of the principal Tack, and it becomes null by exception, unless the Substacks-man had appeared and produced his interest in the Reduction; or in the second instance, can propone a defence sufficient for the principal Tacks-man, or himself; after which it did not defend him, as bon a fidei, possessor after Inhibition, or drawing the teind, Decem. 11. 1623. Earl of Wigtoun contra Parochioners of Stobo; but otherways the Sub-tack would be sufficient till warning.

This is the effect of a Sub-tack passive, but active, it is not a sufficient title to pursue without instructing the principal Tack, unless it had been acknowledged by the defender, or cled with possession, sufficient for a possessory Judgement, March 29. 1622. Sir James Cleiland contra Tennents of Arbuckle: For, in Intrusions or Ejections, Sole Possession is the Title.

23. Tacite Relocation is that which is presumed to be the minde of both parties after expiring of a Tack, when neither the setter warneth, nor the Tacks-man renounceth, for other significations of the alterations of their mindes will not suffice these, being the habile way of voiding Tacks, which is now much more strengthened by the Statute, Prohibiting tennents to be put out without warning before Whitsonday: But where warning is not requisite, though other competent ways of evacuating the Tack will be sufficient, as Inhibition in teinds, or actions for removing, summarly from Fortalices, Coalheughts, &c. Yea, though warning hath been used, if it prescrive by three years not pursuing thereupon, it hath no effect even against tacite Relocation, July 6. 1610. Mr. Robert Bruice contra Captain Andrew Bruice.

There is a kind of tacite Relocation, by taking the Rent before the hand, during which time, as Craig observeth in the forecited place, the setter cannot remove the Defuncts Successor for the years ensuing, in both which cases he is understood to relocate tacitely by these deeds.

Tacite Relocation hath the same effect to maintain Possession, that the Tack had even against singular Successors, and that not only to the Tacksmen, but to the sub-tennents being Possessors, who alledged the principal Tacks-man was not warned, and were not oblieged to alledge he had a Tack for terms to run, but only that he was not warned, December 2. 1628. Mr. Walter Whitefoord contra Johnstoun. But where the Sub-tennent was warned, tacite Ralocation alledged by the Sub-tennent, was not sustained without producing a standing Tack to the principal Tacks-man, January 30. 1663 Riccart contra Laird of Udnie. Here the warning was by a singular Successor who is oblieged to know or warn none but the natural Possessor, which was not in the former case. And tacite Relocation will be sufficient after a verbal Tack, or where the Tack is presumed upon use of payment, though none can be shown or proven: Yea, tacite Relocation was sustained for more years then the setter could expresly set; and is ordinarly in the case of tacite Relocation, upon Liferenters Tacks, which continue still after their death, till warning, and was so found in a Patrons Tack of teinds, after the Patrons right to set, by the Act of Par. 1649. was rescinded, January 16. 1663. Earl of Errol contra Tennents of Urie.

[Page]Relocation is valide against the Donatar of a Ward, till Warning or Citation, though the Tack-duty be elusory, and that the Tack then sleep, Spots. removing, Laird of Lie contra Glen of Barn. But tacite Relocation is no relevant active Title against any, but these who have right from the Tacksman, though they had acknowledged the same by payment to him for years anterior, Decem. 12. 1621. Laird of Lag contra Porochioners of Leymon.

By what hath been said, it may appear that the force and effect of Tacks is so great, by reason of the foresaid Statute and Custom, extending the same, that it would swallow up all Heretable Rights, and make Infeftments useless, unless Tacks had their own Retrincnments and defects, making Infeftments necessary.

24. First, Tacks not being Liferent-tacks, fall in single Escheat, but these fall by Liferent-escheat, Par. 1617. cap 15.

25. Secondly Tacks have no effect against Superiours, but sleep during the time of Wards, Non-entires, &c. For Infeftments Feu are then valide only in some cases: Yet Tacks are valide against Liferent-escheat, which is a casuality falling, not by the nature of Fees, but by Statute or Custom, Vide Title 14. §. Liferent-escheat.

26. Thirdly, Tacks are strictissimi juris, and no further extended then is exprest; and therefore, are not extended to Assigneys, unless exprest; and therefore, Tacks granted to Women fall by their Marriage, which is a legal Assignation, and cannot be annulled, yet may revive by the Husbands death, unexpired, Vide Craig, lib. 2. Dieges. 10. Upon the same ground a Tack not bearing to Assigneys, was not found to accress to a Relict, as infeft with absolute Warrandice, as jus superveniens authori, June 18. 1680. Margaret Home contra Janet Lyel, which is to be limited thus, that it doth not exclude legal Assignations by Appryzing and Adjudication: But only voluntary Assignations, Hope hic, Lord Elphingstoun contra Laird of Airth. November 16. 1680. Drummond of Carlourie contra Sir John Dalrymple. Liferent-tacks also may be assigned, not mentioning assigneys, February last 1637. Home contra Craw. July 16. 1672. Duff contra Fouler. The like when it is of more value then a Liferent-tack, as being of many nineteen years, Spots. hic, Ross contra Blair.

The like holdeth in the power of making Sub-tacks, or out-putting and inputting of Tennents, or Removings, which are not competent thereupon, unless express, or unless it be against these who had the possession from the Tacksman, except in Liferent-tacks, and these of greater importance.

27. Tacks cannot be perpetual; and therefore, necessarly must have an Ish, or else they are null, what favour is herein granted to Rentals, is herein showen.

28. If there be no particular Ish, but to endure till the payment of a sum, it hath been variously decided, whether it be effectual against a singular Successor negative, July 13. 1621. Laird of Mckal contra his Tennents. March 5. 1629. Laird of Lie younger contra Kirkwood. Affirmative, Hope hic, Laird of Clackmannan contra Tennents of Balmaino. The like in a Tack set to a Smith so long as he should worke the setters work, July 11. 1610. Sir James [Page]Lundie contra Smith of Lundie. This is unquestionable in Back-tacks, which have no Ish, but during the Non-redemption. And in other cases the Affirmative is stronger, both in reason and practice; but it holds not, if it be but an obliegement not to remove the Tennent, until such a sum be payed, that is only personal: And neither a Tack nor an obliegement for a Tack, unless it be contained in a tack, bearing such a sum to be due to the tacks-man, and for seourity thereof, the Lands to be set, and the rent to be as satisfaction of the Annualrent, pro tanto, was found valide against a singular Successor, and that the tack wanted not an Ish, because the payment of the Money was the Ish, January 22. 1625. Isobel Ronald contra Strang. But the contrary was found, March 5. 1629. Laird of Lie contra Kirkwood. A Bond assigning to the Ferms till a sum were payed, was not found valid against a singular Successor, July 2. 1624. Mitchelson contra Law. So a tack set for seven years, for a certain tack-duty exprest, with a Clause, that the tacks-man should retain a part of the tack-duty for the annualrent of a sum, due to him by the setter, and should not be removed till the sum were payed, was found valide against a singular Successor for the seven years, because there was an excresce above the annualrent, which remained for the Tack-duty, but not for the rest, being but a personal obliegement not to remove, June, 15. 1664. Thomson contra Reid. January 27. 1674. Peacock contra Lauder. The like where a Tack was set by a Liferenter for four years. And while a sum were payed, found valide against the Liferenters Assignayes the 18 of December 1668. Mr. Robert Smitoun contra Mr. John Brown. The like was found in a Tack against an Appryzer, allowing the Tack-duty for the annualrent of the sums, there remaining a several Tack-duty, December 11. 1677. Charles Oliphant contra James Currie.

29. Fifthly, Tacks are not valide as real rights against singular Successors, unless they have a Tack-duty; yea if they have one but in the Tack it self, it be wholly discharged, yet the Tack is valide; neither will the discharge of the Tack-duty be valide against the setters singular Successor, January 31. 1627. Mr. James Ross contra Blair.

30. But the want of an Entry vitiats not a Tack; for when there is no Entry, the date or the next Term is the Entry, December 4. 1629. Mr. William Oliphant contra Mr. Heugh Peebles.

31. Sixthly, All Tennents are burdened with necessity to enter and labour the ground, that the Master may have ready execution, February 27. 1623. Samfoord contra Crombie, and not to rive out Meadow or Greens never plowed, or destroy Mosses, or deteriorat the ground worse nor he found it, February 6. 1633. Laird of Haddo contra Johnstouns: and must leave the Houses as good as at his entry, February 27. 1610. contra All which are without express provision: Neither may the Tennent open the ground for winning of any Mineral, Coal, or Clay for Pipes, without that power be exprest, the 15. of February 1668. John Colqhoun contra Watson.

Seventhly, Albeit Tacks be by Statute as real Rights, yet they are affected with Back-bond granted by the Tacks-man, which are relevant againstthe Tacksmans singular Successor, though neither Registrat nor Intimat, January 8. 1668. Margaret Forbes contra

[Page]It remains now to consider how Tacks are destitute and taken off; And first, as to the point of Right. Next, as to Possession. As to the point of Right, we shall not speak of the nullities of Tacks, by which they were never truly Constitute, and so needs not be destitute: But when they have once a real Beeing, they ceasse; First, By any deed contrary to the Tenor or nature thereof, as hath been before shown in Rentals, which is not so in ordinary Tacks, unless there be a Clause irritant, and that be declared, and so is not competent by exception, Spots. hic, Robert Stevinson contra Alexander Barcley.

32. Secondly, They become void by not payment of the Tack-duty, in the same manner as a Feu Right by the delay of two years, unless the Tacksman offered payment at such a time, November 23. 1629. Romanno contra Nisbit.

33. Thirdly, If the Tacks-man be pursued to find Caution for the Duties resting, and in time coming if he find no Caution, the Tack becomes void and he may be removed summarly without warning; this was also sustained against a Back-tack in Wodsetts, though having no Clause irritant, Hope, Confirmation, Sir Thomas Dischingtoun contra. Laird of Pitmeden, Idem, William Hamiltoun contra Earl of Argile. It was also sustained, though the Duty was small, the ground plenished, and but one year resting, February 27. 1627. Lawson contra Scot. But it is not sustainable where there are no bygones resting: Neither was it sustained, unless a year were resting the time of the Citation, at least at Litiscontestation, albeit the tacks-man was Bankrupt, and in prison for Debt, January 3. 1672. Lady Binnie contra Heugh Sinclar.

34. Fourthly, Tacks ceass by the expyring of the Terms thereof, and the setters warning, or other deeds to take off tacite Relocation, or the Tennants Renounciation; the form whereof is, the tennent fourty days before Whitsonday, subscrives and delivers to his Master a Renunciation of his tack and possession, consenting that he enter braevi manu, without hazard of ejection, whereupon there must be taken an Instrument of Renunciation in the hands of a Nottar, as a Solemnity requisite, which is sufficient to instruct the overgiving, astbeing the habile way approven in Law; albeit in other cases not approven in Law; Instruments of Nottars prove not the deed of the party, in this case it avoideth the tack, and is probable by Instrument, if the tack be expired, but during the tack the Instrument will not prove the acceptance of the Renunciation.

35. Fifthly, Tacks are taken off by the contrary consent of both parties, though they be not expired, as when they are really left by the tennent, and possessed by the Master: Or when by write they are renunced and accepted; for verbal renunciations may be resiled from before they be perfected in write, in the same manner as verbal tacks may, and much more promises to renunce; this way of renunciation is express and direct.

36. Sixthly, Tacks are taken away by tacite and implyed renunciation, and by passing therefrom, as by taking a posterior tack for fewer years, and making use thereof, albeit but a minute, not by Contract, nor subscribed by the tacksman, nor in his hand, but his acceptance proven by witnesses, and by paying conform, January 17. 1632. Earl of Lawderdail contra Waterstoun. [Page] By accepting a posterior Factory of the same Lands, Hope, action of reduction, Earl of Tillibairn contra James Dalzel. By paying a greater duty, February 27. 1610. Atcheson of Gossoord contra his Tennents. Lethem contra his Tennents. But not by paying of more presents, Ibid, Robert Hamiltoun contra Tennents of Melburn. Neither by Sub-tennents paying a greater duty, without warrand of the principal Tennent, June 5. 1611. Laird of Phairnieherst contra Minister of Innerkeithing. Also by taking an heretable right of the same thing; but it holds not, if the heretable right were reduced, for then the Tack revives, Spots. appryzing, Laird of Garthland contra Campbel. Neither is it taken off by a posterior appryzing in the Tacks-mans person, seing it was satisfied and declared extinct against him, last of February 1623. Brice Semple contra Tennents of Closseburn.

37. Tacks are taken off as to possession, by removing of the Tennents, either voluntarly, as is before exprest; or more ordinarly, judicially by Process of removing, which is most frequent and important; and therefore, is reserved to be spoken of together in this place, though there be diverse kinds of removings, having respect to diverse Titles; for though removing be competent against all Possessors, whether possessing without any Title, or by an insufficient Title, as an invalide Infeftment or the like, yet the rise thereof is for removing of Tennents.

38. Removing is either summar without warning, or solemn upon warning; again summar removing is either by paction or Law; By Paction when it is so agreed by the Tack or other Write, that the Tennant shall remove at such a Term without warning, which will be sufficient at that time, Craig hic. This will hold upon Dispositions, whereupon the Disponer may be compelled to remove summarly without any such express Clause, which was also extended in favours of Appryzers, against their Debitors possessing a House, March 26. 1612. January 18. 1623. Earl of Lothian contra Sir John Ker and his Son. But it is more questionable, whether it will be sufficient at any time thereafter, if the Tennent be suffered to possess, per tacitum relocationem; especially, seing the Statute for warning is a publick Law, introduced for the good of poor Tennents, whose rusticitie is excuseable, if they advert not to anterior Pactions, Nam pacta privatorum non derogant juri communi: Yet upon the contrary, cuique libet [...] juri pro se introducto: Betwixt which, I conceive this temperament will hold, that such pactions, though recent, may be effectual at the precise Term, or at any Term or time thereafter upon intimation, if it be so agreed upon in Write; for promises in this case may be resiled from (as before is shown) but in either case the Tennent must have intimation before the Term, which will suffice without the solemnities of warning; but it must be of that length, that the tennent may provide for himself, and remove his goods, which will be in the arbitriment of the Iudge; and I suppose that they will walk most fairly and safely, who shall intimate the same to the Tennent fourty days before the Term: Or otherways, all the effect is like to be, that he will be discerned to remove at the next Whitsonday after the Process, without violent profites, as uses to be done when there is any probable excuse for the Tennents not removing.

Summar removing is competent by Law without Paction, in all cases where the Statute appointing warning, takes no place, which is chiefly regulate by the reason of the Statute, that Tennents be not put at unaworse to seek their [Page] habitations, or at an unseasonable time of the year; and therefore, it is not necessary in several cases.

First, where the Possessor is not Tennent, but a vitious Possessor; or where the Possessor hath nothing but an insufficient Infeftment or tollerance: For the Statute is only in favours of Tennents, who are lyable for Mails and Duties.

Secondly, Warning was not found necessary for removing Possessor from a Tower or Fortalice, though set in Tack, Hope hic, Lady Saltoun contra Mr. William Livingstoun, or from a Coal, Ibid. Wolmet contra Niddrie. Or from the possession of a Liferenters House or Land, after the Liferenters death, and that upon suplication, it was obtained without Process, Hope Liserent, Prestoun contra Cockpen. And this was competent at the instance of a Liferenter against these who continued the possession of a former Liferenter, after her death, January 12. 1622. Lady Kincaid contra her Tennents. The like, but to take effect at Whitsonday after the Process, against a Liferenters servant, possessing without a Tack in write, and also without violent profites, February 16. 1628. Thomson contra Merstoun. But if the possession from the Liferenter be by vertue of a Tack, the possessor must be warned, as hath been shown amongst the effects of Tacks. Removing is also competent by sorce of of Law upon a Process, to find caution for the rent, or to remove; of which before. As to what is special in Tacks of teinds, hath been considered in that Title.

The prime kind of removing is that which is solemn upon Warning; for clearing whereof, we shall first consider the order pre-required. Secondly, The interest of the pursuer. Thirdly The exceptions of the Defender. Fourthly, The effects of removing.

39. The Order of removing of old was thus; The Master of the ground did only verbally intimate to the Tennent to remove at the next Whitsonday; and the only solemnity requisite was, that before the said term he appeared before the door of the Tennent and broke a Lance there, as a Symbol of his breaking the tacite relocation betwixt them; whereupon the second day after Whitsonday, he came braevi manu, and expelled the tennent; or at least laid out some of his Goods to compleat the solemnity of his removing, Craig hic, Hence arose many quarrels, violences and breaches of the publick Peace; when the tennent had any reason or pretence, for which not to remove, or otherways was unwilling, and not compelled by Law or publick Authority, but by private force.

40. For remeid whereof, that excellent Statute concerning warning and removing of tennents was made, Par. 1555. cap. 39. prescriving the Order of removing thus; That the Master of the Ground give a Precept of warning in write, commanding his Officer (which may be any person he pleaseth) for whose name, a blank is set in the Precept, to go fourty dayes preceeding Whitsonday, and intimate to the tennent that he remove himself, his family, sub-tennents, goods and gear, at the said term, and leave the tenement void and red, that the warner may enter in Possession: this may be done either personnally or at his dwelling house.

[Page]Secondly, The Precept must authorize the Officer to make the said denounciation, fourty days before the term upon the ground of the Land, leaving a Copy thereof affixed thereupon, and by the same space, it must be done at the Kirk-door, at the time of dissolving the Congregation, from the first Sermon, leaving a Copy thereof affixed upon the Kirk-door; all which must be done before two witnesse, required for that effect, and Executions made conform by the Officer, which without any other Instrument or Solemnity doth sufficiently prove, unless it be improven, upon this order the pursuer hath a priviledged action upon six days warning only, without continuation, Par. 1555. cap. 39. and that because of the necessity of the dispatch, that the new tennents who hath taken may be put in Possession, and the Land not left waste, both to publick and private detriment: This Order must be used, though the term of the Tack be not at Whitsonday but at Martimess or Candlesmess; and it will not suffice to be made fourty days before these terms, June 15. 1631. Ramsay contra Weir. The reason hereof is, because the warning is appointed that the tennents may timeously provide for themselves, which cannot be but before Whitsonday, the ordinary time Lands use to be set, if the parties removed be out of the Countrey, it will suffice to warn them upon the ground, and at the Kirk-door upon fourty days, but the Citation must be upon sixty dayes, which is consequent from the Statute, which prescrives nothing different from the ordinary course of Law; in the case of parties out of the Countrey it was so decided, January 11. 1622. Laird of Faldenside contra Bimerside. February 20. 1666. Mebrair contra Sir Robert Chrightoun alias Murray. This Statute reacheth not warnings from tenements within Burgh, which are regulat by the custom of Burgh: Thus the Town Officer by command of a Bailie, though without write, warneth only at the tenement, fourty days preceeding Whitsonday, and in evidence thereof, useth to Chalk the Door, Craig hic, Nicolson removing, Andrew Ker contra Euphan Moor: this was extended to a house within Burgh of Barony, July 18. 1634. Mr. John Hart contra

Nor was warning before Whitsonday found necessary for removing a tennent from a Soap-work, November 21. 1671. James Riddel contra Charles Zinzan.

41. We come now to the Tit. requisite for removing, which must be a real Right of the ground, except the question be against a party who is personally oblieged to remove; And therefore, first, there needs no Title against such parties, who had the possession from the pursuer, for these can never question his Title, whose interest depends thereupon, but acknowledging him by payment of Mails and duties, will not be sufficient without a Right in the pursuer.

Secondly, a personal or incompleat right is a sufficient Title for removing against the granter of it, or his Heirs, if it contain a Clause to remove, or put the pursuer in possession, expresly or by consequence.

Thirdly, Infeftment of property or Liferent is a sufficient Title in removing, and that upon production of the Seasine only; where the Defender shows no better Right, Nicol. removing, Adam Wat contra Ord: But the Seasine must be both before the warning and the term, except first in the case of Heirs, this being a possessory judgement, and a continuance of the predecessors possession; so that the Tennent cannot be in doubt or hazard to quite the possession, [Page] as he may be in other cases, where he may be lyable, both for the rent and rendering the possession to another party, and so it was sustained at the instance of an Heir, though his retour and Seasine were after the warning, February 9. 1610. Earl of Kingborn contra Arbuthnet. Hope hic, John Small contra Tennents of Baltersaw, in the case of an Apprizer, whose Appryzing was before the Warning, it was found valide, though the Infeftment was after, against the Debitor from whom the Lands were Apprized, but to take effect at Whitsonday thereafter, and without violent Profites, December 18. 1632. Dalrimple contra Douglas. And removing was sustained at the instance of an Heir, Retoured and Infeft, pursued upon a warning used by his Predecessor, though his Infeftment was after the Term, July 28. 1637. Earl of Hadingtoun contra his Tennents. It was also sustained at the instance of a Fiar upon a Warning made by a Liferenter and Fiar joyntly, November 27. 1629. Ramsay contra Hoom. But a removing was not sustained upon a warning made by the Fiar, before the Liferenters death, no not to take effect at the next Whitsonday without a new warning, June 30. 1669. Agnew contra Tennents of Dronlaw.

Though Infeftment be the best Title for removing, yet it must be limited;

First, It takes no place being upon Infeftment, proceeding upon a Precept of Clare constat, Hope hic, Stevinson contra Stevinson; and that in respect this Precept is but the Assertion of the granter: Yet if either the Predecessour of that Heir was in Possession, or the Superiour himself, it would suffice.

Secondly, It holds not in base Infeftments, not cled with Possession, unless the Authors Right be instructed or acknowledged, if the Defender have any Title.

Thirdly, A Tercers Service and Kenning to her Terce, is a sufficient Title in removing.

Fourthlie, The Courtesie of Scotland is a good Title for removing after a Wifes death, without any Seasine or Solemnity, or the Husbands jus mariti, before her death, which will be effectual, though she die before Sentence or Process, to the effect, that the Husband may get the benefite of the violent profites, for the time preceeding her death, though he cannot attain the Possession.

Fifthly, An Executor may insist for a removing upon a warning used by the Defunct, to the effect he may obtain the violent profites, due before the Defuncts death.

Sixthly, a tack is a sufficient Title for removing, if it contain expressely the power to out-put and in-put Tennents, or if it be a Liferent-tack, or for nineteen years or above, as hath been now shown amongst the effects of Tacks; but this must proceed either upon the setters Right or a Possessory judgement in the setter or Tacks-man.

[Page]Removing is not sustainable upon an incompleat right, as upon an Appryzing, though the Superiour be charged, and the Letters have been found orderly proceeded against him, to infeft the Apprizer; and the objection only proponed by Tennents, pretending no right, March 25. 1628. Bar Lockhart contra his Tennents. Yea, though the removing was against the Debitor himself, February 20. 1629. Mr. John Galloway contra [...]. Though it hath been now shown that an Appryzer being Infeft, obtained removing from an House, against his Debitor without warning. The like holds in Adjudications, and in the case of the Superiours pursuing upon the Vassals Liferent-escheat, it not being declared, Hope hic, Patrick Butter contra Andrew Harvie. And so consequently in all other rights of Superiority, where Declarator is required; and though the Superiour needs show no Title, unless the Vassal disclaim him; yet his Donatar pursuing upon a Liferent-escheat, was not admitted till the Superiours Seasine was produced, Hope hic, David M'call contra Tennents: And it is so in all cases wherein the Superiour or the Vassal are singular successors, and so have ground to doubt, and cannot be put to disclaim.

42. We come now to the Exceptions against removing, to speak nothing here of common Exceptions, or of thr pursuers want of a sufficient Title, which are rather objections then exceptions, and are sufficiently cleared by what we have said upon the Titles of Removing. It must be adverted, that before the Defender can have any exception admitted to his probation, he must find Caution for the violent profites, if he succumb: And that by the said Statute, 1555. Cap. 39. justly introduced in respect of the contentiousness of parties to keep possession; yet this will not hinder objections against the Titles or the like, being instantly verified and not making delay, that being the motive of that Act to prevent delays.

43. These exceptions, though they be many, may be thus Martialled; they are first against the order and warning. Secondly, Upon deeds done by the Pursuer. Thirdly, Upon the interest of the Defenders Master. Fourthly, Upon the Defenders own interest. Fifthly, Upon obedience.

For the first, every point of the warning now related, is so necessary that the omitting of any one affoordeth a sufficient defence; yer a warning was not found null, though made at a Kirk-door, where there were no divine service accustomed, being in the time that divine service used to be performed, and the Kirk being known a distinct Kirk, Nicolson hic, Hoom contra

Removing may be excluded by deeds done by the pursuer, either by any personal obliegement not to remove, or any deed importing the same, as a Disposition or Obliegement to Infeft, which are sufficient against him, but not against his singular Successors; or if he renunce or pass from the warning or action, either directly or by deeds importing the same, as taking Rents before the hand, or taking a Herezeld as to the year ensuing, March 20. 1629. Auchinleck contra Mathie: Or by accepting the old accustomed Mails for Terms after the warning, Nicolson de migrando, Irving contra French, Hope hic, Carnousie contra Or by receipt of Taxation for Terms since the Decreet of removing, ibid. Or by accepting services contained in the Tack, for the Terms after the warning; but this is [Page] not relevant, if the same be at the command of the pursuers Factor or Grieve, without special order, March 5. 1629. Laird of Lie younger contra Kirkwood. Neither by accepting presents, though accustomed, not being special in the Tack, these being interpret gratuitous, as before is shown.

Removing is also elided by prescription, upon three years forbearance to pursue; And that by the Statute, 1579. cap. 82. for thereby the pursuer is presumed to pass from his warning; but these three years are not accounted, anni continui, but anni utiles: from the warning without accounting the time betwixt the warning and Term, but from the Term, to which the warning was made; because none can be said to delay to pursue, before he be necessitate to pursue, which is not till after the Term, it was so decided February 6. 1629. Lady Borthwick contra Scot of Goldilands. But removing may be sustained before the Term, that it may take effect precisely at the Term: Otherways many Tennents may be disappointed, who take upon the warning of other Tennents, their Rooms, and renunce their own, or are warned therefrom; and so removing was sustained before the Term, to take effect then, November 21. 1671. James Riddel contra Charles Zinsan. But the process being once intended, it continues till the great prescription of fourty years, except such as are not wakened every five years, for such prescrive in ten years by the Act 9. Par. 1669.

The exceptions of removing at the instance of the Master of the ground, are very frequent and various; for it is ordinarly proponed and sustained, that the Defenders are Tennents by payment of Mail and Duty to a third party, who is not warned nor called; neither are they put to dispute their Masters Right to be valide, which holdeth, whether his Right be an Infeftment, Liferent-right or Tack; and though the Tennent hath been put to condescend what the Right is, and that in specie, it is a valide Right, though he needs not dispute the particular defects of it, nor the competition of it with any other Right: That hath been done, that the pursuer might know how to quarrel their Masters Right; but I have never observed that Litiscontestation has been made, or a Term assigned to Tennents, to instruct their Masters Right; therefore this defence is but dilatory, and should not be sustained, unless instantly verified by Tacks or Discharges from the alledged Master, which would be repelled, if the Tennents have interverted the pursuer or his authors Possession; or if the pursuer were singular Successor, not presumed to know any interest but of the Possessors, if the Tennent, produce his Masters Seasine, with his Tack or Discharge, it would instruct this Dilator, which is sufficient upon the not calling the Tennents Master, for his not being warned is proper for himself to alledge, and the partie will in the same Process get warrand to cite that Master, who must defend himself upon his own Rights; and therefore, this defence was sustained to Tennents, though they condescended upon no other Right to their Master, but tacite Relocation, December 2. 1628. Mr. Walter Whitefoord contra Laird Johnstoun. It hath also been sometimes sustained, that the defenders were Tennents by payment of mail and duty to an Appryzer, though not Infeft, Hope hic, Crawfoord contra Brown.

This exception is also elided by this reply, that the defenders had acknowledged the pursuer by payment of Mail and Duty, Nicol hic, Lady Evandale contra her Tennents. It is also elided by alledging that the defenders Masters Right was reduced at the pursuers instance, December 12. 1622. Spading contra[Page]Fleming. The like where his right was reduced at the instance of the pursuers author, Spots. hic, Maxwel contra Tennents of Glassock. Earl of Nithisdale contra his Tennents.

The exceptions against removing upon the defenders own right; are either in respect of his right to the Land in question, or to the other Lands brooked by him, pro indiviso, with it; For the first, there are as many such defences as there are rights competent for defending possession; and they are either founded upon the benefite of a possessory judgement, which how conpetent may be seen at large, Title Infeftment, 13. §. 82. which needs not to be repeated; Or if that be not competent, the defender must found himself upon the point of right which ordinarly infers a competition of rights; But in either case the defence will not be sustained upon any right, if the possession was not attained there upon, bat upon the pursuers right; which Possession must be restored, and the defender left to his action, upon the others right, as accords, as if after redemption of a temporary right, whereby the defender entered in Possession, he should defend upon another right which will not be sustained in this possessory judgdement, against him or his Successor, from whom he had the Possession, November 22. 1677. Sir Archibald Stuart of Castlemilk contra Duke of Hamiltoun.

The exception pro indiviso, is very pregnant, and taketh not only place in solemn removings, but in the Action to find Caution for Mails and Duties, or to remove, though the Excipient had taken Tacks from the Pursuer, December 6. 1623. [...] contra Carmichael. Yet it was not found relevant, to stop removing from the pursuers part of a Coal-heugh in Lands undevided, because the Coals are divisible by measure as they are raised out of the Coal-pot, Spots. removing, Hugh Somervel contra Dickson. Neither was it found sufficient to maintain a Relict in possession of a House, which could not be divided, whereof she had a third part, and possest the other two thir [...]s, pro indiviso; but the Fiar having the two thirds, was to be preferred to the Po [...]ession, paying her the third of the Mail, upon condition that if he se [...] the Tenement, she should be preferred, giving as much Mail as another, January 26. 1665. Legan contra Galbraith.

The last exception against removing is, obedience by voluntary removing, conform to the warning, and leaving the Land void and red at the Term, without necessity of a renunciation in write, March 2. 1637. Keith contra Simpson. The like, the defender finding Caution to desist from the Possession, Nicol. de migrando, Wallace contra Mitchel. But the alledgeance of obedience was not found relevant upon an exception, bearing, that the Land was left void and red at the Term, seing that it bore not, that the Possession was offered to the Charger; in respect that at the time of his removing, another party entered in his Vice, January penult 1624. Greenlaw contra Adamson. But the obedience must be full, according to the warning by the defenders removing himself, his Family, Sub-tennents and Cottars, Goods and Gear; So that the pursuer may enter in Possession; and therefore, Decreet would be obtained against the principal Tacks-man, and the Letters still put to execution against him, till all these be removed; and if the pursuer please, he may pursue them to remove, without other warning then what was made to the principal Tacks-man; So it was sustained against a Son upon a warning against his Father, even after his Fathers death, January 26. 1630. Hoom contra Hoom.

[Page]As to the last point concerning the effects of Decreets of Removing, it is not only the attaining Possession of the Land it self, but sometimes also the Corns growing thereupon, as being a part thereof, being a Possession violent, Hope Spuilzie, John Elliot contra Lord Balcleugh. Yea, of the Hay of that Cropt, though separate and Stacked by the person removed, Hope Spuilzie, Sir James Balmuire contra Williamson. But the main effect is, the obtaining the violent profites of the Land, until the possessors obedience, and that both against these who are warned, and against these who succeed in the vice of warned or removed Tennents.

44. Violent profites are so called, because they are such profites as are due by, and for violent Possessioa, whatsoever way it be, by warning and removing, ejection, intrusion, or succeeding in the Vice, and they are opposite to ordinary profites, which were due by tacit Relocation, or were formerly accustomed to be payed. Violent profites are pursued for by a several Action, after the Decreet of removing is obtained: Wherein the Decreet of removing is both a sufficient Title, and probation of the violent Possession, against the parties removed therein, and their Possession needs not again be proven, and their defences hindering the pursuer to obtain Possession, would not be sufficient, unless they offer to prove the pursuer himself was in Possession, or others by his warrand, June 19. 1610. Hector Monroe contra Laird of Balnagoun. Neither will any other thing but real obedience, by giving, or at least offering the void Possession, take them away though the Land lye waste.

But violent profites were also found competent against these who were not warned, against whom Decreet of removing was not obtained, to wit, against any who suspended the Decreet, and thereby hindered the defenders attaining Possession, Hope Mails and Duties, Ker of Fairnieherst contra Turnbul. Yea, a party obtaining Possession by a Decreet of removing, after Litiscontestation, in the reduction of the Decreet, was found a violent Possessor, and lyable to violent profites himself, Hope Possession, Gordon of Abergeldie contra Lord Forbes.

As to the quantity of violent profites by the custom of Burgh, it is double Mail of the Tenements within Burgh, Hope Mails and Duties, Christian Buchan contra Marion Seaton. But in Lands, it is the greatest profites that the pursuer can prove he could have made. And though in cases of violence, the quantities and prices are ordinarly probable by the pursuers oath, juramento in litem, because he ought to have, not the ordinary price, but praetium affectionis, as that which themselves accounted to be their loss; yet here probation must be used; But if it be not full, the pursuers oath may be taken. Violent profites are also sustained against all Defenders in solidum, as in Spuilzie; but when diverse compeared and proponed partial objections against removings and succumbed, they were found lyable for the violent profites of the Lands, in the exceptions severally, Hope Mails and Duties, William Wallace contra Alexander Blair. Otherways partial exceptions are not here competent, Hope exceptions, Laird of Balnagoun contra Hector Monro. Neither will any exception be admitted, which was competent and proper in the Decreet of removing, relative to Right or Possession. But Suspension or Reduction ought to be intented thereupon. The like as to violent profites against successors in the Vice, March 22. 1623. Laird of Hunthil contra Rutherfoord.

[Page] [Page] [Page]55. Succeeding in the vice is a kind of intrusion, whereby after warning any person comes in possession, by consent of the parties warned: Or otherways, against such there needs no warning but a summar Process, as in other intrusions, having the same probation, for in both, the possession must be proven, which with the warning is sufficient, but can have no effect till Decreet of removing be obtained against the Tennent warned.

Though Violent profites be the ordinary effect, both in removing and succeeding in the Vice; These will proceed as to attaining possession, and no violent profites be obtained, when there is any colourable Title which might have made the warned partie, reasonably doubt of the pursuers interest, or of his own Right, Hope removing, Walter Ord contra Tennents. But this useth ordinarly to be so provided in the Decreet of removing, and will be hardlie sustained thereafter, by recanvassing the defences competent in the removing; that it may appear whether there were a probable ground in them or not, at least the defender would protest for the reservation, as to the violent profites; for if this were again sustained, it would bring over-head all the many intricat defences competent in removings; of which formerly. And therefore in the removing pursued by the Earl of Argile contra Mcnaughtoun; the Lords repelled the defences, but declared that they would have consideration thereof, as having probable ground to debate, and would modifie the excrescence of the violent profites over and above the ordinary profites.

TITLE XX. WODSETS, Where, of Reversion, Regress and Redemption.

[Page]

1. Infeftments for satisfaction of sums Principal and Annual, or for relief, are proper Feudal Impignorations, consisting with the Disponers property.

2. The Nature of Wodsetts.

3. The Nature of Reversions.

4. Kinds of Reversions.

5. Solemnities requisite in Reversions.

6. The effect of Clauses irritant in reversions.

7. Reversions are stricti juris.

8. Kinds of Wodsetts.

9. Proper Wodsetts.

10. The effect of Tacks after redemption, containedin reversions.

11. Improper Wodsetts.

12. Regress.

13. Discharges of Reversions.

14. Wodsets become legally extinct by declarator of expiring thereof, or by the order and declarator of redemption.

15. The order of redemption of Apprizings or Adjudications.

16. The order of redemption by conventional reversions.

17. Premonition.

18. Consignation.

19. Declarators of redemption.

20. The effect of declarators of redemption.

[Page] 21. Defences against declarators of redemption.

22. Requisition.

23. How far other rights may be reserved in redemptions, or renounciations.

AWODEST, as the word insinuats, being the giving of a Wedd or Pledge in security; it falleth in consideration here as the last of Feudal Rights: For Pledges are the last of real Rights, as before in the Title real Rights is shown; where it was also cleared, what was the ancient custom of Impignoration of Moveables, which shall not be here repeated, but only what is proper to the impignoration of Immoveables and Heretable Rights, by the Feudal Customes, and our own.

1. That which doth most properly agree to the nature of a Pledge or Wodset with us, is where any Inseftment or security is granted. in security of a sum of Money, or for relief of Cautionry, or any other sum, which bears expresly, that the Land or Right is disponed for security or relief; and therefore needs express no Reversion; for it is necessarly implyed, that so soon as relief or satisfaction is obtained, the Infeftment granted in security ceasseth; so that if the granter of the Infeftment, or any other bound in the principal Obligation, either make payment, or the receiver thereof by his intromission, be satisfied, ipso facto, the Infeftment is extinct: Yea, if the debitor granter of the Infeftment and Security should instruct compensation, as it would extinguish the principal Bond, so would it in consequence the Infeftment for security thereof. This Infeftment being really a Pledge, it is consistent with the Infeftment of Property in the debitor, as two distinct kinds of Rights, and thereby the debitor is not denuded, even although the Infeftment for Security were publick by Resignation; because it is not a Resignation simply, in favorem, but ad effecsum, viz. for Security; and therefore, when the debt is satisfied, the debitor needs not be re-invested, but his former Infeftment of property stands valide.

Like unto these in all points are Infeftments upon Appryzing, which are truly pignora praetoria, whreby the debitor is not denuded, but his Infeftment stands; and if the Apprising be satisfied within the Legal, it is extinguished, and the debitor needs not be re-invested; and therefore, he may receive Vassals during the Legal; and if he die, the appearand Heir intrometting with the Mails and Duties, during the Legal, doth thereby behave himself as Heir, as was found, February 21. 1663. Henry Hamiltoun contra William Hamiltoun. Which holds olso in Adjudications, by the late Act of Parliament, come in place of Appryzings.

[Page]But Securities for sums have Been of a long time, taken frequently in another way, viz. by simple alienation, titulo venditionis, with a reversion, which is but [...] de retro vendendo, ordinarly taken a part; that if the Creditor were not satisfied, he might force the debitor to pass from his Reversion; and so his Reversion stood absolutely, which gave the occasion to these Kinds of Securities; and also because during Popery, all Annualrents for the use of sums were discharged as Usury; and therefore, Creditors bought Annualrents, and gave Reversions to the debitors, which was the same thing in another convoy. As to these Wodsets in this place; and that first, as to the Constitution of Wodsets: And next as to the destitution thereof.

2. As to the Constitution of a Wodset, it must be according to the thing or Right impignorat for a Tack or Liferent: An Assignation to these or any other cessible right may be given in Wodset for security, and under Reversion: But the ordinary Wodset is by Infeftment of Property, or of Annualrent; the conception whereof is not under the name of Impledging, Impignoration, Hypothecation or the like, but in the terms of Disposition, or Infeftment, whereby the property of the thing Wodset passeth, and is established in the Wodsetter: But under Reversion to the Constituent, whereby it hath two parts, the Infeftment and the Reversion. The Infeftment in Wodsets, is in all points like to other Infeftments, whether they be Infeftments of Property or of Annualrent; or whether they be publick, holden of the Constituents Superior, or base holden of himself; so that all the specialities of Wodsets resolve in Reversion.

3. A Reversion is a paction and condition, or provision for redemption of any thing alienat upon such Terms as are agreed upon, which of it self is no more then a personal obligation, whereby the Wodsetter is oblieged, until by that excellent Statute, Par. 1469. cap. 27. It is declared, that the Reversion shall be effectual, not only against the first Wodsetter himself, but all his Successors in the Wodset Lands, whereby reversions are accounted as Heretable and real Rights, affecting singular Successors, in the same way that Tacks are made real Rights, by the Statute thereanent.

The English by reversion, do not understand a Right of Redemption, but a Right of Survivancy or Succession; as the reversion of an Office is a Title to that Office, after the removal of the present Incumbent. And that which we call a Wodset, they call a Morgage; for a Gage is a Pledge which is really ingaged: And Morgage is a Pledge, the Redemption whereof dieth, or is extinct, if it be not used at the time, and in the manner agreed upon by the parties, of that with them in their Morgages, not only Clauses irritant, or [...] legis Commissoriae, are valide: But if the provision for Redemption, be for a definite time, that being elapsed the Morgage becomes irredeemable by their common Law, what remeid may be had in the Chanclery upon equity, I know not.

4. Before we come to the Solemnities requisite for Constituting Reversions, it is necessary to distinguish the several kinds thereof: Reversions are either Legal, arising from Law and Statute, and not from consent of parties, as are the Legal Reversions of Appryzings and Adjudications; or they are Conventional, by the consent of parties, which are either Incorporate in the body of the Wodset-right or a part, they are also either principal [Page] Reversions or eiks to Reversions; and they are either solemn and perfected, or only inchoat, such as Promises, Bonds and Conditions for granting Reversions.

5. Legal Reversions require no other solemnity, then what is requisite to the legal constitution of the right whereupon they follow. The common solemnities requisite for Reversions and other Writes of old, was only the Seal of the granter, without necessity of his Subscription. But by the Act of Par. 1555. cap. 29. It is required, that all Reversions, Bonds and Obligations for making of Reversions, be not only sealed, but subscribed by the granters own hand; and if he cannot write, by his hand led at the pen by a Nottar; or otherwayes, they make no faith, unless the same by consent of parties be registrat in the Books of a Judge Ordinar, or that it be a Reversion within Burgh, contained in the Instrument of Resignation and Seasine of Lands by the Bailie and Town-clerk. And by the Act of Par. 1579. cap. 80. Reversions, Assignations and Discharges thereof, and eiks thereto, or other Writes of great importance, are ordained to be subscribed and sealed by the principal parties; or if they cannot write, by two Nottars before four designed witnesses, else to be null and of no faith. But the matter of Reversion is perfected by the Act of Parliament, 1617. cap. 16. ordaining all Reversions, Regresses, Bonds or Writers for making Reversions, Assignations and Discharges of the same, to be registrat in the Register of Seasines and Reversions within sixty dayes of their dates, otherwayes to have no effect, save only against the granters thereof, but not against their singular successors acquiring perfect and lawful Rights: But this is not requisite in Infeftments of Burgage-lands within Royal Burghs, nor in Reversions incorporat in the rights of Wodset. Upon consideration of the inconvenience & insecurity of Burgage-lands, the Lords by Act of Sederunt, ordained the Burghs to take sufficient Caution of their Town-clerks present and to come, to insert in their Books all Seasines given by them of Tenements within Burgh, and all Reversions or Bonds for granting Reversions, Assignations thereto, and Discharges thereof, Renunciations and grants of Redemption, and that within sixty dayes after the giving of Seasine, or presenting to them of the Reversions or others foresaids, under the pain of the damnage of parties, acquiring bona fide for onerous causes, that they may incur by such latent rights; declaring, that such Seasines and Reversions, not insert in manner foresaid, to be esteemed as latent and fraudulent, keeped up of purpose to insnare lawful purchasers; which Act of Sederunt is dated, February 22. 1681. So that, as by the first Act Reversions are made effectual, by this last they are made evident, that acquirers may be secured against latent Reversions, and by the registration, or being in the body of the Wodset, the necessity of sealling is taken off, and for the most part in desuetude. It is also consequent from this last Act, that not only formal and solemn Reversions in the body of the Wodset or registrat, are effectual against singular successors, but also Bonds and Writes for making of Reversions, otherwayes there needs no ordinance to registrate these for the purchasers security, if of themselves they could affect purchasers: But promises of Reversion are no wayes effectual against singular successors, unless they have been brought into write, at least by Decreet before these successors right, because being only probable by oath of party, the oath of the author will not prove against his singular successor. Neither will Declarations, Back-bands or conditions of Trust, be comprehended under Reversions; but they remain obliegements personal upon the person intrusted, unless they contain express obliegement to re-dispone, which is a reversion, albeit it be not formal; or if it bear, to denude himself [Page] in favours of the disponer or any other; but if it be but in trust to his behove, though thereupon, via actionis, he might be compelled to denude, yet is no reversion, and however hath no effect against singular successors, unless they be registrate as aforesaid; except in so far as they may be grounds of reduction against the parties intrusted, or their singular successors partakers of the fraud.

6. It is also frequently provided in Reversions, That if the condition of the Reversion be not performed betwixt and such a time, the reversion shall expire; and sometimes it is provided so to be, ipso facto, without Declarator. This is a clause irritant, irritating or annulling the Reversion, which in the Civil Law is called, Pactum Legis Commissoriae in pignoribus, and is thereby rejected and void as an usurary paction, whereby the Wodsetter getteth more then his just interest as a penalty: which therefore, as in other cases, ought to be modified to the just interest; especially seing indigent Debitors, through necessity of borrowing money, will be easily induced to such Clauses. And therefore, a Back-band for redemption of a Tenement, bearing such a Clause irritant, was found null two years after the terme, and after a Decreet of removing all meliorations being satisfied, July 8. 1636. Cleghorn contra Ferguson. The like was found in an Assignation to a Bond under reversion of a smaller sum, which was found penal and modified to the just interest, June 25. 1623. Mitchel contra Robson. Yet such clauses irritant are effectual upon the failie committed, unless they be purged by performance, which is ordinarly received when offered at the bar, in the Declarator of the expirie of the reversion: So was it found purgeable at the instance of the Reversers Creditors, 19. of March, 1631. Doctor Scot contra Dickson of Headrig. Yea, though the payment be not present, a time will be granted before the Extract of the Decreet of Declarator of the expirie of the reversion, that in the mean time, the failie may be purged, Feb. 7. 1628. Pringle contra Ker; but no such time was granted, where the requisition was upon ninescore dayes; but Decreet was given, unless present payment were made, July 19. 1625. Nairn contra Napier. But Clauses irritant in Reversions, are only thus qualified in real Impignorations: but when the reversion is of a true sale, not in security, but for an equivalent price, or where it is granted after the right related to, and not for implement of a promise or condition made at that time, it is valid; for only pactum legis Commissoriae in pignoribus, is rejected in Law.

And therefore, the Irritancie was not found purgeable before the Declarator, where the Reversion was of Lands disponed for a competent price by a true sale, January 17. 1679. James Beatsone contra Harrower.

A Bond bearing, that failing Heirs-male of the granter and of his Brothers bodie, that the Heirs-female should denude in favours of a Sisters son, upon payment of a certain sum, being registrat in the Register of Reversions, was found valid against a singular Successor, as a conditional reversion, and not as a substitution, albeit the Bond was granted by an Heretor, and that the Land was never wodset, but became redeemable by this Bond, and was not prejudged by a posterior Liferent granted by that Heretor in favours of his Wife, which would have been effectual, if it had been a substitution; But the sum upon which the Heir-female was oblieged to denude, was ordained to be reimployed for the Wife in Liferent, January 16. 1679. Laird of Lambertoun contra Lady Blanergesk.

[Page]7. As to the nature of Reversions, they are stricti juris, and not to be extended beyond what is exprest, and so not to be extended to the sAssigneys of the reverser when not exprest, yea not to his Heirs, unless it be so exprest; but where Heirs of the Reverser were not exprest, without adjecting the ordinary clause of paying the debt to the Wodsetter by the Reverser, any time during his life; and so Heirs were not found omitted dedita opera, but by negligence they were not excluded, January 9. 1662. Earl of Murray contra Laird of Graunt. And a Reversion taken by a father disponing to his son, found to be extended against the Heirs of the son, though Heirs were not mentioned, Feb. 6. 1630. Muir contra Muir. The like Spots. redemption, William Hamilton contra Hamiltons. And therefore, the day of consignation being appointed eight dayes after the terme, the Consignation was not sustained at the terme it self, though these dayes were introduced in the Reversers favours, July 12. 1634. Lord Balmerino contra Eliot of Stobs: Yet, where the Reversion bore, the premonition to be at the Paroch-Church, it was sustained, being used only personally, Decemb. 11. 1638. Finlason contra Weyms. And where the Reversion did bear consignation at the Creditors house in London, it was sustained, being at his successors house at Edinburgh, Feb. 1. 1667. Creditors of Sir James Murray contra Sir James Murray.

8. The constitution or nature of Wodsets being thus cleared, as to the kindes thereof, Wodsets are either proper, or improper; and they are either publick or base.

9. A proper Wodset is, where the fruits of the thing Wodset are only given for the annual-rent of the sum, and the hazard or benefit thereof, whether it rise or fall, is the Wodsetters; and there hath never been any case decided finding such proper Wodsets usurary upon exorbitancy of profite: But by the Act of Par. 1661. betwixt Debitor and Creditor, all Wodsets before that Act, though proper, are so altered, that if the person having right to the Reversion, offer surety and demand possession, the Wodsetter must quite possession, or else restrict himself to his annualrent, and count for the superplus, and that not from the Act of Parliament or Citation, but from the offer of security; which was not sustained at the instance of a singular successor in the right of Neversion, not having produced his right to the Neversion at the requisition: and though it was produced in the Process, the Wodsetter was not found oblieged to restrict or cede the possession, because he was in natural possession by labourage, till he were warned before Whitsonday, Feb. 20. 1679. Bruce contra Robert Bogie; though there was a Clause in the Wodset renuncing the Usurpers Act, and all such Acts made or to be made; for that Exception in the Act of Parliament, relateth only to preceeding Clauses thereof, and not to the Clause anent Wodsets which is posterior, January 29. 1662. Laird of Lamingtoun contra Sir John Cheislie; Feb. 21. 1666. Lord Borthwick contra his Wodsetters; Feb. 21. 1666. Ogilvie contra

10. But where in Wodsets, there is a condition of the Neversion, that a Tack should be granted for years after redemption, that Tack was not found taken away by the Act Debitor and Creditor; but that if it were in the terms of the old Act Par. 1449. cap. 19. far within the true avail, it were usurary and null, February 15. 1666. Lord Lie contra Porteous; February 17. 1672. Douglass of Mortoun contra and Verner: In which case, the Tack was sustained, if it were not much within the worth of the Land, as it was the time of granting the Wodset, albeit it were much within the worth [Page] the time of the redemption, because there is a just design in such Tacks to incourage the Wodsetter to meliorat the Wodset Lands, and be at expences therefore, seing he will retain the same after the Redemption, for the old rent they were worth when wodset, and the rent exprest in the Tack will be presumed to be the true rent, unless the contrary be proven. But such a Wodset granted to a Brother for his Portion, wherein the Wodsetter was excluded from possession during a Liferenters life, the Tack was sustained, Jan. 21. 1662. Laird of Polwart contra Home.

11. But if there be a Back-tack of the Land, granted by the Wodsetter to the Reverser, or for his behove, or a Provision to count for the profites of the Land, or to hold the Land at such a Rent, it is an improper Wodset.

12. A publick Wodset, which is holden of the constituents Superior, requireth, beside the reversion, a regress, which is an obliegement upon the Superior to receive and enter the reverser his vassal again upon the redemption: The necessity whereof is, because by the Infeftment, though of Wodset, the constituent is denuded, and the Superior hath a new Vassal, in whose place he is not oblieged to accept any other but by his own consent. Craig, lib. 2. dieges. 6. moveth this question, Whether a publick Wodset, being redeemed, and the Reverser re-seased therein, it would be accounted Heretage or Conquest. And though it seem Conquest, because it is a new Infeftment, and not the old, yet he well resolveth, that if it return to the person or heirs of him who was first infeft, if it was Heretage before, it remaineth so; but if an Assigney to the Reversion and Regress be insest, it is truly Conquest.

13. It remaineth now, to consider the destitution of Wodsets, and how they cease, and this is either by consent or by Law; by consent, either when the Reversion is discharged, whereby the Infeftment becomes irredeemable, and ceaseth to be a Wodset; which Discharge of the reversion is not effectual against singular successors, unless registrat conform to the said Act of Parl. 1617. cap. 16.

Or otherwayes by voluntary redemption of the Wodset, which must be registrat by the said Act, or else it prejudgeth no singular successor: yet it is not effectual to denude the Wodsetter, unless if the Wodset were base, there be a resignation ad remanentiam in the reversers hands as Superiour; or if it be publick, that the granter of the Wodset be re-seased, and a renunciation without a new Infeftment is not sufficient, Hope, Alienations, Kinross contra Durie, November 23. 1627. Dumbar contra Wilson. But if the reverser or his predecessor was infeft, a renunciation may exclude the renucers Right, but will not establish it in the person of the Reverser, but he must brook by his own right, Hope, Alienation, Hamiltoun contra Mcaddam; where Wodsets are taken holden of the Superior, Regresses are also taken from the Superior, and new Infeftment thereupon to the granter of the Wodset. But when Neversions are carried by Assignations, Apprisings or Adjudications to these who were never infeft, they must not only have a renunciation from the Wodseter, but a Procuratory of Resignation, that thereby they may be infeft; in which case, the Wodset-right is not extinct, but conveyed, and the Wodsetter is their Author, and may not resuse Procuratories of Resignation, or Charters for Confirmation, upon the redemption. And if the wodset-lands be not ward, he must grnt Precept of Seasine for infefting the reverser holden of the Wodsetter, and if Infeftments follow thereupon, and the Seasine be registrate, [Page] there is no necessity to registrate the renunciation or grant of redemption; so that a renunciation or grant of redemption being registrate, excluding posterior Deeds of the Wodsetters who yet continues in the Fee, and the Casuality will fall by his Death or Deeds.

Voluntar Redemptions are not so safe, being used against Pupils and Minors, whose Tutors and Curators ought to proceed Legally in Infeftments: So likewise in a Wodset to a man and his wife, and their heirs: A voluntar Redemption by the husband was not found sufficient to to prejudge the wife, who consented not, July 14. and 17. 1610. Lord Cathcart contra [...].

14. Wodsets are taken off Legally, when the Reversion is Legally annulled, as by declarator of expyring thereof; for thereby the Infeftment becomes irredeemable; but is chiefly by a Legal Redemption, which doth require an Order of Redemption, and a declarator thereupon, which must be diversly used in Legal-reversions, and in Conventional-reversions.

15. The Order of Redemption of Apprizings and Adjudications, by vertue of the Legal Reversion, is valide by Premonition and Consignation, and Instruments taken thereupon, wherein there is not appointed a determinat time upon which the Premonition must be made, or a determinate place where the Consignation must be made, nor the person of the Consignator; but the premonition may be upon any number of dayes, sufficient for the Consignation: Yea, though it were the same day of the Premonition, as Craig observes: But if the Creditor be personally apprehended, the Consignation must be in the way most to his advantage, which therefore he may prescrive, being either near the place of Premonition; or the Lands Wodset, or the Paroch Kirk where they lie, which Craig accounteth competent places; or if he choose any other more advantages to the Consigner, it will be sufficient: But if he choose none, the Premonisher must either Consign that day where he finds the Creditor, or if not that day: Or if he used Premonition at his dwelling-house, he must Consign, either at the Appryzers dwelling-house, or Paroch Kirk where the Lands lye, as said is; if the Creditor be out of the Countrey, or have no certain abode, Letters of Premonition will be obtained from the Lords, periculo petentis; for Premonition upon sixty days at the Cross of Edinburgh, and for Consignation to be made in Edinburgh: Yea, the Order was sustained for redemption of an Appryzing near expyring, albeit the Consignation was only at Edinburgh, and not at the Paroch Kirk where the Lands lay, or at the debitors dwelling-house, he being out of the Countrey, Feb. 22. 1631. Murray contra Lord Yester: But where the party was in the Countrey, this Order by summonds of Premonition and Citation, personally taken thereupon; not being by Instrument of Premonition, was found void, July 22. 1622. Lord Deshmond contra Hay. July 11. 1623. Captain Crawfoord contra Laird of Covingtoun, Where an Instrument of Premonition was found necessary, though no determinate time be requisite; in these cases, the Legal hath not been near expyred; but that a new formal Order might have been used, yet the exorbitancy of Appryzings hath made the slenderest Orders of Redemption to be sustained, as if the Appryzer had been in Possession, whereby a previous count was necessary, to know what sums were to be offered or Consigned, a Summonds for count and reckoning, and for accepting what was resting, being used within the Legal, hath always, [Page] been sustained, as was found, July 2. 1625. Doctor Kincaid contra Halybruntoun. And a Consignation of a sum for redeeming of several Appryzings made by a singular Successor against a singular Successor, was sustained, because the Instrument bore an offer to Consign the sums in all the Apprizings, whereto that party had then right, being performed in the Process, February 12. 1631. Murray contra Lord Yester.

16. The redemption of Wodsets upon Conventional Reversions, is by an order of redemption, consisting of Premonition, or Requisition and Consignation, whih is made effectual by an Action of declarator of redemption thereupon.

17. Premonition is an act or deed, whereby the Reverser or his Procurator premonisheth the Wodsetter, conform to the Tenor of the Reversion, to appear at the place of Consignation, and receive satisfaction according to the Reversion; and if it require the Wodsetter to come to the place of Consignation and receive his Money, it is called a Requisition: And in either case, it must necessarly be done by way of Instrument: This Instrument useth to bear, Production of the Reversion: Yet a Premonition was sustained without that, seing the Reversion was contained in the Wodsetters own Seasine. And a Premonition was not found null, though the Procuratory was was not produced, where the Procuratory was not called for, January 18. 1662. Mr. John Veatch contra Leyel of Bassandin. But a Requisition was found null, because it bore not a Procuratory produced the time of the Requisition, albeit another Instrument of the same Nottar did bear a Procuratory produced, and that in respect the question was not by a Wodsetter and Reverser, neither party having damage, but betwixt a Donatar of the single Escheat, and the Creditors of the Wodsetter; so that if the Lords supplied the not production of the Procuratory, the sum Consigned would become Moveable, and fall to the Fisk; therefore the Lords refused to supply the Procuratory, and found the Requisition null, and the Wodset unredeemed, January 12. 1677. Creditors of Wamphray contra Laird of Calderhal. Which for the same cause would hold, if the question had been betwixt the heir and Executor of the Wodsetter; for in either of these cases, the formality of the Requisition have the importance of the whole Right: And where the Reversion was in the Wodsetters own hand, and craved to be exhibite the time of the Consignation, the Premonition was found good without it, Hope Wodsets, Lord Yester contra Scot. The like in a Redemption at an Appryzers instance, who Appryzed the Reversion, February 19. 1662. Children of Wolmet contra Mr. Mark Ker. The like in a singular Successor to a Reversion redeeming, February 17. 1663. Collonel James Montgomerie contra heirs of Halybruntoun. Here the Reversion was in the Wodset Right, which was in the defenders own hand.

Premonition may be done, either personally, or at the Wodsetters dwelling house. But it was found null, when the dwelling house was not designed, December 13. 1626. Earl of Balcleugh contra Young.

Premonition must be used against the Tutors and Curators of Minors, either generally at the Mercat Cross; or otherways to the Tutors and Curators [Page] personally, December 17. 1629. Carnousie contra [...]. And a Requisition was found null, because not made to Tutors and Curators, by Letters from the Lords; but only by an Instrument taken at the Mercat Cross, June 15. 1680. Gordoun contra Earl of Queensberry. But where Requisition was made specially to one who was repute Tutor, it was sustained, Hope Confirmation, Carnousie contra Frazer.

A Premonition was sustained, though the Reversion bore, that it should be done at the Paroch Kirk, and it was done personally, which was accounted more, December 11. 1638. Findlason contra Weims.

18. Consignation must also be done by way of Instrument, bearing the Tenor of the Premonition, and the production of the Reversion and Procuratory in the same way, as it is before said of he Premonition, and the coming to the place and day, according to the Reversion and Premonition, which may be any time of the day; and therefore, the Wodsetter must attend that day from Sun to Sun; because the Reverser may come any time of the day: And upon the Wodsetters not appearing, or not renuncing the particulars contained in the Reversion, are to be Consigned according thereto, upon publick intimation, by calling the Wodsetter, if absent, at the most patent door, which must be done according to the Reversion, in forma specifica, and not per aequipollens, Hope Wodsets, Lord Frazer contra James Crightoun. It was sustained upon the Consignation of a Discharge of the like sum due by the Wodsetter, in respect it was due by an Article in the Contract of Wodset, in stead of Money, January 2. 1667. Hog contra Hog.

Consignations use to bear, the numeration if the Money. Yet it was sustained, bearing the production of all and hail the sum contained in the Reversion, March 10. 1630. Grierson contra Gordoun of Troquhan. Here the Wodsetter did not appear, or at least did not require Numeration. It must also contain an offer of what is generally in the Reversion, and of what the defender can further condescend and clear, whereof the Reverser was probably ignorant, as the dues competent in Appryzings; and therefore a Redemption of Teinds upon Consignation of the principal sum, and offer of what should be cleared, to be resting of Teind Bolls, as the prices should be modified by the Lords, was sustained, being made good at the Bar, February 21. 1623. Cunningham contra Walter Foster. Yea, the order of Redemption of an Appryzing, was sustained, though the bygone Annualrent and Penalty were not offered or Consigned, the same being offered at the Bar, as they were found due and modified, Hope Wodsets. A Consignation was also sustained, as made thorow the Wodsetters default, who offered not a sufficient Renunciation, though the Consigner did not offer the draught of a sufficient Renunciation to the Wodsetter to subscrive, albeit the Wodsetter appeared, and was willing to receive the Money and offered a Renunciation, which the Lords at discussing of the Cause, found not sufficient, and found the Consigner was not oblieged, even in that case, to offer the draught os such a Renunciation as he required, July 12. 1634. Lord Balmerino contra Gilbert Elliot.

19. The Order of Redemption being lawfully used, the action thereupon is a declarator of Redemption, because it is the order that Constitutes the Redemption [Page] and the Declarator, but finds and declares it to be orderly proceeded, and decern-the Wodsetter to denuds himself conform thereto; and therefore, though the Reversion be personal, excluding Assigneys, if that person once use the Order he may Assign it, and Dispone the Lands as Redeemed; and the Assigney at any time, even after his death, will have interest to declare, July 29. 1623. Earl Marischal contra his Brother. March 3. 1630. Murray contra Myls. July 30. 1650. Campbel contra Dick. Declarator of Redemption was sustained upon an Order used against a defunct, and the Declarator pursued against his appearand Heir, without a Charge to enter Heir, or a new Order, December 11. 1638, Findlayson contra Weims. But in the Decreet of Declarator of Redemption against the appearand Heirs, they cannot be decerned to denude, unless they were Charged to enter heir; yet the Declarator it self would be sufficient to extinguish the Wodset against singular Successors: But it would not convey the right of Wodset to the Redeemer; and therefore, if he were not Infeft, or heir to a person Infeft in the Wodset Lands, it would be necessary to charge the appearand heir to enter, to the effect he might denude and dispone; and therefore, a declarator of Redemption against an appearand heir, did bear, that the sums should not be given up till the appearand heir were Infeft and Resigned, January 10. 1665. Campbel contra Brison It was also sustained at the instance of an Appryzer of the Reversion, without calling him from whom it was Appryzed, but only the Wodsetter, December 17. 1629. Carnousie contra Lesmore. In respect that the Appryzing was a Legal Assignation of the right of Reversion granted by the Wodsetters author: And there have been no interveening singular Successors, but in Redemptions against singular Successors in Wodsetts, whose rights do not instruct that they are derived from the granter of the Reversion, the pursuer must instruct that the granter of the Reversion stood Infeft in Fee: Otherways that singular Successor will not be oblieged to acknowledge the Reversion; and because the Successors of the first Wodsetter would have warrandice against the first Wodsetter or his heirs, if they had disponed the Lands without reserving the Reversion; therefore in that case, only the first Wodsetter or his heir, if he can be condescended upon, having any visible Estate, have been of old accustomed to be called; which is not necessary in other cases, and hath been the ground of that Decision, July 9. 1630. Fisher contra Brown. Where it was found necessary to call the heirs of the granter of Reversion, if the defender could condescend upon them; for the ancient custom hath been to have more respect to the heir of the granter of the Reversion, then to the singular Successor, present Possessor of the Wodset, as Craig observes, l. 2. Dieges. 6. that sometimes Redemption hath been sustained upon Premonition and Citation, only of him who granted the Reversion or his heir. But ever since the present Heretable Possessor of the Wodset, must necessarly be Premonished and Cited, and but seldom the granter of the Reversion or his heir, as where the granter of the Reversion was immediat Author to the singular Successor, against whom the Order was used, as in the former case, his own Rights behoved to acknowledge the right of the granter of the Reversion, who was common Author and might intimate the plea to him, but could not be oblieged so to do, where his own right shew no right from the granter of the Reversion.

A Redemption being voluntary without Process, was sustained against a Sub-wodsetters right, being a Liserent by the Wodsetter to his Wife, albeit it was [...]; yet the Redeemer was not found oblieged to know it; but it was [Page] found taken away without any Order against her, or Citation of her, Iuly 27. 1665. Lillias Hamiltoun contra her Tennents. Redemption upon a Rose-noble used upon the Sabbath-day, albeit the Instrument of Consignation, did not bear, the Reversion was shown, nor read, was sustained, Spots. Redemption, Laird of Newwark contra his Son; but this would not be drawn in example amongst strangers, where the Wodset is redeemable upon considerable sums. For though Consignation upon the Sabbath-day by a Father against his Son, be sustained, [...] non debet, sed factum valet: Yet the Wodsetter cannot be oblieged to attend and perform the requisites of Consignation, by numeration of Money, perusal of Writes, and subscribing a Renunciation upon the Sabbathday. Redemption was sustainedwithout necessity to the pursuer, to uplift the sums Consigned from the Consignatar, and re-produce them at the Bar, unless it be instructed he had taken them up, December 7. 1631. Grierson contra Gordoun. Where the Extract was superceeded till the Consignatar was Charged summarly upon Letters granted upon the Instrument of Consignation to exhibite the Consigned Money, but no Annualrent was found due after Consignation.

A Redemption was sustained without production of the Reversion, the pursuer being an Appryzer, and proving that the Reversion was in the Defenders own hand, February 19. 1662, Children of Wolmet contra Mr. Mark ker. The like where the pursuer was a singular Successor, February 17. 1663. Collonel James Montgomery contra Robert Halybruntoun. Yea, an order used by an Assigney sustained, though he shew not his Assignation till the Process of Declarator, yet so as the Wodsetter was not countable for the Rents, but from the production of the Assignation, February 19. 1674. Lord Borthwick contra Pringles. Yet Redemption was not sustained at the instance of an heir, not being entered at the time of the Order, though entered before Declarator, Ianuary 19. 1672. Lord Lovat and Kintail contra Lord Mcdonald. But if the Redeemer uplifted the Consigned Money, he must produce the same with the Annualrent, and will have right to the Rent during that time, Hope Confirmation, Baikie contra, December 8. 1671. Forrest contra Brounlie. November 29. 1672. Duke of Buckleugh contra Scot of Thirlestain.

Redemption was not eleided, because the sums were Consigned in the hands of the redeemers own servant, and taken up from him, seing it was offered at the Bar, and no special provision in the Reversion, anent the Consignatar, Hope Confirmation, Laird of Drum contra Wishart. The like though there was an Instrument of another Nottar contrary the Order of Redemption, July 18. 1610. Earl of Kinghorn contra Kincaid.

20. The effect of Declarator of redemption is, that it makes the redeemed Lands belong to the Redeemer, and makes the sum Consigned moveable and to belong to the Wodsetters Executors, if he have accepted the Consignation or Declarator, do follow in his Lifetime; but if Declarator do follow after the Wodsetters death, the Consigned sums will not belong to his Executors but to his heir, who remains Propietar of the Wodset: But if Declarator past in the Wodsetters Life, it did take away the real right of Wodset, so the Money came to be in the Property of the Wodsetter, as moveable, and fell to his Executor, which till a Declarator was not so, seing the Order might be passed from, December 19. 1629. [...] contra Miller; where it was found, that the Consignatar was oblieged to re-deliver the Consigned Money to the Consigner, his Heirs or Assigneys, passing from the Order, though the Wodsetter, [Page] to whose use it was Consigned, was not called. The like was found, that till Declarator the congned sums remain in the Property of the Consigner, and belong not to the Executor of the Wodsetter, but to his heir: or where Declarator of Redemption was after the Wodsetters death, January 21. 1673. Thomas Nicol contra Lourie. Iune 18. 1675. Laird of Lie contra Forbes of Blacktoun.

Upon Declarator of redemption, Letters will be obtained summarly against the Consignatar, to re-produce the Consigned Money, December 7 1631. 1631. Grierson contra Gordoun. But though the Instrument of Consignation will instruct the Consignation against the Wodsetter; yet it will not prove against the Consignatar, without his oath, or write subscribed by his own hand, Ianuary 14. 1630. Lausree contra Miller.

21. Redemption was not elided by a singular Successor, obtaining Infeftment of the Wodset Landsafter the Order, or at least the Infeftment being base, not cled with Possession till after the Order, though it was cled with seven years Possession before Declarator, Hope Confirmation, Earl of Errol contra Tennents and Lady Seaforth.

22. Wodsets are also taken off by Premonition or requisition, requiring the sums upon which the Wodset is granted, which makes the sums moveable and the Infeftment of Wodset void, yet so that the requirer may pass from his requisition, and the Infeftment revives, January 29. 1635. James Hamiltoun contra Tennents of Calder.

The Requisition may be also past from indireclty, by uplifting the Duties of the Wodset Lands, for Terms after the requisition, Hope Usury, Thomas Waliace contra Laird of Edzel; or taking posterior Terms of Annualrent from Principal or Cautioner.

Requisition requires also the same solemnities that Premonition requires; and therefore it was not sustained, where the Procurator designed no time nor place to pay the Money required, and the Instrument was mended at the Bar, as to the reading of the Procuratory, and the truth of it referred to the defenders oath, which the Lords admitted not, the Instrument being otherways produced in Judgement; this was in expyring of a Reversion, for not payment upon requisition. The like when the requisition bore that, February 7. 1628. Maxwel contra Laird of Innerweek. The like where the requisition mentioned not the production or the Procuratory, though it bore not it to be called, November 13. 1622. Laird of Bass contra Wauchop. This was in a requisition only to validat a Charge; the contrary was found, where it bore, that the Procurators power was known to him and the witness. Ianuary 18. 1665. Stuart contra Stuart: Here there was an Apprising deduced upon the requisition. The like where the Procuratory was not called for, and was in the Procurators hand, June 28. 1671. Hellen Home contra Lord Justice Clerk.

23. Declarators of redemption, or renunciations, or grants of redemption, do ordinarly bear, that the Wodsetter renunceth all right to the Wodset Lands; and albeit he have a distinct right; it will not stop the Declarator, nor obliege the redeemer to debate thereanent in that Proces: Nor will it stop the entering the redeemer in the Possession, in which he entered by the [Page] Wodset; but that right will only be reserved, November 22. 1677. Sir Archibald Stuart of Castlemilk contra Duke of Hamiltoun: And if the Wodsetter condescend upon, and give evidence of any other right beside the Wodset, it will be particularly reserved, or the renunciation will only bear, all right by vertue of the Wodset, Hope Confirmation, Baikie contra Iuly 2. 1623. Earl of Errol contra Bukie.

And in the case of redemption of an Appryzing, the renunciation was restricted to the right in question, February 22. 1631. Murray contra Lord Yester. Declarators of redemption do descern the Wodsetter to renunce, and resign all right to the Wodset Lands, unless a right distinct from the Wodset could be instructed, which will be excepted, or an evidence given of such a right, which thereupon will be reserved: But a general reservation of other rights was not sustained, but a Declarator of redemption was found a species of Declarator of right; after which, no right competent and omitted, will be sustained, which was then known, February 2. 1676. Duke of Lauderdail contra Lord and Lady Yester.

TITLE XXI. Extinction of Infeftments, Where, of Resignation ad remanentiam, Recognition, Disclamation, Purpresture, and other Feudal Delinquences.

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1. The form of Resignations, ad remanentiam.

2. They may be by Procurators, or propriis manibus.

3. Instruments of Resignation prove not without a warrand in write.

4. Resignations ad remanentiam, were valide without Registration, till the year, 1669.

5. Resignations imply all burdens by the Vassal affecting the fee.

6. Resignation by him who hath no right, with consent of him who hath right, how far effectual.

7. How far Superiours may not reject resignations, ad remanentiam.

8. How Infeftments become extinct by Succession, as heir, or Singulari titulo.

9. The original of extinction of fees, not by the Vassalls consent, but by his deed.

[Page] 10. Recognition by alienation of the ward fee.

11. Recognition by Infeftments, a se.

12. Whether recognition can be incurred by deeds in minority, or on death-bed.

13. Whether recognition can be incurred by Sub-feudation.

14. How far feues exceeding the half of the full rent, may subsist without recognition.

15. In what cases other feues of wardlands, infer not recognition.

16. Recognition by alienation, is only of Lands clearly ward, simple, or taxed.

17. Recognition is not incurred, unless the major part be alienate.

18. Recognition is not incurred by alienations to the Vassals appearand heir.

19. Whether recognition be incurred by alienations, on condition that the Superiour consent.

20. Inhibition excludes not recognition.

21. Recognition is not excluded by the Vassals drunkeness, when he alienat.

22. How the Superiours consent may be adhibite to alienations, to shun recognition.

23. How far the Kings Confirmation without a novodamus, takes off recognition.

24. How recognition is taken off by homologation.

25. Recognition excludes all Infeftments, Tacks, or Servitudes by the Vassals deed, without the Superiours consent, or authority of Law.

26. Servitudes by prescription are not excluded by recognition.

27. In recognitions who must be cited and who may compear.

28. The Title and Order in declarator of recognition.

29. Disclamation, how incurred.

30. Purpresture, how incurred.

31. Feudal Delinquences adduced by the Feudists for resolving fees.

32. Attrocious deeds against Vassals fidelity to their Superiours, resolving their fees.

33. How far the ignorance or weakness of the Vassal, excuses, with other exception for the Vassal.

34. Whether the delinquence of the Sub-vassal infers recognition.

[Page]WE are not here to speak of the common wayes of extinction of Infeftments, and other rights, as the extinction of the Subject matter, Prescription, Forefaulture, Homologation, or acceptance of incompatible Rights, neither to these ways by which an infeftment is extinct as to one, but is conveyed to another, which falleth in consideration amongst conveyances of Rights: But of these ways proper to extinguish Infeftments, and make the right toceass, and to return to the Superiours, and these are two. either by consent of the Vassal, or by Law.

1. Infeftments are extinct by consent, by resignation made by the Vassal, who stands Infeft in the Lands to his Superiour, ad perpetuam remanentiam, to which there is necessarly required, as a solemnity thereof, an Instrument of resignation in the hands of a Nottar, in the same way that their constitution was perfected by an Instrument of Seasine, their distitution is consumate by an Instrument of resignation, which no other write nor acknowledgement of the Vassal, of the being thereof will supply, much less will the deeds done otherways prove; and as in Seasines there must be a tradition or delivery of Possession by some Token or Symbol, as by Earth and Stone, &c. So in the Instrument of Refignation there must be a re-delivery of the Possession by an accustomed Symbol, which ordinarly is by delivery of Staff and Bastoun; yet in this they differ, that the delivery of the Seasine must be upon the ground of the [...], naturally or by union; but the Resignation may be any where: And as Seasine may be given, either to the Vassal or his Procurator; so may the Resignation be either to the Superiour himself or to his Commissioners, authorized to that effect.

2. And though Instruments of Resignation use to be by Procurators, warranted by a Procuratory of Resignation: Yet as there may be Seasines given by the Superiour, propriis manibus, so may there be Resignations by the Vassal.

3. But in both the Instrument of Resignation alone is not sufficient, as being but the assertion of a Nottar; but they must have for their warrand a Disposition, or other Adminicle; and therefore, it is Statute, Par. 1563. cap. 81. That where such Resignations are by Procurators, the Procuratories be subscribed by the party or Nottars; and if the Resignation be propriis manibus, that the Instrument be so subscribed, otherways to be null, because the subscription of the Instrument is in that case the only probation of the Warrand thereof: But if there be a Disposition or Obliegement to Infeft the Instrument of Resignation, though not subscribed by the resigner, will be sufficient as warranted by the Disposition or Obliegement. But Seasines and Resignations did formerly differ in this, that Seasines must be registrate within sixty dayes after dates, Par. 1617. cap. 16.

[Page]4. But so needed not Instruments of Resignation ad Remanentiam; for though by that Statute, Renunciations of Wodsets are to be registrat, it was not extended to Renunciations of irredeemable Rights ad remanentiam, these being either omitted by inadvertency or of purpose, in the favours of Superiours, that Rights may be taken with their consent: Yet in so far, that excellent Statute was defective, till the late Act of Par. 1669. cap. 3. whereby Instruments of Resignation are null, if not registrat within sixty dayes. By which, and others to that purpose, purchasers in Scotland, may better know the condition of these with whom they contract about Infeftments, and be more secure of lurking rights then any where (so far as I can learn) in the World.

5. By this Resignation so made, the property is consolidate, as it was the time of the Resignation, and is affected with all real burdens, or debita fundi, that validly affected it before, as Feues, Tacks, Annualrents, Servitudes. For, though all such burdens as are not warranted by the Superiours consent, or by Law, cease when the Fee returns to the Superiour, either for a time by Ward, Non-entry, &c. or for ever by Recognition; yet when it returns thus by consent, it comes cum suo onere, which is very just and fit, seing else such securities might easily be evacuat, by voluntar Resignations in the Superiours hand. There is another Resignation, which is called in favorem, being for new Infeftment to the resigner or some other, but thereby the Fee is not extinct, but either renewed or transferred; and therefore, it shall be considered hereafter.

6. Craig upon this head, very fitly moveth and solveth this question, Whether the Vassal may renunce and resign his Fee to the Superior, though he be unwilling; and instances in two cases; First, in a Vassals holding a very inconsiderable parcel of Land Ward, and did thereby become obnoxious to his Superiour for the value, his Tocher having relation to the whole Estate, which Tocher did much exceed the worth of the Tenement: And yet a resignation thereof being judicially offered, the Superior was suffered to refuse it, unless the value of the Marriage were first payed. The other of a Burgess, offering to renunce his Burgesship for shunning a great Taxation put upon him: and therefore, solveth the case upon the common Axiom, Cuique licet renunciare favori pro se introducto. And therefore, the Fee of its nature being gratuitous in favours of the Vassal, may be renunced, but that will not prejudge the Superiour of any casuality befalling to him before the renunciation, but will have only effect ad futura: and therefore, a Vassal judicially disclaiming his Superior, was not admitted so to do, to exclude the Life-rent already fallen, March 26. 1628. John Stewart contra Laird of Wedderburne.

No Contract, Obligation or personal Right, nor any less then an Instrument of Refignation, will take away Infeftment; for though these may be sufficient against the granters thereof, by a personal objection, whereby they cannot come against their own deed: Yet truly, the real right stands in them, and they are not denuded thereby; and so a Renunciation, without the solemnity of an Instrument of Resignation, will not suffice to obliterat an irredeemable Fee, though it may be sufficient to evacuat any personal right, as Servitude not requiring Infeftment; yea, or a Liferent, though constitute by Infeftment, because it is communicable to no other persons by Infeftment, and therefore, passeth by Assignation or Resignation. The reason hereof is, because by the common custom of Nations, real Rights cannot pass by sole consent, without [Page] artaining possession in the way prescribed by Law: and therefore, this symbolical possession, which alone the Law alloweth as sufficient, either in the constitution or destitution of Fees, must be adhibite, and the real possession of the Tenement it self will not suffice in either case, as is before instanced in Seasines by several decisions. So a Renunciation without a formal Resignation, was not found relevant to take away the Infeftment renunced against a singular successor, November 23. 1627. Dumbar contra Wilson. Resignation cannot be effectual, if the resigner be not infeft; for he who is not invested, cannot be divested, or if by his Infeftment, he hath no valid right.

7. Craig discusseth this question also in that place, Whether consent of one who is infeft, and thereby hath right, will validat the Resignation of another who is not infeft and hath no right: Which he determineth in the affirmative, with good reason; for though the consent alone would not be sufficient, yet seing the form of the resignation is done, though in the name of him who hath no right, yet by consent of him who hath right, here is both the substance and solemnity of the act; and it is alike, as if the Resignation had been by the consenter, which I doubt not will hold, though the consent be but adhibit in the beginning of the Disposition or Contract. And though the consenter, for all right he hath, doth not dispone, as is ordinary, for further security; yea if the consent be not repeated in the Procuratory of resignation, or mentioned in the Instrument of Resignation; for being exprest generally in the entry of the Disposition or Contract, it reacheth to every Article thereof, and all done conform thereto. Consent hath the same effect in the constitution of Fees; and so the consent to an Annualrent, by a party having right and infeft, was found to validate the Annualrent, though the Disponer was not infeft; and so did exclude a Tack set by that consenter afterward, December 15. 1630. Jean Stirling contra

Yet, if more persons should dispone for their several rights, without consenting one to another, if any of them be omitted out of the Procuratory or Instrument of Resignation, in whom truly the right standeth; Nonthing will be validly done, though that party be also in the Disposition: And this is the reason, why when many persons dispone or resign, they do it all with one mutual consent; for thereby each of their rights doth contribute to the deed of the rest, though some of them were omitted to be repeated in the Procuratory, Instrument of Resgination, or Infeftment following thereupon, the deed would be valid: But it is safest to repeat their consent in the Resignation and Infeftment.

8. Infeftments are also extinct, when the Superior adjudgeth or appriseth from his Vassal; for thereby it was found, that the Property was consolidat with the Superiority, Spots. Apprising, Stevinson contra Laird of Craigmillar. Or, if the Superiour succeed as heir to the Vassal; in which case, though the Superiour upon supplication obtained Precepts out of the Chancelary, to infeft him in the Fee, it was thought, as Superior, he might have infeft himself as Vassal: But he would not have been so secure by a Declarator of Consolidation, upon the Superiours special Retour, as Heir to his Vassal in the Lands; because, that way would make a defect in the security of Land-rights by the Negisters, in which, Decreets of Consolidation are not required to be recorded; whereas the Superiors Seasine, either on the Kings Precept or his own, behoved to be registrat; and if the Superiour acquire the property by Apprifing or Adjudication, the allowance thereof must also be registrate. The [Page] [Page] [Page] The like effect will follow, if the Vassal become Heir, or singular Successor to the Superiour, whereby being infeft in the Superiority, he may as Vassal resign to himself as Superiour ad remanentiam.

9. It is more disputable, how and under what consideration Fees are extinct, otherwayes then by consent: Some hold that they are extinct by the attrocious delinquency of the Vassal against the Superior, as the penalty or punishment thereof; and others conceive, that acknowledgement and fidelity being necessarly involved in all Fees (as is shown before) though it be not exprest; So this is implyed as a legal resolutive or irritant Clause, that if the Vassal failie in his duty, his Fee becomes void. And others hold, that Fees being of their own nature gratuitous, even though there be a cause onerous, yet they retain the nature of a Donation: and therefore, as all Donations are revocable propter ingratitudinem; So are these, which soever of these be the ground, the consequences and effects are much to the same purpose. But I incline to the middle opinion; for unless it were evident by Law, that the penalty of that delinquence were such and so applyed, it would hardly be consistent upon that ground, seing otherwayes, as we have shown before of delinquences, the punishment is publick, and would belong to the Magistrate: And therefore, for several delinquencies, forfaulture of Fee is introduced, without benefite to the Superiour, who as a private party, can have no more but a reparation equivalent to the damnage sustained by him; and so the alienation of the Fee, without his consent or incroaching upon the border of his property, would not infer, for its reparation, the return of the Fee, how great soever. And for the last, though Fees of their nature be gratuitous, yet they are oft-times for an equivalent price, and so the less ingratitude can be alledged; yea, though it be true, Si ingratum dixeris, omnia dixeris, yet fidelity and trust is a much stronger bond then gratitude: and the breach thereof hath the most powerful consequence, betraying of trust being most hurtful and hateful to mankinde; and therefore, seing fidelity is necessarly and properly in all Fees, and is essential thereto and inseparable therefrom, it looketh likest the surest ground from whence the eviction hereof may flow, And if it be truly gratuitous, it is an aggravating circumstance, making the deed more odious. But whatsoever it be, it is agreed by all, that the deed must be of knowledge, moment and attrocity, though there be many such heaped up by the Feudists, yet many of them have no place with us, where both such deeds are rare, and therefore the decisions thereupon are few; and certainly our Fees being ordinarly onerous, are not evacuated but by such as are either named and known in Law, or which are very attrocious. There be three such wayes of extinction, which have peculiar names in Law, Recognition, Disclamation, and Purpresture. Of which therefore in the next place.

Recognition is the Superiours returning to own the Fee; and therefore may be extended to all the wayes by which it returneth through the Vassals infidelity, as is hereafter exprest. But the least culpable, and yet most ordinary way of incurring Recognition, is by the Vassals disponing irredeemably or under reversion, his Fees holden Ward: for by this he renders himself incapable to serve his Superiour, and in a manner renunces and disclaims him. This kind of Alienation makes recognition of Ward-lands, but Fees feu or blensh do not recognosce by such Alienations, but by the attrocious infidelity of the Vassal.

[Page] 10. The nearest cause of Recognition, is the Vassals alienation of the Fee without consent of the Superiour, which is a legal clause irritant implyed in the nature of proper Fees or Ward-holdings, though it be not exprest, that though the Vassal alienat the Fee, it shall return to the Superiour, whether the rise hereof be from the personal obligation of fidelity, which the Vassal oweth to the Superiour only, or from the obliegement of gratitude and service, or from that peculiar choice of the person and race of the Vassal which the Superiour hath made, contrair to which, a stranger cannot be obtruded upon him; neither can the Vassal withdraw himself from the fidelity, or render himself unfit for his service, or from all these; yet in this do most agree, that the nearest cause of Recognition is the alienation of the Fee. So then, the main difficulty is, what is meaned by that Alienation by which Recognition is incurred, Craig, lib. 3. dieges. 5. declareth, that this Alienation cannot be by naked Contract or Disposition, till Seasine follow; for, these being but personal and incompleat Rights, do not alienat the Fee from the Vassal, but only constitute upon him a personal obliegement so to do. It is also clear, that by Infeftment granted by the Superiour upon resignation, there can be no recognition, because the Superiours accepting of the resignation, importeth his consent; So that, the question will only remain, when the Vassal granteth Disposition or Charter a se to be holden of his Superiour, and before the Superiours Confirmation obtained giveth Seasine: For, the Confirmation being the express consent of the Superiour, if the Seasine be after it, there can be no hazard of Recognition, or otherwayes, while the Vassal granteth a subaltern Infeftment to be holden of himself.

11. As to the first case, it seems there can be no recognition incurred by Infeftments granted by the Vassal to be holden of his Superiour, because, if these be confirmed, the Right is null, and there is no alienation nor transmission of property, but the Vassal granter of the Infeftment remains still Proprietar. And therefore, such an Infeftment is equivalent, as if the Vassal did alienat upon condition, that the Superiour should consent; and if he did not consent, the Infeftment to be null. In which case, most Feudists do agree, that by such Infeftments there is no recognition; and this reason is the more fortified, that Craig in the fore-cited place relateth, that an Infeftment null for want of Registration, was not found to infer Recognition, in the case of the Kings Advocat against Kenneth Mackenzie and Bain.

For solution of this difficulty, it is not to be denyed, that if a Seasine be null by defect of any substantial, or essential, necessarly requisite to Seasine or symbolical delivery of possession, there would follow no Recognition, as if there were no tradition of earth and stone, or symbol requisite or not, by the Superiour or his Bailie or not, to the Vassal or his Procurator or not, upon the ground of the Land naturally, or by union. But though Seasine may be null, by defect of some accidental solemnity introduced by Statute or Custom, and not necessarly involved in the nature of tradition, as the indiction or year of the Princes Reign, though Law should declare the Seasine null for want of these; yet, the Vassal performing such essential requisites, the Feu falleth in Recognition: and therefore, there seemeth no ground to follow that Decision adduced by Craig, excluding Recognition upon the nullity of the Seasine for want of Registration. But as to the case proposed, the Superiours Confirmation is not essential to the Vassals Seasine; neither is it so required by the common Feudal Customs, as with us: for thereby, if the Superiour did acquiesce, approve or homologate, the Seasine granted by a [Page] Vassal to a stranger, the same would be valid without a formal Confirmation in write; albeit by our Custom, such Infeftments till Confirmed are null, not only as to the Superiour, but as to all other third parties, and so is become as a substantial of the Infeftment, not being truly essential by the common Fedual Customes, it doth not exclude Recognition; and as Craig in the forecited place rendereth the reason, that Infeftments by the Vassal, a se, not Confirmed, infer Recognition, is because he hath done all that in him is to alienate the Fee, there being no Act remaining to be performed by him or his Procurator; and therefore, in the Declarator of Recognition, pursued at the instance of Lady Anna Hamiltoun Lady Carnagy contra Lord Cranburn, upon the Earl of Dirletouns Disponing of the Lands of Innerweek holden of the King Ward to Cranburn, and Infefting him therein to be holden of the King; this Defence was not found relevant, that the Seasine was not Confirmed, and so null, though done upon Death-bed, accepted for a Minor absent and inscient, and recalling and reducing.

12. For in such cases as in rebellion or escheat, there is no priviledge of minority nor of deeds upon death-bed against the Superiour, though done by a minor, except the deeds upon death-bed, be in prejudice of the Heir and be reduced by the Heir, ex capite lecti. But in this case Dirletouns Heir did not quarrel the Disposition made by him, as done upon death-bed, but did take a gift of recognition from the King. But where the gift of recognition was not granted to the Heir-male, who was heir in the investiture; but to an heir Female, the Heir-male proponing, that the alienation was upon death-bed, and so null as to him: The Lords found, that if the Disposition was upon deathbed, the Defence was relevant and competent by way of exception, the Declarator of recognition not being a possessory Judgement: But where the Disposition was in leige poustie, and was delivered with a Precept of Seasine simply, without [...], not to take Seasine base upon the Precept, which imported a Warrand to take Seasine thereupon; It was found, the taking Seasine when the Disponer was upon death-bed, upon that precept subscribed and delivered in [...] poustie, did infer recognition, July 20. 1669. Barcley contra Barcley.

13. It is much debated amongst the Feudists, whether by Sub-feudation, Recognition be incurred, or whether it be comprehended under alienation; because in libro Jeudorum, albeit alienation of Fees be expresly prohibite, yet in the same place, as Craig observeth, Sub-feudation is allowed; because by sub-feudation, neither the personal right betwixt Superiour and Vassal is altered, seing the Vassal continues Vassal, and lyable to all these: Neither is the real right and interest of the Superiour in the Fee it self diminished, but he hath the same access thereto, as if there had been no sub-feudation; yet Sub-feudation in all cases is accounted alienation: And where alienation is prohibite, Sub-feudation is understood; and so Emphitiosis, or Feu-ferm, which is at least a perpetual Location. For solving this difficulty, it must be remembered, that feudalia are localia, regulable according to the custom of the several places, and according to the Nature of Feudal-rights, and common Feudal-customs, where special customs are not; and therefore, there is no question of this point in France, or most places in Germany, where alienation of Fees many ways is allowed: But in Italy and other Countreys, where the common Feudal Customs rule ordinarly according to the Feudal-books. The doubt remaineth, which may be cleared thus: First, Though in some cases alienation be extended to Location, yet it is not so by the common feudal Customs. [Page] Secondly, If the Subfeu-dation be a real Feu-ferm, whereby the Feu-duty is considerable and competent to intertain the Vassal; such Sub-feudation is thereby accounted only Lacation; Nor doth it infer recognition, being in effect no more then a perpetual Location, whereby the Antinomy in the Feudal Law is sufficiently reconciled, that such Sub-feudations are not alienations: But if the Sub-feudation be Ward, Blensh, or in Mortification, or though it be under the name of Emphyteosis; yet for an elusory, or an inconsiderable and unproportionable Feu-duty, which by no estimation can be correspodent to the profite of the Fee, but within the half of the true worth; in these cases the Sub-feudation is alienation inferreth recognition.

14. As to our own Customs in this point, they do agree to the common Feudal Customs, as to Subaltern Infeftments, Blensh, Ward, or in mortification, or Elusory, or unprofitable Feus. But as to Feues by which the major part of the profite of the Ward or Fee is not taken away, though such cases have not occurred to be contraverted, they seem not to infer recognition; for if the major part be not alienate, Subaltern Infeudations, though Blensh or in Mortification, infer not recognition, when these rights are disjunctim of parts of the Fee; There appears no reason, that the Subfeudation of the whole, with a Feu-duty equivalent to the half of the true Rent, whereby in effect the half is not alienate, seing the dominium directum, of the whole, and the profite of the half is retained, should infer recognition, especially now when generally Fees are granted for Causes Onerous.

15. And by the Statute allowing Feues, Par. 1457. cap. 72. It is provided that the Feu be set to a competent avail, which by the said Statute is cleared to be without diminution of the Rental; and which is commonly interpret the retoure duty, because it was the publick valuation and rate at that time. And by the said statute, such Feues are confirmed and declared not to be prejudged by the Ward, without mention of the hazard of recognition, as not being consequent upon such Feues. But this Statute being abrogate as to the Leiges, Par. 18. Ja. 6. cap. 12. All Sub-feues of Ward-lands, holden of Subjects without the Superiours consent, are declared null and void: But there is no mention of recognition to be incurred thereby. And Feues are only prohibited as being in prejudice of the Over-lords, who are not prejudged if the major part be not alienate, seing all Subaltern Infeftments, not exceeding the half, are allowed by Law; And albeit the Narrative of the Act respect Feues preceeding it, yet the Statutory part is only as to Feues granted thereafter.

And the like prohibition is appointed for the King and Princes Vassals, Par. 1633. cap. 16. The effect of this Act, as to the Vassals of the King and Prince, was suspended till the next meeting of Parliament, and the Vassals exempted therefrom in the interim, Par. 1640. cap. 36. And the said Act was wholly repealed, Par. 1641. cap. 58. And so remained until all these Parliaments were Rescinded, seing the private rights of parties acquired thereby, by the general Act Rescissory, Par. 1661. cap. 15. But it hath been found, that alienations during these Acts now rescinded, and during the usurpation, when Wards were discharged, did infer recognition, seing the Vassal did not seek Confirmation after the Kings return, December 15. 1669. Maitland of Pittrichy contra Gordoun of Gight. The like was found in the recognition at the instance of Sir George Kinard contra the Vassals of the Lord Gray. The like though the base Infeftment inferring recognitien, was in Anno 1643. when there was a Statute then standing, allowing such Infeftments, seing after rescinding [Page] that Statute, no application was made to the King for Confirmation, January 7. 1676. Cockburn of Riselaw conira Cockburn of Chouslie. But recognition was excluded where the Vassal required the Superiour to confirm the subaltern right, debito tempore, or did purge the same by procuring resignations, ad remanentiam, to himself from the Sub-vassals, February 12. 1674. Viscount of Kilsyth contra Hamiltoun of Bardowie. But recognition was not found against a Pupil upon his Tutors taking Infeftment for him, during the Usurpation, July 15. 1669. Jack contra Jack. Whereby it is clear, that Feues have no effect against the Superiour, as to the Ward, Non-entry more then Tacks.

16. Whether the alienation be by Infeftment, holden from, or of the Vassal; there is no recognition with us, except in Ward-holdings; yea, if the holding be dubious, and soa probable ground of error of the Vassal, as being a payment of Money in the Reddendo, with Service used and wont; which though truly Ward, yet because the payment of Money may render it dubious, Craig holdeth in the said Dieg. l. 3. that it would not infer recognition; yet this will not give ground to think that alienation of Lands, Taxt-ward, would excuse from recognition, because Ward is more clear, and expressed nominatim, in that case in it self, for the Casualities thereof, being Taxed; as the Marriage and Ward-duties: Which [...] is but a Liquidation, or Location of these casualities when they occur, and no alteration of the nature of the Fee; and therefore in the said pursuit, at the instance of the Lady Carnagie contra the Lord Cranburn, it was not found relevant to exclude the recognition, that the Ward was Taxed.

17. It is also clear, that alienation, whether by Infeftment holden of, or from the Vassal, not exceeding the half of the Fee, inferreth not recognition, so much being indulged to the vassals for his conveniency or necessity; but if together or by parcels, or by Annualrent, the major part be alienat, not only that which then was in the vassals person falls under recognition; But as Craig holdeth in the forecited place, Dieg. 3. l. 3. even the whole Fee; So that parcels alienat validly, but without the Superiours consent before, become void and return. But though the vassal grant Infeftments exceeding the half of the fee; yet if some of them were extinct before others were granted, so that there was at no time rights standing together exceeding the half of the see, recognition is not incurred, February 23. 1681. Iohn Hay contra Creditors of Muirie. But Deeds done by Predecessors and their Heirs or Authors, and their Successors were in that case conjoyned. Upon the same ground an Infeftment of the see in Liferent, would not infer recognition, because it exceeds not the half of the value. Yea, recognition was found not incurred by granting an Infeftment in Warrandice; for Warrandice is but a hazard in case of Eviction, not equivalent to the half of the worth of the Lands granted in warrandice, unless the right of the principal Lands were manifeftly defective, Feb. 21. 1623. Cathcart contra Campbel.

18. Recognition is not inferred by an alienation to the Vassals appearand heir; by the ordinary course of Law, as by a father to his eldest son, because the fee will befall to the son after the fathers Deceass. Neither was it inferred by an alienation granted by a Grand-father, with consent of his son to his oye, who was alioqui successurus, by the course of Law, Hope recognition, Adam Rae contra Laird of Kellie. Yet recognition was found incurred by a Vassals Infeftment to his eldest son, his heirs and assigneys, the son having [Page] Disponed the major part to strangers, seing the father who was Vassal, did not bind up his son from Disponing, by a Clause irritant, neither did the son purge the alienations made by him, during his fathers life, July 15. 1674. Sir Charles Erskin contra Forbes of Achintoul. And recognition was found incurred by the Infeftments of Ward-lands, by a Husband to his Wife in Fee, failing heirs ofhis Body, albeit the Wife did not acept or make use of the same, but brooked by a prior conjunct Infeftment, February 14. 1678. Knock contra Lady Knock. And recognition was found to be incurred by an alienation by the Vassal to his Brother, who for the time was his appearand heir, but not necessarly by the ordinary course of Law, seing the Vassal might have had Children of his own, and so his Brother could not be called alioqui successurus, unless it were by accident, Spots. recognition, Kings Advocat and his Son contra Earl of Cassils and Collane. The like, July 29. 1672. Lord Hattoun contra Earl of Northesk.

19. It is more questionable, whether recognition is incurred by a conditional alienation, bearing, if the Superiour consent, or saving the Superiours right, Craig following Baldus in the said three Dieges.l. 3. declareth, that if such Clauses be insert bona fide, they infer not Recognition; But contrariwys, if they be done fraudulently, as when the Vassal Seaseth and Possesseth a powerful Person, whom the Superiour cannot easily Dispossess, or his Enemy concerning whom there can be no doubt of the Superiours will, or if the Superiour have declared his will upon the contrary.

But for clearing further of the Point, distinction would be made of the Nature and Tenor of the Clause, which may either be suspensive or resolutive of the Property or Fee in the former case: Tradition is only made of the Possession, but the Property is suspended till the Superiours will be known, as if the Vassal Dispone and possess another without Seasine, there could be no recognition; or though he Possess him by an Instrument ofPossession, bearing expresly, that he should have no right to the Property till the Superiours consent were obtained; this were a suspensive Clause, like to the addictio in diem; in the Civil Law, by which only Possession and not the Property was transmitted for that time; and so till the purification of the condition, it could be no alienation: But when the Clause is only resolutive, not hindering the transmission of the Property, but resolving or annulling the same, though transmitted; in such an case, such Clauses do not exclude recognition, because there is truely there an alienation, without the Superiour consent, which is only to be disannulled by his disassent; much less can such general Clauses as Salvo jure cujuslibet, or Salvo jure Superioris, avoid recognition.

20. Recognition was found not excluded or burdened by Inhibition against the Ward-vassal, before the gift and Declarator of the Deed, inferring recognition, seing the Creditors inhibiting did not pursue reduction before Declaratorof recognition; December 16. 1680. John Hay contra Bethark and Laird of Balagarno.

21. Neither was recognition excluded, because the Deeds inferring recognition was done when the Disponer was drunk, not being to stupidity, impeding reason, July 29. 1672. Lord Hattoun contra Earl of Northesk.

[Page]22. To come now to the Superiours consent, it may be either antecedent, concomitant, or consequent to the alienation; and it may be either express or tacite, all which will be sufficient to avoid recognition, albeit many of them will not be sufficient to make a valide Infeftment, if the same be granted by the Vassal, to be holden from him of the Superiour, which by our custom is null till it be confirmed, whereunto an anterior consent or Homologation in any ways will not suffice, Craig in the forementioned Dieg. 3. relates the opinion of the Feudists, whereunto he agrees, that if the Vassals Fee be granted to him, his Heirs and Assigneys whatsomever, that thereby ther is granted, a general antecedent consent, of the Superiour to his Vassal, to and Assigneys whatsomever, that thereby there is granted, a general antecedent consent, of the Superiour to his Vassal, to alienat or assign to whom he pleaseth. But the contrary was found in the case of the Lady Cranagie contra Lord Cranburn, Feb. 5. 1633. And that the Disposition to Assigneys did only importa power to Assign the Disposition, before Infeftment taken thereupon.

23. There is no question but the Superiour Confirmation is sufficient, even the Kings Confirmation, though without a novo damus, albeit it may pass in Exchequer, without the knowledge & advertency of the recognition incurred; it was found sufficient being done before the Donatar of recognition was Infeft, Hope recognition, Rae contra Laird of Kellie. Which Confirmation doth secure against recognition, falling by thatInfeftments Confirmed, but doth not secure against recognition upon other subaltern Infeftments not Confirmed, which are not considered to be known by the King or his Officers, without a novo damus, and so imports but a passing from recognition by the Infeftment Confirmed, but not to import an absolute Ratification, pro omni jure, February 6. 1673. Lord Hattoun contra Earl of Weims. The like was found, February 23. 1681. John Hay contra Creditors of Murie. And a Donatar of recognition, having granted Precept of clare constat, acknowledging the Vassals right, was found thereby excluded, albeit the Precept did bear, to be in obedience, of Precepts out of the Chanclery, June 24. 1668. Andrew Gray contra Howison and Gray. But the Superiours consent is not inferred by granting Charters for obedience upon Appryzing, though before any Infeftment of the Donatar, Hope recognition, Laird of Lugtoun contra Laird of Lethendie.

24. The Superiour consent also by Homologation, is sufficient to avoid recognition, as if it were express consent, as if the Superiour require the new Vassal or Sub-vassal, to perform the Services due out of the Fee, for thereby he acknowledges him Vassal, as is observed by Craig, in the case betwixt the Laird of Calderwood and Maxwel of Calderhead. Or if the Superiour should pursue the new Vassal for the avail of his Marriage, Liferent-escheat, or other Casuality of the Superiority.

25. Recognition being incurred, so openeth and returneth the Fee to the Superiour, that no Debt or Deed of the Vassal, doth burden the same, but these only which before that time were established by consent of the Superiour, or Authority of Law, as Appryzings, Adjudications, Feu-ferms, conform to the several Acts of Parliament. But even such being Constitute after the [...], whereby recognition is incurred, albeit bona fide, for onerous Causes, before any Diligence or Declarator of recognition; yet they fall in consequence with their Authors right, February 8. 1610. Earl of Balcleugh contra Scot. Recognition excludeth all Tacks set by the vassal without the Superiour consent, whither prior or posteriour, unless such as are set for the utility and profite [Page] of all parties interressed, having no advantage therein, as before hath been showen in the matter of Ward and Non-entry, for though Tacks be Established by Acts of Parliament, against purchasers, yet not against Superiours.

26. Recognition doth also exclude servitudes upon the Fee, by the Vassals consent without the Superiours, as Thirlage, &c. yet this will not reach Servitudes, introduced by long custom or possession, and strengthened by Prescription, wherein the consent of all parties having interest, is presumed, that they can never come in the contrary; for though it was most proper to the Vassal to look to his Fee, yet the Superiour doubtless might have interrupted, which would have been sufficient for his own interest. And Prescription being introduced to secure Property, and put an end to Pleyes, will not be infringed but upon evident ground.

27. Seing Recognition is exclusive of all interests depending upon the Vassal; therefore, all parties having interest may compear and defend, Hope, de actionibus in factum, Laird of Lugtoun contra Laird of Lethendie. But there is no necessity to call any save the Vassal, seing all other Rights fall in consequentiam, as was found in Subaltern-rights, in the said case, Earl of Balcleugh contra Scot.

Though Recognition be ordinarly by way of Action declaring the Deed upon which it is incurred; yet a Donatar of recognition being Infeft thereupon, was found to have sufficient interest to pursue, succeeding in the vice, in respect of a prior Decreet of Removing upon the Donatars Infeftment upon the gift of recognition without any preceeding Declarator, March 22. 1623. Laird of Hunthil contra Rutherfoord.

28. In Declarators of recognition, the Superiours gift is sufficient Title without instructing the Superiours Right, unless he be disclaimed, or the Vassals be singular Successors: But the Kings gift is absolutely sufficient, and there will be terms assigned for proving the alienation of the major part, and incident diligences against all havers for production of their Infeftments, ad modum probationis, Feb. 17. 1671. William Gordoun contra Sir Alexander Mcculloch. And whereas gifts of recognitions bear, the particular Deeds inferring the vacancy and return of the Fee in the Kings hands, because general gifts are not allowable. The extracts of Seasines were sustained, in initio litis, to instruct these Deeds, but Warrand was granted to the defenders to improve the Seasines, or Warrands thereof, and thereby to call for the Principals, February 26. 1681. David Edie contra Thores and Dun. And Diligence by Horning was granted to the Defenders of the improbation, for producing the Seasines and Warrands, February 23. 1681. John Hay contra Creditors of Murie. And Declarator was sustained upon production of the gift, though the Donatar was not infeft; and though the Heir whose right was in question, was minor; and though his Authors bound in Warrandice were not called: for the Priviledge of the minority hath no effect as to the Superiour, and the Defender ought to intimat the plea to his Author, January 28. 1681. Laird of Dun contra Scot.

19. Disclamation is when the vassal denyeth his Superiour to be his Superiour, which is Diametrically opposite to that acknowledgement, which is necessarly implyed in the matter of all Fees, as there is in it the greatest ingratitude; and therefore, Disclamation, as being much more favourable upon [Page] the part of the Superiour, and odious upon the part of the vassal, then recognition is not restricted to proper Fees by Ward-holdings, but taketh place in all Fees, and that not only when the vassal disclaimeth the Superiour as to the whole, or greater part; but if he disclaim him to be Superiour in any part of the Fee, he looseth the whole.

Disclamation taketh no place if it proceed thorow ignorance of the vassal, upon any probable ground, which may several ways occur; First, as to the whole Fee, when the case is not betwixt the first Superiour and the first vassal, but betwixt their Successours, as if the vassal should deny a person to be his Superiours Heir in that Superiority, through any doubtfulness of his being lawful Heir, or of his being that Heir, to whom the Superiority is provided, as being to Heirs-mail or of Tailzie: But much more when the Superiour is singular Successor to the first Superiour; in all which there be frequent and probable grounds of doubt and mistake.

Secondly, The same ground of doubt may be when the question is about some part of the Fee, and this much more, that there may be many grounds of doubt, whether that which is in question be a part of the Fee or not, as when the Fiar hath several Conterminous Tenements, holden of divers Superiours, if he affirm any parcel not to be a part and pertinent holden of the Superiour acclaiming, but of the other; in that case the vassals not acknowledging the Superiour, will not be accounted Disclamation; and therefore, though ordinarly it be held, that a Superiour pursuing his vassal for any Duty or Casuality needs not instruct that he is Superiour, or that the Defender is his vassal, but that it proves it self, unless he Disclaim, as was found, Hope Superiour, viscount of Stormont contra Andrew Grant: Yet that must be understood, when the case is clear, and when he is directly Disclaimed, he may choose either to make use of the Disclamation, or instruct his Title and so proceed, March 26. 1628. John Stuart contra Laird of Wedderburn.

The main question is, whether Disclamation can be otherways then judicially; [...] answers the case, as to extrajudicial words, that these are not ordinarly noticed in most cases, as extrajudicial Confessions, and the like, but as to extrajudicial deeds of the Vassal, as if he should take Infeftment from any other then his Superiour, it would be as real Disclamation as any verbal one judicially could be, but under the same Limitation, if it were done of knowledge and of contempt of the Superiour; and therefore, in a dubious and contraverse right, or in any case, if the right were taken with provision of double Infeftment, and thereby the granter not accepted simply, as Superiour, but only in the interim it would not infer Disclamation.

30. Purpresture or Purprysion is the vassals going without his bounds, and incroaching upon the Property of his Superiour; for purpryses signifie the precincts and Marches, the ground of it is from the fidelity and gratitude the vassal oweth to the Superiour; and therefore, should not invade his Inheritance; but this is not extended to incroachment upon the Superiours Commonty, as Craig relateth the opinion of the Lawers in his time, in a purprysion moved by the Constable of Dundee against the Town of Innerkeithing. But where the Superiour hath the right of Property, burdened and barred with a right of common Pasturage, acquired by the vassal by consent or prescription, which though it marreth the effect of the Superiours Property, so that he cannot Till or Manure the same in prejudice of the Pasturage; yet he remains direct [Page] Proprietar; and if Coal were found in that ground, it would be his alone: In which case, if the vassal should rive out and labour that ground whereof he got common Pasturage, it would be purprysion, as is clear in the case of the common Moores, disponed to none by the King in Property; and therefore, belonging yet to His Majesty in Property, the riving out, or appropriating whereof, is declared purprysion, Parliament 1600. Cap. 5.

Purpresture must also be a known and manifest incroachment, as if a vassal should exclude a Superiour from a whole distinct Tenement; but when he is about Marches it is not sustained, unless they be clearly manifest by March Stones; Or that there hath been an antecedent Cognition of the Marches; and therefore, the action is either turned into a Cognition, or at least before answer, a Commission is granted to cognosce.

Purpresture is thought to be incurred by incroachment upon the High-ways and publick Rivers, as belonging to the King; but it could be inferred against no other then his Vassal, and it being so ordinary by course of time, to change the High-ways, or rather for the High-ways to change, when there becomes any impossibleness therein: There are other Statutes appointed for securing thereof upon far less certification then Purpresture, so that I conceive it could hardly be inferred upon that ground.

Purpresture was only competent to be cognosced by Barons, comprehending Superiour Dignities, but by none of their Vassals or Sub-vassals, Par. 1477. cap. 79. But now it belongs only to the Jurisdiction of the Lords of Session, as all other Recognitions do.

31. Craig hath largely & learnedly Treated of the feudal Delinquencies: adducing the Feudal Customes of the neighbouring Nations, and the Opinions of many learned Feudists thereupon, both generally and particularly, enumerating the most ordinary Delinquences, for which they hold Vassals to lose their Fees; He doth also give his own opinion, how far these or the like would be sustained with us, but adduceth little what had been sustained. But this much in general, that mitiores pena nobis semper placuere: And in Conclusion, l. 3. Dieges. 6. he makes Superiours lose their Superiority, and the same to befal to their Vassals, for the same Delinquencies, for which the Vassals lose their Fee, to their Superiours, except what concerns the honour and reverence due by Vassals to their Superiours; which therefore will not consist with attributing the Feudal Delinquencies to ingratitude, which can hardly be understood to give rise to the Superiours losing his Superiority; and therefore, it must be from that mutual friendship and fidelity betwixt the Superiour and Vassal, arising from the Feudal Contract, since his time there hath scarce any thing been observed in relation to Recognition, or ammission of Infeftments upon Feudal Delinquencies, except what concerns alienation of proper Fees, or Ward-holdings, without the Superiours consent, or what may concern Recognition, as it is implyed in foresaulture, so that we are yet much left to infer the Feudal Delinquencies, resolutive of Infeftments from the nature of these Rights.

Though Craig hath not gone near the length of Forraign Feudists, in assigning the specialities resolving Fees; yet if we should go his length, there would be found few unquarrellable Rights of Superiority, or Property in the [Page] Kingdom, but which might in a considerable time, give ground enough to extinguish the Right, either of the Superiour or Vassal: And since no such thing hath been moved upon either part, the general acquiescence of the Nation must make these Delinquencies resolutive of Infeftments, much narrower and much more upon the Vassals part then the Superiours, for our Custom hath never given the Vassalthe right of Superiority upon the Delinquencies of the Superiour.

All Fees, yea and Liferents by Infeftments, do necessarly imply an acknowledgement of the Superiour, and fidelity to him, and thence only, and not from gratitude ought the Causes of disolving Fees be deduced, for though pure Donations are disolved by attrocious ingratitude, yet the most proper Fees were never pure Donations, but were from innominate Contracts, Do ut facias, and the services due thereby, were not by way of gratitude, but by way ofspecial Contract: And there is most of pure Donation in the most improper Fees, such as Blensh and Mortification which are almost allodial; and yet the fewest resolutive Delinquencies are in these, and Feu-ferms were at first granted for cultivating Barren Grounds, and paying a Feu-duty, or Canon out of them, and where they have a considerable Rent, they are far from being purely gratuitous, and are rather perpetual Locations. And in most Fees of all kinds, there are not only Casualities and Profites; but they are ordinarly granted by way of sale for a competent price; and therefore, the Delinquencies resolving them, should neither be extended nor esteemed equal, but should be much more sustained in proper Fees, or Ward-holdings, importing personal or military Service, then in improper Fees.

Yet all Infeftments being in the Terms and Tenor of Fees, they must have a reddendo and acknowledgement of the Superior and fidelity too, not only as obliegements, but as resolutive conditions implyed therein; and therefore, wilful and open disowning the Superiour by Disclamation, or Infidelity, in breach of Trust, should from the nature of the Feudal Contract resolve the same.

32. Though breach of Trust be a general Term, the extent whereof is not determined; yet certainly it must import the Vassals being Actor or Accessory in conspyring or taking away the life of the Superiour, or mutilating or wounding him, or in taking away his Right of Superiority: Under which accession may be justly comprehended, the not revealing to him of these hazards; but this would not reach to the revealing of any loss or detriment the Superiour might have in his other Estate, or the concurring or acting against him therein.

It may also be extended to Conspyring, or Acting, or not Revealing these things which might infer upon the Superiour, Infamy, equiparat to death or wounds, but it seems not to import a duty in the Vassal to give Council to his Superiour, or not to reveal his secrets; neither inferring Life, Limb, nor Fame; for though these be Acts of Gratitude and Friendship, yet they are not implyed in the Fidelity of all Vassals, but only such as owe Militar and personal service: I shall not determine how far breach of Trust in improper Fees, could extend to the Wife, Children, and Family of the Superiour.

[Page]But proper and Military Fees by Ward-holding, do not only import Fidelity, but Assistance and Council to the Superiour, by which the Vassal can be accessory to no attrocious Deed against the Life and Blood of the Superiour, but against any Infamy may befal him, or any great detriment in his Estate, and so will reach to Deeds of hurt or disgrace to his Wife or Children by Adultery, Fornication, or attrocious Violence upon their persons, or attempts thereunto; and may also extend to the revealing of the Superiours secrets, or not Defending him against his Enemies or such as attack him, or deserting of him in that case; and in case of a necessary flight, by overpouring, in not crying for help and relief; and in lawful War, in not concurring with him, or deserting him, while with any probability of prevailing, he stood in fight, if the Vassal were then near him, but it will not import his concourse, active in private quarrels by force of Arms, which are not warrantable.

33. In all cases the ignorance of the Vassal not being affected, or his weakness will excuse these Delinquencies, and whatever he acteth in self-defence, or upon provocation of the attrocious injury of the Superiour, or by publick Authority, or in the service of his Prince, or anterior Superiour in Wardholding: Or unless the attrocious Deeds be past from by the Superiour, by owning his Vassal after the knowledge thereof, or by a considerable times forbearance to quarrel the same, especially when in the mean time, either the Superiour or Vassal dies; for though death obliterats Crimes as to the punishment; yet the righ arising to the Superiour in the Fee, from the Delinquence, as a resolutive condition is not excluded by the Vassals Death, if the Superiour were ignorant of the Fact, or not in capacity to vindicat the same through publick Calamity, or his Pupilarity or absence; but by the mutual friendship and strict Union betwixt Superiour and Vassal; small evidences will import the passing by former Delinquencies, especially when not questioned, during the life of both parties.

There are multitudes of specialities proposed by Craig, as Delinquencies resolving Fees, not only in relation to the Superiour, his Person and Family; but also of invading his House, befieging the same, or entering it by force, or invading his Property, which is the ground of Purprysion, acknowledged by our Custom; or by denying or refusing to show the Superiour the Marches of the Fee, or denying any part of it to be holden of him, or not showing him his Holding and Investiture, being solemnly called to that purpose (which take no place with us; for our ordinary custom for Superiours as well as others, is to pursue Improbations of their Vassals Rights wherein the Certifications is not the loss of the Fee, but the presumptive falsity of the Writes) or the denying to do justice to Superiours; but also in relation to the Fee, if he waste or deterioat it: Yea, in relation to the Vassals own Person, as if he fall in Incest, or if he kill his Brother, or commit any Paracide, or if he contract friendship with the Enemies of his Superiour: And generally, whatever may make him unfit or unworthy to attend his Superiou, or to be in his Court, but none of these are implyed in the Fidelity of any Vassal.

There be special grounds of resolution or extinction of Fees by the particular Nature or Tenor thereof, as Feues become extinct, ob non solutum canonem, and other Fees are extinct by resolutive Clauses, as to both which we have spoken, Title 13. §.

[Page] Craig doth hold, that by the delinquence of Vassals, Conquest, or feuda nova, become extinct and return to the Superiour; but Heretage, or feuda vetera, do but become extinct as to the delinquent Vassals and his Descendents but is not returned to the Superiour, but divolved to the next Collateral of the delinquent Vassal descending from the first Vassal, who would have succeeded if the delinquent Vassals had died without issue, and who must enter Heir to the delinquent Vassals predecessor; but in this the interest of the Superiour is too far restricted; for we have no custom nor tenor to enter any person heir to a Defunct, while a nearer heir is existent, whatsoever his delinquence be, except Paricide.

He doth also move this question, That if the Vassal have committed a Feudal delict against the Superiour, and a publick crime inferring forefaulture, whether the Fee would fall to the King, or to the Superiour, or if the first sentence of forefaulture or recognition would prevail: but does not determine it. Yet the first deliquences, sufficient to extinguish the Fee, if insisted in, must give the preference; for the sentence of forfaulture or recognition is but declaratory, and hath effect, not from the sentence, but from the deed inferring it.

There is no difference, whether the delinquence inferring recognition, was before the Vassal was actually entered or after; but it is more questionable, whether recognition would be incurred by the deeds of the appearand Heir in his predecessors life; which could have no effect as to Collaterals, who are not alioqui successuri, seing they may be excluded by a descendent, which in men is alwayes in hope: And if the heir apparent die before his predecessor, it can have no effect to exclude either his Collaterals or Descendents; and it is more probable, that though the heir apparent should survive, he would not be excluded, seing feudal delinquences are now so little extended.

34. It hath been much and long debated, and is not yet decided, whether Recognition can be incurred for ay attrocious deeds dne by sub-vassals, whereby the Superiour might claim the right of the sub-vassals. Fee to fall to him by Recognition; Or, Whether Recognition can only be incurred by the deeds of the immediat Vassal. The case in question was, where a subvassal rose in rebellion against the King, whereby his Fee, as all his other Rights, were confiscate to the King by forefaulture, which could but confiscate them as they were in his person, with the burden of all real Rights of Liferent, Annualrent, or other subaltern Infeftments of the forefaulted person: But if the forefaulture of the sub-vassal did also comprehend Recognition, the sub-vassals Fee would fall to the King and belong to his Donatar, without any real Right or Burden contracted by the forefaulted person, except such as were confirmed by the King, either by a special Confirmation, or by that general consent of the King, inviting all his Subject to set their Ward-lands feu, by the Act of Parliament, 1457. cap. 72. which would preserve such Feus, being constitute before the Act of Par. 1633. rescinding that Act as to the Vassals of the King and Prince, as was found, Feb. 12. 1674. Marquess of Huntley contra Gordoun of Cairnburrow; November 16. 1681. Campbel of Silvercraigs contra Laird of Auchinbreck and the Earl of Argyle. And therefore, if Recognition were implyed in forefaulture, in that case it behoved to infer a general rule, that Recognition might be incurred by all attrocious deeds against gratitude and fidelity, omitted not only by the immediat Vassal, but by all subaltern Vassals, and would not only be competent to the King, upon deeds of treason committed [Page] against him by his sub-vassals, but by all deeds of attrocity done against another Superiour by his sub-vassals; as if his sub-vassal should kill, wound or betray his Superiour. So that the question behoved to return, whether there were any feudal Contract or Obligation of fidelity betwixt the Superiour and his Sub-vassals; for if that were, then Vassals might fall in Recognition by such deeds, not only against their immediat Superiours, but against all their mediat Superiours, though never so many. For, though the case in question be most odious and unfavourable, being rebellion; yet it hath its proper punishment introduced by Law and Statute, whereby the rebel loseth Life, Land and Goods to the King, to whom all his Subjects owes fidelity, as Subjects, though all do not owe the feudal Fidelity as Vassals; yet, if Recognition take place as to the King, it must likewise fall to all other Superiours, whatever way the Land be held, Ward, Feu, Blensh or Mortification, if they have not a confirmation or consent of the Superiour, anterior to the deeds inferring Recognition. We shall not therefore anticipat the publick determination of the question; if custom hath determined it, what will take place? for all feudal Rights are local, but there hath not yet appeared any case, by which a Donatar by his Gift and Presentation, being infeft in the Fee of the Kings sub-vassal, forefault has excluded these who had real Rights from the forefaulted person before the treasonable fact, though much hath been disputed upon the Act of Par. 9. cap. 2. concerning the quinquennial possession of forfaulted persons, especially from the last clause thereof, bearing, that no person presented by the King to feu Lands forefaulted, nor any Vassal of any Feuer forefaulted, shall be compelled to produce their Acquittances of their Feu-mail, or Annualrents of their forefaulted Lands of any year preceeding the forefaulture; which doth clearly acknowledge, that when the Feuers right is forefaulted, his Sub-vassals right is not forefauted, yet it was alledged, that would not end the controversie by the Act 72. Par. 1457. because these rights of the Sub-vassals of the forefaulted Feuer, might have been confirmed by the King, specially or generally by the foresaid Act, 1457. But the general Confirmation from that Act can have no effect, because the the sub-vassals whose Rights are preserved by the Act, are not Feues granted by Ward-holders, but are subaltern Infeftments granted by forefaulted Feuers. And without question, the King hath given no consent to any to grant Feues, but to Ward-holders only; for, though the Law hinders them to grant sub-feues or Annualrents, yet there being no consent or confirmation by the King thereto. Therefore, if the King his immediat Vassal be forefaulted, all the ancient Feues granted by him of the Lands holden Ward, will stand valid, as being consented to by the King by the foresaid Statute: But the Feues granted by him of Lands holden Blensh or Feu, will fall in consequence with his own Feu or Blensh, and cannot defend against forefaulture, more then Annualrents or lucrative Tacks granted by him, which Law doth allow, and yet fall with his right, unless consented to, or confirmed by the Superiour.

TITLE XXII. Prescription.

[Page]

1. Prescription distinguished and described.

2. Usucapion.

3. The several times required to Usucapion or Prescription, by the Roman Law.

4. Requisites to Prescription.

5. Bona fides requisite to Prescription.

6. Whether he who doubteth of his authors Right, be in bona, or mala fide.

7. Evidences of mala fides.

8. The Title requisite to Prescription.

9. The motives inductive of Prescription.

10. Exception, where Prescription took no place by the Civil Law.

11. The common rule of Prescription with us.

12. The beginning of Prescription of personal Rights, with the extensions thereof.

13. Prescription of Moveables.

14. Prescription is reckoned de momento in momentum per tempus continuum.

15. Prescription of Heretable Rights.

16. Prescription is not extended against the right of Superiority.

17. Prescription runs not for Tennents against their Masters.

18. Prescription runs not against Minors, but there is no exceptions of Mortifications to pious uses.

19. In our long Prescription bona Fides is not required.

20. The Titles requisite in Prescriptions of Heretable Rights.

21. This long Prescription secures Wodsets, Infeftments for Security, Teinds and long Tacks.

22. How far Teinds can prescribe.

23. This Prescription extends to Patronage and Offices.

[Page] 24. And to Thirleage and all Servitudes.

25. This Prescription excludes all Action and Ground of Reduction and Declarator if the Essentials of the Title appear.

26. The several wayes of Interruption of Prescription.

27. The way of Interruption by King CHARLES the first, as to special rights of the Crown by Letters of Publication.

28. The annual prescription of the priviledge of appearand Heirs intra annum deliberandi.

29. The biennial prescription of the preference of diligences of the Creditors of Defuncts, to the diligences of the Creditors of the Heir.

30. Triennial prescription of Spuilzie, Ejection, Intrusion and succeeding in the vice, Merchants-counts, House-mails and Removings.

31. Quadrennial prescription of the priviledge to reduce deeds of Minors intra quadrennium utile.

32. Quinquennial prescription of Arrestments, Ministers Stipends, Multures, Rents of Tennents removed, and legal reversion of special Adjudications.

33. Septennial prescription of old Apprisings and Summonds for Interruption.

34. Decennial prescription of late Apprisings or general Adjudications.

35. Prescription of twenty years of Holograph Bonds, Missives, and Subscriptions in Count-books, without Witnesses.

36. No prescription runs in Minority, except Removings, House-mails, and Merchants-counts.

1. PRESCRIPTION is the common extinction and abolishing of all Rights, and therefore is reserved here to the last place; the name and nature whereof we have from the Civil Law, wherein Prescription is sometimes largely taken for any exception, but hath been appropriat to the most common exception in all cases, whereby all Actions and Causes are excluded by course of time; and so Prescription had no further effect, then to maintain the possessor in possession by exception, but not to recover possession, being lost, and could not constitute the right of Property.

2. In this, Prescription did chiefly differ from Usucapion by the ancient Roman Law, that Usucapion did constitute Property, and therefore is defined by Modestinus, l. 3. ff. de Usucapione; Adjectio vel acquisitio dominii per continuationem possessionis temporis lege definiti. To which, description the name doth agree; for, usu-capere est capere ex usu aut possessione, to take or acquire by use [Page] or possession; But every possession was not sufficient, unless it were a possession as Proprietar, or for the possessors own use only: So detention of any thing in the name, and for the use of another, and for the possessor only in security, as a Pledge or Wodset, cannot Constitute property.

3. As to the time appointed for Usucapion, Moveables were acquired by continual possession for one year, l. 10. ff. de usucapion. Inst. eod in principio. And Immoveables being in Italy by the space of two years: Other Immoveables by the space of ten years, against these in the same Province; and twenty years against these out of the same Province, auth. mala fidei, C. de prescript. longi temporis.

From which common Rule, some cases of greatest moment were excepted; As first, publick Rights belonging to Emperors and Kings, which (as all do agree,) cannot be acquired by Usucapion or Prescription in less then thirty or fourty years, and many think by no less then an hundred years, or immemorial possession.

Secondly, Things belonging to Cities, which in some cases could not be prescrived without an hundred years possession, at least without thirty or fourty years.

Thirdly, Things belonging to the Church, against which no other can acquire by Prescription in less then fourty years; and against the Church of Rome by special priviledge, by the space of an hundred years only.

The recent Roman Law hath taken off all differences betwixt Usucapion and Prescription, Tit. de usucap. trans. whereby in either case Property is acquired: Yet in the ordinary acceptation, Prescription which is short in Moveables, is commonly called Usucapion; but we make only use of the name of Prescription for both.

4. Prescription or Usucapion amongst the Romans, required three things, continuation of Possession uninterrupted, bona fides, and a Title, besides the kind of Possession, and time before-mentioned,

As to the first, prescription is unquestionably interrupted by real interruption or discontinuation of Possession; it is also interrupted by civil Possession by Litiscontestation, Process, &c.

5. As to the bona fides, or innocent Possession required in Prescription, it is commonly agreed, that it is requisite at the beginning of the Possession in shorter prescriptions, but that it is presumed in the longest prescription. The Civil and Canon Law differ in this, that the Civil Law requireth only bonam fidem at the beginning, so that if any person acquire any thing from him whom he believeth to be the owner thereof; and so believing beginneth to possess, though thereafter he understand that his Author was not the true owner, yet prescription doth proceed: But by the Canon Law it proceeds not: But if at any time before prescription ended, he knoweth the thing belonged to another, prescription is impeded: Yea, though prescription were ended, if the right of another appear. Most of the Canonists hold, that in foro conscientiae, the possessor is oblieged to restore, unless the knowledge and forbearance of [Page] the owner, do infer or presume a Dereliction of the thing or consent, which takes no place in the case of ignorance, or error of the owner.

6. In either case it is contraverted, whether he who doubteth of his or his Authors right be bonae fidei, or malae fidei possessor.

The common ground in which all agree, is that the possessors Credulity and Belief of his own and his Authors Right makes bonam fidem, and his knowledge of the Right of another malam, which seemeth to infer, that he who doubteth, must be in mala fide, because he believeth not his Authour to have had Right, doubt and belief being contraries: And upon the other part, he who only doubteth, cannot be said to know the right of another.

The most rational Conciliation is by this Distinction, that doubting being like the dubious Ballance, when it enclineth more to the belief of the possessors, and Authors Right, then of the right of the other. The Denomination and effect is taken from the stronger, and he is said to believe his own Right, and can no ways be said to believe the Right of another, whose doubtful opinion doth rather incline to his own Right then the others; and contrariwise, when his opinion enclineth more to believe the Authours Right then his own.

7. These things being hidden Acts of the Minde, it is very difficult to know who is in bona fide or mala fide; but bona fides is presumed, unless a contrary probation, or vehiment presumption be for mala fides, of which Menochius, lib. 2. de arbitrar. Jud. quast. cas. 225. relateth many, whereof these are chief; First, He who possesseth without a Title is ever presumed malae fidei possessessor. Secondly, Common fame in the Neighbourhood, that the thing acquired belongs to another. Thirdly, If it be intimate or declared to the Acquirer, before he acquired that it was anothers. Fourthly, The extrajudicial confession of the Acquirer, or of witnesses that the thing belonged to another. Fifthly, If the Acquisition be not with observation of the ordinary Solemnities. Sixthly, If the Acquisition be from a Procurator, and the Acquirer did not see his Warrand, albeit he had one. Seventhly, If the Acquisition be from a prodigal person. Eighthly, If the Acquirer take unaccustomed wayes of Security. And last, By whatsoever the Acquirer is oblieged to know by Law, scire & scire debere aequiparantur in jure.

8. As to the Title requisite in prescription, thereby is not meaned a sufficient valide Title, which needed not the help of prescription, but a colourable Title is sufficient, as that which is acquired by Emption; the Emption is Title enough for prescription, though the seller had no Right, or that which descendeth from any other by Succession, Legacy, Donation, &c. And generally, whatsoever way Property useth to pass, is sufficient for prescription, though it be not sufficient alone to Constitute the Property, to which there is requisite the Authors Right, and the transmission thereof; but to prescription, the manner of transmission is enough for bona fides, and continuation of possession supplieth the rest.

9. Prescription although it be by positive Law, founded upon Utility more then upon Equity, the introduction whereof, the Romans ascribed to to themselves, yet hath it been since received by most Nations; but not so as [Page] to be counted amongst the Laws of Nations, because it is not the same, but different in diverse Nations, as to the matter, manner and time of it; and therefore, Nations under no common Authority, do not prescrive properly against each other, albeit by long patience and no contradiction, their consent may be inferred, even by the Law of Nations.

The grounds and reasons of prescription, are first, publick utility, Ne dominia rerum sint incerta, neve lites sint perpetuae: And also because the Law accounteth it as a Dereliction of the owners Right, if he own it not, neither pursue it within such a time. In the Civil Law though prescription reacheth all kinds of things, Moveable and Immoveable, yet with these Exceptions.

10. First, These things that are not in Commerce, as they are not capable of express alienation, so neither of preseription.

Secondly, Things stollen, whereunto for utilities sake to repress that frequent Vice, the Law hath stated an inherent and real Vitiosity, that passeth with the thing Stollen to all singular Successors; and therefore, though such things be acquired by a just Title, though for a Cause onerous, and an equivalent price, and by continuation of Possession bona fide; yet prescription taketh no effect because of the inherent Vitiosity. The like is to be understood of Rapine or violent Possession: Yet the Fruits and Profites of such things belong to the bonae fidei possessor, rather by that Right that followeth possession, bonae fidei: (Of which formerly in the Title, real Rights,) then by prescription.

Thirdly, It runneth not against Pupils by the Civil Law, though some think that it is not to be understood of their Moveables; yet it runneth against other Minors, but they may be restored if they pursue for Restitution, in the time and manner prescribed in Law.

11. To come now closs to our Law concerning Prescription, our common Rule of Prescription is by the course of fourty years, both in Moveables and Immoveables, Obligations, actions, Acts, Decreets, and generally all Rights as well against these absent as present, we have not these differences, which we have shown were in the Civil Law; and because our Prescription is so long, there is little question with us, de bona fide. But there must be continual possession free from interruption, and in Lands and other Fees a Title, of which hereafter.

12. By our ancient Custom, there was no place for Prescription in any case which hath been Corrected by our Statutes, both as to long and short Prescription. First, as to personal Rights, in Par. 1469. cap. 28. & par. 1474. c. 54. it is Statute, that as to all obligations that should be pursued thereafter, and that were not then depending in Law, before the making of that Act; that if the Creditor did not follow or pursue the Obligation within the space of fourty years, and take document thereupon, the same shall be prescrived and of no avail: Which Statute, though it mention only Obligations, (that is to say, simple Obligations) was also extended to others, as Contracts of Marriage, whereupon no Marriage followed, as may be inferred, argumenta a contrario, from the Decision, February 26. 1622. Sir George Hamiltoun contra Lord Sinclar: And afterward it hath been ordinarly extended even to Contracts of Marriage, wherepon Marriage followed, November 27. 1630. Lauder contra Colmiln. December 23. 1630. Ogilbie contra Lord Ogilbie. It was also extended to Testaments, June 19. 1627. Lundie contra [Page] Laird of Balgoum. And was also extended to pursuites, for Tutor Counts, Hope, Prescription,

It was also extended to all Decreets, though in foro contradictorio, and this ordained to stand as a constant Practick, July 26. 1637. Laird of Lawers contra Dumbar.

13. Prescription of fourty yeays was found sufficient to Constitute the Right to a Bell in a Kirk-steeple against another Kirk, pursuing therefore, without instructing a Title whereby they had the Bell, which is not necessary to be instructed, but is presumed from Possession in Moveables, December 7. 1633. Minister and Session of Aberchirdo contra Parochioners and Kirk of Chanrie.

14. Prescription being odious, the fourty years are accounted, de momento in momentum: So that it is not the running, but the compleating of the fourty years that makes Prescription; and therefore, a Write blank in the Moneth and Day, expressing the year was reckoned from the last of December that year; and because there was three quarters wanting of fourty years before insisting upon the pursuite, thereupon it was sustained, as not prescribed, Sep. 23. 1630. Ogilbie contra Lord Ogilbie. But in regard of the length of this Prescription, it is accounted ex tempore continuo, & non utili, and so no abatement for the time of troubles, or surcease of Justice, even in the case of Mortification to Bead-men, June 30. 1671. Bead-men of Magdalen Chapel contra Gavin Drysdale.

After this Statute there was no Prescription of Heretable and real Rights; and therefore, not of a Decreet of Poinding the ground, Hope Prescription, Sir George Currier contra Laird of Louristoun. Only it was declared that no person shold be compelled to produce Procuratories or Instruments of Resignation, Precepts of clare constat, or other precepts of Seasine of Lands or Annualrents, whereof the Heretors and their Authors, or Liferenters, having Liferents reserved in their Infeftments, were in Possession fourty years together, their Charters making mention of the Precepts, the wanting whereof shall make no Reduction, the Charters and Seasine being extant, Par. 1594. cap. 214.

15. But Prescription of fourty years is introduced of all Heretable and other Rights, Par. 1617. cap. 12. where the Heretors their Predecessors and Authors, possessed Lands, Annualrent or other Heritage by themselves, their Tennents or others having their Rights (as by Liferenters) for the space of fourty years together, following the dates of their Infeftments without lawful Interruption, that such shall not be troubled, pursued, or unquieted by HisMajesty and other Superiours & Authors, their Heirs and Successors, uponany ground whatsomever except upon falshood, providing such Heretors shew a Charter to them or their Authors, preceeding the saids fourty years possession, with the Instrument of Seasine following thereupon: Or otherways, Instruments of Seasine one or moe, continued and standing together for the said space of fourty years, either proceeding upon retours, or precepts of clare constat; where, by standing together, it is not meaned unreduced, but that either the Vassal lived and brooked by one Seasine fourty years: Or if he died, that the Seasine was renewed to his Heirs; and so continued not only the Possession, but the Seasine fourty years: In which the continuation of Seasines cannot be reckoned, de [Page] [Page] [Page]diein diem; because there must necessarly be an Interval betwixt the death of the person first ceased, and the service of the Heir to whom the Law gives annum deliberandi, to consider whether the Heretage will be beneficial or hurtful, and accordingly whether he will enter or not, February 15. 1671. Earl of Argile contra Lord of Mcnaughtoun. And also all actions upon Heretable Bonds, Reversions, Contracts, or others whatsomever, Except Reversions incorporat within the body of Infeftments, used by the Heretors for their Title, or Registrat in the Register of Reversions: Which general Clause was found to extend to Actions of Reduction of Retours, though if no other Heir had been retoured, the right of Blood prescrives not, but any person may enter Heir to his Predecessor who died hundreds of years before; yet if any other were entered, he cannot after fourty years quarrel or reduce the same by the general Act of Prescription, though the retour was anterior to the special Act of Prescription of Retours, Par. 1617. cap. 13. whereby Retours thereafter are irreducible if not quarrelled within twenty years, November 28. 1665. younger contra Johnstouns. In the former Statute it is declared, that Actions of Warrandice shall not prescrive from the date of the Bond, or Infeftment whereupon Warrandice is sought, but only from the date of the distress.

16. But this Prescription is not to be extended against Superiours, upon their Vassals Possession fourty years, though no Feu, Blensh, or other Duty or Casuality be demanded by the Superiour, because the Vassals Right acknowledgeth the Superiours Right, and his possession is also the Superiours possession: Yet all Duties and Casualities thereupon, not pursued within fourty years, prescrive without prejudice to these due within fourty years of the pursuit, December 15. 1638. Sir William Stuart of Gairntullie contra Commissar of St. Andrews.

17. Which holdeth in Tack-duties, which prescrive as to the years preceeding fourty, before the pursute, but no other, March 10. 1627. betwixt two Glasgow Men, Spots: Prescription, Stuart contra Fleeming. Yet Prescription by possessing fourty years, as part and pertinent by an Infeftment was not Elided; because, before these fourty years the Possessors Author had a Tack of the Lands in question February, 20. 1675. Countess of Murray contra Mr. Robert Weyms, though in this case the Land in question was separatum Tenementum, by a distinct infeftment, but became part and pertinent by being so brooked fourty years.

By this Statute, Prescription of Heretable Rights, doth not only exclude other Infeftments in Property, but also Annualrents, Pensions, and all other Rights; and so an Heretor possessing fourty years, was found free thereof, July 22. 1634. Margaret Forrester contra Possessors of Bothkennel, where the Office of Forrester and Fees thereof were found prescrived.

18. From this Prescription there are excepted the Rights of Pupils and Minors, against whom the Prescription runs, not during their Minority, so that they need not seek Restitution, in integrum, as in the Civil Law; which exception is particularly exprest in the foresaid Statute, and is extended to all other Prescriptions of personal Rights or others, Spots. Prescription, Duke of Lennox contra the Executors of Alexander Beatoun. But there is no exception of Rights mortified to pioususes, as Bead-men, June 30. 1671. Bead-men of Magdillan-Chapel contra Gavin Drysdale.

[Page]19. In neither of the Statutes, introducing long prescription by fourty years, is there any mention or provision, concerning the manner of the entry in possession, whether it was bona fide peaceable or lawful, but only that it have a Title, and be continued without interruption.

20. The Title in heretable Rights, being ground-rights of Lands or Annualrents, is very well distinguished, by the last Statute, betwixt Conquest and Heretage; for, Heretage which hath descended by succession, from a predecessor, is content with a more slender Title, viz. Seasines without the Warrands or Adminicles, but only bearing, that they proceed upon Retoures or Precepts of Clare constat, providing that the possession hath been by vertue of these Seasines: So that not only there must be possession for fourty years together, but Seasines consecutive, proper to the several possessors during that time: But purchasers must not only have for their Title, a Seasine preceeding the fourty years prescription, but if they found upon their proper right, they must also produce a Charter preceeding the fourty years. And therefore, though a purchaser should possess fourty years, and show his Seasine anterior thereto; yet would it not be a Title for prescription, unless he produce a Charter before that time, where, by Charter, must not be understood a solemn Charter as it is distinguished from a Disposition or Precept, but as it comprehends these; for many valid Infeftments have no Charter, but Seasine proceeds upon the Precept of Seasine contained in the Disposition. And though a Precept of Seasine were only shown as the warrand of the Seasine, the same with fourty years possession by vertue thereof, would perfect Prescription: for the Seasines of themselves, without Warrand or Adminicle, are but the assertions of Nottars, and not probative; yet they are sufficiently probative, not only by the immediat Warrand or Precept whereupon they proceed, but upon the mediat Warrand; as if a Seasine be produced with a Bond or Obliegement, to grant an Infeftment conform to that Seasine, vide Tit. 3. § 19. But purchasers may well conjoin their own Title and their Authors; So that if he can show in his Authors persons, consecutive Seasines for fourty years, upon Retoures or Precepts of Clare constat, and possession conform, it will be sufficient: or if they cannot show such Seasines and Possession in their Authors for the whole fourty years; yet, if they show the accomplishment of fourty years by their own Seasines and Warrands thereof, and possession conform, these may compleat the Prescription.

21. This Statute doth not only secure Rights, and Lands, and Annualrents, by fourty years peaceable possession cum titulo, but also other heretable Rights, such as Wodsets; for, Registrat or incorporat Reversions being exprest as exceptions, Wodsets must be comprehended in the Rule, and all Infeftments for Security or Relief, which do imply a Reversion incorporat. It will also extend to Infeftments of Teinds; for, though Teinds be separatum Tenementum from the Stock, yet both are ground-rights or Infeftments of the Land; yea, Infeftments of Life-rent, if possessed and unquarrelled for fourty years, showing their Seasine and the Warrand or Adminicle thereof, the same would make the Liferent-right irreducible, or might perfect Prescription, being joined to their Authors Rights; yea, this Statute hath been extended to long Tacks of Lands, Teinds or others.

22. A right to Teinds may be prescribed, as well as other Rights, by fourty years possession; but a right to by-gone Teinds, being founded in publick Law, prescribes not, except as to the by-gones before fourty years; and the possessor cannot prescribe an absolute immunity and freedom from payment [Page] within the fourty years, and in time coming, seing all Lands in Scotland by Law are lyable in Teind, but such as never payed any being cum decimis inclusis, or belonging to the Cystertian Order, Templers and Hospitallers, or Gleibs, February 7. 1666. Earl of Panmure contra Parochioners of

23. This Statute is also extended unto rights of Patronage, or Offices which are heretable rights, though they be not alwayes constitute or continued by Infeftment; yet fourty years possession by the original right in the first acquirer, or by the continuation in their successors, does establish their rights against all quarrelling by Reduction or Declarator. Yea, this Statue is extended to long Tacks, which (if cled with fourty years peaceable possession, either in the Tacksman or his Assigneys, or their Heirs who need no service) cannot be quarrelled, but stand valid, not only for these fourty years, but for all subsequent years unexpired: As was found in a Tack of Teinds, though set without consent of the Patron, and the Bolls liquidate to ten shilling, July 7. 1677. the Parson of Prestounhaugh contra his Parochioners.

24. It is also extended to Thirlage and Multures, with any antecedent adminicle; as by inrollment of Court, and generally to all servitudes, though there be no more antecedent Title, but part and pertinent of the dominant Tenement, either exprest or implyed; as was found in the case of a pasturage and sheilling, albeit there was produced an old Tack, bearing, to be granted to the possessor or his predecessor, November 27. 1677. Graunt of Ballindalloch, contra Graunt of Balvey. Whereupon it was alledged, that a Tennent possessing by Tack from his Master, could not prescrive against him, which was not respected in this case, nor in that of the Countess of Murray, contra Mr. Robert Weyms, Feb. 20. 1675. The like June 4. 1675. Colledge of Aberdeen contra Earl of Northesk. But all annual prestations preceeding fourty years prescrive, though constantly payed for thirty nine years, every year being a several obliegement, though in one write, and prescrives severally, January 19. 1669. Earl of Athol contra Laird of Strowan. It holds also in Annualrents, July 22. 1671. and Feb. 7. 1672. Blair of Balleid contra Blair of Denhead. But it cannot be extended to prescrive against a Superiour, for not payment of the reddendo, because a right of Property cannot consist without Superiority, unless there be a Right taken from another Superiour.

25. Prescription doth not only exclude the preference of other better Rights, which if insisted upon within prescription, would have been preferred as anterior, and thereby the posterior right a non habente potestatem. But all ground of Reduction by the King, or other Superiours or Authors, is excluded; So that the neglect of the Kings Officers cannot be obtruded by the Act of Parliament, declaring that their neglects shall not prejudge the King, neither any nullity in the titles of prescription, except it be in the essentials thereof: So, prescription cannot sustain a perpetual Tack without Ish, which is essential thereto; nor a Seasine without a Symbol, generally or particularly, or not given upon the ground of the Land. But all requisites in Rights introduced by Custom or Statute, and not essential thereto, are cut off by Prescription.

26. The main Exception or Reply against Prescription, is Interruption, not only by the discontinuing the possession of the whole, but also of a part, which was found sufficient to interrupt the Prescription as to the whole; as an Infeftment of Thirlage and possssion of Corns growing upon the Lands, [Page] was found sufficient to exclude the prescription of the Multures of invecta & illata, June 29. 1635. Laird of [...] contra Home of Foord. So likewayes, payment of Annualrents within fourty years, interrupts prescription of Bonds, and that not only as to the party paying, but payment made by the principal Debitor was found to interrupt prescription as to the Cautioner, who never payed, nor was pursued during the space of fourty years, December 18. 1667. Sir Thomas Nicolson of Carnock contra Laird of Philorth; December 18. 1667. Gairns contra Arthur. And an Annualrent constitute out of two Tenements, was found unprescrived as to both, by uplifting the Annualrent out of either, though that the one was now fourty years in the hands of a fingular Successor, June 22. 1671. Lord Balmirrano contra Hamiltoun of Little-prestoun.

Prescription is ordinarly interrupted and excluded, by the dependence of any action, whereupon the right might have been taken away or impeded, Hope, Patronage Laird of Glenurchie contra Alexander Campbel; Idem, Tacks and Tennents, Carnousie contra Keith, even though there was only the first Summons without continuation, or second Summons, February 13. 1665. James Butter contra Gray; yea, though the pursuer past from the Summons pro loco & tempore, Hope, Removing, Sir Robert Douglas contra Lord Herreis; or by a Transferrence, though reducible, because not proceeding upon the right Title, seing the right Title was also in the pursuers person, July 26. 1637. Laird of Lawers contra Dumbar. The like though the pursute might have been excluded for want of solemnity in re antiqua, where the custom was not clear, November 25. 1665. White contra Horn. Yea, an Annualrent was found interrupted by a poinding of the ground, though therein the Heretor was not called, June 15. 1666. Sir Robert Sinclair contra Laird of Howstoun.

Prescription was also found validly interrupted, by a Charge of Horning upon the Bond in question, albeit proceeding only upon summar Registration by the Clause in the Bond, and by no Citation, July 21. 1629. David Moris contra Johnstoun. But Warning, whereupon nothing followed, was not found a sufficient interruption of an old Tack-duty, Hope, possession, Mr. Robert Bruce contra Captain Andrew Bruce; Idem, March contra Keir. Neither was it found sufficient, to interrupt prescription in the first part of a mutual Contract, that action was used upon the second, which saved the second from prescription, seing the party concerned in the first, neither used action or charge thereupon, nor founded exception upon it, when pursued by the oaher party, November 27. 1630. Lauder contra Colmill. Interruption was also sustained upon a Citation, at the instance of a party not then entered Heir, being entered thereafter within the years of Prescription. The like upon a Summons of Reduction upon Minority, though it was not filled up within the fourty years, being insinuat in the Title of the Summons, that Minors have interest to reduce deeds to their lesion, July 14. 1669. Earl Marishal contra Leith of Whitehaugh. But Interruption was not sustained from the Citation in a Summons of Reduction ex capite Inhibitionis, but from filling up of the reason, February 11. 1681. Kennuay contra Crawford. And it was sustained upon Citation upon the second Summons, being only a day before the year was compleat, albeit the first Summons should be found null, and though the Citation was at the Mercat-cross upon a priviledged Warrand, purchased upon pretence that non fuit tutus accessus, past of course among the common Bills, and the reason of the priviledge was neither true nor instructed, and though the execution bore not a Copy left at the Cross, the party adding that, and abiding thereby, as truly done, be the executor of the Summons, July 6 1671. John Mackbra contra Lord [Page] Mcdonald. Interruption was also sustained upon a Citation in a Reduction in Anno 1630. [...] the Execution bore not the name of the pursuer or defender, but the parties within mentioned: And were not written upon the back of the Summonds, but upon a louse Shedul; and the Citation was in the last of the thirteen years excepted from prescription, against a party of great quality, against whom, many interruptions were like then to have been used: The user of the Interruption Deponing that he received the same from his Father, or amongst his Evidents, and knew not that they were the Executions of other Summonds, Feb. 11. 1677. Laird of Rewallan contra Lawson, of Cairnmuire. But Interruption was not sustained upon summar Registration, without Citation or Charge, January 12. 1672. James Johnstoun contra Lord Balheaven. And Interruption by warning and Citation thereupon, was not found effectual in a Competition betwixt two parties, both being then in acquirenda possessione, by prescription, and neither having a sufficient Right Constitute before, unless the party warned and cited, had discontinued his pessession for a year at least, January 1680. Brown of Hunthil contra Town of Kilcudbright. Prescription as to the King, was found sufficiently interrupted by the Kings Letters, published at the Cross of the head Burgh of the Shire, where the Lands in question lye, without Citation or Charge, March 30. 1630. Earl of Monteith contra

27. There was an Act of Sederunt, of the penult of March 1630. upon a Letter from the King to the Lords of Session, bearing, that in respect by the Act of Prescription, 1617. All Heretable Rights cled with fourty years Possession, are declared irreducible, unless they had been quarrelled within the space of fourty years [...] that Act; and libertie granted to intent Actions within he space of thirteen years after the date of the said Act, to interrupt Prescriptions, albeit there had been no interruption sor fourtie years before the said Act; And His Majestie resolving to use Interruption within the space of thirteen years, of Deeds done to the prejudice of the Crown, for preservation of His Majesties Right, and Actions competent to Him and His Successors, for that effect, seing a multitude that may be concerned therein, cannot commodiouslie be summoned personallie. or at their dwelling-places, within the saids thirteen years, which were to expire in June 1630. And it being necessar that some solemn Act should be done, to testifie; the Kings will and resolution, to prosecute Actions, in His own time, which could not be more properly and conveniently done, nor by inserting and publishing as follows, Therefore His Majesty appointed His Declaration for prosecuting His Rights, to be insert in the Books of Sederunt, and Letters of publication thereupon directed, to be published at the Mercat Cross of Edinburgh, and other places needful: And desired the Lords to declare the [...], to have the force of a Legal and lawful Interruption, which the Lords enacted to be done accordingly, as to the particulars therein-contained; and [...] Letters of publication at the Mercat Cross of Edinburgh. and other mercat Crosses of the Kingdom, where the Lands and Baronies lye, or where the persons interressed therein reside, and at the said Mercat Cross of Edinburgh and Peer of Leith, for these without the Kingdom: Which Act of Sederunt was ratified, Par. 1633. cap. 12. Which Letter and Acts. extend to His Majesties Annexed and Non-annexed Property, whereof the Ferms, Duties, and Feu-ferms were counted for in Exchequer, since the Moneth of August, 1455. and to the Principality and to the Erection of Benefice, Spirituality or Temporality, Patronage of Kirks pertaining to His Majesty and His Predecessours; Regalities and Heretable Offices, any of the saids particulars being unlawfully Disponed against the Laws and Acts of Parliament; and likewise against changing of Ward in Blensh or Taxt-ward, granted by the King or His Predecessors in their Minority, and not ratified by any [Page] King or Prince in their Minority; and but prejudice to any person of their lawful Defences in Actions to be intented by His Majesty thereupon.

In prescription this is a general exception, contra non valentem agere non currit praescriptio; and therefore, Bonds prescrive not from their dates, but from the Term of payment, February 17. 1655. James Butter contra Gray. June 23. 1675. David Bruce contra James Bruce. And Inhibition prescrives from the Date of the last execution, and not from the Registration, February 19. 1680. Lutefoot contra Prestoun. So an obliegement by a Cautioner in a Contract of Marriage, oblieging to impoly a sum for the wifes use, found only to run from her Husbands death, July 5. 1665. Mckie contra Stuart. And likewise prescription was not found to run against a party to take away his Infeftment, seing he had given a Liferent-right, which would have excluded him from any Action that could have attained possession, and that he was not oblieged to use Declarator or Reduction in this case more then in the prescription of Bonds from their dates, February 1668. Earl of Lauderdail contra Viscount of Oxinfoord. The like, January 17. 1672. Young contra Thomson. February 15. 1680. Brown of Colstoun contra Hepburn of Bear-foord. Yea, prescription was found not to run against a party forefault, and sequestrat by the Usurpers, who possest his Right in question for eight years, which years therefore were deduced, January 15. 1678. Duke of Lauderdail contra Earl of Tweedale. But where a party was not forefault, but durst not appear during the Usurpation, he was not found, non valens agere, seing he might pursue by a procurator or assigney, July 24. 1678. Collonel Whitefoord contra Earl of Kilmarnock. Yea. prescription was not extended to the Liferent of a Wife, in a sum payable to her and her Husband, the longest liver, though the Stock was prescrived against the Husband, who neither insisted nor got annual for fourty years, but not against the Wifes interest in the annualrent, though the sum bore no annualrent, yet the Wife was found to have Right to uplist the sum, and to reimploy it for her Liferent use, July 22. 1675. Janet Gaw contra Earl of Weims.

Our Statutes have introduced several short prescriptions, as the Rights to which they relate do require, which we shall shortly represent, not according to the time they were introduced, but according to the time of their endurance, most of them occurring to be considered in their proper places, with the rights whereto they relate.

28. And first, Our Law hath introduced the annus deliberandi, in favours of Heirs, because if once they enter or immix themselves in their predecessors Heretage, they become lyable for their whole Debts, though far exceeding the worth of their Heretage; and therefore, the Heir appearand hath a year to deliberate whether the Heretage will be profitable, during which, he may not only enquire, but may pursue Actions of Exhibition, ad deliberandum, And if they forbear they are free of all Actions against them or the Heretage during that year; and therefore, that priviledge prescrives in a year and day, after the Defuncts death.

29. Secondly, by the Act of Par. 1661. cap. 24. There is a preference granted to the Creditors of Defuncts preferring them to the Creditors of the heir or appearand heir; so that all diligences by the Creditors of Defuncts, against the Defuncts Estate, shall be preferred to the diligences, for Debts contracted by appearand heirs, providing the saids diligences of the Defuncts Creditors, be compleat within three years, after the Defuncts death; albeit the being compleat be not exprest in the Statute: Yet by the design thereof, it must be so understood; for if Diligences inchoat in these three years, though [Page] prefected thereafter would be sufficient, the preference would not be for three years, but might come to be for thirty years.

Compleat Diligences are Appryzings, or Adjudicrtions with Infeftment, or a Charge against the Superiour to Infeft, Poinding, and Decreets for making Arrested sums or goods forth-coming: And by the said Statute, Dispositions by heirs or appearand heris of the Defuncts Eltates, are declared not to be valid against the predecessours Creditors, unless made a full year after the Defuncts death, so that after that year the heirs Dispositions are not limited, though they should prefer their own Creditors to the Defuncts; and therefore, the Defuncts Creditors had need to use Inhibition, or Inchoat their diligence by charge to enter heir, which may be within the year of deliberation, they may also then Arrest, though they cannot Insist in pursuits upon any of these or other grounds, till the year pass: For this Act doth not prefer the diligences of the Creditors of the Defunct to the voluntary Dispositions granted by the heir to their own Creditors, but only to the legal diligence of their own Creditors; therefore, this preference of the Defuncts Creditors prescrives in three years, or rather in two years, because within the year of deliberation they cannot pursue, unless the heir enter or immix; and therefore, this priviledge prescrives in two years after the year of deliberation.

30. Thirdly, There is a Triennial prescription of Spuilzies, Ejections, Intrusions, which comprehends succeeding in the Vice of parties removed, par. 1579. cap. 81. This prescription by the Statute, runs not against Minors.

This prescription doth not take away the Right, but only the priviledges thereof, as proceeding upon a short Citation, and the oath in litem, allowed to the party injured, to declare his loss, and the violent profites; but hinders not the Restitution, or Recovery of the thing, with the ordinary profites.

There is also a Triennial prescription of Merchant Counts, House Mails, and the like, which is only as to the manner of probation, that if these be not pursued within three years from the time they are due, witnesles shall not be admitted to prove the same, but only write or oath of party: But in this prescription, Minority is not excepted, par. 1519. cap. 83. which is not extended to Rents of Lands in the Countrey, January 20. 1627. Gavin Ross contra Fleming. In both these Prescriptions (if Actions be intented within the prescription of three years) Custom hath not limited these Actions to three years, but they continue for fourty years, which might have much more conveniently been cut of by three years, for thereby the Action which is accessory was more priviledged then the principal Right to which it is accessory, which is amended in part by posterior Statutes.

There is another Triennial prescription in removings, that if they be not pursued within three years, there can never be purfuite thereafter upon the same Warning, where in Minority is not excepted, par. 1579. cap. 82. This prescription was not reckoned from the date of the warning, as being uncertain, but from the Term to which the Warning was made, February 6. 1629. Lady Borthwick contra Scot.

31. There is a Quadriennial prescription in favours of Minors, to reduce deeds done by them in their Minority to their enorm Lesion, from their age of twenty one compleat, to their age of twenty five conpleat; but these Actions being intented within that Quadriennium utile did last for fourty years, till the late Act of Parliament anent prescription and interruption.

32. There are several Quinquennial prescriptions; As first, all Arrestments upon Decreets, prescrive five years after the dates thereof; and Arrestments [Page] upon Dependences, prescrive in five years after Sentence, upon the dependence, if the saids Arrestments, be not pursued or insisted upon, during that time.

By this Statute Ministers Stipends and Multures not pursued for within five years after they are due; and likeways, Mails and Duties of Tennents, not being pursued within five years after the Tennents removal prescrive, unless the said Stipend, Multures, Mails and duties, be proven resting by oath, or special write, acknowledging what is resting; and that all Bargains concerning moveables or sums of Money, probable by witnesses, shall only be probable by write or oath of party, if the samine be not pursued within five years after the making of the bargain.

There is also a quinquennial prescription of the Legal Reversions of special Adjudications whereby Lands are adjudged only equivalent to the sums, by the Act of Parliament, September 6. 1672: cap. 19.

33. There was a seven years prescription of the legal Reversions of Apprizings; And there is Septennial prescription of interruptions, which if they be not renewed every seven years, prescrive by the Act of Parliament, December 8. 1669. cap. 10.

34. There is likewise a Decennial prescription by the said Act of Parliament, 1669. cap. 9. of all Actions upon warnings, Spuilzies, Ejections, Arrestments, or for Ministers Stipend, Multures, Rents of removed Tennents, which Actions prescrive in ten years, if they be not renued every five years, but prejudice of any shorter prescription of the saids Acts by former Acts of Parliament, which gives ground to alter the former Custom anent the Triennial prescription, that the Actions intented thereupon may prescrive in three years.

35. And by the same Statute, there is introduced a prescription of twenty years of Holograph Bonds, and Holograph Missives; and subscriptions in Compt Books without witnesses, unless the verity of the said subscriptions be proven by the defenders oath; by which manner of probation there is action competent, till the long prescription of fourty years.

36. All these short prescriptions are declared not to run against Minors, except only the prescriptions of Removings, and Merchants Compts, &c. which except not Minority, though they do immediately follow prescription of Spuilzie, Ejections, &c. which do except the same, and so appear to be of design omitted in the former Triennial prescriptions; and therefore, it is not like the Lords will extend the exception of minority thereto, as they would not appoint a years Rent to Superiours, in Adjudications as in Appryzings, because it was omitted in the Act anent Adjudications, next unto the Act anent Appryzings, in which it was exprest, until the late Act of Parliament, extended the years Rent to Adjudications.

§

§

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THE INSTITUTIONS OF THE LAW OF SCOTLAND, Deduced from its Originals, and Collated vvith the Civil, Canon, and Feudal-Lavvs; and vvith the Customs of Neighbouring Nations.

The second PART.

By Sir JAMES DALRYMPLE of STAIR, PRESIDENT of the SESSION.

EDINBURGH, Printed by the Heir of Andrew Anderson, Printer to His most Sacred Majesty, Anno DOM. 1681.

§

TITLE XXIII. Assignations, Where, of Arrestments, and Actions for making Forthcoming.

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1. The several Conveyances of Rights.

2. What Rights are not Transmissible.

3. The rise of Assignations.

4. The Tenor of Assignations.

5. The conveyance of blank Bonds, &c.

6. The rise and effect of Intimations.

7. The several ways of Intimation.

8. What Assignations are perfected by possession, without other Intimation.

9. Other supplies of Intimation.

10. Intimations to more, correi debendi.

11. Intimation is not necessary to Rights Registrate, for publication, as Reversions, &c.

12. Nor to orders of Merchants.

13. Nor to Judicial Assignation, by Appryzing, &c.

14. Nor to the Legal Assignation, Jure Marid, by Marriage.

15. Nor against the Cedent, his Heirs or Executors, even though Creditors.

16. To what Rights Assignations [...]

17. Assignations carry Inhibitions following on the rights Assigned, albeit not exprest in the assignation.

18. In what cases the Cedents oath proves against his Assigney.

[Page] 19. Assignations intimat before the Cedents death, gives summar execution without Consirmation.

20. All exceptions against Cedents before Intimation, are Relevant against assigneys, to personal Rights or Tacks.

21. The effect of Back-bonds, Discharges, or Assignations of Dispositions, before Infeftment or Apprysings, during the Legal.

22. Assigneys by Tutors have no execution till the tutor Counts be made.

23. How far Assigneys to mutual Contracts may be debarred till performance of their Cedents part.

24. Arrestment may be granted by all Judges Superior or Inferior, and how far they are effectual before other Courts.

25. The effect of Arrestments made in the debitors own hand.

26. Arrestment is personal and doth not burden the Successors of him in whose hands it is made, but is valide against the Successors of the Debitor.

27. Arrestment is not effectual for, or against Heritable sums by Infeftment, but against the same, when made moveable, or any other moveable sums.

28. Rents or Annualrents are alwayes arrestable.

29. The effect of arrestment of Rents, Annualrents, or other sums laid on before the Term of payment.

30. The effect of Arrestment laid on in the hands of Factors.

31. Arrestment extends only to the debts due by him, in whose hands it was laid on.

32. Arrestment makes the Subject [...]

33. The Order and Tenor of lousing arrestments.

34. In what cases Arrestments laid on for sums due by Decreets, are lousable or not.

35. The effect of lousing Arrestment.

36. The order of Actions for making forthcoming.

37. Exceptions in the Actions for making forthcoming.

38. The effect of Arrestments for making Moveable Goods forthcoming.

39. The effect of Arrestments of sums.

40. He to whom payment is made after Arrestment, is lyable to Restore.

41. The oath of parties in whose hand Arrestment is made, must depone specially what he then owed, and when he payed.

42. The Decreet for making forthcoming, doth only transfer the Right to the Arrester of the Goods, or sums Arrested.

43. But Assignations do transfer the Right, when Intimat, without farther diligence, and so is preferable to all posterior Arrestments, and respect is had to priority of hours, if exprest in the Intimation.

[Page] 44. If the Arrestment be prior to the Intimation, it is preferable, not failing diligence.

45. How Assignations are compleated by Intimation, Citatien, Charge, Possession or Corroboratien.

46. The preference of Arrestments in Competiticu.

HAVING now gone thorow all the several kinds of privat Rights, both as to their Nature and Constitution, and as to their Extinction and Distitution; We are come to the second part of our Design proposed, the Conveyance and Transmission of these Rights, which stand in force and are not exstinct; for the extinction of a right is no conveyance of it seing thereby it ceasseth to exist.

1. Rights are Conveyed, or Derived, either amongst the living, or from the dead; and in both, the Conveyance is different, in personal and real Rights: And in Immoveable and Heritable Rights, the Conveyance amongst the living, of personal Rights, is by Assignation; of real Rights by Dispofition, and promiscuously of both by Confiscation: Conveyance of Right from the dead, is by Succession, in Moveables by Executry; in Heritable Rights, by the succession of Heirs, and other like successors; of which in order.

2. Personal Rights or Obligations, are sometimes incommunicable, and not assignable, or transmissible, either by reason of the matter, such as most conjugal and parental Obligations are, or where there is a singular consideration of the person, as in Commissions, Trusts, &c. Most of these are Intransmissible, even by the consent, both of Debitor and Creditor: Yea, generally, all Obligations are Intransmissible, upon either part directly without the consent of the other party, which is clear upon the part of the Debitor, who cannot, without consent of the Creditor, liberate himself, and transmit his Obligation upon another, though with the Creditors consent he may, by delegation: Neither can a Creditor force his Debitor to become Debitor to another, without his own consent, as when he takes him oblieged to pay to him or his assigneys.

3. Yet, that Obligations may become the more useful and effectual, Custome hath introduced an indirect manner of transmission thereof, without the Debitors consent, whereby the assigney is constitute Procurator; and so as Mandatar for the Creditor, he hath power to exact and discharge, but it is to his own behove, and so he is also denominat Donatar, and this is the ordinary conception of Assignations. The like is done amongst Merchands, by an order, whereby the Debitor is ordered to pay such a person; the debt, which indeed is a Mandat, but if it be to his own behove, it is properly an [Page] Assignation; and in savours of Creditors, Law hath introduced judicial Assignations upon arrestment, and by appyzing and adjudication.

Assignations are more frequent with us then any where, there is scarce mention thereof in the Civil Law: It is also called, Cessio, which both there and with us, is most applyed to Cessio bonorum & actionum; where not only Obligations, but property of things: and generally, all Rights are ceded from the Debitor to his Creditor; from this Term the, the assigney is also called Cessioner, as the assigner is also called Cedent.

Under Assignations are comprehended Translations, being Transmissions from a prior assigney to a posterior; or Retrocessions, which are returning back of the Right assigned from the assigney to the Cedent, which are also called Repositions.

For clearing the matter of Assignations; First, consider the requisites to make them perfect and valid Conveyances. Secondly, what are the effects and extent thereof.

4. For the first, an assignation doth necessarly require the clear expressing of the Cedent assigney, and thing assigned; and though the ordinarly Stile of it be known, yet any terms that may express the transmission of the right assigned from the Cedent to the assigney, will be sufficient, as if the Cedent assign, transfer and dispone make over, set over, gift or grant the thing assigned to the assigney, or nominat or constitute him his Cessioner, assigney, donatar, or procurator to his own behove; and therefore, an assignation to a Bond, was found valid, both against principal and Cautioners, both being in the dispositive Clause, though the Cautioners were omitted in the Clause (with power, &c.) which was not, though a necessary clause, Decem. 12. 1622. Johnstoun contra Jack.

5. The conveyance of Bonds or other Writes, wherein the name of the Creditor or Acquirer is left blank, have become of late very frequent, and have occasioned many debates, as to the Conveyance of such Rights, and the effects thereof: As first, Whether the leaving the name of the Creditor or Acquirer blank be warrantable, or a fraudulent conveyance, to conceal and keep in the dark, to whom the right belongeth, that Creditors may not know to affect it by legal diligence: The reason ordinarly given for taking Writes in that way, is to shun the trouble of assignations, translations or intimations thereof, as they pass from hand to hand, according to that Tenor of Obligation, frequent in other places, whereby the Debitor oblieged him to and perform such things, latori presentium; by which he is oblieged to pay to none, but he may get up the Bond, and safely pay to any that hath it.

There is another reason of taking blank Bonds to shun compensation upon any debt due by the Cedent; for the Law alloweth compensation against the assigney, upon any debt due by the Debitor to the Cedent, before the assignation was intimate: But when the Debitor gives a Bond blank in the Creditors name, he is thereby understood to pass from compensation, which hath been sustained, Vide Title 11. upon compensation, for it is a just personal objection against him who granted the blank Bond, not to stop the effect or exccution thereof, upon any other debt due by him to that party, to whom he granted the Bond. And albeit such blank Bonds may pass amongst Merchants, [Page] where intimations are not necessary upon Bills of Exchange, which are transmitted by the orders of Merchants thereupon without intimation: and though such Bonds may pass amongst persons of intire Credit, yet such conveyances, if they should be encouraged, and pass currently without intimation, would be of dangerous consequence, and give occasion to much fraud; for thereby Creditors should not know in whose person such rights stood and how to affect them for just Debts: And although the granter of such blank Bonds, or the haver, who so transmits them, may be excluded from compensation: Yet others who may have interest to propone compensation in the same way, as they may found upon a Discharge granted by the receiver of the blank Bond to the Debitor therein, cannot be excluded from alledging compensation, there being no personal objection against them. And likewise, Conveyances without a Cause onerous, in prejudice of anterior Creditors, by persons insolvent and fraudulent; so that if either the first receiver of such blank Securities, or the posterior receivers thereof be insolvent, and without an equivalent Cause onerous, do transmit such blank Securities, only by delivering the same, the intermediat havers can hardly ever be known, whose Creditors might affect the right while in their hands, &c.

Upon which consideration, the first occasion that occurred to the Lords, being a blank Bond, granted by Marjory Sandilands, and delivered to Samuel Veatch, he did deliver the same to Marion Geddess, who filled up her name in the blank left for the Creditor, and registrate the Bond against Sandilands the Debitor; yet Tailziefer who was Veatches Creditor, having arrested all sums in Sandilands hands, due to Veatch in the competition, betwixt Tailziefer the arrester and Geddess, whose name was filled up in the blank, and the Bond registrate in her name before the arrestment, the sum remaining yet unpayed in Sandilands hands, the arrester was preferred, in respect that albeit Geddefs name was filled up in the blank Bond, and it so registrate before the arrestment; yet the delivery of the blank Bond by Veatch to Geddess, being in effect an assignation, was found to require intimation; and therefore, Tailziefer the arrester was preferred: In this case Veatch, who was first Creditor, was insolvent.

And albe it the Lords in the competition betwixt Thomas Hendrison and David George, decided, Jan. 18. 1668. preferred Hendrison, whose name was in the Bond as Creditor, and who offered his oath for clearing, whether the bond was blank, ab initio and when filled up, yet the Lords did not leave it to his oath, but took witnesses, ex officio, who proved that they saw the Bond filled up with Henriesons name before the arrestment laid on by Thomas George, in the hands of the Debitor, as due to Short his Creditor before the arrestment, yet there was nothing adduced to prove that ever the Bond had been blank, or delivered to Short. And likewise, a Bond blank in the Creditors name, being delivered by the receiver of the Bond to a Creditor of his, in satisfaction of his debt, the same was found relevant to be proven that the blank Bond was delivered before the Declarator of Escheat of the party, to whom it was first delivered in satisfaction of a Debt due by him before he was denunced, Decemb. 19. 1676. and Jan 17. 1677. Lord Bamff contra Grant of Rosasolis.

There hath been nothing done since to take off the necessity of a formal intimation made to the Debitor, of the filling up of the Creditors name upon production of the Bond, it self showing that name to be filled up; and therefore, [Page] any arrestment upon the Debt of the person to whom the Bond was first delivered as Creditor, or to his own behove, or for the Debt of any other person, in whose possession it came for his own behove, before the said intimation will prefer the arrester.

As to the manner of probation, that the Bond was blank, ab initio in the Creditors name, it is a strong evidence that it is written with a hand different from the body of the Bond; for though blank draughts of Bonds be frequently drawn up by Writers and Nottars, leaving the sums, the names of the Debitor and Creditor blank, which are filled up by any that makes use of the draught, yet at the subscription, the filler up of the sum, the Debitor and Creditors name should be exprest; for these are more Substantial then all the rest of the Bond, so that if the Creditors name be not filled up with the hand that wrote the Bond, or of him who insert the date and witnesses; it will be presumed to have been blank; in which case, the Debitors oath may be taken, to whom he did deliver it for his own use, and that persons oath to whom he did deliver the same, whereby the progress of it, till it come to him whose name was insert, will be found out; and upon this ground a Disposition of Lands bearing to be to two persons for themselves and other Creditors of the Disponers after-specified, after which, there were several lines written with another hand, inserting particular Creditors and sums, without mentioning of the filling up there, or at the Date of the Write; therefore an Inhibition by a Creditor of the Disponers, was sustained to reduce the right, of these Creditors filled up in the blank, as presumed to be filled up after the Inhibition, although the date of the Disposition was before the Inhibition, unless it were proven by witnesses insert in the Disposition or others above exception, that the blank was so filled up before the Inhibition, Jan. 15. 1670. Lady Lucia Hamiltoun contra the Creditors of Monkcastle.

These blank Bonds are so little favoured, that when the Debitor depones that he is only debitor by a Bond blank in the Creditors name; which he did deliver to such a party for his own use, but knows not now who hath the Bond; and consequently to whom he is debitor, it will not liberat him from the debt of that party to whom he did deliver it, though it may make him lyable to double payment to that party, and to him who hath the Bond, it being his own deed in delivering the Bond blank in the Creditors name, which infers that hazard: Yea, if the Debitor should depone that the Bond was blank, abinitio, and delivered to such a party, but afterwards it was shown to the Debitor, filled up in the name of such another party, before the arrestment, whereby he became debitor to that party, and not to the first; it is not like that quality will be respected, unless he depone that he had payed before the arrestment; for in Veatches case, the filling up of Geddess name was unquestionably offered to be proven, that the Bond was registrat in Geddess name, before the arrestment, which is much stronger probation then the oath of the debitor.

A blank Bond being lost, and referred to the debitors oath, who confessed the same, and both parties agreeing upon the date, sum, and witnesses, the debitor was decerned to pay the sum to the pursuer, to whom he had delivered the blank Bond upon Caution, to refound, in case he were distrest upon a Bond, containing, the same sum, date, and witnesses, June 27. 1676. Elizabeth Gibson contra Fise. The like was done at the instance of the [Page] Executors of the person to whom the blank Bond was delivered, Jan. 4. 1678. Peebles contra Tennents of Rossie.

6. The Assignation it self is not a compleat valid right, till it be orderly intimate to the debitor, which though at first (it is like) hath been only used to put the debitor in mala fide, to pay to the Cedent, or any other Assigney: Yet now it is a solemnity requisite to Assignations, so that though the debt remain due, if there be diverse Assignations, the first intimation is preferable, though of the last Assignation. and that not as a legal diligence, which can be prevented and excluded by another diligence, but as a full accomplishment of the Assignation, Jan. 13. 1629. Hutcheson contra Kinloch: Jan. 18. 1628, Laird of Halkertoun contra Falconer. But where both Assignations were gratuitous, implying warrandice from fact and deed, the last Assignation though first intimat was not preferred, because the Cedent was Debitor to the first Assigney, by the implyed warrandice against future Facts and Deeds, July 15. 1675. Anna Alexander contra Lundies.

7. Intimation may be by any legal Diligence, as by arrestment, by a charge or process upon the Assignation: Yea, though the process be not sustained, because all parties having initerest, were not called, it will stand as an intimation; but it is most ordinarly by way of Instrument, either by the assigney himself, showing the Assignation, or by his procurator, showing the same with his procuratory, wherein the like solemnities will be requisite, as are in Instruments of premonition and requisition: Of which, Title Wodsets. So an intimation was found null by exception, because one person was both Procurator and Nottar, July 3. 1628. Scot contra Lord Drumlanrig. Neither was an Intimation found sufficient by an Inhibition, used by the assigney against the Cedent upon the assignation, March 14. 1626. Nisbit contra Williamson. where payment made thereafter to the Cedent, was found valid, and done, bonafide.

In this case it was also found, that Intimation will not be supplied by a parties knowledge of the Assignation. The like, June 15. 1624. Adamson contra Mcmitchel: Neither by the Debitors knowledge, though by a pursuite against him upon the Write, containing the Assignation, but in relation to another matter therein, this was in shunning the committing a Clause irritant, Novem. 30: 1622: Sir James Durhame contra Lady Wintoun.

But Assignations to annual, prestations as to Mails and Duties, Teinds or Annualrents or Assignations to rights, requiring possession to compleat them as Tacks, are perfected by use of payment or possession, and need no other Intimation, as was found in the case of the annualrent of an Heretable Bond, where gerting payment of some years, preferred the assigney to a former arrester, though there was no Instrument of Intimation, Jan: 18: 1628: Laird of Halkertoun contra Falconer.

9. And any Write under the debitors hand, acknowledging the production of the Assignation will be sufficient Intimation, as if he give a Bond of Corroboration to the assigney, or give Discharges of annualrent, or any part of the principal sum.

10. Where there are many, correi debendi, principal or Cautioners, Intimation made to any will be sufficient as to all; yet this will not exclude payment [Page] made by another of the Debitors, bona fide, to whom no Intimation was made; to secure which, it is safest for assigneys to intimat to all the correi debendi.

11. Assignations to Reversions or Bonds, for granting Reversions, Renunciations of Wodsets or grants of Redemption, being registrat in the register of Reversions, conform to the Act of Par. 1617. require no Intimation, that register being designed, not for conservation of these Rights, where the principals are not detained, but for publication thereof, to all parties having interest, which is a sufficient Intimation, as was found in the case of an assignation to the Legal Reversion of an appryzing, December 5. 1665. Begg contra Begg.

12. Intimation being by our proper Custom, so necessary a solemnity, holds not in the Orders which stand for assignations amongst Merchants, Strangers, especially qui utuntur communi jure gentium; and therefore, the first order by a Stranger Merchant, direct to his debitor here, to pay the Debt to the obtainer of the Order, was preferred to arresters and assigneys, using dilgence before him though there was neither Intimation of the Order nor acceptance by the debitor.

13. Neither is Intimation necessary to Judicial assignations by appryzings or adjudications, March 25. 1635. Lord Yester contra Innerweel. Hope assignations, Idem, appryzings, Bruce contra Buckie: So that if the debt remain due, the first appryzing or adjudication, without Intimation will be preferred; but seing there is nothing to put the debitor in mala fide, payment made bona fide, will liberat the debitor.

14. Marriage also is a legal assignation, requiring no Intimation for thereby all the Moveable rights of the Wife are stated in the Hushand, Jute mariti, without other Intimation then the Marriage: Yea, Intimation was not found necessary to a Reposition of the assigney to the Cedent, seing the assignation was by a wife in her Contract of Marriage, which requires no Intimation but the Marriage; and therefore the Husbands reposition to her needed no Intimation, Decem. 2. 1674. Beatrix Craig contra Wedderly.

15. Though in the cases aforesaid, Intimation be a necessary Solemnity to assignations, yet the assignation alone will be sufficient against the Cedent, if he should quarrel it, because he is author thereof, and can do no Deed contrary thereto: Yea, it was preferred to an Executor Creditor of the Cedents, even as to his own Debt, July 27. 1669. Exeutors of Mr. Thomas Ridpeth contra Home.

As to the extent and effect of assignations, the same extends to all personal Rights, whether Moveable or Heretable, as to Bonds, Liferents, Tacks Reversions, Mails and Duties, Annualrents, and to Dispositions of Lands and others, till Infeftment follow, but is no valid conveyance of any Right compleated by Infeftment except Liferents, which can have no subaltern Infeftment, as to the ground right it self, though it may extend to the profits thereof, as to Mails and Duties, and annualrents, and to these no longer then the right by Infeftment stands in the Cedents person, whence there ariseth to him and to his assigney, a personal obliegement upon the possessors, which faileth, as to all Terms after Denunciation, Decem. 17. 1622. Kinbrachmount contra Sir William Anstruther: and an assignation to such a sum yearly out of Teinds [Page] was found excluded by an appryzing of, or assignation to the Tack of these Teinds, Feb. 6. 1666. Watson [...] Pleming.

Assignations are effectual, not only of such rights as are granted to heirs and assigneys, but generally to all Rights, though not mentioning assigneys, which by their nature are transmissible; and therefore, an annualrent by a Father to his Daughter, wherein his Brother and Sisters were substitute, failing the heirs of her Body, without mentioning her assigneys, and wherein the annualrent was redeemable, by payment of a principal sum, which she had no power to require, unless she were Married; the annualrent was found to belong to her assigney after her death, being principally constitute, and not accessory to the principal sum, June 24. 1679. Sir William Stuart contra Sir Thomas Stuart: and albeit Superiours be not oblieged to receiye singular Successors without appryzing or adjudication; yet before Infeftment, assigneys to the Disposition, granted by the Superiour, may compell him to receive the assigney, which was so found, though the Superiour alledged, that the Superiour was not in good Terms with him, Decem. 23. 1673. Ogilbie contra Kinloch of Bandach. But Reversions and Tacks in most cases unassignable, unless they be granted to assigneys; for albeit the Assignation being a procuratory, may give them interest to act procuratorio nomine, for the Cedent; yet they cannot act proprio nomine, as Procurators, in rem suam; therefore the oath of the Cedent will always be competent against them, and they cannot obtain Declarator of Redemption, in their own name or Decreet, for denuding of the Wodsetter, in their favours: Neither can Assigneys to Tacks enter in possession, by vertue thereof: Yea, Liferent-rights by Infeftment or Tack, were so peculiar to the Liferenter, that no assignation can state them in the assigneys person, but only the profits thence arising: So that in the assigneys person, they are not Liferents; and therefore, the Liferents of Wives, which belonged to their Husbands, jure mariti, as a legal Assignation, fall not under the Husbands Liferent-escheat, as they would fall under the Liferent of the Wife unmarried, but under the single Escheat, Vide title [...] upon Escheat: Upon which ground, Hope upon Assignations, observes, that Assignations to Liferent-tacks, make them fall under the Assigneys single Escheat, in the case of Sir Robert ker contra John Ker.

17. Thirdly, an Assignation to a sum, carries with it the Inhibition raised thereupon, Hope Assignation, Walter Hay contra Mark Ker. The like, where only all actions following thereupon were exprest generally, June 28. 1610. Blair contra Gray. And an Assignation to a Bond, found to carry a Bond of corroboration of the foresaid Bond, though not mentioned therein, albeit the Assignation bore not, that ordinary Clause (with all that has followed, or may follow thereupon) which is but an Explicatory Clause of Style of that which, innest dejure, February 3. 1676. Bultie contra Earl of Airly.

18. Fourthly, The effect of Assignations is, that the oath of the Cedent cannot prove against the Assigney, unless the matter hath been litigious before the Assignation or Intimation, as in the case after arrestment, has been laid on; and therefore, a debitor having pursued the Cedent to annul the Band, upon a reason to be verified by the Cedents oath, before the Assigney had Intimat the Cedents oath was sustained, February 15. 1662. Pitfoddels contra Glenkindie. And an Assigney pursuing in the Cedents name, and not in his own, albeir he produccd his Assignation in the Process; yet there being no other Intimation [Page] thereof, the Cedents oath was admitted against him, Feb. 12. 1678. Firazer contra Frazer of Strichen, July 26. 1628. John Rule contra Laird of Aitoun.

Or if the Assignation be gratuitous without a Cause onerous, the Cedents oath will be competent in all cases against the Assigney, June 16. 1665. William Wright contra George Sheil: June 13. 1668. Jack contra Mowat: But the oath of the Cedent will prove against the Assigney in England, as to Assignations made by residenters there, June 28. 1666. Mcmorland contra William Melvil.

19. Fifthly, Assignations being intimat during the Cedents Life, having summar execution, and the Assigney got protestation against a Suspension raised against the Cedent, after the Cedents death, without walkning or transferrence and thereupon all execution would proceed summarly by Horning, Poynding, Appryzing, even after his death, Hope assignation, Lady Craigmiller contra Stevinson: Otherways it will yeeld but an ordinary action, Jan. 23. 1624. inter eosdem. The same was found, and that there needed no confirmation, July 27. 1664. Mr. John Murehead contra Yea, though it was an Assignation by a Father to his Son, of all his Goods and Debts; yet action was sustained thereupon without Confirmation, June 25. 1663. James Halyburtoun contra Earl of Roxburgh. But where there was no delivery, the Assignation of all the Goods was not found to give action without Confirmation, June 23. 1665. Procurator-fiscal of Edinburgh contra Thomas Fairholm. Or where there was reservation to the Disponer, to dispone otherways during his life, July 4. 1665: Commissar of Saint Andrews contra Hay of Bowsie. But since the Restitution of Bishops, and reviving of the Quots: actions are sustained upon Assignations, not intimat in the Cedents life, if they be special, the pursuer always confirming before the Decreet be Extracted.

20: Except in the Matter of Probation, all Exceptions competent against the Cedent before the Assignation or Intimation, are relevant against the assigney, as payment, compensation, &c. which was found, even as to assigneysto Tacks, that the Tacks-mans Back-bond was sufficient against his singular Successor by assignation, Decem. 18. 1668. Mr. Robert Swintoun contra John Brown: This is clear, when exceptions relates to the matter in Question.

21. Assignations to incompleat real Rights, as Appryzings, Dispositions of Lands before Infeftment, are affected with the assigneys Back-bond, if the competition come in before infeftment, Inhibition be used, or legal diligence that makes the matter Litigious; and therefore, the Back-bond of an asigney to an appryzing, was found effectual against his Successors by translation, July 6. 1676. Sir Lodovick Gordoun contra Skeen and Crawford. But the Back-bond of an assigney to a Disposition of Land, not drawn in question till the assigneys singular Successor was Infeft upon his translation, was not found effectual against the singular Successor, June 20. 1676. Brown contra Smith: For if assignations, Back-ponds, or even Discharges or Renunciations of redeemable Dispositions of Lands, were effectual against singular Successors in these Lands, after the Rights were perfected in their own persons, or their authors by Infeftment, it might in a great part disappoint the design of these excellent Statutes for Registration of Land rights, therefore, unless Inhibition were used, [Page] or the matter made Litigious upon these personal Rights, before Infeftment, they are not habile to affect a real right, or a singular Successor therein; but because appryzings within the legal, may be taken away in the same manner as personal rights; therefore the assignations, discharges and back bonds, by these who have right to the appryzing, being made within the legal, are effectual, if thereupon the matter be made litigious before the expyry of the Legal Reversion or Inhibition used thereupon, they will be effectual against the singular successors, even after the Legal is expyred, but after expyry of the Legal Infeftments upon appryzings are in the same case as Infeftments upon Irredeemable Dispositions for they are the foundation of the rights of most Lands in the Kingdom, and if personal Rights should make them insecure after the expyry of the legal, it would be of great inconvenience.

22. Assigneys by Tutors to their Pupils Bonds, will have no execution till the Tutors counts be made by the Cedent, Decem. 2. 1679. James Cleiland contra Bailzie of Lamingtoun.

23. It is more dubious and hath been diversly decided, when the exceptions are personal against the Cedent, in mutual Contracts, the Contracter himself can have no action unless he fulfil his part; but whether his assigney will be in the like case is the question, which is at large cleared, Tit. 10. §. 16. and therefore shall not be here repeated.

Judicial assignations are oftwo sorts, according to the matter conveyed thereby, which if it be moveable is conveyed from the debitor to his Creditor by arrestment and decreet, for making the arrested sums and goods forthcoming, and if it be Heretable by appryzing or adjudication.

As to the first, that the progress upon arrestment may be clearly taken up; we shall first consider the arrestment it self. Secondly, The lousing of it. Thirdly, The action for making forthcoming.

Arrestment is a precept or command of a Judge, ordaining the thing arrested to remain in the same case it is when arrested, till such things be done as are prescribed in the precept, or Letters of arrestment: It is sometimes extended to any preparatory Precept of a Judge, antecedent unto any further process, so the first Citation or securing of persons till tryal were made, or surety found, its called an arrestment or attatchment, as appears in the force of the Crowners arreftments of Delinquents, Par. 1487. cap. 99. Par. 1528. cap. 5. But arrestment proceeds most ordinarly upon an Interlocutor sentence, as when parties are contending for Peats, Turffs, or Corn upon debateable Land, these use to be arrested till the mater be decided, whereby the thing arrested becomes litigious, and any thing done to the contrary hath the effect of breach of arrestment, and is of the Nature of innovatalite dependente, which therefore must be summarly restored and put in statu quo and brings no advantage but loss to the actor.

24. But arrestment which we are now about, is Precept or Letters of arrestment, arresting Debts or Goods in the hands of any party, haver thereof, at the instance of the Creditor of him to whom the Debts or Goods belong to remain under arrestment, untill the debt whereupon the arrestment proceeds, be secured or satisfied; therefore arrestments may be granted by all Judges ordinar, Superior or Inferior; but the arrestment of an Inferior Judge was only [Page] found effectual in Process before himself, and before no other Inferiour Judge, March 8. 1634. Smith contra Miller. But upon occasion of this debate, most of the Lords thought an Inferiour Judge might proceed upon the Lords arrestment, passing in the Kings name, and there is not wanting ground to think that an Inferiour Judge may proceed upon the arrestment of another, seing all of them proceed alone upon the Kings authority, as if the defender change his Domicile. An arrestment made by the Inferiour Judge, where hedwelt before, ought not to be ineffectual, nor he necessitate to pursue before the Lords, as was found in an arrestment before the Admiral, March 22- 1637. [...] contra Gray. Yet an arrestment upon the Precept of an Inferiour Judge, was found null, because execute without the Jurisdiction of that Judge, although the party in whose hands it was made, dw eltwithin the Jurisdiction, Decem. 5. 1671. Mr. Andrew Miller contra Orsburn, Crawford and the Laird of Bishoptoun. The reason hereof was, no execution is valid, Extra tertitorium Judicis, which doth not conclude against the arrestment of an Inferiour Judge, made within his own Jurisdiction; but that it would be sustained against that party in any Process before the Lords, or any Superiour having cumulative Jurisdiction, or even before a Co-ordinat or Inferiour Jurisdiction, in which, if any question were made, the Lords by Letters of supplement, would readily auctorize the same.

Arrestment requires no other solemnity but the execution thereof, by him to whom the Letters are directed, which requires the like requisites as other executions do: of which hereafter.

25. There hath been an extraordinary form of arrestment, sometime used and sustained, whereby Creditors did arrest the Goods of their Debitors in the Debitors own hand, and thereupon did pursue such as bought from them, whereof there is an instance observed by Dury, Jan. 10. 1624. betwixt the Laird of Innerweek, John Wilkie and the Lady Bothwel, wherein Innerweek having arrested a parcel of Wool in the Lady Botwels hand, upon a debt owing by her to him, and she having thereafter sold the Wool to John Wilkie, who payed the price, he was decerned to make forthcoming the true worth of the Wool to Innerweek, although nothing appears instructed, that there was any Collusion betwixt the Lady Bothwel and Wilkie, but what may be conjectured from the Lords allowing the price of the Wool. This kind of arrestment hath not been drawn in example, for I have found no instance of it observed by any since that time; and as the instance observed, is but the arrestment of one particular, if it were to be allowed it might be extended to more particulars, even to all the moveable Goods and Means of the debitor, and certainly it would be ordinarly so used; as straitning the debitor more, that he could dispose of nothing, but to the use of the arresting Creditor, and so it would become an Inhibition in Moveables, yet much more inconvenient, because Inhibition must be published at the Mercat Cross, and registrat; whereas arrestment may be done most privatly before two witnesses: And though Inhibitions at first were designed to disable debitors, not only to dispone or dilapidat their Lands or heritage, but their Moveable Goods, as the stile of Inhibition doth still express, yet experience did early show, that there was a necessity for current course of Moveables, and that it could not consist with Traffick and Commerce, that no man could securely buy Moveables without inspection ofregisters; and therefore, Inhibitions have now no effect as to Moveables, much less should arrestment of the debitors moveables in his own hand, which could with no reason affect the moveables, when disponed for a just cause to third parties, [Page] [Page] [Page] much less could it infer breach of Arrestment against the buyers after Arrestment; and all the effect it could have, were only to superad upon the Debitor, the penalty of breach of Arrestment thereby to Confiscat all his Moveables, whereas there are ordinarly liquidat penalties agreed upon, of consent of Debitor and Creditor.

26. Arrestment being a personal Prohibition, used against him in whose hands the Arrestment was made, if he die it is not extended to his Successors, but they may dispose of the Goods or Sums Arrested, unless it be renewed in their hands, in the same manner as an Inhibition, which is also a legal Prohibition, extending to Heretable Rights as Arrestment doth to Moveables; but though the Debitor whose Goods or Sums were Arrested die, the Arrestment ceasseth not, but the debt being established against his successors, Processmay proceed upon the Arrestment, Feb. 19. 1669: Isobel Glen contra John Home. Jan. 22. 1681. James Riddel contra Mr. William Maxwel.

As to the effect and extent of Arrestments, they can only be laid on, and affect moveable goods or moveable debts, and can only be made use of for satisfying of moveable debts (what rights are moveable and what heretable, hath been shown in the Title real rights) wherein by heretable, not only these are understood, which are properly so by Infeftment, but also such sums and deeds, as are by destination such, as bearing obliegement for Infeftment or Annualrent, even though the Bond did bear no Clause of requisition; yet it did bear Annualrent, Arrestment, or Appryzing, had been found null thereupon, unless it had been made moveable by a Charge, July 20. 1622. John Cranstoun contra Laird of Eastnisbit. The like, Hope Obligations, Alexander Morison contra Creditors of John Richardson. John Cranstoun contra Laird of Lugtoun, Yet the contrary hath also been found in Bonds, bearing Annualrent without Clause of requisition, that Poinding, Arrestment and Appryzing, might proceed without a Charge, July 10. 1629. Laird of Clakmannan contra Barronnie. Jan. 25. 1642. Johnstoun contra James Lotch: But the matter is now cleared by the Act of Par. 1644. cap. 41. renewed, Par. 1661. cap. 51. declaring that all Bonds and Sums, though bearing Annualrent, are Arrestable at the Instance of any Creditor of that person, if Infeftment hath not past actually thereupon; yet a sum whereupon Appryzing had followed, was found not to be Arrestable by the Appryzers Creditor; and therefore, an Appryzer from that prior Appryzer, though posterior to the Arrester, was preferred Feb. 22. 1666. Lockhart contra Lord Bargonzie. And though they do not so clearly determine upon what Bonds Arrestment may proceed, as against what Bonds or sums it may proceed: yet it bears equally for satisfying of any debt, which though it cannot be extended to Heretable debt, upon which actual Infeftment, is till they be made moveable, yet ought to be extended to all other moveable debts, upon which Infeftment hath not followed, that a pari, as such debts are Arrestable without a Charge, so may they be Arrested for satisfying of the like debt, without a Charge upon the debt to be satisfied, more then upon the debt arrested for satisfying thereof.

27. Though no Heretable right, upon which Infeftment hath past, can be arrested till it be made Moveable: Yet the rents and profites thereof, are Arrestable and moveable, December 15. 1630. Ogilbie contra Lord Ogilbie.

[Page]28. And so are the bygones of an Annualrent, constitute by Infeftment, for these bygones are as to all effects moveable, though the right it self is heretable, as Fruits falling from a Tree are moveable, though the Tree be not.

29. Yea, Arrestment of Annualrents, or Mails and Duties, is effectual, though laid on before the Term, if the Debitor to whom they belong were not denuded thereof before the Term, the Term being current when it was laid on, March 28. 1624. Brown contra Jan. 15. 1628. Hamiltoun contra Falconer: where it was found that the Arrestment did only extend to the Term current against an Assigney, though not intimating till long after, seing he was a singular successor, and had attained payment of some Terms Annualrent prior to the Arrestment; but it will not extend beyond the subsequent Term, where the Rent is payed Termly, as in silver rents, Hope arrestments, Mr. Roger Mowat contra Walter Dick. Otherways it will extend to the whole year, in which it was laid on, as in Ferms, which are payed together, Ibid. Thomson contra Captain Wishart. Yea, an arrestment of rent laid on before the Term, was preserred to a posterior appryzing, not having Infeftment before that Term, July 2. 1667. William Litster contra Aitoun and Slich. And an arrestment laid on, currente termino, was preferred to a posterior assignation to that Term, July 27. 1673. Creditors of Andrew Scot compeating, arrestment is also valid, being laid on upon sums before the Term of payment, Feb. 21. 1624. Brown contra Laird of Johnstoun, eodem die, Rentoun contra Atcheson. But in all these, the execution was superceded till the Terms of payment of the arrested sums were payed, July 3. 1628. Scot contra Laird of Drumlanrig. Yet arrestments ought not to be laid on for satisfying of debts, whereof the Term of payment is not come; Therefore, such an arrestment was excluded by an arrestment posterior, which was laid one for satisfying a sum, whereof the Term of payment was come, when it was laid on, July 17. 1678. Lord Pitmaiden contra William and Robert patersons. Yea, it was extended to the price of Lands, though laid on before Write, but after agreement, Hope arrestment Lord Dalhousie contra

30. Neither was arrestment effectual, being only laid on in the hands of the debitors Factor, and not in their own hands for making the same forthcoming for payment of his debt to whom it was due; because Factors are not Debitors but their Constituents, Hope arrestment, William Muirhead and Mcmichael contra William Wallace.

31. Arrestments have never been extended to future Debts or Goods for arrestments, both by their name and nature, do only stop the Debitors goods or debts arrested, to remain in the same condition they were in when arrested, till Caution be found, or Sentence be obtained for making forthcoming. But Inhibitions do prohibite the party inhibite, and whole Lieges to buy from the person inhibite, till the debt be satisfied, which is absolute, and extends against all buying or blocking with the inhibite, whether pro acquisitis, or acquirendis.

32. Arrestment orderly laid on, renders the thing litigious, so that an Assignation made thereto, though to a Creditor thereafter, hinders not the arrester to prove the debt by the Cedents oath, Decemb. 10. 1623. Dowglas contra Belshes.

[Page]33. As to the second point proposed, concerning the lousing of arrestments, it hath been said before, that the intent of arrestment, is the satisfaction of the arresters debts, by the action, for making forthcoming, which is a judicial Assignation to him, of that which is arrested, or otherways by security, when he whose goods or sums are arrested, findeth Caution, and thereby louseth the arrestment, which is done by supplication to the Lords, and their deliverance, which of old, gave warrand to the Messenger to receive Caution, and louse the arrestment; but is well amended by the Act of Par. 1617. cap. 17. annulling that way of lousing arrestments, and ordaining Caution to be found in the Books of Session, before giving out of the Letters, which are not effectual, when the arrestment proceeds upon a Decreet; and therefore, the Letters express the arrestment to be loused, unless it proceed upon a Decreet.

34. But if the arrestment proceed upon production of the principal Bond unregistrate, there being then no Decreet of Registration, it may be loused, Feb. 7. 1665. David Graham contra George Bruce and Doctor Martine: Or if the Decreet be turned in a Lybel, June 30. 1675. James Murray contra John Hall: Or if the Arrestment was laid on after the Decreet was suspended? Or if the Term of payment of the sum, for which it was laid on was to come, Nov. 4. 1675. Mosman supplicant: Or upon Consignation of the sum arrested for, June 18. 1675. Hamiltoun supplicant: Or when the Decreet upon which the arrestment was raised, was turned to a Lybel, June 30. 1675. James Murray contra John Hall. But when the arrestment was upon a dependence, though the Decreet proceeded upon the dependence before the lousing of the arrestment; yet it was found, the arrestment was loused upon Caution, June 9. 1674. Sibbald of Rankillor contra Sibbald his Son.

In lousing arrestments, no Juratory Caution was admitted, July 16. 1661. Colledge of St. Andrews supplicant.

35. Arrestment being loused, the party in whose hands it was made, is fred of the action following thereupon, and may safely pay the sum, or deliver the goods arrested to the louser of the arrestment, June 21. 1626. Balmerino contra Lochinvar, Hope arrestment, Gordoun contra Brown. But if the sum remain unpayed, the Arrester may proceed against the person in whose hands he arrested, Feb. 7. 1665. Graham contra Bruce. In this case the Debitor who loused the arrestment, had granted Assignation to the Debt arrested; yet the arrester was preferred to the Assigney, in respect the Caution is insufficient ordinarly, which comes in the place of arrestments.

Upon arrestment there ariseth two actions to the arrester, the one is against the Cautioner, found in lousing arrestment; the other against the person in whose hands the arrestment was made.

36. The other action for making sums or goods arrested forthcoming, is ordinary; and for understanding the requisites of it, it would be adverted, that arrestment may be raised upon production of the principal bond, without Decreet or dependence, March 5. 1628. Binnie contra Ross: Feb. 7. 1665. Graham contra Bruce. Hope arrestment, Thomson contra Mcmorran. Secondly, It may be raised upon an action depending. Thirdly, Upon a Decreet obtained against the Debitor, whose sums are arrested: But there can be no process for making forthcoming, till the debt be Liquidat and established by a Decreet at the Arresters Instance, against him whose goods or sums are arrested, [Page] or against some representing him, which was so done, though the principal Parties Advocat compeared and consented, March. 13. 1628. Somervel contra Herriot. Hope transferring, Laird of Lamingtoun contra Sir James Durham. And if that party dy before the Decreet for making forthcoming, the Decreet must be transferred against these representing him: But if none will enter to be Heir, or Executor to him, but renunce; yet the party that might succeed, must be called Cegnitionis causa, Spots. de haereditariis actionibus, Murray contra Dalgleish; and therefore, when the arrestment is upon a principal Bond, or upon a dependence, the Bond must be regisrate, or Decreet obtained thereupon, or upon the dependence before the party in whose hands the arrestment was made, be oblieged to answer the party whose sums and goods are arrested, must not only be called in initio litis, but to all the dyers of the Process, March. 17. 1637. Captain Stuart contra Iohn Inglis. In this Process the arrestment was not found instructed by extracting the Horning, containing arrestment, and of the Executions, but that the principals of both must be produced, Spots. arrestment, Stevin Boid contra Wilson.

37. As to the Exceptions competent in this action; First, it is not competent to the party in whose hands the arrestment was made, to alledge payment made by the party whose Goods or Sums are arresied, that being justertij, competent only to that party himself who must be called, Decem. 21. 1621. Mr. Patrick Hamiltoun contra Dunlop. Neither will it be relevant to either party to alledge the debt; whereupon the arrestment is raised, is suspended; but the reason of suspension must be repealed by way of defence, Ian. 25. 1642. Major Stirling contra Mr. Iames Aikenhead. But it will be relevant to alledge that the arrestment is null, as being execute upon the Sabbath day, Feb. 3. 1663. Charles Oliphant contra Dowglas: Or that the arrestment not being upon a Decreet, was loused; and that the sums are payed: It is also relevant, that the goods arrested were lawfully poynded by another Creditor of the party to whom they belonged, because arrestment is but a begun incompleat diligence, and doth not transmit the right, till Decreet be obtained thereupon: But others using more compleat diligence will carry the same, Iune 5. 1611. Wright contra Thomson and Archibald Dick, which was sustained, albeit the arrestment was laid on for Excise, Decem. 1679. Forrester contra the Tacksmen of the Excise of Edinburgh: Yea, though the party in whose hands arrestment was made. suffered the poynder to enter his Cellers, and poynd the goods arrested, March 11. 1635. William Dick contra Spence and Thomson. In this case the haver voluntarly opened his Celler by paction with the poynder which was not respected, seing he refused not entry to the arrester, if he had demanded it, Feb. 12. 1636. Lesly contra Lady Ludquharn. But this exception will be elided by this reply, that the party in whose hands the arrestment was made, colluded with the poynder, and voluntarly exhibited the goods arrested to be poynded, not being passive therein, but active to prefer the poynder, as was formerly found relevant, Hope arrestment, Doctor Kinloch contra Halyburtoun. Iames White contra Robert Blackater. Ian. 20. 1672. Iohn Bell contra Fleming and Watson. It is also a relevant Exception, that the ground of the arrestment or the sum arrested was Heretable, before the Act of Par. 1664. Or since that Infeftment hath passed upon either, unlessit be made moveable; and therefore, arrestment being laid on upon sums consigned, for a redemtion was not found effectual till Declarator of redemption pass, which only makes the sums moveable; and during the dependance of the redemption, these sums cannot be arrested, as belonging to the user of the Order, because they come in place of the Lands redeemed, and can belong only to the Wodsetter, [Page] or Appryzer, or any having right from them to the Lands Wodset; but after Redemption, the sum consigned may be arrested and made forthcoming for payment of the Wodsetters debt, Spots. Arrestment, Hepburn contra Hay. It is also a competent exception, that the thing arrested is a proper Aliment, Expresly Constitute, and not exceeding the measure of Aliment, Novem. 19. 1622. Thomas Donaldson contra Kirkaldie and Barclay. And the Fee of a Servant was not found arrestable, in so far as it was necessary for the service he was in, but only for the superplus, more then was necessary for his Aliment in such a service, July 9. 1668. Heugh Begg contra Robert Davidson Preceptor of Heriots Hospital. The like holds in the Kings Pensions and Fees of His publick Ministers, Lords of Session, and others which are not arrestable in the Thesaurers hands by Act of Sederunt, 1613. and was so found in the case of Sir Robert Murray Justice Clerk, a part of whose Sallary was arrested, Feb. 8. 1662.

38. When pursuits are for making arrested Goods forthcoming, which are not liquid, the party in whose hands arrestment was made, will not be decerned for making forthcoming a liquid sum for the price: But if he offer the Goods ipsa corpora, the Decreet will contain a Warrand to the Magistrates of the place to rope the Goods arrested, that the price thereof may be delivered to the arrester, Novem. 12. 1680. Stevinson contra Sir John Paul.

Appryzing and Adjudication of Heretable sums, whereupon Infeftment hath not followed, being little in use, though competent since the Act of Parliament, 1644. We shall say no more of it in this place, but as we have considered these several ways of Transmission of Personal Rights severally; we shall now consider them joyntly as they fall in competition, for preference amongst themselves, and each with others.

39. In these Competitions it must be considered that arrestment doth constitute no Right in the Arrester, but is only a legal Prohibition to alter the condition of the thing arrested, and to pay or deliver the same to the Arresters debitor; but that it may remain in his hand for satisfaction of the debt arrested for: And it is only general arresting all sums of Money or Goods, in the hands of the party in whose hands it is laid on, due or belonging to the arresters debitor, for satisfying of the debt whereupon the arrestment proceeded; and therefore, cannot be of more effect, then a denunciation of Lands to be appryzed, or a Citation on a summonds of Adjudication; and therefore, doth Constitute or Transfer no Right, but is a legal diligence, rendering the subject matter arrested litigious, so that the party in whose hands the arrestment is made, cannot alter any sums or debts belonging to that debitor in prejudice of the debt arrested for, until the Arrestment be loused, and Caution found for the debt or Decreet, absolvitor or declarator be obtained, excluding the arrestment: And if he do any thing in the contrary, it infers breach of Arrestment, confiscating his Moveables, and he is lyable, as if the sums or goods remained in his hand, pro possessore habetur qui dolo desiit possidere: And though the Arrestment have no intimation to the Arresters debitor, or any of his Creditors; yet if any of them recover the sums or goods arrested by the Collusion or neglect of the party, in whose hands arrestment is made, he will still remain lyable; and if he have not acted bona fide, he will incur the breach of arrestment; as if by Collusion and gratification, he or his procurator (whose deed [Page] will be presumed his) oppose the arrester, and procure delay to compear, and depone and acknowledge the debt, or he holden as confest to another arrester; neither will he be liberat by offering his oath, that he gave no such Warrand, for the imploying a Procurator is a sufficient Warrand for all the common course of Process, and requires no special mandat: Yea, if he pay or deliver to any other arrester, or even be poynded upon a Decreet at his instance, he will not be liberate, seing he ought to have raised a Process of multiple poinding, calling the debitor and all the arresters or assigneys to dispute their several rights, that once payment to the party, found to have best right, might liberate him; yet if he have payed, he does thereby without a direct assignation, come in the place of the party to whom he hath payed; and if he can show that parties right, is preferable to the arrester insisting, he will be heard thereupon.

And unless it be found that he proceeded warrantably, not only will he be decerned to make forthcoming, though it infer double payment; but he to whom he payed unwarrantably, will be compelled to restore and satisfie the arrester, the subject having been litigious by his arrestment, before the other party recovered the same, albeit he have recovered payment, bona fide, without any fault in him, but by the litigiousness of the subject; For payment made bonafide, with a preferable Right, relieveth only the payer, who was or might have been compelled to pay, being conscious of no other Right: For it is not relevant for the party obtaining payment, bona fide; nor will that ground of Law secure him, qui suum recipit, licet a non debitore non tenetur restituere, which holds only in voluntary payments, a non debitore, and where the subject is not litigious.

Upon the same ground, albeit the party in whose hands arrestment is made, collude not, but do equally passive, or equally oppose the Competitors: Yet if the debitor collude and propone Defences against some of the Competitors, and not equally against all, and thereby procure delay, and Terms to prove, if he succumb, though another pursuing in a several Process, before the same or different Judge, obtain Decreet and payment thereupon, yet he will be necessitate to refound, if he had not a preferable Right.

41. If the party in whose hands arrestment was made, appear and offer to depone, if the pursuer suffer him to depone generally, that the time of the arrestment he had neither Goods nor Sums belonging to the Debitor in his hands, the arrester will not, ex intervallo, obtain him to be more particularly interrogate, ad vitandam frandem & perjurium; but if before, or at his oath given in general, there be special interrogators offered by the party or the Judge, whether at any time in his hands, sums or goods belonging to the arresters Debitor, and how, and when he satisfied or delivered the same, he will be holden as confest, unless he depone particularly that he be not his own Judge, as to the time when he was due, or when he ceassed to be due; For he may pretend or imagine, that the time of the arrestment, he was not debitor, because he had payed to an Assigney, whose Assignation was prior to the arrestment, albeit intimation was not prior, though he had promised payment before intimation, yet he could not thereupon have been compelled to pay it, if before payment an arrestment had interveened, because his promise could be but understood [Page] to be according to the parties Right' to whom he promised, which he could not quarrel; but if another did exclude that party, he could not be lyable to double payment, albeit he had given a Bond of Corroboration, unlesse the Assigney had offered to intimate, and he had hindered the same, as unnecessary, and promised payment; for then through his own fraud or fault, he would be lyable to pay both parties; and therefore, the promise of payment was only found relevant to exclude an Arrestment, after the promise, to be proven by the Oath, or Write of the Arrester, and not of the Promiser, or party to whom he promised; yet if the Promise were not so proven, and thereby the Arrester were preferred; the party promiser, in whose hands the Arrestment was made, was declared free of the promise, unless there had been Transaction, or that the promiser had undertaken the hazard, Mr. James Elphingstoun contra George Home and the Laird of Steonhope, December 11. 1674.

22. That which Transferreth the Right, is neither the Arrestment, the Citation, nor any thing in Process, but only the Decreet for making forthcoming, which is in the same conditions, as to Subjects, arrestable as Appryzings, or Adjudications are to others, which do not import full satisfaction of the Debt, and do not fully liberate the Debitor, but that other diligences may be used for the same debt, unless he possesse till the legal expyre; and in the same way after Decreet, for making forthcoming, the Arrester may use other Diligences, but in competition with other Creditors using diligence, he may not exclude them and keep up his own diligences, but hath his option thereof.

Seeing the Arrestment maketh the Subject Arrested Litigious, it hath the common effect necessarly introduced by Law, in re Litigiosa, that Inchoat diligence cannot be excluded, either by the voluntary deed of the Debitor, or by any legal diligence posterior, unless the user of the first Inchoat diligence become negligent, Nam vigilantibus, non dormievtibus jura subveniunt.

The application of these Grounds will easily clear the preference in the competition of Arrestments with Assignations, or of Arrestments with Arrestments.

43. And as to the Competition betwixt Assignations and Arrestments; an Assignation duely intimate, is a full and compleat Transmission of the Right assigned, if by its nature it be assignable, and thereby the right of the Cedent ceasseth, and the Assigney becomes Creditor, and hath no necessity of any further diligence to compleat the Right: Therefore no posterior Arrestment will be preferred to an Assigney, if the intimation be before the Arrestment, which is accounted, not only by dayes, but by houres: But if the intimation and execution of the Arrestment be both in one day, and express no hour, if the Arrester be not negligent, they will come in, pari passu, because no priority doth appear, Spots. Debitor and Creditor, Mr. Cornelius Ainsly contra [...] Edward, which will hold in the competition of diverse Arrestments, or diverse Assignations, where no priority doth appear; for we have little respect to the anteriority [Page] of debts in competition, but to the anteriority of diligence, as is evident in Appryzings and Adjudications.

44. But if the Arrestment be prior to the Intimation, the Arrestment is preferable, if it fail not in diligence; and therefore, an Arrestment was preferred to an Assignation intimate the same day, but two hours thereafter, January 30. 1629. Davidson contra Balcanquel: Yea, an Arrestment upon a dependence, was preferred to a posteriour Assignation, though intimate half a year before sentence, upon that dependence, Hope Assignation: It must be in the discretion of the Judge to determine, when Arresters fail in diligence.

45. And as to Intimations, they are inquestionable, if done by Instrument, or by Charge of Horning, at the instance of the assigney upon the assignation, because the Letters bears, that the assignation was produced to the Judge, passer of the Bill: and there is little doubt, that assignations attaining effect by Possession, will be in the same case, as if intimate by Instrument: Or if Bond of Corroboration be obtained upon the assignation, or Discharges instructing payment of a part of the debt assigned: Or if in Process, the Assignation be Judicially produced; but the case is not alike, nor have I observed it decided, if Citation before the Assignation be Judicially produced, will exclude an Arrester, medio tempore.

46. As to the competition of Arresters, the first Arrestment, not failing in diligence, is preferable; and therefore, the first Arrester was preferred, though prior but by one day, though both obtained Decreet upon the same day, and both used full Diligence, February 1. 1666. Collonel Cuninghame contra Layel. And likewise, an Arrestment by Letters from the Lords of Session, and first Citation thereupon, being insisted in without negligence, was preferred to a posterior Arrestment, though obtaining the first Decreet, before a Sheriff, in respect that Decreets before the Lords, cannot be so summarly obtained, especially, seing they must abide the course of a Roll, November 23. 1677. Sir Robert Montgomery contra Alexander Rankine. And a posterior Arrestment was preferred to a prior, in respect the Term of payment of the sum, for satisfying of which, the first Arrestment was laid on, was not come at the time of the first Arrestment, but before the second Arrestment was laid on, the Term of payment of the sum, for which it was laid on was past; albeit the Terms ofboth sums were past before the competition came before the Lords by Advocation, July 29. 1670. Charles Charters contra Cornelius Neilson: July 17. 1678. Lord Pitmaiden contra William and Robert Patersons. And for the same cause, Arrestment upon a Decreet may be preferred to a prior arrestment upon a dependence; because the ground of the former hath paratam executionem: and not the ground of the latter: Yet an Arrestment upon a Dependence was preferred to a posteriour Arrestment, obtained upon production of a Registrable Bond, before it was Registrate, and so was not raised upon a Decreet, Hope Arrestment, Thomson contra Memorran. And arrestment laid on after the Term of payment of the debt arrested, was preferred to a prior arrestment, laid on before the Term of payment upon the debt arrested, [Page] July 5. 1673 Birnie contra Mowat and Crawfoord. And an arrestment laid on verbally by a Towns Officer, was excluded by a posterior arrestment, having an Execution before witnesses, albeit the verbal execution was the custom of the place, July 19. 1678. Warrock contra Brown. And a first arrester was not excluded for want of diligence, but was preferred to a posterior Arrester, who had brought his Cause to be concluded, at which time the prior arrester compeared, and produced an assignation, after his arrestment from the common debitor, whereby he needed no further diligence, July 19. 1673. Birnie contra Crawford: This [...] was found no voluntary Gratification, seing it preferred the first legal diligence: And upon the same ground, an Assigney by a Bankrupt, was preferred to a posterior Arrester, in respect the Assigney had used the first diligence by Horning, before the arrestment, Novem. 20. 1677. Bishop of Glasgow contra Nicolas and Brown.

TITLE XXIV. Dispositions, Where, of Resignations, in favorem, Appryzings and Adjudications of Real Rights.

[Page]

1. Dispositions of Properly carry virtually all Lesser Rights.

2. How superveening Rights, belonging to Authors, belong to their singular successors.

3. Dispositions descrived.

4. How dispositions are accomplished in equity.

5. How by the Law of the Romans, and other Civil Nations.

6. Possession accomplisheth reall Rights.

7. Properly of Moveables is presumed from Possession.

8. Resignation in favorem.

9. Dispositions or Assignations, by these who have no Right with consent of these who have Right, how far effectual.

10. Procuratories or Infeftments of Resignation, after fourty years possession by Charters, needs not be produced.

11. Infeftments on Resignation carries any lesser right in the disponer, though not exprest.

12. The effect of resignations accepted by the Superiour, before Infeftment follow thereon.

[Page] 13. Superiours are not oblieged to receive the singular Successors of of the Vassals after Infeftment expede, though it bear to the Vassals Heir and Assigneys.

14. Appryzings can only proceed on liquid sums.

15. Appryzings reaches al Heritable Rights though not provided to Assigneys.

16. Appryzings carry all personal Rights, without Intimation.

17. The rise of Infeftments upon posterior Appryzings.

18. Infeftments may be obtained summarly upon Appryzings after the debitors death.

19. The effect of Appryzings as to Nonentry, Ward, and Liferentescheat.

20. The denunciation whereupon Appryzing follows, renders the matter litigious, and excludes posterior voluntary Rights.

21. Competition of Appryzings.

22. The effect of Appryzings at the Instance ofSuperiours against their own Vassals.

23. The effect of Appryzings, as to Removings, Mails, and Duties.

24. Allowance of Appryzings.

25. Whether Superiours must receive appryzers, not instructing their authors Right.

26. The quantity of the Years Rent due to Superiours for entering Appryzer.

27. What course is competent against contumacious Superiours.

28. The Legal Reversion of Appryzings.

29. Appryzers may use other diligence for their payment, though the Apprizings were expired.

30. Nullities of Apprizings.

31. Modification of exorbitant Penalties in Apprizings.

32. Apprizing sustained without a charge for the sum.

33. Apprizing sustained, though the Letters and Execuitons were blank as to the Lands, the Messenger who denunced, being Judge to the Apprizing, in which they were filled up, which was a more solemn Execution.

34. An Apprizing sustained without producing the Letters of Apprizing, being long before, but the Instructions of the debt were found necessary to be produced within Prescription.

35. An Apprizing sustained, though by dispensation at a private place, and the Court of Apprizing adjourned.

36. An Apprizing of Rights, generally preferred to a posterior Apprizing of the Right in special, being an Annualrent.

37. Apprizings become extinct by payment, and the debitors Right revives without new Investiture.

38. In what cases Apprizers must possesse and how they are countable

[Page] 39. What alterations in Apprizings are Introduced by the Act of Parliament, 1661. cap. 62. as to the indurance of the Legal, and coming in pari passu.

40. Now Apprizings coming in the person of the Debitors appearand Heir, are satisfiable from him or his Trusties.

41. How Apprizings against parties charged to enter Heir, are redeemable.

42. Legals run not against Minors.

43. Apprizers continuing to possess after the Legal, can use no other diligence, but the sums are thereby satisfied, though a part of the Lands were evicted, the rest being worth the whole sum.

44. The rise of Adjudications.

45. The Form of Adjudications on Renunciations to be Heir.

46. Why Adjudications past at random, and may now be put to Instruct some Interest in the Debitor.

47. What Rights are affected with Adjudications.

48. Superiours must receive Adjudgers, paying a years Rent, unless they pay the Creditor, and then the Superiour will have no years Rent.

49. How Adjudications are Redeemable.

50. Adjudications may be for the appearand Heirs own debt.

51. How Adjudications become Extinct.

52. The form and effect of Adjudications to perfect Dispositions.

53. The form and effect of the partial and total Adjudications introduced by the Act of Parliament, 6. of September, 1672.

[Page]A DISPOSITION may, and sometime doth signifie the alienation of any Right, whether real or personal, so the stile and translations ordinarly bears, the assigney to transfer and dispone, as assignation is sometime extended to the disposal of real Rights, which are srequently provided, not only to Heirs, but to Assigneys; yet these Terms are so appropriat and distinguished, that a Disposition is applyed to the alienation of real Rights, and Assignation of personal Rights.

1. In both dispositions and assignations, the Disponer or Cedent is called authour, and the acquirer is called the singular successor, and in both, this common Brockard takes place, jus superveniens authori accrescit Successori, that is, what ever Right befalleth to the author after his Disposition or assignation, it accresseth to his Successour, to whom he had before disponed, as if it had been in his Person when he disponed, and as if it had been expresly disponed by him, whence ariseth the distinction; betwixt dispositions and assignations, express and implicite, or tacit when the Right is not expresly disponed, but tacitely or virtually, as he who dispones the property, hoc ipso, doth tacitely and virtually dispone any lesser Right, as a Reversion, Servitude, Liferent, though no particular mention be of these, according to another Rule of Law majori inest minis, so ary person Infeft in Property, and his Seasine Registrat, will have right to a Reversion, if no more was in the Disponers Person; albeit assignations to Reversions require special Solemnities, as to be registrat in the Register of Reversions; yet the Registration of this Seasine will be equivalent: so a Liferent Right, granted by him, who had only right of Tack, was found to carry the right of that Tack, during the Liferenters life, Hope Liferents, Laird Rossyth contra his Tennents. The like of a Back-tack, Ibid. Lady Boyd contra her Tennents, Stuart contra Fleming. The like found of a Liferent, which carried the Right of a Reversion, quo ad, the Liferenters life, Decem. 5. 1665. Beg contra Beg.

2. There is no question of this accression, when the disponer disponeth for all Right he hath had, or shall acquire, which is a general assignation or disposition, of any Right superveening, if the debate fall betwixt the disponer and successor, there is also little question, if the Right disponed have exprest or implyed absolute Warrandice, as being for a Cause Onerous: In which case, if the question be betwixt the disponer and successor, he who disponed for an equivalent Cause, importing his acknowledgement of having an absolute Right, cannot cloath himself with any posterior Right, which would infer warrandice against him, if it were in another person; and therefore, that personal objection excludes him, it being in his own person: Neither is it questionable, that if the Disposition or Assignation be limited, as being only to a particular Title, or generally, for any Right the Disponer hath, or bearing [Page] warrandice from his own Fact and Deed, then if he acquire a posterior Right, he may make use thereof against that person to whom he disponed, much more may any singular Successor of his; and therefore, in the case decided, July 19. 1664. betwixt Dam Elizabeth Dowglas and Sir Robert Sinclar her Spouse contra the Laird of Wedderburn, anent the Teinds of Kello and Kimmergem, whereof the Earl of Home, common author, gave a Tack to Wedderburns predecessor, with warrandice from his own deed; and any right the Earl then had being reduced, he did thereafter acquire a new Right from Coldinghame, and thereupon granted a Right to William Dowglas of Evla, to whom the said Dam Elizabeth Dowglas is: heir, which supperveening Right was found not to accresce to Wedderburn, to defend his Tack, seing he had not absolute warrandice, but from his own deed only: But the main question is, when the contraversie is not betwixt the author and the party to whom he dispones, but betwixt the singular Successor of that author and that party to whom he had disponed before, in which case the personal objection upon the warrandice, hath no place; and oftimes the right superveening, requireth special solemnities, and cannot be transmitted without these, as Resignation, Confirmation, Seasine, yet even in these cases, reason and the Lords Decision extended the rule so, that the superveening Right, ipso facto, accresces without any new solemnities; but if the necessar solemnities have preceeded when there was no right, whensoever the Right superveens, it is drawn back, as if it had been in the time of the former solemnities, fictione juris; and so if a Superiour acquire the Right of Forefaultry of his Superiour, the same ipso facto, accresceth to the sub-vassals, and cannot be made use of against them, Spots. Conjunctfees, Malcolm Crawford contra Mordistoun. The like was found, Feb. 15. 16. 1665. Boid of Penkil contra Vassals of Carsluth: In which case the Vassals were ordained to pay their share of the Composition of a Ward: But where the superveening Right befell to the Authors appearand Heir, and was by him disponed to another, before he was entered Heir; in that case, the Authors appearand Heir, obtaining gift of the Liferent-escheat of Lands disponed to Vassals, the said Liferent was not found to accresce to the Vassals, because the appearand Heir was denuded thereof, in favours of another, before he was Heir, July 5. 1611. James Skeen contra Vassals of Athol; this Rule was so far extended, that a supervenient Right, by Decreet of Reduction and Improbation acquired by Swintown, having right to the Lands of Brimstoun, was found to accresce to the Earl of Lauderdail, being restored, July 13. 1664. Earl of Lauderdale contra Heretor of Wolmet. But where a person having a disposition of Lands, did Insest another in Liferent himself never being Infeft, did assign the Disposition to a third partie, who was thereupon Infeft, that Disposition was not found to accresce to the Annualrenter, because his Author was never Infeft thereupon, June 29. 1676. James Brown contra Smith.

It is the common opinion, that if a party grant Infeftment, before he be infeft himself, and he thereafter Infeft, it accresceth to that party whom he Infeft before, if the question be betwixt them, but I have not observed it directly decided, quid juris; in these [...], if a person not infeft, do give Right to two parties, and thereafter be Infeft, to which of the two his superveening Infeftment will accresce: Or if he Infeft one, when he is not Infeft, and thereafter another, when he is Infeft, which of these will have right; but it seems the first Infeftment in both cases will be preferred, because she common Authors Right accresceth, ipso facto: Yet if the common Authors Infeftment proceed upon the diligence of any party, it may seem the same will only accresce [Page] to him who is the procurer of it; yet even in that case, it was found to accress to the first Right, with absolute warrandice, June 21 1671. John Nielson contra Menzies of Enoch. But now to return to what is special in Dispositions.

3. A Disposition is the transmission, or conveyance of real Rights from the Disponer to his singular Successor, not in contemplation of the Disponers Death, for such are comprehended among successions, from the dead as Legacies, Donations, mortis causa, &c.

A Disposition is said to be a conveyance, and so it is taken, not for the Dispositive act of the Will only, but whatsoever else is requisite to compleat the conveyance, as Tradition, Resignation, Possession, though a Disposition is oftimes taken as distinct from these, for the more clear uptaking of conveyances of real Rights; Consider first, what is requifite to transmit them by the Law of Nature, without any positive Law or Custom: and next, what by these is requisite to transmit the several Rights.

As to the first, it hath been shown in the Title (real Rights) how far Dominion and Property is competent by the Law of rational Nature, and it cannot be doubted, but that though there were no positive Law nor Custom, that the rational Creature is naturally instructed how to Dispone and Alienate his own, the power of Disposal being the Characteristick of Dominion, which is natural to man, being created Lord of the Creatures.

The question then is, by what act men may naturally exercise the power of Disposal, which can be no act of the Understanding, that being only contemplative, and nothing active nor operative, for Constituting or Transmitting of Rights, but it must needs be an act of the Will, for by it, Rights are both acquired, Relinquished and alienate: There may be three acts of the Will about the Disposal of Rights, a resolution to Dispone a Paction, Contract or Obligation, to Dispone, and a present will or consent, that that which is the Disponers, be the Acquirers. Resolution terminats within the Resolver and may be dissolved by a contrary resolution, and so transmits no Right; Paction does only Constitute or transmit a personal Right, or Obligation whereby the person oblieged may be compelled to transmit the real Right It must needs then be the present dispositive will of the Owner, which conveyeth the right to any other, which is exprest by such words, de presenti, Titius Disponeth, Alienateth, or Annualzeth, Gifteth, Granteth, Selleth, &c. which connot properly import an Obligation, having its effect in the future; though there may be Obligations consequent as to delivery, warrandice, &c. But these Terms do expresse something presently done, and not ingaged to be done, and so can be nothing else but Alienation or Transmission of the Right itself.

That the Dispositive will of the owner alone, without any further, is sufficient to alienate his Right, without Delivery or Possession, is evident in personal Rights, wherein the Dispositive Clause of Assignations or Translations is sufficient; Intimation or Possession being introduced for expediency in some cases, by our Custom, that the dispositive will is also sufficient to transmit real Rights; it appeareth, because the will alone is sufficient to retain, not only Rights, but even Possession it self, though there be no Corporeal act exercised therein; and therefore, the act of the will alone, as it retaineth, so may it relinquish that Right or Possession, whereby it ceasseth to be the former [Page] Owners; and therefore, if the Will be not simply to Relinquish, but to remit or transmit the Right to any other, hoc ipso, that other doth become dominus; Dominion being the power of disposal, which is a Faculty, and no Corporeal thing, and may be fitly Constitute in the Acquirer, by the will of the Disponer, unlels the Acquirer reject it, for the Disponer before having the only power of disposal, and remitting that power to the Acquirer, the thing cannot be said to be nullius, as being relinquished; and therefore, the Dominion or disposal of it, must either be in the Disponer or the Acquirer; not in the Disponer, because by his will, which is sufficient to Relinquish or quite it, he hath remitted it; and therefore, that power must be in the Purchaser, unless he reject it: This is the more evident, that Positive Law and Custom, which requireth Delivery or Possession, resteth in symbolical or imaginary Possession, as by delivery ofEarth and Stone, for Land of a Penny for Annualrent, and in some cases requireth no Possession, so the Fisk acquireth real Right without Possession; and the right ofLegacies, and others from the dead, are transmitted without possession.

5. But for Utilities sake, not only the Romans, but almost all Nations require some kind of Possession, to accomplish real Rights, that thereby the will of the Owner may sensibly touch the thing disponed, and thereby be more manifest and sure, so the Law saith, Traditionibus & Usucapionibus, non nudis pact is dominia [...] transferuntur, with which our Custom accordeth.

It useth here to be debated, whether Possession it self be sufficient to accomplish Dispositions; or if there must be Tradition, or delivery of that Possession, by the disponer to the acquirer, the forecited Law seems to require tradition; or at least Usucapion, or Prescription, which doubtless are the most proper ways to accomplish dispositions; yet Utiliter and Equivalenter Possession, lawfully attained by vertue of the Disposition, although not delivered by the Disponer, will be sufficient, as if the disponer were not in Possession himself, and so cannot deliver it, yet the Acquirer may recover it from the detainer, or the acquirer might have been in Possession before, by any other Title, as by Custody, Conduction, &c. In which case, none require delivery; yea, it is more questionable, whether the Possession would not Consumate the disposition, though unlawfully attained, as if the disponer not being in Possession, the acquirer attained the Possession from a third party, vi aut clam, though he might be oblieged to restore that Possession to the third party; yet whether it would not exclude a posteriour disposition, though more Legal Possession; It is a Question as probable in the Affirmative, as in the Negative.

It remaineth then that Possession is the accomplishment of the Disposition of real Rights, so that not the first Disposition, but the first Possession, by vertue thereof preferreth. This Possession is not alike in all cases, for in some real, in others symbolical, Possession is requisite, which cannot be supplied by real Possesson it self, as in Propertie of Lands or Annualrents by Infeftment, wherein the disposition and natural Possession makes no real Right without Seasine, July 12. 1628. Bennet contra Turnbul. Novem. 25. 1628. Mitchel contra Wright.

Possession is requisite, not only to the conveyance of the Property of Moveable Goods, but also of Liferent-rights, Tacks and Rentals, Servitudes, Pledges; which Tacks, though they be truely personal Rights of Location, and constitute [Page] only as real Rights by Statute, yet Intimation will not transmit them; but there is necessity of Possession: and though Liferents be more properly real Rights, because Constitute by Infeftment; yet seing a Liferenter cannot Infeft another as a Fiar can, Assignation or Disposition is sufficient, but it must be cled with Possession: But Reversions, though they be accounted as real Rights by Statute, require no Possession for Transmitting them, but an Assignation duely Registrate, according to the Act of Par. 1617. is sufficient as a publick Intimation.

In Moveables, Possession is of such efficacy, that it doth not only consumate the disposition thereof, but thereupon the disposition is presumed without any necessity to prove the same, which was found sufficient to inctruct the Property of a Ship from Possession, without vendition in Write, July 26. 1623. Captain Hamilloun contra the Master of the Ship Stetine. And the property of Money was inferred, from having the Key of the Chist in which the Money was found sealed, unless a contrary probation were adduced, June 18. 1675. Tailzior contra Rankine. And so a Creditor having poynded Goods from his debitor was preferred thereunto to a third party, who offered to prove these goods to be his own proper goods, bred upon his own ground, and set a grassing to that debitor, the poynder instructing that the goods were milked, wrought, and the off-spring thereof enjoyed by the debitor for two years, without any possession by the other party, during that space, which so far presumed his right, that the Lords admitted not the contrary probation, Nevem. 24. 1624. Turnbul of Symontoun contra Ker of Cavers. The like upon two years possession, June 17. 1625. Brown contra Hunterstoun. But restitution of a Horse was not excluded, because the possessour offered to prove he bought him from one who then had him in possession, in respect the pursuer then offered to prove that immediatly before he had set the Horse in hyre for a Journey to that person who sold him, Novem. 18. 1680. William Forsyth Stabler contra Hugh Kilpatrick: So that it will not be sufficient to any claiming right to moveable goods, against the lawful possessor to, alledge he had a good Title to these goods, and possession of them, but he must condescend, quo modo desiit possidere, by Spuilzie, Stealth, &c. Or that he gave them only in grassing and custody, and continued to use Acts ofProperty; the reason whereof is, because in the Commerce of moveables, write useth not to be adhibite, and it would be an unseparable labour, if the acquirer thereof behoved to be instructed by all the preceeding acquirers; as if one should instruct that he bought or bred such goods some years agoe, the present possessor behoved either to instruct a progress of them, through all the hands they passed from the first owner, or lose them, which being destructive to Commerce, Custom hath introduced this way, that possession being present and lawful, presumethproperty without further probation, unless the pursuer condescend upon a clear probable way of the goods passing from him, not by alienation, as if they were spuilzied, stolen, strayed, &c. Feb, 3. 1672. Scot of Gorrenberry contra Eliot. In which case, the Lybel was only found relevant to be proven by the defenders oath, that he had not bought or acquired the goods, bona fide; Or that the goods were in a Defuncts possession the time of his death, February 24. 1672. Semple contra Givan; In which case a Defuncts goods were restored, albeit they were long possessed after by his Wife, and impignorate by her, and her second Husband, without Confirmation, the Children of the Defunct Husband, recovered the same from the Acquirer.

[Page]The passing from the Proprietar must be so evidently instructed, that there may no probability remain of their being recovered, and thereafter alienat: Upon this ground it was, that Sir John Scot, pursuing Sir John Fletcher, for a Book delivered to him, The Lords found the Lybel not relevant, unless it were condescended, quo modo, the pursuer delivered the same, viz. by Loan, and would not put the defender to prove gifted, but presumed his Title, unless the contrary were proven by oath or witnesses, Jan. 27. 1665. And in a Process for Jewels, at the Instance of John Ramsay contra James Wilson, who had them from Mr. Robert Byres; the Lords found, that the presumptive Title of the defender and his author was elided upon the contrary presumption, that Jewels of such value, could not be bought, bona fide, seing the seller was neither Merchant nor Jeweller, nor the Jewels fit for his proper use, and because it was offered to be proven, he took them at his own hand out of the pursuers possession to whom they were impignorat by write, by the Proprietar, who immediatly went out of the Kingdom.

The most ordinary and important conveyances are of Lands and Annualrents, which pass by Infeftment, for perfecting whereof, there must not only be a Disposition, but also a Resignation in the hands of the Superiour, and new Infeftment granted by him to the Acquirer thereupon, or by Confirmation, or for obedience upon Appryzing or Adjudication: For disposition of Lands to be holden of the granter, do not transmit the granters Right, because he continues Superiour in the direct Dominion, but it becomes an Original Right, constituting a new subaltern Infeftment.

Resignation is either in favours of the Superiour himself, for consolidating of the Property with the Superiority; and therefore, is called Resignation, ad perpetuam remanentiam: Or it is a Resignation in the Superiours hands, in favours of the Resigner himself, or infavours of an Acquirer; and therefore, is called Resignation, in favorem. The first of these is no transmission, but an extinction of the Fee, and hath been spoken to in that Title.

The second is not properly a transmission, because it passeth not from, but returneth to the Resigner; yet ordinarly under diverse Considerations, as when he resigns from himself and such heirs, in favours of himself and other heirs, or when he resigns a Ward holding, that it may be returned blench, or few; for the right understanding of Resignations, in favorem, consider the solemnities requisite thereto, and the effect which flow from the several steps thereof.

For the first, a Resignation must proceed upon a Disposition, or Procuratory of Resignation, having in it the effects of a Disposition, which must be in write, for the Instrument of Resignation being but the assertion of a Nottar, will not be sufficient alone, without an adminicle in write, and though Resignation propriis manibus, can have no Procuratory yet the Disposition whereupon it proceeds, must be shown.

The second step in Resignation, is the Act of Resignation it self, which necessarly must be by way of Instrument of a Nottar, expressing the warrand of it, viz. the Disposition if it be done by the resigner, propriis manibus, or the Procuratory if it be done by a Procurator, and that conform thereto, the Resigner or Procurator compeared personally before the Superiour or his Commissioners, [Page] having special warrand to receive Resignations, and that the Resignation was made in the hands of the Superiour by Staff and Bastoun, delivered by the Resigner or his Procurator to the Superiour, as the token or symbol of the thing resigned, and that the same was accepted and received by the Superiour, or his Commissioners, by taking the said symbol in their hands, for new Infeftment, to be given to the Acquirer; and though the Resignation useth to be made by the Vassal, or his Procurator on their knees, and so is exprest in the Instrument, either generally or specially with all humility, and that the superiour or his Commissioner, use to deliver the Staff as the symbol of the Fee to the Acquirer, which is also exprest in the Instrument; yet these are not essential, but that without the being or expressing of the Instrument will be valid.

The last step of this transmission by Resignation, is the Superiour or his Commissioners, giving new Infeftment to the Acquirer, the nature and requisites of which Infeftment, hath been exprest before in the Title Infeftments.

The Solemnities of Resignation are so effectual and necessar, that the omission of any of them annulleth the Resignation; and therefore, Renunciation without a formal Resignation, though it may be sufficient against the Renuncer, yet it is not sufficient to take away Infeftment, renunced against singular successors: Nor can it constitute any real Right in the person of the Acquirer, unless he had, aliunde, another right standing in his person, in which case, the Renunciation might exclude the Renuncer, or his Heirs, to quarrel that right, Hope alienation, Hamiltoun contra Mcadam: The reason thereof is, because, jura eodem modo destituuntur quo constituuntur; and therefore, as Infeftments cannot be constitute without an Instrument of Seasine, so they cannot be destitute without an Instrument of resignation, or at least another Instrument of seasine, with the superiours Confirmation, or upon his Charter for obedience, so that renunciation being personal, operats nothing, except in the case of Wodsets, which are extinguished by a renunciation registrate by the Act of Parliament, 1617. But even Wodsets cannot be transmitted without resignation.

9. But where it is said that the resignation must be by the Vassal or his Procurator, this question ariseth, if the Assignation be made by him who is not truely Vassal, but with consent of the true Vassal, quid juris, Craig, lib. 3. dieg. 1. shows, that in his time this question was not clearly determined, nor is he positive in it, but this far, if the resigner had no Title, no consent could be sufficient: yet if he had a colourable Title, the consent of the true Vassal might validate it: If the true Vassal be consenter to the Procuratory of resignation, either expresly bearing, that the disponer, with consent, &c. constitute his Procurators: Or if he be consenter to the disposition, by being exprest in the entry thereof, which is holden as extensive to the whole disposition, and so as repeated in the same, will be as valide, as if the consenter himself had granted the disposition, or Procuratory for the Act of the disponer, though more express and amplified, is no more but his consent, and so the other consenting, doth the same materially, which he would do if he were disponer, formally, but if his consent be adhibite after the resignation is made, it is meerly personal, and cannot have influence on the resignation, which was before it; or if he but permit or give license to the disponer, or which is alike, if he consent, that the disponer dispone in so far as may concern the disponers [Page] right, these will not be sufficient warrand for the resignation, but if he give warrand or consent to the resignation, it is sufficient; neither is there neces sity to distinguish, whether the disponer have a colourable Title or not, se ing it is the consent of the true Vassal and the resignation as flowing from, and warranted by that consent, which transmitteth the right; and therefore, an Infeftment of an annualrent, granted by a person not Infeft, was found valide, because a consenter thereto was Infeft, and so it did exclude a valide right flowing from that consenter to a singular successor thereafter, viz. a Tack, Decem. 15. 1630. Jean Stirling contra Tennents.

10. Resignation how necessar soever to transmit an Infeftment, yet because the Procuratory and Instrument of resignation may be lost; therefore, the Vassal possessing fourty years, by vertue of an Infeftment, mentioning such a resignation, the same will be valide without the production of the procuratory, or Instrument of resignation, which therefore is presumed, thence presumptione juris, Par. 1594. cap. 214.

11. As to the effect of resignation, there is no doubt, but when the same is truely made, and Infeftment follows conform, the resigner is fully divested, and the acquirer is fully invested, and if there be conditions or provisiions, whether bearing express clauses irritant, that the acquirers Infeftment shall be null, and the disponers Infeftment shall revive, or he have regress, how far these are effectual, till by resignation or judicial process, the same be recovered, is more fully cleared before, Title Infeftments.

It is no less evident, that before resignation be made the disposition or procuratory, operats nothing as to the real right, which notwithstanding remains fully in the disponer, though he be personally oblieged to perfect it, albeit there be no such express obliegement in the disposition; yet by the nature thereof, the disponer is oblieged to Infeft himself, if he be not Infeft, and to Infeft the acquirer, Hope alienations, William Gladstanes contra Laird of Mckerstoun: Yea, the disposition of property being accomplished, carrysall real right of the Land, or Bonds for granting real right, in favour of the disponer, or his authors, neither assigned nor mentioned in the disposition, July 1. 1623. Craigy Wallace contra John Chalmers. Yea, a liferent carryeth the reversion in the disponers person, as to the Liferenters Liferent use, that ther eupon he might redeem a Wodset: So likeways a disposition of Lands immediatly before a Term, not expressing an Entry, nor Assignation to the rent, was found to exclude the disponer therefrom, though Infeftment followed not, till after the Term, Spots. Mails and Duties, Andrew Caldwal contra Robert Stark. And generally, it carrys Mails and Duties, as including virtually an Assignation thereto, July 15. 1629. Inter eosdem: And though the Disposition, or Procuratory, cannot constitute a real right, yet it doth sufficiently exclude the Disponer or his Heirs, from troubling the Acquirers Possession thereupon.

12. The Main question then is, what is the effect of a resignation, when done and accepted by the Superiour, and no Infeftment following thereon, where, in that case, the right standeth, whether in the Disponer, Acquirer, or Superiour, and whether the resigner be fully thereby denuded, or if he may not grant a second resignation, whereupon the first Infeftment being recovered, will be effectual: This is very learnedly debated by Craig in the forementioned place, where he sheweth, that the common opinion was, that the second resignation, [Page] [Page] [Page] with the first seasine will be preferred, though the Lords had decided otherways, in the case of a Citizen of Perth, who making a second resignation in favours of his Son, though after the first resignation by the space of twenty years; yet Craig approveth the old opinion concerning the resigner, never to befully divested, till the acquirer were invested; this is clear, that by the resignation, the Fee falls in Non-entry' and is in the superiours hands, and while the resigner resigning in his own favours, bereceived, or the resignation past from: Or otherways, the acquirer be infeft, the superiour hath the Non-entry duties of the Lands resigned, if the Infeftment be not delayed, through his own fault. It is also clear, that by the superiours acceptance of the resignation, in [...], there is upon him a personal obligation to Infeft that person in whose favours the resignation was made; and therefore, though the resigner dieuninfeft, his heir by a single service, hath right to that asother personal rights, and thereupon may compel the superiour to infeft him; yea, as Craig observeth in the fore-cited place, the Lords upon supplication, without Citation, will grant Letters summarly upon sight of the Instrument of resignation, and warrand therefore, to charge the Superiour to Infeft the party in whose favour it was made, who may not receive another resignation, or nfeft an other party, or else his obliegement may make him lyable to the obtainer of the first Resignation, pro [...] & inter esse, if he be not in mora, in doing diligence to get his new Infeftment expede, recenter; but the real right will be carryed by the first Infeftment, though upona posterior Resignation; and so posterior Decisions go along with Craigs opinion, not only in the case of the first publick Infeftment, upona second Resignation, but which is much more, after a Resignation, made a base Infeftment, flowing thereafter from the Resigner, and being but a short time before the publick Infeftment, upon the Resignation, yet was preferred thereto, as Dury observes, but expresses not the parties, July 22. 1626. As to the contrair Decision observed by Craig, it saith nothing, seing the first Infeftment upon the last Resignation, was in favours of the resigners Son, and so inter [...], was fraudulent, which would not hold, so if that Son had been a stranger, acquiring bona fide, for a cause onerous, so then the Resignation, in [...], doth not denude the resigner of the real right, but is incompleat till Infeftment follow; and therefore, a personal renunciation of him in whose favour it was, will fully evacuat the Resignation, and make the resigners Infeftment as intire as at first, which could not be without a new Infeftment, if the resigner had been divested, as in the case of a Resignation ad remanentiam, the Superiours simple renunciation or discharge thereof, could not revive the Vassalsprior Infeftment, but he behoved to be Infeft, de [...], and though after the Resignation, till it be past from, or Infeftment follow, the Lands be in Non-entry, it will not conclude that the resigner is denuded, and the Fee is in the Superiour, more then other Non-entries, which give not the Superiour the property, but a Casuality of the Fee.

In what case Dispositions of Moveables or Lands, are holden to be simulate or fraudulent, hath been shown before, Title Reparation (upon Circumvention or Fraud) wherein retention of Possession in Moveables is a main ground for presuming simulation, especially in gifts of Escheat; yet if the Disposition of Moveables bear expresly to take effect after the Disponers death, retention of Possession will not annul it, neither will it be esteemed as a Legacy, or donatio mortis causa, if death be the Term, and not the consideration of it, and it was not found ptejudged by the Disponers universal Legacy, March 8. 1626. Traquair contra Traquair.

[Page]13. So much for Conventional Conveyances of real Rights; Judicial Conveyances of real Rights, are competent, not by the nature of the right, which cannot be alienate without consent of the owner, and in the case of Infeftments, holden of the Superiour, without his consent, who is not oblieged to receive any to be his Vassal, but the Heirs and Successors of the first Vassal, provided in the first Investiture; and though the Investiture bear also, the Vassals Heirs and Assigneys, yet the Superiour cannot thereupon be compelled directly to receive a singular Successor, Assigneys being only meaned such Assigneys to whom the Dispositions should be assigned before Infeftment thereon, as was found in the case of recognition, Lady Carnagy contra Cranburn. February 5. 1663. But Law hath introduced in favours of Creditors, Judicial Conveyances, requiring no consent, but authority of Law, which hath also its Foundation in natural equity, by which, as Obligations are effectual for exaction of what is thereby due: So is there were no positive Law norCustom, the Creditor might exact, either what is due in specie, or the equivalent; and therefore, reprysals betwixt Nations not governed by one common Authority, are lawful: And by the custom of Nations, extended not only against the party injurer, who is oblieged to repair, but against all the Subjects of his Soveraign, if he do not cause reparation to be made. The Judicial transmission of Moveables, is by poynding, which being a legal execution, we shall leave it to that place. Arrestment and the action for making for the coming, do also transmit moveables; but is rather proper to personal rights, and so is competent against the havers of Moveables, by reason of that personal obligation of restitution, which is upon the haver to the owner, beside his own property.

Of old, alienations of Lands for money, were very rare in Scotland, or the contracting of considerable debts, for the Nobility and Gentry did then live in a plain and sober way, contenting themselves with that which their own Estates did afford: And there was then known no legal execution for Debt, against Lands or Heretable Rights, but only against Moveables, by the brieff of distress or Poynding; by which, not only the Moveables of the Debitor were poynded for his debt; but all the Moveables upon his Lands belonging to his Tennents, as appeareth from Act 36. Par. 1469. bearing this Title, That the poor Tennents shall pay no further then their Terms Mail for their Lords Debt, by the Brieff of distress, which is correctory of the former custom, whereby the goods and cattel of the Inhabitants of the Ground were distrenzied for their Lords debts, though their Mails extended not to the avail of the debt, and that not only for real debts affecting the ground by Infeftments of Annualrent, Feuduties, or Casualities of Superiority, or other debita fundi, for which the Moveables of the Tennents and Possessors, may yet be poynded for the Lords debt, not exceeding their Terms Mail, which is ordinarly in their hand, or if payed, may be allowed in the next Term, but for the Heritors personal debt; for by the Act, the Debitors moveables in that, or any other Barony or Shire, are appointed to be poynded for satisfying of the Debt; but debita fundi, can only reach the Moveables of the Barony or Tenement affected therewith, and though that this Act, by its Tenor, would yet extend to poynding of Tennents Moveables for their Masters personal debt, custom hath restricted it only to real debts, and it is intirely in desuetude, as to personal debts, which cannot burden Tennents, but upon arrestment, in so far as they are then debitors to their Masters.

Before this Statute in the year 1469. there is no mention in our Law or Customes, of Appryzing or Adjudication: But Appryzing was thereby introduced [Page] in this manner, that where the debitor has not Moveable Goods but Lands, the Sheriff shall cause sell the Lands to the avail of the debt, and pay the Creditor, which shall be redeemable by the debitor within seven years, and if he cannot find a buyer, he shall appryze the debitors Lands by thirteen persons of the best and worthiest in the [...], least suspect to either party, and assign to the Creditors Lands to the avail of the sum, and the superiour shall receive the Creditor, or any othe buyer, for a years Rent, as the Land is set for the time; or otherways shall take the Land to himself, and undergo the debt. According to this Act, Appryzings did proceed by Sheriffs and Baihes, who for satisfying of debts, Liquidat by Decreets, issued Precepts for denuncing such Lands to be appryzed upon fifteen days warning, conform to the act of Parliament, which denunciation was publickly read upon the ground of the Land, before witnesses, and a Copy thereof left fixed thereupon, and also at the Mercat Cross of the head Burgh of the Jurisdiction, where the Lands ly, and to the debitor whose Lands were to be appryzed, expressing the Creditor, sum, day and place of appryzing, that all parties interested might appear, persons of Inquest and Witnesses were also summond to the same dyet; and ordinarly the place was upon the ground of the Lands, that the value and worth thereof might the more clearly appear, where, after discussing of the Appryzers Claim, the hability of the persons of Inquest, and Witnesses, so much Land was appryzed and adjudged as was worth the sum, the years Rent to the Superiour, and expenses of Infeftments; and if the Lands were burdened with any former annualrents, whereby a proportion of Land could not be appryzed, free of burden; there was appryzed an annualrent forth of the Lands, effeirand to the sums, and expenses foresaid, and redeemable in the same manner; which was sustained by the meaning and intent of the Statute, though by the words of it, appryzing of Lands was only mentioned, it was ever extended to all Heretable Rights; thus it continued till the Lords of Session, upon exceptions against the Sheriff, upon his interest, relation, or enimity, or upon the lying of Lands in diverse Jurisdictions, for preventing of expenses by many appryzings, where the Lands in one Jurisdiction sufficed not, did grant Letters of appryzing under the signet, direct not to the ordinar Sheriffs, but to sherifts in that part, which being frequent, did come to run in course to Messengers, as sheriffs in that part, &c. And thereby the appryzer, in respect the Letters had a blank for inserting the Messengers name, did choise the Messenger, who did denunce all Lands and other Heretable Rights, which the appryzer pretended to belong to his debitor: And in respect the Letters bore dispensation of the place, did apprize, at Edinhurgh, all that the appryzer clamed, in satisfaction of the debt, without knowledge or consideration of the value of the Lands, or others appryzed, or proportion to the sums appryzed for, and thereupon was Infeft in the whole, and payed to the superiour a composition for a years Rent of the whole, which was a considerable accession to the Debitors debt, and behoved to be payed by him, and by the saids appryzings, the appryzer might, and oftentimes did enter in possession of the whole Lands, without being countable for the rents thereof, of what quantity soever: By this abuse, the intent of that excellent statute for appryzings, was enervat, and the same turned in a meer Formality, until the Par. 1621. cap. 6. which began to correct that exorbitant abuse, and declared appryzers countable for their intromissions, in so far as exceeded their Annualrents, to be imputed in their principal sums, pro tanto, and that they being thereby satisfied of their sums, principal and annual, composition to the superiour, and expenses of appryzing and infeftments, that thereby the appryzing should expyre, ipso facto, and it is also declared, that if the Lands appryzed [Page] be not worth of free rent, effeirand to the annualrent of the said sums, that before redemption he shall be satisfied of the superplus. By which Act it is declared, that Minors may redeem Lands appryzed from them at any time, within their age of twenty five years compleat, yet so, that after the first seven year, the appryzer shall have the benefit of the whole Mails and Duties till he be redeemed, which hath always been extended to Lands appryzed from persons being Major, if a Minor succeed, during the Legal; and if a person being Major succeed to him who was Minor, he hath the benefit of Reversion of seven year, in so far as was not run in the Minors life, and if less remain then a year, at the Minors death, the Major hath a full year to redeem after the Minors death; and by the Act 1669. of the abrogat Parliament, 1641. appryzers were declared countable for the rents of appryzed Lands intrometted with by them, during all the time of the Legal, whether competent to Minors or others.

And because of another great abuse, by the debording of Appryzings from the first institution. that the first appryzer, appryzing the whole Estate, the other Creditors had no more but the Legal Reversion, which did ordinarly expyre, the subsequent Creditors not being able to raise money to redeem the anterior appryzer, whereby the first appryzer carried the whole Estate, and excluded all the rest, and being ashamed to take so great a Legal advantage, and sometimes not daring to make use of it, did ordinarly compone with the debitor, his appearand heir, or some confident to their behove, whereby the debitors heir recovered his whole Estate, by satisfying one Creditor, and excluding all the rest; therefore the Par. 1661. by their Act 62. anent debitor and creditor, declared that all appryzings deduced since the first of January 1652. or to be deduced in time coming, within a year after the first appryzing, which became effectual by infeftment or Charge, should come in pari passu, as if one appryzing had been led for all the sums, and thereby the legal was extended to ten year; and it is declared, that whensoever the appearand heir or any to his behove, shall acquire right to any expyred appryzing, that the same shall be redeemed from them within the space of ten year, after their acquiry, by posterior appryzers, upon payment of what they truly payed, in so far as shall not be satisfied by their intromission.

But neither did this statute cure the abuse of appryzings; and therefore the Act of Par. of the 6. of septem. 1672. upon consideration of debording of appryzings from the first design, and of the great inconveniencies arising thereby for the bringing in of all appryzers within year and day, did give way to break the credit and ruine the interest of the most considerable Heretors in the Kingdom, that creditors being thereby invited, under the hazard of being excluded to appryze within a year; and thereby one wilful, malicious, or necessitous Creditor apprizing, all the rest followed, and intirely brook their credit, unless they would pay all their debt in one day; therefore, the Parliament, did in place of Appryzings, ordain adjudications, to proceed before the Lords of Session, for adjudging the Lands and other Heretable Rights of debitors, effeirand to the sums appryzed for, and a fifth part more in place of the penaltiies and sheriff-fee, and allowed Witnesses for either party, for clearing of the Rental and rate of the Lands, in the several places where they ly, and appointed the adjudger to have present Possession of the Lands adjudged, not being accountable for his intromission during the Legal, redeemable only within five year, whereby the Creditor had easie accress for his satisfaction, without all hazard or account, which had been the ground of many tedious Processes [Page] of Count and Reckoning for the Intromission of former Appryzers, and wherein the Adjudgers is to have the Consent of his debitor, both as to Right and Possession, and delivery of the Evidents; and it is declared, that if the debitor do not instruct, and deliver a good Right, and consent, as said is, that the creditor might adjudge all the debitors Estate in the same manner, and to the same effect, as is appointed by the Act of Par. 1661. between debitor and creditor.

We shall not here speak of Adjudications and Appryzings, as they are legal Executions, and of the Order and Solemnities requisite to them, as such; but only as they are Conveyances of real Rights, wherein we shall consider; first, upon what ground Appryzings proceed. Secondly, against what Rights they are competent. Thirdly, what is the effect of the Process, or Decreet of Appryzing, without further Diligence. Fourthly, what is the effect thereof, when further Diligence is used. Fifthly, what is the effect thereof when Infeftment is obtained. And lastly, in what manner it ceaseth and becometh extinct.

14. As to the first, Appryzing is an Appretiation and Judicial Vendition of the thing appryzed, from the Debitor to the Creditor; and as in all Venditions, there must be merx and pretium, or the price in numerat Money; for if the mutual consist in any thing else, it is not Sale but Exchange; therefore the ground of Appryzing must be numerate and current Money, and if originally it be not so, it must be liquidat before Appryzing can proceed; neither can it proceed but upon a Decreet establishing the Debt by Registration, or otherways in the person of the Appryzer active, and of the Debitor Passive; yet an Assigney intimating before the Cedents death, may Appryze summarly without Action, establishing the Debt in his person, as hath been shown, Title Assignations. Neither could Appryzing proceed upon Heretable Bonds, unless the same had been made moveable, by Requisition or Charge; and therefore, was found null, proceeding upon an Heretable Sum, bearing a Clause of Annualrent, though payable without requisition upon a single Charge of six days, seing that Charge was not given July 20. 1622. John Cranstoun contra Laird of East-nisbit. Hope Obligations, Alexander Mowat contra the Creditors of John Richardson. John Cranstoun contra Laird of Lugtoun. But Posterior Decisions have run in the contrair, that if the sum were payable without Requisition, Appryzing might proceed thereupon without a Charge, as well as Poynding or Arrestment, July 4. 1627. Edgar and Johnstoun contra Findlason. July 10. 1629. Clackmannan contra Barroun. In which case, the principal sum was payable at a precise Term, and no mention of any Term or time thereafter, and yet was Appryzed for, after that Term, January 25. 1642. John Seatoun contra James Loch. But if Infeftment have followed, or Requisition be requisite, the sum must be made moveable, before Appryzing: But other Sums, though by Destination Heretable, yet having Summar Execution by the parties consent, Appryzing is sustained thereupon.

15. As to the second point against what Rights Appryzings extend; First, though Letters of Appryzings contain power to poynd Moveables, which must be searched for; yet that which is properly called Appryzing, extends to no Moveables, but only to Heretable Rights, as Lands, Annualrents, Liferents, Tacks, Reversions, Heretable Bonds, July 25. 1623. Earl of Errel contra Buckie; and therefore, it extends not to the Mails and Duties of the Appryzed Lands, before the Appryzing, Feb. 14. 1623. Saltcoats contra Home. The like, though [Page] the question was against the Debitor himself, and that the style of the Appyzing bore, all Right that the Debitor had to the Lands to be Appryzed, March 13. 1627. Mackre of Balmagie contra Livingstoun. And where an Annualrent is Appryzed, it extends not to the bygone Annualrents, which are Moveable; but these being Moveable, are Arrestable, neither doth it extend to the Duties after Denunciation, and before Appryzing, Feb. 16. 1633. Harper contra Cockburn and Johnstoun.

Appryzing is extended to all Heretable Rights, though they were not provided to Assigneys, but to the Debitor and his Heirs only, or failing, such Heirs to return; and therefore, publick utility and the favour of the Creditor makes it more effectual then any voluntar Disposition or Assignation could be, so an Appryzing was found to carry a Right, though not granted to Assigneys, Hope Appryzing, John Brown contra Fssilmont of Buckie. And a Husband granting Right to his Wife, but with provision that she should renounce it, if he required it in his own life allennerly, a Creditor of his Appryzing that Land, and requiring the Wife to renunce, was found to have right thereto, spots. Appryzing, Lady Huttonhal contra Cranstoun of Moristoun. An Appryzing of the ground Right and Property of Lands, and all other Rights, &c. carryeth not only the Property, but all other real Right, or Obliegements for granting thereof, and though no Infeftment follow, the Appryzing so conceived will carry any Right, which requireth not Infeftment, as if it had been specially Denunced and Appryzed, June 19. 1635. James Rule contra Alexander Home.

16. To come now to the third Point concerning the Efficacy of the Process and Decreet of Appryzing, without further Diligence; and first, it hath the effect of an Assignation, without necessity of Intimation, and carries all Rights which require not Infeftments to transmit them, as Liferents, Reversions, Tacks And so an Appryzing was found to carry the Legal of an anterior Appryzing, though the Denunciation, whereupon it proceeded, was anterior to the Denunciation whereupon the first Appryzing proceeded, and thereby at the time of the Denunciation of the second Appryzing, neither was the first Appryzing, in being neither the Denunciation thereof, and so could not be Denunced or Appryzed; yet the Denunciation of the Ground-right, and all Right competent, or that might be competent to the Debitor, was found to carry the Reversion of the said first Appryzing, Novem. 18. 1624. Doctor Kincaid contra James Halyburtoun.

17. Though second Appryzings carry the legal Reversions of anterior Appryzings without Infeftment: Yet Infeftment is frequently taken thereupon, that the posterior Appryzer may have Interest thereby, to reduce or quarrel the Anterior Appryzings, and to pursue for Mails and Duties, or Removing, if the Anterior appryzer should forbear.

18. The second effect of Appryzing is, that the Debitor is thereby so far divested, that after his death, Infeftment may be taken by the Appryzer, without transfering or Infefting the Debitors Heir, Novemb. 20. 1624. Lag contra his Tennents. So likewise the heir of the Appryzer dying before allowance, or Infeftment upon Supplication obtained allowance from the Lords, and Letters to Charge the Superiour to receive him, Spots. hic, Alexander Frazer Supplicant. The like was granted by the Appryzers Assigney, March 22. 1626. Collace contra Lord Elphingstoun. Yea, an appryzer did obtain allowance [Page] and varrand to Charge the heir of the Superiour, contained in the first allowance, being dead, Decem. 5. 1628. Laird of Corsbie contra Kilsyth. From this ground it is, that an Appryzing excludes prior assignations, granted by the Debitor, to the Mails and Duties of the Lands appryzed, as to Terms after the appryzing, Hope assignations, George Meldrum contra Laird of Anstruther.

19. And when an appryzing was led before an Husbands death, it excluded his Wife from a Terce, Hope appryzings, James Chrightoun contra Relict of John Cranstoun: Where he doth also observe it to exclude a subsequent Ward, in respect the Superiour gave a Charter upon the appryzing, in his Vassals life, though no Seasine followed thereupon, Ibidem, George Hamiltoun contra Tennents of Newburgh. And albeit Dury observes, that in the case betwixt the Lord Fleming and the Lord Balmerino, dispute the 7. of March 1633. it was not decided, but superceeded in hopes of agreement, whether a Superiour could be compelled to receive the Minor himself till his Majority, it seems the Superiour ought to receive the appryzer upon his legal diligence, but prejudice of the Ward, during the Minority of his former Vassal, though he would not receive the Minor, yet he would be necessitate to receive the appryzer, and his heirs whatsomever, though the Lands were Tailzied, and to return to the Superiour himself.

20. The third effect of appryzing is, that being a legal diligence, it renders the thing appryzed litigious, not only from the date of the appryzing, but from the date of the Denunciation: So that no voluntary deed of the Debitor, after the Denunciation can prejudge the appryzer, if he be not in mora. Thus a Tack set by the debitor after Denunciation, was found null, Spots. appryzing, Peter Blackburn contra Walter Balvaird. Yet where the appryzer was negligent, and obtained not Infeftment, nor did diligence; therefore, for some years, a Tack set by a Debitor before the appryzing, but having its Entry after the appryzing, was preferred thereto, July 11. 27. Wallace contra Harvie. Yea, no Infeftment or diligence being used upon an appryzing, for many years, an arrestment thereafter was preferred to the Mails and Duties of the Landsappryzed, Feb. 14. 1623. Saltcoats contra Brown. But Custom since hath always preferred appryzings to arrestments, although there were no Infeftment or diligence upon the appryzing, because it is a legal assignation, and needs no Intimation, unless the appryzer had relinquished his right; and therefore, though that case of Saltcoats was adduced, an appryzer of an annualrent, was preferred to an arrestment, though the appryzer neither was infeft nor used diligence, for nine years before the arrestment, Feb. 23. 1671. Lord Justice Clerk contra Mr. John Fairholm. It is said, no voluntary disposition deed of the debitor after the denunciation, will prejudge the appryzing, because if the deed done thereafter be necessary, and that thereunto the debitor was specially oblieged before, and might have been directly compelled; such, even after denunciation may be preferred, as an annualrent proceeding upon a Bond, prior to the denunciation, containing an obliegemement to Infeft, in that annualrent, the Infeftment thereupon, though after denunciation was preferred, Hope appryzing, Samuel Henderson contra John Mcadam. The like of an Infeftment, whereof the Charter was before denunciation, and the [...] before the Seasine upon the appryzing, Ibid. The like of an Infeftment upon Resignation; which Resignation preceeded the Denunciation; and though the Resignation was at first refused by the Superiour, being accepted thereafter, it was preferred, Ibid. Mr. Thomas Hope contra Mr. Thomas Hendrison. [Page] And so an Infeftment upon a disposition for a Cause onerous: Which disposition was of the same date with the denunciation, and whereupon Infeftment followed, before the appryzing was preferred to the appryzing, Spots. appryzing, Mark Hamiltoun contra Brown. Yea, an Infeftment upon a disposition, posterior to an appryzing, was preferred thereto, seing the Appryzer did no diligence for six years, Ibid. Hamiltoun contra Mcculloch.

21. In the competition of Appryzings being both legal diligences; The first appyzer doing sufficient diligence, is preferred as the first appryzer, last Infeft, but having [...] Charged, was preferred, though the Superiour did voluntarly Infeft a posterior appryzer, Jan. last, 1632. Ferguson contra Mckenzie. Yea, a posterior appryzing was preferred to a prior, where the debitor by Collusion suspended the Letters, and denunciation of the one and not of the other, whereby the other appryzed first. Nov. 28. 1628. Borthwick contra Clerk. The like where the prior proceeded upon a Citation of the party upon sixty days, as being out of the Countrey, and the debitor was brought to the Countrey of purpose, that a posterior denunciation upon fifteen days by another appryzer, might give him the first appryzing: and yet the other was preferred, Nicol. Tennents of Cockburnspeth contra Sir Hendry Wardlaw, and upon the late competition betwixt the Laird of Clerkintoun pursuing a Reduction of Corsbies appryzing, as collusive in so far as after his author Sir William Dick had Charged the Superiour, with the first Charge upon the Letters of four Forms, they gave Infeftment to Corsbie before the dayes of the first Charge were Expyred, the Lords reduced the Infeftment, but assoilzied him from bygones, as possessing bona fide, and seing the pursuer suffered him to possesse without pursuit, till the legal was expyred, they found that Corsbie, as now the second appryzer might redeem, December 3. 1664. inter eosdem.

22. The fourth effect of an appryzing is, that being led by the Superiour against his Vassal, it needs no Infeftment, but consolidats the property with the Superiority, and is preferable to all posterior appryzings, whatever be their diligence, Spots. appryzing, Stevinson contra Laird of Craigmiller. But in other cases, appryzing without further diligence, doth not transmit the real Right, though it may exclude assignations to Mails and Duties, or arrestments upon personal debts, it is no sufficient title for Mails and Duties, against any other having any real Title, March 5. 1628. Andrew Scot contra Tennents of Whitesland.

23. As to the fourth point concerning the efficacy of appryzings, whereupon diligenceis used before Infeftment obtained. They have no effect to remove Tennents, though the Superiour was Charged, and the Letters found orderly proceeded against him, and though only proponed by the Tennents, and no party pretending right, March 25. 1628. Lockhart contra his Tennents. But the appryzing with diligence hath this effect; First, it is a sufficient title for Mails and Duties against the Possessors. Secondly, it excludes all posterior Infeftments or Diligences by the Collusion, or voluntary deed of the Superiour, or any other. Thirdly, It is effectual to compel the Superiour to receive, and Infeft the appryzer upon payment to him of a years rent, which was formerly by Letters of four Forms, till the Statute, 1644. cap. 43. whereby one Charge upon twenty one days is sufficient, all which proceeds upon the allowance of the Lords, upon the back of the appryzing: And albeit [Page] the Act is not revived in the late Parliament, yet the Lords continue the Custome.

24. This allowance of appryzings is appointed to be registrate, and not the whole appryzing, Par. 1641. cap. 54. yet neither the want of the allowance, nor the want of Registration thereof, annulleth the appryzing, till the last Act of Par. 1661. cap. 31. making the Registration of the allowance necessary: Otherways posterior appryzings, first allowed, are to be preferred, unless without allowance the appryzer hath obtained Infeftment, before the others Diligence, upon which grounds, the Lords upon Supplication, without Citation, ordained an appryzing to be allowed, and registrate long after sixty days, and after the debitors death, seing it would be thereby preferable to all other Rights, after the Registration thereof, June 8. 1665.

25. There are many debates which arise concerning the Entry betwixt appryzers and Superiours, as whether the Superiour can be compelled to receive the appryzer, without instructing that the Vassal from whom he hath appryzed, was Infeft, or specially Charged, which hath been several times decided Negative, fifty years since. But now of a long time, Charges against Superiours for Infefting appryzers, salvo jure ejuslibet & suo, have been still sustained, because it is unusual and difficult for the appryzer to get his debitors Evidents, unless it were the Extract of his Seasine, and the Superiours receiving him upon obedience, cannot prejudge him; and therefore, the Superiour was ordained to receive the appryzer, though himself was in possession, by vertue of a Right, March 5. 1634. Black contra Pitmedden. The like, whatever Right the Superiour might pretend, March 11. 2636. Margaret Scot contra Gilbert Eliot.

26. The quantity of the years Rent by the Act of Par. 1469. cap. 36. is exprest to be a years Mail, as the Land is set for the time, wherein consideration is had of such real burdens affecting the Land, as are taken one with the Superiours consent: But in the case of a Liferent so taken on, the years Rent was modified full, but delayed to be payed till the Liferenters death, July 18. 1633. Branden Baird contra Consideration is also had of Feus set by the debitor before the appryzing, which while warranted by Law, the Superiour will only get a years Feu-duty for receiving the appryzer in the Superiority, Feb. 15. 1634. Munktoun contra Lord Yester. Spots. appryzing, Walter Cowan contra Master of Elphingstoun. But the Superiour will not be oblieged to receive the appryzer for a years Rent of the Money appryzed for, but of the Lands appryzed, March 23. 1622. Mr. Simeon Ramsay contra Laird of Corstoun. March 30. 1637. Thomas Peterson contra Walter Murray. Yet in this last case, the Lords modified the Rent far within the worth of the Lands, for the Rent being worth 800. Merks, was modified to 300. Merks.

A Superiour must not only receive the first Appryzer, but all others who Charge, though one was Infeft before any other Charged, March 11. 1628. Ferguson contra Couper. And if more Charge, he must accept a years Rent for all, providing that he who should be preferred, refound to the rest the proportions payed by them to the Superiour, July 22. 1628. Lord Borthwick and Walter Hay contra Haistoun and Smith.

[Page]27. If the Superiour be contumacious, and will not enter the appryzer upon diligence, Craig lib. 2. dieg. 2. Prescrives, that the Superiour may be thrice required, and if he refuse, Letters may be obtained from the Lords to Charge his Superiour, to receive the appryzer, supplying his place, and so from Superiour to Superiour, till he come to the King, who refuseth none, by which the Superiour would loose the Casualities of his Superiority, during his Life, as is ordinary in the Entry of heirs upon retour.

28. As to the next Point, Infeftment following upon appryzing doth Constitute a real Right, but under Reversion of seven years, being before the Act debitor and creditor, Par. 1661. cap. 62. or since of ten years, which is counted from the date of the Appryzing, and not from the allowance, or Infeftment, November 11. 1630. Laird of Limpitlaw contra Mr. James Aikenhead.

29. Yet it remains but as a security, which the appryzer may renunce, or make use of other securities till he be satisfied, March 15. 1628. Lord Blantyre, contra Parochioners of Bothwel. The like, though after the Legal was expyred, Decem. 7. 1631. Scarlet contra Paterson. But here the appryzer had attained no Possession.

30. Remains the last Point proposed, how appryzings become extinct, and are taken off; and that is first, when the appryzing is declared null, thorow defect of any essential Solemnity. Secondly, When the sum whereupon it is deduced, is not due, as when the half thereof was payed, Hope appryzing, Samuel Blackburn contra James Lamb. James Lamb contra Hepburn of Smeatoun. Or being deduced for a Terms Rent, which was not due till after the appryzing; albeit it was an assigney who appryzed, seing it was to the behove of the Cedent, it was found relevan to reduce the appryzing in totum, June 20. 1678. Scot of Burnfoot contra Sir John Falconer and James Edmonston. Jan. 31. 1679. Francis Irving contra contra Laird of Drum. The like, where a part of the sum was Poinded for, and yet the appryzing was for the whole, Nicol qui potiores in pignore, John Steven contra Maxwels: Or where the denunciation was before the Term of payment, though the appryzing was after, Nov. 28. 1623. Mr. Robert Craig contra Wilson. And an appryzing for two Sums, instead thereof as to one of which sums the decreet was loosed & turnedin a Lybel, before the appryzing was deduced: Yet the appryzers intromission thereby before Citation, was not found to be repealed, as being consumed bonafide, upon a colourable Title, Nov. 23. 1677. Boid and Graham contra Malloch. And an appryzing was reduced, because one of the sums appryzed for, was Registrat, a non suo judice, July 20. 1678. Moreis contra Orrock of Balram. In which case the Lords would have sustained the appryzing as a security for the true sums resting, if the appryzer would have past by the Termly failzie; for the Lords do frequently Supply defects in appryzings or adjudications, in so far as they may stand as securities of true debt, and real expence, especially when the question is betwixt the debitor and the appryzer, but not in competition with more formal Rights, and they are most strict against appryzings or adjudications, when they are insisted upon, as expired, or for penalties, Sheriff-fees, and the annualrents thereof; and therefore, a posterior appryzing being solemn and formal, according to the Custome then in use, was preferred to a prior not being so formal, July 15. 1670. Lady Lucia Hamiltoun contra Boyd of Pitcon. And likeways, an appryzing being led for Penalties and termly Failzies, was reduced as to these, because a part of the sum was not due at the date of the appryzing, though it was deduced [Page] at the instance of an assigney: But if it were proven to the Cedents behove, it was also found reducible, quo ad, the accumulation of the annualrents, and making them and penalties Principal sums. But seing the appryzer declared it redeemable, though the Legal Reversion was expyred, it was sustained as a security of the first principal sum, and current annualrents thereof, Jan. 31. 1679. Francis lrving contra Laird of Drum. And appryzing was sustained upon a Bond, bearing a long Term of payment, with a Clause irritant, that if two Terms annualrent run together unpayed, the whole principal and annual should be payable, without abiding the first Term, though there was no Declarator of the irritancy, it not being penal, but taking away the favour of the Creditor to the debitor, by delay of the term, June 20. 1678. Scot of Burn-foot contra Falconer and Edmistoun.

31. Albeit the Lords do not ordinarly modifie Penalties after appryzing; yet if they be exorbitant, they do modifie the same, and all Termly Failzies, as they did in the said case of Orrock of Balram and Francis Irvin.

32. Appryzing was sustained upon a sum, payable without Requisition, albeit there was no Charge preceeding the appryzing, July 21. 1666. Mr. John Thomson contra Mcgutrig. The like, though the Bond bore annualrent before 1641. seing there was no Infeftment thereupon, or Requisition therein, Jan. 14. 1679. Farquhar of Finian contra Robert Stuart.

33. And an appryzing was sustained, though the Lands appryzed were not filled up in the Letters of appryzing, or special Charge, nor in the Executions, because the Messenger who execute was Judge in the Appryzing, which relating the Denunciation of the Lands particularly, and Charging the appearand heir to Enter thereto in special, was found a more solemn Execution, then any Execution a-part, Jan. 16. 1680. John Brown contra Nicol.

34. An appryzing was sustained without producing the Letters of appryzing, being in anno 1636. But the Instructions of the debt was found necessary to be produced, being within Prescription, February 11. 1681. James Kenuay contra Thomas Crawford: Yea, an appryzing was sustained upon a Bond, payable upon Requisition, though the appryzing made no mention of the Requisition, the Instrument of Requisition being produced.

35. And though the Dispensation to appryze, was neither at Edinburgh, nor the head Burgh of the Shire, but a place upon the open Fields, and upon a count of a great rain, the Messenger did not appryze that day, but adjurned the Court of appryzing til the next day, July 12. 1671. the heirs Mr. Thomas Lundie contra the Earl of Southesk.

36. And an appryzing of the ground-right of Lands, and all other right belonging to his debititor, the Superiour being Charged thereupon, was preferred to a posteriour appryzer, who appryzed particularly an annualrent out of the Lands, which was the only Right of the common debitor, November 21. 1673. Mr. John Fairholm contra Rentoun and the Countess of Levin.

[Page]37. Appryzings are elided by satisfaction or payment, without necessity of Renunciation, Resignation, or Reduction, as in the case of other Infeftment, July 25. 1626. Lord Lovat contra Frazer: The reason is, because appryzing being but a legal diligence, for security of the sum, which ceassing, it falleth without other solemnities; and the dobitors own Infeftment stands valid, without Renovation; which, with the Infeftment upon the Appryzing, stood but as a paralel Right for security, so that all returned, adpristinum statum; and amongst the rest, the Casualities of the Superiority, if they were taken off by the appryzing; and therefore, an heir not entering, but being Chargeed, if he satisfie and redeem the appryzing, he will be in non-entry till he be received of new.

38. Appryzings are excluded and qualified with the Back-bonds and obliegements of the appryzer, as in personal Rights, which are valid against singular Successors, as a back-bond, that an apprysing should not be prejudicial to anothers parties Right, was found relevant against the appryzers singular Successor, the Kings Donatar of the appryzers forefaulture, July 31. 1666. the Earl of Southesk contra Marquess of Huntly.

The last and most ordinary Exstintcion of appryzing, is by Intromission with the Mails and Duties of the appryzed Land over and above the annualrent, for these are imputed in the principal Sum, by the Statute, Par. 1621. cap. 6. which is also extended to Minors having the priviledge after the ordinary legal of seven year: But it was not provided for in the said Statute, that the appryzer should be countable for his Intromission thereafter, which is therefore provided for, Par. 1641. cap. 67. which, though it was neglected, and not revived, Par. 1661. yet the Lords sustained the same, as now in Custom twenty years and more, Feb. 18. 1663. John Ross contra Mckenzie. But the Tenor of the said first Statute; being, that the quantities of the Mails and Duties shall extend to as much as will satisfie the whole principal sum, and annualrents thereof, composition to the Superiour, and annualrent thereof and expenses, in deducing the appryzing: In that case the appryzing is declared to expyre, ipso facto; So that if any part thereof remain, and the debitor be so negligent, as not to use an Order, and count and reckoning within the legal, but suffer it to expire, the appryzing will stand valid, and carry the Right of the whole Lands, and will not be extinct in so far as satisfied proportionally, Hope Confirmation, Doctor kincaid contra Halyburtoun, which was so found, where a part of the sum was satisfied, by payment, Novem. 28. 1623. Mr. Robert Craig contra Wilson. But if the remainer be very small, the Lords may be the more strict in modifying pryces, and if that be not sufficient, a small remainder will not take away the Right, de minimis non curat Lex. Intromission is not only extended to the Rents and Profits of the appryzed Lands, but to the pryce of any part thereof, sold by the appryzer within the Legal, Jan. 14. 1669. Mckenzie contra Ross. And ansappryzing was also found extinct by the Intromission of him, to whom the appryzer granted Back-bond, declaring the appryzing to be to his behove, and that against a singular Successor, who thereafter was Infeft upon the appryzers Resignation, July 12. 1670. Kennedy contra Cunninghame and Wallace. Yea, An appryzing was found excluded, as being satisfied by the debitor, and retired by him, with a blank Assignation thereto, lying by him at his death, though his Son thereafter filled up his name therein, which was instructed by the sons oath and witnesses, ex officio, Feb. 27. 1666. Creditors of the Lord Gray contra the Lord Gray. But an appryzing was not found extinct by Intromission, where the appryzer payed to [Page] [Page] [Page] his debitor, the superplus of the rent, above his annualrent, before the leading of any other appryzing; yet where any order of Redemption is used before the expyrie of the legal, the appryzing was found extinct by intromission, after the course of the legal, July 7. 1676. John Edgar contra Patrick Milu. The like was found in respect of an order, used by a second appryzer, and was sustained, though the first appryzer had acquired right to an order of Redemption by a third appryzer, used against the second appryzer, which was not found to hinder the second appryzer, to declare the first appryzing satisfied by Intromission during the legal or the order, but prejudice to the third appryzer, or to the first appryzer, having Right from the third appryzer to Redeem the Lands from the second appryzer, by satisfaction of the sums due to him, July 18. 1676. Gordoun of Seatoun contra Watson. Yea, an appryzing being both against the Principal and Cautioners Estates, an order of Redemption used by the principal debitor was found to keep the appryzing unexpyred, not only as to his own Estate, but as to the Cautioners Estate, February 10. 1675. Lady Torwoed-head contra Florence Gardner.

39. But the appryzer hath it in his option, whether he will enter in Possession of the Mails and Duties, or will uplift more thereof then his annualrent; yet if a posteriour appryzer insist for Possession, the first must either Possess, do diligence, and be countable, or suffer him to possess, February 11. 1636. Colqhoun contra Laird of Balvie. But if the appryzer possess, he must do diligence for the rent of that Land he possest, and be countable, not only for what he intrometted with but for what he might have intrometted with; and if the Lands were Tennent-stead at his entry, he must count accordingly at that rate, though thereafter given over and waste, if he neither set nor laboured them himself, nor intimat to the debitor so to do, Feb. 9. 1639. Brownhill contra Cawder. The like found, that the appryzer was countable according to the Rental, allowing all defalcations, Jan. 4. 1662. James Seaton contra Antony Roswal. But where the appryzer entered in possession of the Lands waste, he was not found countable, according as he set them thereafter, for the first year of his proper Labourage, seing by the Season without his fault, he lost thereby, Decem. 23. 1629. John Dickson contra Young. But an appryzer was found countable for the Rental of all the Tennents of a small Tenement, lying contigue, having taken Decreet against all the Tennents, and yet refusing to count for some particular Rooms, without showing any hinderance to uplift from these, which other appryzers calling to account, could not know that he had forborn these, but nothing was determined as to the common debitors own labourage, Jan. 14. 1681. Schaw of Grimmat contra John Mure Writer. Yet where the appryzer was disturbed in his Possession by the debitor, Via facti, or via juris, he was not found countable by a Rental, but what he recovered till he attained to peaceable Possession, Jan. 20. 1681. Burnet contra Burnet of Barns.

40. The Act of Par. 1661. cap. 62. hath lengthened the legal of appryzings, and hath brought in all who appryze, within a year of the first effectual appryzing, pari passu. By this Act these, these alterations are introduced as to appryzings: First, Whereas before the first appryzer being infeft or doing diligence, had only access to the whole appryzed Lands till he were satisfied: Now the Lords are impowered to limit the Possession during the legal, as they shall see cause, the appryzer getting his annualrent or security therefore; and therefore, an appryzer pursuing for removing, and Mails and [Page] Duties, his pursuit was only sustained, for so much of the appryzed Land as she should choose, the rent whereof would be equivalent to eight per cent. of the sums appryzed for, he being countable for the superplus, more then his annualrent and publick burdens, the defenders House and Mains being always excepted, seing there was sufficient of other Rents, June 27. 1672. Nicolson contra Sir William Murray. But the power granted to the Lords to restrict appryzers, is only personal and peculiar to the debitor, and not to the posterior appryzers, July 28. 1671. Murray contra Earl of Southesk and others. Secondly, All appryzings led since the first of January 1652. before the first effectual Compryzing, obtaining Infeftment, or charging the Superiour to receive, or within a year after the same, or to be led thereafter upon any persosonal debts, come in pari passu, as if they all had been contained in one compryzing, the other appryzers paying to the first effectual Compryzer, the expenses of his compryzing, and Infeftment thereupon, but the year is not to counted from the Infeftment or Charge, by which the appryzing becomes effectual, but from the date of the Decreet of appryzing, July 4. 1671. Laird of Balfour contra Mr. William Dowglas. But this extends not to appryzings or annualrents, or other debita fundi; and accordingly it was decided by the Lords, that those other appryzers behoved to pay the whole composition to the Superiour, Feb. 5. 1663. Robert Graham contra John Ross. Yet these appryzings that were prior to the Act, were not found to come in pari passu, from the dates of the appryzings, albeit the Act bear, that they should come in as if they were in one appryzing, but only from the date of the Act of Parliament. And as to what the first appryzer had possessed, bona fide, before the act of his intromission, exceeded his annualrent, the same should be imputed to the expenses of the compryzings and composition, and in payment of the sums appryzed for, pro tanto, Jan. 7. 1665. Graham of Blaitwood contra Browns.

But an appryzing led before January 1652. though Infeftment or Charge were used thereon, after Jan. 1652. was found to exclude all appryzers after Jan. 1652. whose Infeftment or Charge were posterior to the Infeftment or Charge upon the appryzing, led before Jan. 1652. and that the said posterior appryzing did not come in pari passu, with that led before Jan. 1652. Because the Act of Parliament relates nothing to appryzings deduced before Jan. 1652. Decemb. 12. 1666. Sir Henry Home contra Creditors of Kello. And albeit the first effectual appryzing was satisfied, and so extinct; yet it did stand valid as to the second appryzing, within year and day; but a third appryzing was not found thereby to come in pari passu, with the second appryzing, as being within year and day thereof, as if the second appryzing became the first appryzer, Decemb. 13. 1672. Street contra Earl of Northesk and James Deans. Feb. 20. 1679. Tennents of Mortoun contra Earl of Queensberry. And where the first appryzer [...] but a part of the Lands appryzed, the second appryzer not Infeft, was preferred to the third appryzer Infeft, as to the remanent Rents, because the second appryzer needed no Infeftment, but the Infeftment upon the first appryzing was sufficient for all the appryzings led within the year of the first, Decemb. 22. 1664. Doctor Ramsay and William Hay contra Alexander Seatoun. There is also an exception from this Clause, by another Act of Parliament, 1661. cap. 21. Session 3. that second apprysers shall not be prejudged if they did acquire right to a former apprysing, redeemed and satisfied by them, for their own security, before the said Act, albeit led since Jan. 1652. which first comprysing shall remain in the same case, as apprysings were formerly; it was so decided, without necessity to alledge that Right was taken [Page] to the first apprysing, to shun the expyring of the legal, or any other necessary cause, Decemb. 9. 1664. Veatch of Dawick contra Alexander Williamson. Thirdly, The extent of the legal is altered from seven years to ten years; so that where the legal was not [...] the time of the act, three years were allowed to redeem them, from Whitsonday 1661. which terminated at Whitsonday, 1664. Whereanent it being questioned, whether intromission during these three years, should satisfie apprysings, which being deduced since, Jan. 1652. were expyred according to the Law then standing, and disponed to others, there being no mention of that Point in the said Act, the Lords decided affirmative, January 20. 1666. Clappertoun contra Laird of Torfonce.

41. Fourthly, The benefit of Redemption is competent to Creditors against the appearand Heirs of their Debitors, acquiring right to expyred Compryzings, which was extended to appearand Heirs, even during his Fathers Life, June 19. 1668. Burnet contra Naesmith, or any person to their behove, acquiring right to appryzings within ten years after the acquirers right, for such sums only as they payed for acquiring thereof, and they were found extinct by the appearand Heirs intromission by exception, which was so far extended, that it reached an appryzing assigned to an appearand Heir, though the assignation was before this Statute, seing the infeftment which made the appearand Heirs Right real and effectual, was after; and though the appryzing was redeemable when acquired, but expired in the person of the appearand Heir, July 21. 1671. Sir George Maxwel contra Maxwel of Kirkconnel. But the appearand heir getting right to the appryzing, gratis, it was not found to accress to the Creditors, but only to be redeemable within ten years after his Right, for the sum whereupon the appryzing proceeded, Feb. 13. 1673. intereosdem. An appryzing acquired by the Husband of an appearand Heir, found not redeemable by what be payed, unless it were proven that it was acquired by the Wifes Means, or upon her account, June 13. 1674. William Richardson con. Palmer. Feb. 21. 1673. Richardson contra Colline Laumond and Skeen of Halyards. Jan. 15. 1679. Andrew Mcdowgal contra Sir Hendrie Guthrie and his Spouse. But this ten years Reversion was not found competent to the debitor himself, to redeem from his appearand heir, Decem. 3. 1680. Sir Michael Naesmith contra James Naesmith. But a second Brother acquiring an appryzing upon easie terms, when his elder Brother was out of the Countrey, was not found redeemable by this Act, not being esteemed as appearand Heir, alioqui successurus, Feb. 17. 1675. John Mclurg contra John Gordoun.

And an appryzing coming to the person of the appearand Heir of the principal debitor, found satisfiable by the sums payable therefore, by the appearand Heir, summarly without reduction, Feb. 22. 1671. Sir David Dumbar of Baldoon contra David Dick. The like found by exception or reply, where the appryzing was to the behove of the debirors eldest Son, July 4. 1671. Laird of Balfour contra William Douglas. The like, where the apprizing acquired by the appearand Heir, was found satisfied by intromission equivalent to what was payed for the appryzing: the said intromission being either within the ten years, or after the intenting a summons of Declarator, offering to pay what remained after count and reckoning, it was found to prorogate the ten years Reversion, without any other order, June 26. 1677. Mr. John Kincaid contra Gordoun of Abergeldie.

[Page]41. Apprysings deduced against appearand Heirs, specially Charged to enter Heir, are not redeemable by the Heir of the Party Charged to enter Heir who was never Infeft, but by the Heir of the Defunct, for whose debt the apprysiing was deduced, who died last vest before the apprysing, February 6. 1668. January 19. 1669. Mr. John Johnstoun contra Sir Charles Erskine.

42. Minors have a special priviledge, that the legal Reversions of apprysings, run not against them during their Minority; and how far this is extended to Majors succeeding to Minors, Vide Tit. 6. amongst Priviledge of Minors, Vide, what hath been said of apprysing, Tit. 13. Section 29. and 30.

43. Apprysing while it is redeemable, is but a legal diligence for security; and the appryser may relinquish the same, though he be in Possession, and may do any other diligence for recovering his debt; but if he continue to Possess after the apprysing becomes irredeemable, the debt is thereby satisfied and extinct, which was so found, albeit the apprysing proved ineffectual as to a part of the Lands apprysed, the remnant being equivalent to the debt apprysed for, and it was not found, that a proportional part of the sums apprysed for, correspondent to the Lands that were evicted, should remain due to the appryser, June 18. 1675. Laird of Leys contra Forbess of Blacktoun.

The form and manner of Procedure in apprysings will come in amongst legal executions of which hereafter.

44. Adjudication is remedium extraordinarium, introduced by Custom, where apprysing could have no place, as when the debt to be satisfied is not a liquidat sum or goods ordinarly liquidable, but is a disposition of Lands, containing expresly or virtually, an Obligation to Infeft the acquirer, or some other: Or an Obligation consisting in some fact to be performed: Or otherways, where the debitors heir renunces to be heir, whereby there is no Party from whom the Lands can be apprysed; therefore, Haereditas Jacens is adjudged. This remeid is introduced by the Lords, who having ample power to administrate Justice in all cases, and to make orders for that effect, do supplie the defect of the Law, or ancient Customs, by such new remeids, as such new occurring cases do require, amongst which adjudication is a prime one, which Craig testifieth to have been unknown to our Predicessours, and being but recent in his time, and few decisions thereupon, the nature and effect of it was little known, but is now by course of time further illustrate.

Adjudication hath place in two cases; the first and most ordinary is, when the heir recounces to be heir, in which case adjudication is competent, whether the debt to be satisfied be liquidate or not. The other is, when the obliegement to be satisfied consisteth in facto, and relateth to the Disposition of particular things; which Disposition or Obliegement, not being fulfilled by the debitor or disponer, though all ordinary diligence be done, then adjudication taketh place to make the same effectual.

As to the first case, adjudication upon the appearand Heirs renuncing to be heir, proceedeth upon these ways, if he be pursued as lawfully Charged to enter heir, for satisfying of his Predicessors debt or obliegement, he may renunce [Page] [Page] [Page] to be heir (if he have not meddled) either in the Process against him, as Charged to enter heir in the first instance, or some time thereafter, by Suspension or Reduction, if he renunce in the first instance, when the debt is not yet instructed and established, as when it proceeds not upon a clear Bond or Write, but abides Probation by Witnesses, or otherways then before the Process of adjudication, there must be a Process and Sentence against the heir renuncing cognitionis causa, for establishing and proving the debt; in which, because there is necessity in all Processes, to have a defender, the appearand heir renuncing, is only called to supply that place, cognitionis causa, but without any effect against him, but only contra haereditatem jacentem. But if the appearand heir renunce in the second instance, after Decreet obtained against him; Or in the first instance, when the Ground and Title of the Pursuite instructs the debt, then there needs no other decreet, cognitionis causa; but the Pursuer Protesting for adjudication, the same will be admitted summarly.

Adjudication it self is a most simple and summar Process, whereby the heir renuncing, and the debt being established, as said is, the whole heretage renunced, orbenefite, whereto the heir might succeed, is adjudged by the Lords to the pursuer for satisfaction of the Defuncts obliegement, wherein the heir renuncing is again called to sustain the part of a defender, which is only for forms sake, for he can propone nothing, and one single summonds is sufficient without continuation; because it is accessory to a prior Decreet, as Dury observes, but expresseth not the Parties, Feb. 26. 1629. And all is adjudged, periculo potentis, whatsoever the Pursuer pleaseth to Lybel, alledging that it might have belonged to the heir entring: Yea, though any Party having Interest, should compear and instruct that he hath the only Right, and the Defunct was fully denuded; it would be incompetent, hoc loco, Spots. adjudication, Cairncorss contra Laird of Drumlanrig.

46. The reason is, because the Adjudication is but periculo petentis, and can give no Right, unless the Defuncts Right, competent to the heir renuncing be instructed. Neither can the adjudger, who is a stranger to the debitors right be put to dispute the same, in obtaining the adjudication; yet the Lords admitted a singular successor to propone upon his Infeftment, that the Defunct was denuded and adjudged, not the Property, but all Right of Reversion, or other Right competent to the appearand heir, July 22. 1669. Alexander Livingstoun and Sornbeg contra heirs of Line of the Lord Forrester. In this case the matter was notour to many of the Lords, that the Lord Forrester having no Sons, did contract his Estate with one of his Daughters, to Leiutenent General Baities Son, who was thereupon publickly Infeft. But the reason why appryzings and adjudications have past so much at Random is, because the appryzings have deboarded from their ancient form, by an Inquest, knowing the Lands, which therefore would never have appryzed Lands, but where the debitor was commonly repute Heretor, or Heretable Possessor: But when appryzings came to be deduced by Sheriffs in that part, constitute by the Lords by Dispensation at Edinburgh, where persons were made the Inquest, who knew nothing of the Lands, then all became to be appryzed which was claimed, and though the appryzer would not pay a years Rent for entering him in Lands, where he had no probability of Right in his debitor; the greatest inconvenience was as to the Lands holden of the King, it was little addition of Expences, to passe one Infeftment for all; and other Superiours, [Page] getting a years Rent, salvo jure, they were not suffered to Contravert.

But now Adjudications being in place of Apppryzings, and passing upon Citation before the Lords, it is not like they will adjudge Lands where the Debitors are not, at least repute heretable Possessors or Liferenters; for now the Lords are in place of the Inquest: And albeit as they suffer Decreets in absence, to pass periculo petentis; so they will suffer Adjudication to pass of all that is Lybelled; but if any other shall appear, and make it appear that they and their Predicessors have been holden and repute Heretable Possessors, and that there was no Right repute to be in the Debitor, the Lords might readily superceed to adjudge, till some evidence were given of the Interest of the debitor, Seasines having been now Registrat, since the year 1617. And likewise Reversions, though adjudicationes, of these might more easily pass then, because no Infeftment would follow: But where Lands are adjudged, and Infeftments follow, there arises thence grounds of pleas and pursuits, especially for Reduction and Improbation, upon which all the Heretors of the Lands contained in the Infeftments, would be oblieged to produce their Rights, and open their Charter Chests, to parties having no pretence to their Estates. The adjudication was sustained of all Lands generally, without condescendence, Decemb. 14. 1638. Corser contra Dury. But where the Defender appeared not, or contraverted it not in the adjudication, Process for Mails and Duties of the Lands adjudged, was sustained in the same Libel, Ibidem. And in adjudication of a Reversion, the Declarator for redeeming the same, was sustained in the same Lybel, July 8. 1629. Dury contra Kinross.

47. In adjudication all is competent to be adjudged, Which should have befallen the heir entering, as Lands, Annualrents, Reversions, Tacks, Liferents, and all Heretable Bonds; yea, not only these Rights themselves, but the bygone Rents and Duties thereof, preceeding the adjudication, and after the Defuncts death, may be adjudged and pursued against the Possessors and Intrometters in that same Process, because these are competent to the Heir renuncing, and there is no other way to attain them, as in the case of appryzings, which are not extended to bygones, seing these may be arrested, and pursued as Moveables belonging to the Debitor, as was found in the said case, Corser contra Dury. Decemb. 14. 1638. And likewise, heirship Moveables, for the same reason are competent in adjudications, but not against other Moveables of the Defunct, which may be confirmed, Spotswood Caption, Isobel Hagie contra her Daughters. Novemb. 24. 1638. Campbel contra John Baxter: and so it is not competent against an Heritable Bond, made moveable by a Charge, Jan. 30. 1627. Couper contra Williamson and Bogmiln. Yet if an Heritable sum should become moveable after the Defuncts death, as by an order of Redemption, it would be competent by adjudication, seing it could be reached no other way. In adjudications it is only competent to Creditors to appear, having like Process of adjudication depending, for all will be brought in pari passu, who are ready before Sentence, with the first pursuer, Hope adjudications, Stuart contra Sturt.

48. If the adjudication be of Lands or Annualrents, requiring Infeftment, the Superiour will be compelled to receive the adjudger, though a stranger his Vassal, though he do not instruct his Authors Right, salvo jure cujustibet & [Page] suo, Feb. 9. 1667. Elizabeth Ramsay contra Ker. But as to the years Duty, payable by the adjudger to the Superiour, for their Entry, though the Lords thought it equitable, that it should take place, as well in adjudications as appryzings, the reason being alike in both, yet found not sufficient ground, whereupon to decern it, seing the said years Rent is exprest in the Act of Parliament, 1469. cap. 36. And the Composition of the Superiour, for receiving appryzers, Parliament 1621. cap. 6. Yet in the next Act of the same Parliament, anent adjudications, there is no mention of Composition to the Superiour, though the Act relateth to the former Act, anent appryzings; and therefore, they thought it not competent to them to extend the said composition, ad pares casus, where it did so much appear, that the Parliament of purpose had omitted it; yet in the said case, Greirson contra Closburn upon the 21. of July 1636. they did forbear to intimate their Decision, and desired the parties to agree. And no Composition was found due by an Adjudger, having Charged before the late Act of Parliament, December 23. 1669. whereby, like Compositions are appointed for Adjudication, as for appryzing, July 10. 1671. Scot of Thirlestain contra Lord Drumlanrig. In which case, it was found, that the Superiour might refuse to enter the Adjudger, if he payed his debt; but that he was to have nothing for Composition, if he did so in the same way, as in appryzing, by the old Act of Par. 1469. cap. 36. by which that option is given to the Superiour.

49. Craig observeth, that it was doubtful in his time, whether there were a Legal Reversion competent to any renuncing, and afterward returning to Redeem Adjudications or Appryzings, wherein he favoureth the affirmative, but the said Statute, Par. 1621. cap. 7. determineth the case, and granteth a legal Reversion, in favours of these who have posterior Adjudications, within the space of seven years, or ten years since the Act of Par. 1661 betwixt Debitor and Creditor, which is also competent to any Renuncing in their Minority, and being restored against the said Renunciation; but it is not competent to any other Heir renuncing; yet if the Heir, though Major, find that he hath prejudged himself, by renuncing a profitable Heritage, he may grant a Bond, and thereupon cause within the legal, adjudge and redeem the former Adjudications, which, though to his own behove, will be effectual, there being so much equity and favour upon his part, being willing to satisfie the whole debts.

50. It is clear by the said Statute, the Lands or Heretage of a Defunct may be Adjudged, the heirs renuncing, not only for satisfaction of the Defuncts debt, but of the heirs own proper debt.

51. Adjudications are taken off and extinguished in the same manner as appryzings are, by intrometting with the Mails and Duties of the Lands adjudged, as is clear from the said Statute. And though cases be not so frequent in Adjudications, as in appryzings; to clear the other ways of their extinction: Yet the reason being the same in both, there is no doubt but the determination will also be the same.

52. The other manner of Adjudications, is for making effectual Dispositions or obliegements to Infeft, whereupon, when the acquirer hath used all diligence competent in Law, against the disponer to fulfil the same, by obtaining [Page] Decreets and Horning Registrat thereupon, either against the Disponer or his Heir, Law being there defective, and cannot make the Disposition or Obliegement effectual; the Lords have allowed Adjudications of the Lands disponed, whether in Fee or Liferent, July 19. 1611. Lord Johnstoun contra Lord Carmichael, Spots. hic, contra Bruce of Airth.

And thereupon the Superiour will be discerned to receive the Adjudger, as was found in the case of an Obliegement to Infeft a Woman in Liferent, holden of the Superiour, wherein she having used Horning, the Superiour was decerned to receive her, July 10. 1628. Harris and Cunningham contra Lindsay. Feb. 24. 1675. Marion Hamiltoun contra Mr: William Chiefly: The like in the case of an Heretable Disposition, whereupon the acquirer having obtained Decreeet against the disponers heir, for Infefting him, and used Horning thereupon: The Director of the Chancelary was decerned to Infeft the acquirer, Decemb: 16: 1657: Ross contra Laird of May. This manner of Adjudication is extended no further then to the thing disponed, and hath no Reversion: It requires no Charge to enter heir, or renunciation; but the adjudger must instruct his Authors right, June 24. 1669. Mr. Dowgal contra Glenurchie.

These Adjudications do not come in pari passu, with other Adjudications within the year, nor any other with them, July 16. 1675. Campbel of Riddoch contra Stuart of Ardvorlick. Decemb. 2. 1676. Lady Frazer contra Creditors of the Lord Frazer and Lady Marr.

53. By the late Act of Pavliament, anent adjudications, there are introduced two new forms of Adjudications; the one special of Lands effeirand to the sum, and a fifth part more, in case the debitor produce his Rights, and put the adjudger in his Possession, of his particular Lands adjudged: But if he do not, adjudications are to proceed as appryzings did generally of all the debitors Lands, or real rights, periculo petentis, redeemable within ten years: These Adjudications are come in place of appryzings, especially the general adjudications, which are declared to be in the same condition in all points as appryzings were by the Act of Par. 1661. cap. 62. Except as to the lengthening of a Reversion from seven to ten years: So that what hath been said of Appryzings, will have the same effect as to general Adjudications; but special Adjudications being equitable and favourable, will not meet with such strictness: This Statute hath taken away the greatest Reproach upon our Law, which for every debt indefinitely appryzed every Estate great or smal, which had no excuse, but that the debitor might redeem in seven years: But all debitors being necessitat to appryze within a year, or to have no more then the legal Reversion, paying the whole debts, the power of Redemption came to be of little effect, few being able to pay all their debt in one day: But now if any debitor complain, that his whole Estate is adjudged, and no proportion keeped betwixt the debt and his Estate, it is altogether his own fault, seing he might offer a proportional part, and liberat all the rest of his Estate; which part is Redeemable also in five years: And though a fifth part be added, it is no more then the ordinary penalty, being an 100. Pounds for a 1000, Merks, and 50. Merks for the Sheriff-fee; makes 200. Merks, being the fifth part of a 1000. Merks, and which was sustained in the most favourable cases of Appryzings from the beginning, and the Reversion was for seven years.

[Page]Adjudications being executive Decreet, the Lords allow them the greatest dispatch; and to prevent Collusion, whereby some debitors might be postponed by debate and probation till the year pass, which would excludethem; Therefore the Lords do not suffer Co-creditors to stop Adjudications, that they might see for their entress, and put the pursuer to abide the course of the Roll, unless they produce an Entress, upon which the Ordinar will hear them immediatly without going to the Roll, Jan. 22. 1681. Earl of Dundonald contra Dunlop and his Creditors. Neither is the Superiour suffered to propone defences, Jan. 13. 1675. Kinloch of Gourdie contra Mr. James Blair and James Strachan. Yea, the Lords sustained the establishment of the debt in the same Lybel with the Adjudication, July 26. 1676. Alexander Boyd contra Boyd of Pinkill. But if the debitor himself appear, the Cause goes to the Roll; and if there be prior adjudgers, defences proponed against the debt, or adjudication, which are not like to be verified within a year of the first adjudication; the Lords adjudge and reserve these defences contra executionem, by Suspension; In which terms will be granted, because of the reservation; but there is this advantage, that how long soever the Suspension be of expeding, the first decreet being within the year, brings the adjudger in pari passu.

TITLE XXV. Confiscation, Where, of single Escheat, Liferent-Escheat, Shipwrack, Waith-goods, Treasure, Forefaulture, Bastardy, and Last-heir.

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1. The Tenor of Letters of Horning.

2. The executions of Horning must bear the party Charged personally, or at his dwelling-house designed.

3. The Execution at the dwellinghouse, must bear six knocks at the most patent Gate, because the Messenger could get no Entry.

4. The knocks must be audible, that these within may hear.

5: If the Messenger get entry, the delivery of a Copy to any of the Family is sufficient without knocks, and must be so exprest.

6 The days requisite for the Charge beyond the Water of Dee.

7. The denunciation must be against the party, and at the Mercat Cross of the Jurisdiction where he dwells.

[Page] 8. The denunciations must bear three Oyesses, or the equivalent.

9. The execution must bear three blasts of the Horn.

10. The execution must be stamped.

11. The Horning must be Registrate, and how.

12. Denunciation after satisfaction hath no effect.

13. The effect of general Letters of Horning.

14. The order and effect of Relaxation from the Horn.

15. The single Escheat and extent thereof

16. How far the denunceds debts, or deeds affect his Escheat-goods.

17. Gists of Escheat, and preference thereof.

18. Gifts of Escheat not expressing the particular Horning whereon they proceed.

19. Gifts of escheat, though bearing goods to be acquired, extend but to these acquired within a year after the gift.

20. Escheats within Regality.

21. In what cases gifts ofescheat are held simulat.

22. Who must be called in the general declarator.

23. The Titles and Tenors of general declarators.

24. Exceptions against general declarators.

25. Special declarators of escheat.

26. Liferent-escheat.

27. Confiscation of Treasures, Waith, or Shipwrack-goods.

28. Forefaulture.

29. Several kinds of Treason by Statute.

30. Forefaulture Confiscats without the burden of the debts or infeftments not confirmed by the King.

31. How far fews are effectual against Forefaulture.

32. How far Tacks of forefault Lands are effectual.

33. Forefaulture by arescinded Act, was burdened with the debts and deeds of the Rebel.

34. Forefaulture, when, and how it may proceed in absence.

35. How far the person of the Rebel gives Right to the Fisk.

36 The effect offorefaulture of appearand heirs.

37. In what cases forefaulture dishabilitats.

38 How far the forefaulture of appearand heirs may be extended.

39 Explanation of the Act of Parliament 1594. cap. 202. importing burdening of forfaultures with the debts and deeds of the Rebel.

40 Forefaulture is reducible upon any nullity, but only by way of grace.

41 How far forefaulture takes effect without declarator.

42 What Children are lawful and what bastards.

43 Declarator of Bastardy.

[Page] 44 The effects of Bastardy, as to Succession.

45 Legitimation and effects thereof.

46 How the debts and deeds of the Bastard affect his Estate.

47 Ultimus haeres, and the difference thereof from Bastardy.

THE Conveyance and Transmission of all kinds of Rights from private parties to the Fisk, are here comprehended under one common Term and Title of Confiscation: It is not proper in this place to treat of the Fisk, or priviledges thereof, or upon the several Causes, upon which Confiscation followeth; these being publick Rights; but we shall only consider the several kinds of Rights, or things that befal to the Fisk from private parties, and how they return to private parties again, by Gifts and Processes thereupon; and this is either in reference to Moveables, Liferents, or the Property and Stock of Heretable Rights and others

Moveables fall to the Fisk, either wholly and intire, and that is chiefly by Denunciation and Rebellion, or by some special Statute, the penalty whereof is Confiscation of Moveables; such are breach of Arrestment, or Deforcement wherein, though the private party injured have an interest; yet in effect the whole is Confiscat, and a part belongs to that party, by vertue of the Statute thereanent, whereby they are constitute Donatars: Or otherways some particular Moveables befalleth to the Fisk; either by Custome, as Waithgoods, Ship-wrack, &c. or by Statute. Liferents befal to the Fisk by the Denunciation of the Owner, and remaining unrelaxed year and day, or by such Statutes, whose penalty is the loss of the Liferent.

The Stock or Property of Heretable Rights, fall to the Fisk by forefaulture, or becoming caduciary; the Confiscation of the whole Moveables is called the single-escheat; and of the Liferent, is called the Liferent-escheat. We shall only speak of the Single-escheat of Moveables by Denunciation; having spoken of breach of Arrestment and Deforcement, Title Reparation. Secondly, Of Liferent-escheat. Thirdly, Of Escheat of particular Goods, as Shipwrack, &c. Fourthly, of Forefaulture. And lastly, of things Caduciary, especially by Bastardy, and last Heir, and of Gifts and Processes thereupon.

Escheat, though it be a common Term, signifying any Confiscation, yet it is restricted to Moveables and Liferents, and most properly to Moveables, so that when it is simply exprest, it is ordinarly taken for single-escheat, or Escheat of Moveables; but before we descend thereto, it is fit to consider of the ordinary Cause thereof, and of Liferent-escheat, viz: Horning.

[Page]Horning proceedeth thus, by Letters Executorial, giving warrand to Messengers at Arms, to charge any partie in the Kings name, to obey what is contained in the Letters, under the pain of Rebellion; And if he obey not within the dayes of the charge, giving power to Denounce him Rebel by publick Proclamation, at the Mercat Crosse of the Head Bargh of the Shire, Stewartry, Bailliarie of Royalty or Regalitie within the which the Denunced dwells; and that by publickreading of the Letters of Horning, and giving three blasts of a Horn, for the clear manifestation and notice thereof, from whence it is called Horning: And because of the Certification, the partie Denunced is called Rebel, by a term too rough, such Persons not being in Hostilitie against the King, nor being publick enemies, but only Denunced upon Causes Civill, which they lye under frequently, not through contempt, but inability to satisfie. The English do more properly call this Execution Out-lawerie, whereby the partie becumes Out-law, and hath not a person to stand in Judgement Active or Passive: And if such should be called by us, the Denunced, it were smoother, and more suitable then the odious term of Rebell. Seeing Horning is the ground both of single Escheat, and Liferent Escheat: It would be fit to go through the several Requisites thereof in order, and the nullities arrysing thereupon.

First, the Letters of Horning must be Signet: And therefore though the Bill was past, and the matter small, and the parties Indigent, a Horning not Signet was found null 1. of June 1610. John Megill contra.

Secondly, the Executions, or Indorsations thereof must bear, that the partie was charged personally, or at his dwelling house, designing the house. And therefore a Horning was found null by Exception, for not designing thereof, though the partie was designed to be Burgess of such a Burgh, which might have presumed his dwelling place to be there, July 14. 1626 Adam contra Baillies of Air, yet a Horning was sustained, though not designing the dwelling house nominatim; but by discription of it. Thus, the Messengers Execution did bear, that he charged the partie designed by such Lands, at his Dwelling House, it being proven, that he then dwelt there, November 9. 1632. Montgomerie contra Fergushall.

3. If the Charge be in absence, at the parties Dwelling House, the Execution must bear the Messenger to have craved entrie to give the Charge to the Partie, or his Wife and Familie and not getting Entrie, six Knocks to have been given by the Messenger, at the most patent Gate, or Door thereof, yet this being wanting in the Extract, the same was sustained, It being proven by the Keeper of the Register, and his Servant, That when the Horning was offered to the Register, these words were in it, and by the Messenger, and Witnesses insert in the Execution, that the Knocks were used, the intent of the Cause being Alimentarie and Favourable, March 28. 1637. Scot contra Scot. But this is not to be drawn in Example: For the Register of Horning is that upon which the People ought to rest, and nothing ommitted to be exprest in the Register should be supplied by the principal Hornings, Messenger, or Witnesses: For Executions of Hornings cannot be proven by Witnesses, and consequently no matterial point thereof,

[Page]4. Knocking at the Door audiblie is necessary, without which, Executions might be Clandestine, and never come to the parties knowledge. And therefore the Messenger must express this as truely done, wherein he runs the hazard of being a Forger, if the Executions be improven, that either the Knocks were not given or were given fraudulently, that these within might not hear, as if the Gate had been but Struck with ones hand, a piece of Earth, or Stick, which could not reach theirEars that were within, for the affixing of a Coppie may be more easily evaded: Seeing the partie may send of purpose to take the Coppie off, being none of the Witnesses in in the Execution, albeit sometimes, even the Witnesses carrie away the Coppie, and the Messenger may imagine that his Executions were true, when he said he left a Coppie affixed, because it was affixed when he began to move from the Gate; Yet if he saw it carried away, his Executions would be found false, and he would not escape punishment. A Horning was also sustained, though it bore neither Personally, nor at the parties Dwelling House, seeing it bore a Coppie to have been given, which necessarily imported to have been personally apprehended, July 22. 1626. Stewart contra Hannai.

5. Thirdly, the Executions must bear, that the Messenger gave a Coppie of the Letters to the partie charged personally, or in his absence, affixed it upon the most patent Door of his Dwelling House: And therefore a Horning was found null, because it bore not delivery of a Coppie, but only of a ticket bearing the tenor of the Letters, Hope Horning Monteith contra Kirkland. But if the Messenger get enterance into the house of the partie Charged, and deliver a Coppie to the parties Wife, or some of his Family, There the Execution will be sustained though it bear not Knocks at the Door, or affixing of Coppies thereupon, these being only required where entry is not gotten, December 11. 1679. James Somervail contra William Staines.

6. The Charge must also be upon 15. days being beyond the water of Die, and six upon this side. Par. 1600: cap. 25. Yea, though fewer dayes be in the Claus of Registration it was not found valid, February 14. 1625. Stewart contra Bruce. The contrary was found, December 16. 1664. Philorth contra Forbes of Asloun, and the Lord Frazer, Jannuary 20. 1675. Laird of Meldrum contra Tolwhoun. And it was found, that the Act 1600. Was not to be Extended to Hornings upon Clauses of Registration of consent: And that the meaning of the Statute was both interpret by the Narrative, and Subsequent Consuetude. Nam Consuetudo optima legnm interpres. And that the Decision Anno 1625. hath been upon this Consideration, that the Charger lived in Fyfe, and the Debitor in Orknay, who could not possible, either come to the Creditor and pay, or to the Lords and Suspend on six days, and so was not contumacious, but free by the Act of Parliament 1592. cap. 138. Annulling impossible Conditions in Contracts, whereby their is sufficient ground of reconciliation of these Decisions, for it is only Contumacy that makes the Escheat fall which gave the rise to the Act of Parliament, to allow 15 days for all beyond the water of Die. And though parties consent to lesse time, yet Contumacie cannot be inferred, but where the partie could by exact diligence come in time, either to satisfie the partie, or to Suspend, which some beyond Die might do, if the Charger were near, that they might offer him just satisfaction, and if he refused, they might have time to reach Edinburgh, and Suspend: But in other cases that cannot be, as was evident in the Case, in Anno 1625. And therefore, consent, in that Case, can no more inferr Contumacie, then the express [Page] Consent of parties, that Charges and Denunciations at the Mercat Cross of Edinburgh, shall be sufficient, which is declared null, Par. 1532. cap. 138.

7. Fourthlie, The Executions must bear, that the partie was Denunced, conform to the Charge, for not Obedience thereof: And that either at the Mercat Cross of the Head Burgh of the Shire where the partie charged dwells, or at the Head Burgh of the Stewartrie, or Regalitie, or Balliary of Royalty, if he dwel within these, Par. 1597. cap. 264. Yea, though the write bear, that Letters of Horning execute at Edinburgh, should be sufficient against parties out of the Shire, the same is declared null by the said Act. When there was no Head Burgh of the Regalitie known, the Execution at the Head Burgh of the Shire was sustained, Spots. Horning, Stirling contra Auchinleck, And the Head Burgh of the Shire, where the Denunceds dwelling lyes Locally, is sustained by the Act of Par. Though his dwelling be upon Lands by annexation, in another Jurisdiction, unless that be commonly known, and in use: Therefore, Horning was not found null, not being Execute at the Head Burgh of Renfrew, the dwelling being upon Lands annexed to the Principalitie, January 11. 1677. Scot conra Dalmahoy. Neither, because the Denunced dwelt in Temple Lands within the Regalitie of Torphichen, unless there were a known Head Burgh and Register there, January 12. 1672. Mr. James Scot contra Boyd of Temple.

8. Fifthly, The Execution should bear, that the Messenger, at the Denunciation did make three Oyesses, before he read the Letters of Horning, that the People might thereby take notice of the Intimation, which therefore ought to be with audible voice; Which, though it be not by any particular Statute, yet is requisite by antient Custom, and should be exprest in the Execution of all Letters, which require to be published at the Mercat Crosses: The intent thereof being, that the Publication thereof may come to the Ears of the Countrey, and be carried by common Fame, that all parties concerned may look to their Interest: And therefore, such Publications at Mercat Crosses, and at the Peir of Lieth, have by Law and Custom, as expedients to make them commonly known. 3. Oysses before reading of the Letters, and affixing the Coppie of the Letters upon these Publick Places: And Horning hath this supper-added, that there must be three blasts of the Horn after reading of the Letters; But because Executions do not always bear 3. Oysses, But generally lawfull Publication. The Lords did declare upon the February 15. 1681. That they would sustain no Executions of Messengers, done in time coming, not bearing three Oysses & publick readingof theLetters, in a Reduction at the instance of Gordon of Park contra Arthur Forbes, upon the want of 3. Oysses, which came not to be decyded, because the Executions were Improven: And an Inhibition bearing only, that the Messenger did lawfully inhibite, and not bearing three Oysses, or the reading of the Letters. the Lords found the same null, and would not Supplient by Witnesses, that these were truely done, July 11. 1676. William Stevinson contra James Jnnes: But where the Executions did bear that the Messengers did lawfully publish, and read Letters of Inhibition, which by inspection of the Registers was found to be afrequent Style, and not the former Style, which was meerly generall, The Lords sustained that the three Oysses were truly given, Junne 21. 1681. Lundie contra Trotter.

[Page]9. The Execution must also bear, that the Messenger did give three blasts with his Horn: And yet a Horning was not found null, because it bore not expresly the partie to have been Denunced, or three blasts to be given, but only generally, that the Rebell was Denunced by open Proclamation, and put to the Horn, January 19. 1611. Sr. Robert Hepburn contra Laird of Nidderie, and an Execution was sustained, though it bore not three blasts, it being proven by the Witnesses insert that these blasts were truely given, and the Execution bore orderly Denunced, March 4. 1624. Drysdale contra Sornbeg, and Lamingloun.

10. Sixthly, The Execution must bear, that the Messenger, for more Verification, hath affixed his Signet, or Stamp, and the Stamp must appear, if the Executions be recent, else it will be null, March, 6. 1624. Comissar of [...] contra So the Execution of a Horning was found null, because it mentioned not the Stamping thereof, Hope Horning Home contra Pringle of Whitebank; Yet the Executions weresustained, though they bore not these Words, seing they were all written with the Messengers own hand, and were Subscribed and Stamped, as Hadingtoun observeth, but expresseth not the partie, February 19. 1611.

11. Seventhly, Horning must not only be Execute at the Head Burgh of the Shire where the partie dwells, but must be Registrat in the SheriffClerks Register of that Shire within 15. days after Denunciation thereupon, Otherwayes the same is null, Par. 1579. cap. 75. Where the Clerk is ordained to give an Extract, and Registrat it within 24. hours after recept of the Letters: And if he refuse it, the Charger may Registrat it in the next Sheriff Books, or in the Clerk of Register his Books, which upon Instruments taken of his refusall, is declared sufficient, Par. 1579. cap. 75. Wherein the Registration is ordained to be Judicially, or before a Notar, and four famous Witnesses, besides the ordainry Clerk: But this part of the Act is rescinded, and it is declared, that the Registration in the Sheriffs, Baillies, or Stewarts Books by the Clerk thereof, or by the Clerk Register, and his Deputs in the Books of Council and Session shall be sufficient in it self, Par. 1600. cap. 13. And for this effect, there is a general Register of Hornings, Relaxations, Inhibition & Interdictions keeped at Edinburgh, and a particular Clerk Deput having the Charge thereof: But if the partie live within Stewartrie, or Bailliery of Royaltie or Regalitie, the horning must be Registrate there, in the same manner as other Hornings must be Registrate in the Sheriff Books, else it is declared null, Par. 1597. cap. 265. But Denunciation against parties who have found securetie to underly the Law, and compears not at the day appointed, is declored sufficient, being at the Crosse of Edinburgh, within six days, though not at the Head Burgh of the Shire, Par. 1592. cap. 126. And likewise, Denunciations against parties entring in the place of the Criminal Court, with more persons then there Domestick Servants, and Procurators are declared valid, though Execute only at the Mercat Crosse of the Burgh where the Justice Court sits for the time, and Registrat in the Books of Adjurnall, Par. 1584. cap. 140. Executions of Horning was also found null, because Execute upon the Sabbath day, Spots Charge, Ribbald Frenchman contra Sr Lewes Lauder, but were not found null, Because Registrat after the Rebells death, being Denunced before December 20. 1626. Laird of Lie contra Executors of Blair.

[Page]12. Though the Horning be orderly used, yet if the Ground, or [...] whereupon it proceeded be not due, or taken away before the Denunciation, the Horning is thereby null, and reduceable, though no Suspension of the Horning was raised before. but in this the Officers of State must be called to prevent Collusion, Spots Escheat, James Dowglas contra Creditors of Wardlaw. So a Horning upon Lawborrows was found null by exception, because Caution in obedience was found before Denunciation, November 29. 1626. Smeitoun contra Spear; Yea Horning was reduced, because before Denunciation, the Charger had accepted a Band in Satisfaction of the ground of the Horning, which was found probable by the oath of the Charger against the Donatar, Hope Horning Mushet contra Forrester. The like where the Charge was Suspended before the Denunciation, though the reason of Suspension militated only against a part of the Charge; Hope Horning Buckie contra Earl of Erroll: But the Rebells Oath, or holograph discharges before Denunciation, were not respected as presumed Collusive, February 10. 1663. Montgomery contra Montgomery and Lauder. In this case it was found, that Reduction of the Decreet upon Informality, not being upon material Justice, did not annul the Horning; Neither was Horning taken away by compensation, by the like Sum due to the partie Denunced, equall to that in the Horning, not having been actually applyed, by Process or Contract before the Denunciation; Nor was any warrand required for using the Execution, though for a partie living in England, and done against a Daughter and her Husband: But the having the principal Band, was found sufficient warrand for Registration of it, and Execution thereupon; And the Denunciation against the Husband was not taken off, by dissolution of the Marriage before Declarator, December 23. 1673. Thomas Dalmachoy contra Lord Almond.

13. Horning though orderily used, proceeding only upon generall Letters, by Supplication against all and Sundry, unlesse it be against a Burgh, Colledge or Communitie, proceeding not upon a Citation, and for a special and certain Dutie, the Denunciation thereupon hath no effect, as to Escheat, or Liferent, though Caption usually follow thereupon, Par. 1592: cap. 140. Which Act doth declare such Executions null: And therefore, such a Horning was not found sufficient to debarr a partie, as not having personam standi in judicio January 24. 1674. Blair of Glascun contra Blair of Baleid, much lesse can these general Letters make Escheat to fall, or Annualrent be due, yet Caption proceedeth upon it, and useth not to be quarrelled.

14. Horning is taken off, and ceaseth by Relaxation, which requireth the same Solemnities of Publication, and Registration as Hornings do; As is clear by the forcited Acts of Parliament thereanent: But it doth only operat to free the Rebel relaxed, as to his goods and others, acquired after Relaxation, February 14. 1635. Lochart contra Mosman, December 23. 1673. Thomas Dalmachoy contra Lord Almond.

It is also ordained, that all Copies of Summonds, and Letters delivered by the Executer thereof, shall be subscribed by him Par. 1592. cap. 139. I have not observed any Exception founded upon this, Act, which though it expresseth not a nullitie, yet ought to be a rule to Messengers, especially in Hornings, and Inhibitions, which may prefer any other more orderly diligence.

[Page]15. The effect of Horning dulie used, and Registrat in manner foresaid, is that thereby the whole moveable Goods, and Debts of the parties Denunced are Escheat, and Confiscat, and all that he shal acquire thereafter, till he be relaxed; Whereupon the Thesaurer used to cause raise Letters of Intromission, for uptaking of the Escheat Goods, direct to Sheriffs and Messengers: And in case they be deforced, or the Sheriff not able, or willing to Execute the same, Lettes will be direct to Noblemen, and Barrons within the Shire, to Convocat the Leidges in Arms, and to make effectuall the former Letters Immediately, Par. 1579. cap. 75. But this is long in Desuetude: This is also an effect of Horning, that the partie Denunced, hath not personam standi in Judicio; either as Pursuer or as Defender, yet the Lords would not hold him as Confest, if he appeared, and were hindred by the other partie, July 12. 1676. Sr. William Purves contra Sharp of Gospetrie. The same will hold in any thing requiring the personal presence of the Denunced, as byding by a write, quarrelled of Falshood.

For clearing the matter of Escheats, it will be necessary to show, First, what falls under single Escheat. 2. How farr the same is burdened, or affected with the Denunceds Debts or deeds, for the first single Escheat extends to no Heritable Right, whether of Land Annualrent, or Heritable Band, but itcarries the bygones of all these, preceeding the Denunciation: And there after till year and day, July 1. 1626. Halyburton contra Stewart, Hope Horning, Sr. Hendrie Wardlaw contra William Dick. What Rights are Heritable, and what moveable, hathbeen shown before Title Real Rights. So thatall which is there Moveable, except Moveable Bands bearing annualrents, falls in the single Escheat, and somethings are Moveable, in Relation to Escheats, which are not Moveable in Relation to the Succession of Airs or Executors: As Tacks not being Lyfrent Tacks, Par. 1617. chap. 15. It carries also the Office of a Clerk-ship, Hope Horning, Mr. Hendrie Kinross contra James Drummond: And likewise the Jus mariti of a Husband, and therewith per consequentiam, the Lyfrent right, or other right of the Wife, belonging to the Husband, Jure mariti. Spots Escheat Violet Dawling contra William Cochran. It carrieth also all casualities befalling to a Rebel Denunced before the Denunciation: As the Lifrent Escheat of his Vassals, Felrury 13. 1611. Symson contra the Laird of Moncur But if the casuality had fallen to the Superior, after the Superiours own Liferent had fallen by his Rebellion, year and day, it would be carried with the Superiors Liferent Escheat, February 26. 1623. Clunie contra Bishop of Dunkell. And if the Liferent Escheat, or any other casualitie be gifted, the gift makes it Moveable, and so to fall under the Donatars single Escheat, March 10. 1631 Francis Setwart contra the Ladie Samuelstoun: And the single Escheat of Husband carrieth their Jus mariti, and in consequence, the Liferent of their Wives, for though the Wifs right be a Liferent, which wouldnot fall under single Escheat, Yet the Husbands Right Jure mariti, is no Liferent, for if the Wife die before him, his Right ceaseth in his own Life. Tacks also fall under single Escheat, unlesse they be Life-rent Tacks: and Assignations to Life-rent Tacks, and other Life-rents have been found to fall under single Escheat, because the direct Right is incommunicahle; For no Life-renter can put another Life-renter in their place, but canonly assign the profits befalling to the Life-renter by the Life-rent Right: So that it is no Life-rent in the Assigney, but is as the jus mariti in a Husband, which is as a Legal assignation: Likewise, Clauses of Relief in Heritable Bands fall under single Escheat, because there is no Heritable Clause adjected to the Clause of Relief, but Assignations to Heritable [Page] Bands makes them not fall to under single Escheat, because the Creditors right is directly Transmitted and Stated in the Assigneys Person. The single Escheat of Ministers carries the meliorations of their Manses, but the Escheat of an Executor carries no more then what is his own Interest, and not the Share of the Wifes, Bairns, Creditors, Legators, or nearest of Kin, which is Escheat by their own Rebellion only, even though the Testament were Execute by Decreets, at the Executors instance against the Debitors, December 21. 1671. Mr. Arthur Gordon contra Laird of Drum.

16. As to the other Question, how farr the Denunceds Debts or Deeds affect his Moveables fallen in Escheat, it is clear, that the Debt contained in the Horning affects the Escheat, whether in the hands of the Thesaurer, or Donatare, Par. 1551. cap. 7. Par. 1579. cap. 75. And likewise all Intrometters with Escheat, by Gift, Assignation, or otherways, upon a single Sum monds of Six days, Par. 1592. cap. 143.

Secondly, It is clear, that no Assignation, Disposition, or other Deed done by the Denunced, after Denunciation, not being for fulfilling an Anterior Obleigment before Denunciation, for a Cause onerous to a lawful Creditor, can affect the Moveable Goods or Debts of the Denunced: But when the Denunciation is upon a Criminal Cause, the Escheat takes not only effect from the Denunciation, but from the committing of the Fact: Therefore a Donatar of Escheat recovered a Sum due to the Rebel, though Assigned before the Fact, and payed before process, Seing intimation was not before the Criminal fact, Hope, Chalmers and Gordoun contra Gordoun.

Thirdly, These Debts or Deeds of the Denunced, do not simplie affect the Escheat Goods, unlesse they be Consumat, or lawful Diligence done before the up-taking of the Escheat Goods, by the Thesaurer or Donatar; Yea, before general Declarator, for that being the Intimation of the Donatars Gift, it renders it to him to be a compleat valid Right, after which no Creditor not having a real Right, or Legal diligence before, can have any Access, unless the Donatar, by back-band to the Thesaurer, be otherwise obleiged: And therefore a Donatar having obtained general Declarator, was preferred to a Lawful Creditor arresting after Declarator, February 22. 1628. Anderson contra Gordon.

But the Question remains, how far Lawful Creditors, whose Debt is before the Denunciation, or Criminal Fact, using diligence thereafter, but before Declarator, or obtaining Assignations intimat, or Dispositions cled with Possession before Declarator, may thereby effect the Escheat Goods? For answer thereunto, though in rigore Juris, the goods and debts of the Denunced fall to the Fisk, as they are the time of the Denunciation, or Criminal Fact: And the Declarator, according to the nature of all Declarators, doth not constitute the Fisks Right, but declares the same to have been from the Denunciation, or Criminal Fact (albeit as an Assignation, it doth constitute the Donatars Right; Therefore the real Right passing to the Fisk without possession, or at least the priviledge of the Fisk might in the full Extent thereof, exclude all posterior diligences or deeds: Yet such hath been the Royal benignitie of our Kings, and there Favour to Lawful Creditors, that in this they accompted id solum nostrum quod debitis deductis est nostrum. For which the Thesaurer hath been accustomed to prefer Creditors, giving Gifts of Escheat [Page] to them before others, and in taking Back-bands from them, in favors of other Creditors; Yea by long custom, Creditors, whose debts were anterior to the Denunciation, or Criminal Fact, doing diligence before Declarator, are preferable to the Donatar, Spots escheat, James Nisbit contra James Fullarton, February 24. 1637. Pilmure contra Geggie. In this case the escheat belonged to a Lord of Regality, and the Arrestment was laid on before the gift of escheat: But where the Donatars Gift was in payment of his own debt, he was preferred to an Arrester, arresting the Rebels goods after the gift, but before Declarator, February 27. 1623. Thomson contra Laird of Murckil, but voluntary deeds of the Rebel after Rebellion, as Assignations not intimat before Declarator, for satisfaction of Debt due before Denunciation, or Criminal Fact, are not preferred to the Donatar, Hope assig. Sr. James Stewart contra Alexander Wardlaw, John Clerk contra William Naper, and James Cramfoord contra John Mcaul. And though an Assignation not being intimat before Rebellion was preferred to the Donatar, yet it was in consequence of a Decret of Council decerning, that Assignation to be made, and so not voluntary: So a Donatar was preferred to an assigney, whose assignation bore a cause Onerous, and was before Declarator, but after Rebellion, December 6. 1631. and February 26. 1633. Conheth contra Earlston. Decem. 18. 1629. Laird of Caprington contra Cuninghame, February 2. 1632. Lindsay contra Nisbit. Where the Assignation bore not a cause Onerous, Yet a Lawful Creditor obtaining Disposition from the partie denunced, cled with possession, was preferred, ibid. Johnston of Corhead contra Johnston. In like manner a disposition made by the Rebel for a Just debt, before the Giftor Declarator was preferred to the Donatar: Here it was not exprest, that the debt was before the Rebellion, February 10. 1635. Mosman contra Lockhart. Where there seems some difference in the Decisions, wherein these points seem clearest, 1. Dispositions and delivery of Goods, because moveables are more easily transmissible in favours of Commerce, and so have always a presumptive Title upon Possession: So that if the Goods be bought in a Mercat, there seems no Question, or if bought out of Mercat from a Rebel, getting the price which accresseth to the Fisk, unlesse the Buyer was in mala fide. And though getting the Goods in Satisfaction of a debt, before the Rebellion, be more questionable then a present Exchange of the Goods and Price, the former decisious favour that also. The Lords did lately find, that a Rebel selling part of his Corns, to provide necessaries for Sowing of the ground, the Crop whereof fell to the Fisk, the bargain was valid. 2. Legal Diligence upon Arrestment being compleat before Declarator, are valid, though after Rebellion; Yea the Decisions favour even the inheat diligence, if the Arrestment was before declarator upon a debt before Rebellion. And it was so found, February 19. 1667. Jsobel Glen contra John Hoome. But voluntary Assignations seem not effectnal, if they be not compleat by Intimation before Rebellion, and though they be, if Payment or Satisfaction, either in Money or renewed Bands, innovating the Rebells Band, be not obtained before Rebellion, the Donatar was found preferable, but otherwise the Creditor, by Precept, Assignation or otherwise, getting payment of his debt, prior to the Rebellion, and obtaining payment, before Declarator was found secure against the Donatar, February 11. 1675. William Veatch contra Executers of Ker. But though actual Payment were obtained by Assignation after Declarator, it will not Secure the Creditor December 20. 1676. inter eosdem.

[Page] [Page] [Page]17. The matter of Escheat being thus cleared, we come to the gift thereof, and Declarator thereupon. A gift first Sealed, was preferred to an other, first signed in Exchequer, albeit so near in diligence, as coming that same day to the Seals, December 6. 1662. Stewart contra Nasmith.

Gifts of Escheat are in effect, the Assignations thereof by the Fisk, whereof the Intimation is the Declarator. So that a Posterior gift, with a Prior general Declarator is preferable to a prior gift, with a posterior Declarator: But where there is yet no Declarator, Preference is by the first Citation, if the same was followed with Lawful Diligence: And therefore a Posterior Gift, whereupon Citation was prior, but three days was preferred to a prior Gift, Jan. 31. 1635. Laird of Renton contra Laird of Lambertoun. If there be no Citation, or Declarator, the Donatars possession is sufficient alone, and will, preferr a posterior Gift though granted to the Rebel himself, being before any Diligence upon the Prior Gift. And if two gifts be produced as enteresses, without any Diligence on either, the first gift is preferable.

18. Gifts of Escheat, as all other gifts by the King are null, if granted before the Casuality fall, as an erection of Kirk-lands, in a temporal Lordship was found null, because a commendatar stood then in the right, and did not Resign or Consent: And therefore a posterior Erection to that Commendatar, upon his own Dimission was preferred, February 24. 1666. Sr. Robert Sinclair contra Laird of Waderburn. And so a gift of escheat before Denunciation was found null, by exception; Because it mentioned no particular Horning whereupon it proceeded, though done by the Kings own hand at Court: And though Anterior Hornings were produced in the Process, and no other Donatar, nor Officer of State quarrelled the same. November 20. 1628. Weston contra Stewart.

19. Gifts of escheat not bearing expresly goods to be acquired, extend no further then to the goods, the Denunced had the time of the gift, February 27. 1623. Bruce contra Buckie. And though the gift bore expresly, not only the goods the Rebel had, but which he should acquire thereafter, during his Rebellion: Yet the same was only extended to what he had the time of the Gift, and what superveened within year and day, June 27. 1622. John Jnglis contra Laird of Caprinton. It was so decyded, July 2. 1669. Barclay contra Barclay. Yea the same was extended to no goods acquired after the gift, seing the Style thereof bore not what he should acquire, February 2. 1627. Lewis Somervail contra Mr. William Stirling.

20. Escheats of Persons living within Regality, belongs to the Lord or Baillie of Regality infeft with that priviledge: And therefore Gifts by the King, reach not these escheats, but gifts by the Lords, or Baillie of the Regality, which was found to comprehend all Moveable goods, and sums belonging to the partie Denunced, as well within the Regality as without the same, June 26. 1680. Young contra Laird of Raploch. But these gifts Differ from the Kings gifts, that they are effectual according to their Tenor, both as to goods before and after the gift, and are valid, though granted generally, or though before the Casuality fall, if a special gift, after the Casuality fell, be not in competition, for the Prior Limitations of the Kings gifts, are only in Favours of the King, that he be not prejudged by the default of his Officers; But private parties ought sibi invigilare: And albeit the diligence of Creditors [Page] be preferred to the Donatars, chiefly by the Kings benignity: Yet the same was sustained against a Donatar of Escheat, by a Lord of Regality February 24. 1637. Gilmore contra Hagie.

21. The main difficultie anent Gifts, is, when they are Simulat, and to the behove of the Denunced, which is much cleared by that excellent Statute, Par. 1592. cap. 145. Declaring it a sufficient evidence of Simulation, of any Assignation, or Gift of Escheat, if the Rebel himself, his Wife, Bairns, or near Friends, remain in Possession of his Tack, and Goods, to their own uses, and behove; yet it is not declared, how long their possession must be; Seing the Rebel ordinarily, for some time is in possession, till the Donatar use diligence: But where the Rebel retained possession till his death, a Gift though declared was found null by exception, July 12. 1628. Morison contra Frendraught, June 26. 1611. Gairdner contra Lord Gray: Yea, it was found Simulat, where the Rebel possessed, 9. years, June 27. 1622. John Inglis contra Laird of Capringtoun, and other Circumstances, concurring 4, or 5. years by the Rebel, was found sufficient, the Donatar having consented to several Tacks, and Wodsets granted by the Rebel: And yet the same Gift was found valid in part, in so far as concerned Heritable Rights, acquired by the Donatar from the Rebel, December 23. 1623. Ballantyn contra Murray, four or five years Possession of the Rebel, were found sufficient to infer Simulation, though the Donatar was a Creditor, and the Rebels Lands apprysed, seing the appryser possessed not, but the Rebel, 6, and 9. of January 1666. Sr. Lawrance Oliphant contra Sir James Drummond, So that the time of Possession, sufficient to infer Simulation, remaineth in arbitrio Judicis.

The next ground of the Simulation of gifts of Escheat, and presuming the same to the Rebels behove is, when it is taken in the name of the Children in his Family, which was found Relevant, without mention of the Rebels Possession, June 25. 1622. Lord Borthwicks Bairns contra Dickson. But the presumption was not found sufficient, that the Gift was to the behove of the Rebels Son: Here it was not alleadged, that he was then in his Fathers Familie, March 20. 1623. Keith contra Benholme. The like where the Son was not in his Fathers Family, and was a Creditor, and made Faith, it was to his own behove at passing the Gift, though the partie Denunced, did remain in possession, sometime after Declarator, December 4. 1669. Jaffray contra Jaffray.

The third Presumption of the Simulation of Gifts is, when the same is procured, and past by the Rebels means which was sustained, though a part was by the Donatars means, and a part by the Rebels, though the Donatar was then a Creditor. June 26. 1622. John Inglis contra Laird of Capringtoun. The like found probable by Members of the Exchequer, as Witnesses, Nov. 28. 1626. Earl of Kinghorn contra Wood. Hope cessio bonorum, Laird of Clunie contra Laird of Blandine, Cant and Porterfield contra Sir James Stewart. The like against an assigney, constitute by the Donatar, Hope Horning, Sir Georg Hamilton contra Robert Ramsay. Simulation, of a Gift of Life-rent to the Rebels behove, was found probable by the Rebels Oath, and the Witnesses insert in the Gift, June 19. 1669. Scot contra Langtoun.

This ground of Simulation is found relevant, not only against the Donatar, but against a singular Succesor, not partaking of the Fraud, whose Assignation [Page] was after the Creditors diligence, December 10. 1623. Dowglas contra Belshes. And though there was no diligence, the Gift being exped blank in the name, and filled up thereafter, in the Donatars name; It was found Simulat, even as to him, though obtaining it for his true debt December 17. 1670. Nicol Langton contra Robison. Simulation is not otherwise valid, against singular Successors: Yet it will not be relevant to exclude the Donatar, and prefer another Donatar, in so far as concerns the first Donatars debt, truly owing to him, though the gift was given at the Rebels request, and past at his own Charges: So that the Exclusiion, by this presumed Simulation, was only Inferred, as to the profit of the Gift, above the Donatars own debt, in quantum Lucratus est. For that was found no Fault in the debitor Rebel, to concurr in desire, and moyen to get a gift to his Creditor, in so far as concerned that Creditors debt, March 11. 1624. William Dowglas contra Viscont of Air. The like where the Rebel concured, in procurring the gift, the Donatar having made Faith the gift was to his own behove, showing his Debt and Back-band, December 12. 1673. Mr. Georg Dickson contra Sr. Alexander Mcculloch. All this must be understood, if the Rebel remain unrelaxed, for if unrelaxed, a Gift though taken expresly in his name, returneth and accresceth to the Fisk, and next donatar, July 6 1627. Earl of Annandale contra Laird of Cockpool: Yea, though he was after relaxed before any other gift November 28. 1626. Earl of Kinghorn contra Wood. June 2. 1610. Lenuox contra Turnbul. But if the Denunced were relaxed, the time of the Gift, as it would be sufficient in his own Person expresly, so it is valid in another person, though to his behove, yet it will exclude none of the Creditors.

These Nullities are not only competent to Posterior Donatars, but also the Rebels Creditors using diligence.

To come now to the Declarators of escheat, there are two, the First, general, the next special.

22. In the Action of General Declarator, the Rebel or his Bairns, or [...] of Kin (if he be dead) must be called, Hope, cessio bonorum, Frazer of Tillebodie contra Mopherson, but the Declarator hath no effect against moveable Airship, unless the Rebels Air were called: As to the other moveables though there uses seldom to be Executors, confirmed to defunct Rebels, and therefore the Wife, and nearest of Kin are ordinarily called; Yet where the Wife was only called, she being Executrix confirmed, it was sustained, Nicol, de Haereditariis actionibus. contra Relict of James Forrest. And though Summonds of general declarator bear all parties having Interest, who must be cited generally, at the Mercat Cross of the Head Burgh where the Rebels residence is, that is but Stilus Curiae, and the want of it hinders nothing, June 27. 1666. Massoun contra Black.

23. The Title in the general Declarator is the Gift, and the Horning whereupon it proceeds, the extract whereof does as sufficiently prove, as the principal, Par. 1579. cap. 75.

The tenor of the general Declarator is, that the Rebel was duely, and orderly Denunced by the Horning Lybelled, and that thereby the whole moveable Goods and Gear, &c. Became escheat, and belongs to the pursuer, [Page] by Vertue of his Gift: All which is instantly verified by the Titles: And therefore if no relevant exception be proponed, Decreet is instantly given.

24. No exception will be here competent against the Horning, not being instantly verified, for all others will be reserved to Reduction: So was it found, it being alleadged, that the Rebel dwelt in another Shire then where he was Denunced, June 12. 1611. Mr. of Ocheltrie contra Laird of Symonton. Yet if the Reduction be Depending, it may be sustained as prejudicial, and be first discust, December 12. 1622. Dalmahoy contra Scot. Neither will any Exception be sustained against the ground of the Horning, as not due, or satisfied, as that it proceeded upon a null Band, Subscribed only by one Notar, January 12. 1610. Durham contra Clelland. Or that payment was made before Denunciation, November 30. 1630. Dowglas contra Wardlaw, Hope Horning escheat, Lord Dowglas contra Lord Carmichael. The reason is not only, because the alleagence is not instantly Verified, but specially because the Kings Officers are not called, that they may defend the Kings interest, and obviat Collusions, upon Forged discharges, or otherwise; For oft-times the Donatar hath but a smal Interest, in respect of his Back-band, and so may readily collude: And therefore, though the defence be instantly verified, it is not received by exception, though it might justly be without Multiplication of Processes, Intimation being made to the Thesaurer, and Advocat, that they might appear for the Kings Interest, but if it be a visible nullitie in the Horning, or an exception wherein there can be no appearance of Collusion: It is sometimes admitted as this exception, that the Horning was Suspended before Denunciation, and was false, was sustained, Hope Horning Sheriff of Murray contra Exceptions of any partie compearing for their Interest, and alleadging Assignation, or Disposition of the goods, or diligence done, use not to be received in the general Declaratar, but reserved to the Special, because the general is but an Intimation, and so proceeds Summarily.

25. The Action of special Declarator, though it hath the name of Declarator, yet hath little in it Declaratory, but it is Petitory of the goods specially Lybelled in it. There is no necessity to call the Rebel, or any representing him, but the haver or intrometter with the escheat goods. The Title in this Action, is the Decreet of general Declarator, and there is no necessity to produce the gift or Horning, Feb. 10. 1627. Creditors of John Stewart, of Coldinghams, escheat contra a debetor to the Rebel, November 20. 1629. Lundie contra Lundie where another Donatar was admitted for his Interest, in the special Declarator though he had no general Declaratar: Nor is any exception competent against the same, or ground thereof, but only by Reduction.

Yet in the competition of others, Donatars or Creditors having used diligence, or having gotten Assignations Intimat, or Dispositions cled with possession, before general Declarator upon debts Anterior to the Denunciation, or Criminal Fact, or otherways upon the Simulation of the gift, are here competent, as the Simulation is competent also against the general Declarator, and all exceptions generally or particularlie reserved in the general Declarator, are competent in the Special: All these exceptions being held forth before in the same Title, there is no necessity here, to repeat them. In aspecial Declarator of escheat, Payment before Denunciation was sustained, to be proven by the Creditors Oath, upon a Reduction of the Horning, and general Declarator [Page] repeated by way of Defence, February 10. 1662. William Montgomerie contra Theodor Montgomerie and Mr. William Lander. In this cause a Creditor was not found to have Interest, to found upon the Donatars Backband given to the Thesaurer, without obtaining a second Gift.

Special Declarators may be persued any other way, as upon Arreistment or particular Lybel, for restitution and delivery of the escheat goods. It is also Consistaut in the same Lybel, with the general Declarator: But before the pursuer insist in the other member for the special Declarator, he must pursue that member for the general Declarator.

26. Liferent-escheat, though it be a penaltie of Contumacy and Rebellion, and so is properly a Confiscation: Yet seing it doth not befall only to the Fisk but is a common Casuality of Superiority, and hath been handled in the Title, Superiority. We shall not here repeat, but only touch some Differences, between Liferent-escheat, and Single-escheat.

First, Single-escheat is only a Legal Penaltie, and therefore belongs alone to the King, and his Ministers of Justice, who are comptable to him therefore as Sheriffs, &c. Or to there own behove by their infeftments, as Lords and Baillies of Regalitie: But Liferent-escheat is not only Penal, but is a Legal Consequence of the Condition of the Rebel, whereby he being out-lawed, and having no person in Judgement, is excluded from the Possession of all his Rights, and is esteemed as civiliter mortuus, whereby his Fies become open, and are in the hands of his Superior, whether the King, or any other Superior, by his continuing unrelaxed year and day: And therefore the diligences done against, or the deeds done by the Rebel, for satisfying of his lawful debts contracted before Rebellion, do not effect his Liferent-escheat, as they do his Single-escheat, though they be done before year and day expire, being after the Rebellion: And so Arrestments, or Assignations, even though before Rebellion, have no effect after year and day is run, because these being but Personal, and Liferent-escheat a reall Right flowing from the Superiority, whereby the Vassal is denuded of the Liferent: Therefore the effect of these Personal rights ceaseth; But all reall rights flowing from the Vassal before the Rebellion, as Fews, Annualrents, Tacks, Appryzings and Adjudications whereupon there was a Charge, are effectual, and not excluded by Liferent-escheat, though these are excluded by Ward, which is a Casuality following the nature of Fewdal Rights; Whereas Liferent-escheat ariseth not from the Nature of Fies, but is introduced by Law or Custom, and therefore the Fie falls in the hands of the Superior as it was in the hands of the Vassal, with all the Real burdens he had fixed upon it: Neither does Posterior voluntary Infeftments, though for debts prior to the Rebellion, and granted before Declarator, exclude the Liferent-escheat, Jannuary 18. 1611. Samuel Ord contra the Laird of Craigkeith. The like, where the Infeftment was granted after Rebellion, but within year and day, January 23. 1627. James Wallace contra Thomas Porteous. Where there is an exception insinuat, unless there had been an prior obliegment before the Rebellion, to grant thelnfeftment, as if in that case (though in cursu Rebellionis) it would be sufficient to exclude the Liferent. The like was found, that Infeftments upon a voluntary Disposition, made in cursu Rebellionis, within the year, and for a debt due before Rebellion, excluded not the Liferent-escheat, March 19. 1628. Mr James Rae contra Buckie, Hope Horning, Laird of Frendraught [Page] contra Meldrum, Gordon of [...] contra Gordon of Haddo. But Infeftments in cursu Rebellionis upon special obliegments, to grant the same before Denuneiation, are valid. vide Tit. 14. § 53.

As to Legal Diligences of Creditors, whither Appryzing and Infeftment thereupon, being after Rebellion, will exclude the Liferent-escheat was declared the last Title in the second effect of Appryzings, the sum whereof is, that they are thus far preferablé to voluntary Dispositions, That being done in Cursu Rebellionis, for a debt before Rebellion; There being Infeftment, or Charge in cursu Rebellionis, they exclude the Liferent.

Secondly, Single-escheats require general and special Declarator: Liferent-escheats require but one Declarator for all, wherein the Title is the Horning, the Gift, and the Superiors Seasine, without farder instructing the Superiors Right, and without Continuation, July 2. 1622. Carmichael contra Lermont, March 6. 1624. Dowglas contra Eastnesbit, June 23. 1625. Viscount of Stormont contra And there is no necessity to instruct the Lands holden of that Superior by the Defender. The reason is, because that is presumed, unless the Defender disclame, or that the Superior be a Singlar Successor, never acknowledged by the Vassal, or his Predecessors.

27. Shipwrack, and Wath Goods, or Treasures in the ground, whose owner appeareth not, are Confiscat as Caduciarie, whereby the owners are presumed to Relinquish, or loose the same. And so a jure sup cadunt, and the things become nullius, and yet belong not to the first Possessor, as things relinquished do, by the Common Law, but do belong to the King, by his Royal Prerogative, or to others having Right from him. We have spoken of these before in the Title Real Rights. And shall only add this, that by that just and Noble Statute, Par. 1429. cap. 124. It is declared, that where Ships break in this Countrey, the Ship and Goods shall be escheat to the King, if they belong to such Countries as use the like Law anent Ship-wrack in there own Land, otherwayes they shall have the same favour, as they keep to Ships of this Land broken with them. It is also declared amongst the Statutes of King Alexander the Second, cap. 25. That if any Living Man or Beast, as Dog, Cat, &c. come quick out of the Vessel, the same shall not be accounted Ship-wrack, but shall be preserved to the Owner, claming and instructing his Right within year and day; Or otherwayes it shall belong to the King: So was it found, where an ox escaped alive out of the Ship, and the Admirals Decreet finding the same Escheatable, as Shipwrack was Suspended Simpliciter December 12. 1622. Hamilton contra Cochran. In which case nothing was alleiged, but this old Statute, the genuine meaning whereof seems only to be where any person came to Land the Ship and Goods should not be confiscat as Wrack, but the posterior Act, Par. 1429. cap. 124. Repeats not that provision, but regulats the matter according to the custom of other Nations, to do to them as they do to us, without any other Limitation. And therefore where some Persons came to Land, the Ship being broken, the same with the Goods dispersed were Confiscat, If Confiscation in the like case should be proven to be the Law, or Custom of that place, to which the Ship belonged, January 20. 1674. Jacobson contra Earl of Crawfoord.

[Page]28. Forefaulture is the great Confiscation, comprehending all other Penal Confiscations. It is extended to the taking away of Life, Lands and Goods, Par. 1424. cap. 3. For it is the Penaltie of the highest Crime, to wit Treason; which at first, and by its native Signification, it expresseth Crymes against the Life of any partie under Trust: So the Slaughter of any person under Trust, Credit, or power of the Slayer, is declared Treason, Par. 1587. cap. 51.

29. Thence it is also called Treachery, and the Committers thereof Traitors. And because of that Trust betwixt the King and all the Leiges, as their Superiour and Soveraign: The chief point of Treason is against the Kings Person, as appeareth by the Act last Cited: These also, who without cause, wilfully raise a fray in the Kings Host commit Treason, Par. 1455. cap. 54. Upon the same ground, because of the Trust betwixt the Superiour and his Vassal, such Crimes against the Superiour, is also called Treason, and thereby the committer Looseth for ever, all Lands and Heritage he held of that Sùperiour, quoniam Atachiamenta, cap. 19. But this Treason infers not a Simple Forfaulture, but only is a ground of Recognition: But as now the Terms are take, Treason, and Forefalture of Life, Lands and Goods are adequat, and wherever the one is exprest in any Act of Parliament the other is understood for the Stryking or Slaying of any person, within the Parliament House, during the time of Parliament, within the Kings InnerChamber, Cabinet or Chamber of Peace, the King being within his Palace, or within the Inner-tolbooth, the time of Session sitting, or within the Privy Council-House the time of the Council sitting, or in his Majesties Presence any where, is declared Treason, Par. 1593. cap. 173. Impugning the Dignity or Authority of the three Estates of Parliament, or procuring any Innovation, or Diminution of there Power, is prohibit under pain of Treason, Par. 1584. cap. 139. And also declyning the King, and his Council, in any matter to be inquired before them, Par. 1564. cap. 129. Purchasers of benifices at the Court of Rome, are ordained to be denunced as Traitors to the King, Par. 1471. cap. 43. Par. 1488. cap. 4. Par. 1540. cap. 119. So forgers of the Kings Coin, and home-bringers thereof, incurr the lose of Life, Lands and Goods, Par. 1563. cap. 70. Saying of Mass, resetting of Jesuits, Seminarie Priests, and traffiquing Papists: And these themselves are lyable to Treason, Par. 1592. cap. 120. Par. 1607. cap. 1. Raising of Fire wilfully, or burning of Houses, or corns, whither folk be therein or not, is declared Treason, Par. 1592. cap. 146. Landed men committing or resetting Ryot or Robbery, incurr the pain of Treason. Par. 1587. cap. 50. And generally, Resetters, Maintainers, and Assisters of declared Traitors, commit Treason, Par. 1592. cap. 144. Accuser of others of Treason, if the accused be acquit commit Treason, Par. 1587. cap. 47.

30. Forefaulture confiscateth the forfaulted persons whole Estate, without any access to his Creditors; Yea without consideration of Dispositions Infeftments, or other Real Rights granted by the Forfaulted Person, since or before the committing of the Cryme of Treason, for which he was forfaulted, which fall and became null, by Exception, Hope, Forfaultur Viscount of Rochester contra Teuents of Callavrock, July 14. 1610. Campbel contra Lifnories, Spots Conjunctfie, Crawfoord contra Laird of Murdiestoun, unless these rights have been confirmed by the King as Superiour, or Consented to by him.

[Page]It only remains dubius, whether Feu Infeftments granted by Forefault Persons, before committing of the Cryme be also annulted by the [...]. And the Act of Parliament anent Feus, Par. 155. cap. 72. Should not only defend them against Recognition, and the Casualities of Superioritie, but even against Forfaultur it self, it being therein declared, that the King will Ratifie the saids Feus. The like is to be understood of other Superiors. So that though de facto they be not confirmed; Yet the Declaration, and Obleigment of the Statute standeth as a Confirmation thereof, or at least as an Obleigment upon all Superiors, against which, they nor their Donators cannot come. This is to be understood, while [...] are allowed by Law, vide Title Infefints 34. Sect.

It was so decyded February 12. 1674. Marques of Huntlie contra Gordon Cairnlorrow, November 16. 1680. Campbel of Silver craigs contra Land of Auchinbreck, and the Earl of Argyl, not only because the Act of Payliament, 1587. Imports a Confirmation of Feus granted thereafter, but also because Forefaulture is by Penal Statute, and not by the Feudal Right, like unto Liferent escheat, which returneth the Fie to the Superiours, but with the burdens put thereupon by the Vassal, whether Feu, blensh Ward, or by Annualrent or Tack. And therefore when any Person is Forefault, that is not the Kings immediate Ward Vassal, his Estate, both Propertie and Superiority falls to the King, but with the burden of all Real Rights constitute by the Vassal; Yet Forefaultur of the Kings immediat Ward Vassal, proceedeth upon Crimes inferring Recognition: And therefore returns his Ward Lands to the King, as they came from the King free of all burden. So that the Act of Parliament 1457. Which unquestionably secures against Ward, and Recognition must also secure Feus against the Forefaultur of the Vassal granter of the Feus, but will not secure any other Subalterne Right, without the Superiours consent, as a Blensh Infeftment, Jan. 13. 1677. Marques of Huntlie contra Laird of Grant.

32. Tacks also being Necessary and Profitable, are not excluded by Forfaultur, Maitland December 14. 1570. Home of Manderstoun contra Tenents of Oldhamstock, Leslie of Wachtcun contra The like as to Tacks for a competent Dutie, but not in Tacks for grassams, January 28. 1674. General Dalziel contra Tenents of Caldwall.

33. But by the Act of Par. 1644. Forfaultur was declared to be without prejudice to all Persons not accessary to the Cryme of the Superiour of the Rights of Property of any Lands, Wodset, or others holden by them, of the Forefault Person, or of the payment of their Just Debts, or relief of their Cautionries our of the Forfaulted Estates, which is now rescinded by the general Act rescissary, Par. 1661. cap. 15.

34. Forefaultur could not be pronunced in absence of the Forefault Person, by the Justice Gerneral, but only by the Parliament. So that no Certification of the Justice could reach Lands, but only Moveables, So July 8. 1662. William Yeaman contra Mr. Patrick Oliphant. Neither could it extend to Heritable Bands, November 31. 1671. Anthonie Hag contra Moscrop and Rutherfoord: But now the Justices may proceed to Forefault absents, in case of open Rebellion, and rysing in Arms, Par. 1669. cap. 11.

35. Because of the defficulty the King or his Donatar might have, in knowing the Rights of Foresaulted Persons, by Labouring the same with their own Goods, setting the same to Tenents, and up-lifting the Mails and Duties, as [Page] their Heritage, and so being reput Heritable Possessors for the space of five years, immediately preceeding the process of Forefalture, the lands so labored, or possessed pertain to the King, and his Donatar, though they can produce no Heritable Right, or Title thereof in the Forefault Person: For tryal whereof Commssion may be granted under the testimonial of the great Seal, to such persons as shal be thought fit by the advice of the Secret Council, to take cognition, by an Inquest, what Lands were brooked by the Forefault person, as Heritable possessor thereof, so commonly reput and esteemed by the said five years space, with power to call before them all parties pretending interest, which being retured to the Chancelarie ad perpetuam Remanentiam, shall be a sufficient Right, Par. 1584. cap. 2.

This right was sustained to a Donatar, though nearest of Kin to the Forefault Person, and presumeable to have his Right July 11. 1623. Maxwel contra Westeraw. But here the Donatar was made to depone, that he had just reason to affirm, that the Rights were wanting, Hope possession inter eosdem. This right was not elided, though it was offered to be proven, that the forefault Persons Right was reduced in foro contradictorio upon Recognition before his Forefaulture, Feb. 20. 1611. Hairstons contra Ramebel. So the said 5. years possession being repute, Heritable possessor infers presumptionem juris & de Jure, of the forefaulted persons Right, which admits no contrary probation, As to the forefaulted persons Right, if the Quinquennial, Peaceable and Lawful Possession be proven: But the probation thereof by Inquest, will not exclude a contrary probation, by Reduction, of the possession of others, within the 5. years: And if the possession be not Lawful and Peaceable, but interrupted, or Vitious, the Statute takes no place, for by possession, Lawful peaceable possession of the forefaulted Persons must be understood: And if any person have moved Action within the 5. years, for taking away the Rebels right and possession, they will be heard after the forefaulture, as before; Yea, Citation before the 5. years, and Inhibition in the 5. years, with a subsequent Security, was found sufficient to take off the benifite of this Act, July 23. 1666. Earl of Southesk contra Marques of Huntlie. This priviledge is not competent by Exception, or Reply, offering to prove 5. years possession, but by a reture upon a Commission served by an Inquest, July 13. 1666. Sr. Henrie Hoom contra Sr. Alexander Hoom. In this Statute, it is also provided, that where there were Tacks, or possessions of Lands, or Teinds possessed by the forefault Person, in respect that the rights thereof might also be abstracted, that the King and his Donatar should continue in that same possession for sive years, without any accompt for the profits thereof, and longer, if a Right be instructed of the forefault person: And if a Fewer be forefault, the Land is not lyable for the Feu dutie, preceeding the Forefaulture, because the discharges thereof might have been abstracted, Possession for feuer then 5. years, by the Forefaulted person, was found sufficient to continue for 5 years, though no Tack was instructed, Jannuary 24. 1667. Sr. Henrie Hoom contra Sr. Alexander Hoom.

36. It is also declared in this Statute, that the Forefaultur of the appearand Heir, carries therewith the right of the Lands, to which he might succeed, though he were never entred Heir, nor Infeft, whereof Craig mentions a case, Lib. 2. Dieg. 8. That the Daughters of the Laird of Laisindrum were excluded from their Succession to their Goodsir, because their Father was forefault, though he was never received, nor infeft in these Lands.

[Page]37. Craig, in the forecited place moveth, but determineth not this question, whether the Forefaulture inserreth a Corruption of the Blood, of all the Descendents of the Forefault Persons, whereby, till they be restored, they are incapable of any Succession, though descending to them by the Maternal Lyne. This Corruption of the Blood is frequently in Fngland, where persons are specially attainted and convict of Treason: And sometimes with us, it is called dishabilitation, and is a part of the Doom or Sentence, that the Successors of the Person convict, shall be incapable of Lands, Estate, Honour or Office; Yea, then Fame, and Memorie, is sometimes condemned, and their Surname abolished, as was done in the Forefalture of the Earl of Gourie: But it is not consonant to our Customs, that Forefaulture in other cases should infer this Corruption of Blood; First, because of the Multiplication of cases, to which Forefaulture is now extended, as to Thest on [...] men, and false Coyn. 2. If none of the Descendents of [...] persons were Capable of Succession to any person, that could not be, by reason of any speciality in the matter of Succession, but of something in their person, by reason of the Forefaulture, excluding them thence, which would not only take place in Heritage, but in Moveables; Yea, the Oye, or farther Offspring of the Forefaulted person could not succeed to their ownimmediat Parents, which would inferr, that they could be capable of no Goods, or Means, but the same would be instantly Confiscat. 3. Though Forefaultures in Scotland have been very frequent, the off-pring of such have ordinarily acquired Lands, and Goods, and their Children Succeeded them therein, without obtaining Restitution of their Blood: So that this Corruption of the Blood is rather to be thought a Speciality, in some Attrocious Treasons by the tenor of the Doom of Forefaulture, then a general consequence thereof.

38. But whereas it hath been said, that the appearand Heir being Forefaulted, the King hath right to the Heritage, to which he might succeed; It may be Questioned, whether that my be extended to the appearand Heir, if he be Forefaulted, during his Predicessors Life: Or if it be only in the case, that the Heir apparent is forefaulted, after the death of his Predecessor. Where de presenti, he may be Heir, there is no doubt, if the person forefaulted should be fugitive, and survive his Predecessor: But the Heritage accresing to him, wherein he might de presenti infeft, would fall under forefaulture, though he were not actually infeft; And it seems no less clear, that being forefaulted, if he should die before his Predecessor, that his brother, or Collaterals might succeed to their Father, or any other to whom the forefaulted person, if he had survived them, would have succeeded. It is more doubtfull, whether his descendents could, if any were, for these would Exclude the Collateralls: And there seems no reason to exclude them from their Grandfathers Heritage, not being dishabilitat: And seing I have not found it extended further, I conceive it more favourable, that the Heir appearand dieing before his Predecessor, should not hinder his Descendents to succeed to that predecessor: But unless the forefaulture did incapacitat the Predecessor, to dispose upon his own estate, the forefaulture in that case, would be improfitable; Yet seing we have no complaints of exhaeredatione in Scotland: But that Parents may freely dispose of their Estates at their pleasure, it would be hard, to bind up the Parent more in Relation to the Fisk, then tohis own Child, unless fraud to prevent the effect of the forefaulture without a rationall cause do appear.

[Page]39. For the further Security of the King and his Denatar, it is provyded, Par. 1594. cap. 202. That no Letter of Pension, Factory, Band or Assignation, granted by any forefault person, shall be valid, unless it be confirmed by the King, or authorized by Decreet of an ordinary Judge, obtained before citation in the Process of Forefaulture, which seems to insinuate, that Creditors should be satisfied out of the forefault Estate, but it will reach no further then the Moveables fallen by forefaultnre, which seems to be affected in the same way, as falling by Single-escheat, the full Dominion in both being the Kings, but with the burden of admitting the diligence of Lawful Creditors before Declarator, but I have not observed this practiced, in moveables of forefault persons. The reason of this Statute appeareth by the Act immediately preceeding, whereby a former Act of Parliament in favours of the Vassal of forefault persons is resoinded, and appointed to be delet out of the Books of Parliament, which rescinded Act, though it be not Extant, but delet as aforesaid hath affected forefault Estates, with the debts of the forefault person, and with the subaltern Infeftments, granted by forefault persons not confirmed: And therefore such Rights being Constitute by a Law then standing, could not be derogat by a subsequent Law: And therefore it was [...] to Caution, by the foresaid Act 202. That Simulat or antedated Rights, might not affect Estates Forefaulted, before the said rescissory Act.

40. Sentence of Forefaulture being pronunced, is declared Irreducible, upon any nullitie in the process, upon which it proceeded, till the [...] be remitted by the King, or the partie tryed and acquite thereof: But restitution shall only be granted by way of Grace, to the parties forefaulted, or their Posteritie, Par. 1584. cap. 135. Which was not found to extend to Dishabilitation of the Son of the Forefaulted person, but that it might by Act of Parliament be taken off, without Citation of any partie, who had acquired Right upon the Dishabilitation from the Donatar, which fell in consequence, February 24. 1665. Dam Elizabeth Douglas, and Sr. Robert Sinclair contra Laird of Wedderburn.

41. The Doom or Decreet of Forefaulture, when past in Parliament, gives immediat access to the Mails, and Duties of the Estate possest by the Forefault person, and needs no Declaratar, because it is a Decreet of Parliament, and hath the like effect as Ward, which requireth no Declarator, Jan. 6. 1681. George Hoom contra Mr. Patrick Hoom. The like though the Doom of Forefaulture was by the Justices in absence. seing it was ratified in Parliament, not by a Ratification passing of Course, but by a publick Law, ratifieing that Forefaultnre by the Justices, as if it had been done in Parliament: And all such Forefaultures by the Justices, being for open Rebellion, and rysing in Arms against the King, December 15. 1680. Gordon of Troquhen contra a Wodsetter of Barscow.

42. Bastardrie and last Heir makes things befall to the Fisk, as caduciary, because such things can be Lawfully Claimed by none. And therefore are applyed to the Fisk.

Ere we can conceive the effects of Bastardrie, we must understand the efficient that makes a Bastard, which being Relative and Defective, is best taken up by the opposite, viz. A lawful Child begotten of persons lawfully Married: So then a Bastard is a Child, whose Parents werenot lawfully Married; And therefore such are Bastards, First, Whose Parents were not [Page] at all Married. 2. These whose parents were Married, yet were not in degrees capable of Marriage, 3. These who were Married, and in capable degrees, yet the Marriage was inconsistent, because of some impediment, as if either party were Married before, and the other Spouse on life, whether that were Solemnly, or Privately, by promise of Marriage, and Copulation following, in which last case, if the impediment be Secret, and not known to both parties, Craig observeth as his own opinion, and the opinion of the [...], that the said impediment, though it be sufficient to anull the Marriage, yet not to take away the Legitimation of the Children, procreat bona fide by any of the parties, before knowledge of that impediment.

But, because, who are the Parents, is sometimes dubious, procreation being Secret both in the Act and Effect: For clearing thereof, it is the common rule in the Civil Law. And with us, Pater est quem justae Nuptiae demonstrant L. 5. F. de in jus vocando. So he is presumed to be the Father, who the time that the Conception might be, was Married to the Mother; But in this case, Lawful Marriage is not opposed to Clandestine, or Irregular Marriage, as not being after Proclamation in the Church, or by a person having power to Marry by the Canons of the Church, or Statutes of the Countrie: But that is only understood, as unlawful Marriage in this case, which materially is unjust and inconsistent, where Marriage could not have subsisted, albeit it had been orderly performed, as being by persons in degrees prohibited, by Divine Law, or where either partie had another lawful Spouse then living, and undivorced: Yea, Marriage betwixt the adulterer and the adulteress, after dis solution of the former Marriage doth not inferr Bastardrie of the Children of the subsequent Marriage, though it may debarr them from Succession. The presumption, that the Children born in Marriage are the Husbands, requires such time as they might have been lawfully procreat, when both parties were free, and unmarried, which if it was 9 moneths before the birth, it is sufficient, but if less, the presumption will not suffice; Unless it appear the Child was unrype, and born before the time, otherwise the Child will be presumed to be the former Husbands. This is presumptio juris, and admits contrary probation. As first, if the Father were absent, or impotent, the time that the conception could be, which absence is not necessarily beyond Sea, as the English require the fathers absence: And therefore, if he be within the four Seas during the time the birth is in the Womb, this presumption prevaileth against his absence with them: But with us it will be sufficient, that his absence be special, and circumstantiat, that there remaineth no doubt, that he could not have been present. As if the Father were in prison, or at very great distance: So that a short time might not suffice him to be present. This presumption will also be taken off, by the Testimony of both Parents agreeing, that the Child belongs to another Father, and so is a Bastard: But the Testimonie of either of them will not suffice, as Craig relates, of a Lady, that having controversie with her Son, she was accustomed to consesse that he was a Bastard: And of a Queen, related by the Doctors, whose name they forbear, Who, at the time of her death, declared to her Son, that he was not the Kings Son, yet he was received as King, in his Fathers place. It hath been more frequently seen, that the Father hath disowned the Child born of his Wife, which though it might inferr suspicion and reproach, yet not Bastardrie, unless the Mother also of consent, or by process were made to acknowledge it. It will not be sufficient to eleid the foresaid presumption, though the Wifes adulterie should be proven; Yea, though at a time answering to [Page] the time of conception, though it hath an ordinary course of 9 moneths, yet hath had such variations, that the Child hath been accompted belonging to the Father, by reason of the Marriag, though it preceeded the Birth of the Child, only by the space of 8, 7, or the beginning of 6. moneths; Especially if by the judgement of Phisicians immaturity of the Child concurred; Yea, this presumption will atribute the Child to the Father, though the Child be born 9 10, or 11. moneths after the Fathers Death: But in these cases, the Probability of the circumstances may make the Mothers Testimony alone sufficient to instruct the Bastardie of the Child: Neither is Marriage here accompted, by the Solemnization thereof in the Church, which in some places is ordinarily without that, and though with us, it be a requisit solemnity, yet it is not of the being of Marriage. And therefore, Cohabitation, as Man and Wife supplyeth the Solemnity of publick Marriage, which being a [...] Act, and having no record, could seldom be proven; Yea, though it could be proven by the Oath of both parties, or otherwise that there was never a formal Marriage, if the parties were capable of Marriage, Cohabitation would supplie, for after Contract, or Promises of Marriage, or Sponsalia, if copulation follow there is thence presumed a Matrimonial Consent de presenti, which therefore, cannot be past from by either, or both parties, as having the essential requisits of Marriage If diligence be used for performing that Solemnity, though it take no effect, the Contract of Marriage will make the Child lawful, as when, in the time of the Proclamation thereof, the one partie died, whereof Craig relateth a case: Yea, in the case of Edward Younger there mentioned, who having begotten Children under promise of Marriage, but refusing to acknowledge, or perform it, the Woman having obtained Sentence of the Commissars (who are Judges of Matrimony and Legitimation) against the said Edward, for Solemnizing the Marriage, which though he obeyed not, the Children were accompted Lawful, and capable of Succession.

Marriage, as is before shown, Title conjugal Obligations, is proven by Cohabitation of the Father and Mother as married persons, which was sustained upon 10. years Cohabitation, as Man and Wife, though it was offered to be proven the Child was reput Bastard, July 7. 1626. Somervail contra Haltro. And there being a mutual probation, whether a Defunct was lawful, or a Bastard, and six Witnesses being examined on either side, though several of the Witnesses on the one side proved, that the Defunct was reput Bastard, and that his Mother gave signes of Repentance publickly in the Church, for Fornication with his Father: But others proving that they were in there house, and saw them Cohabit, as Man and Wife, but did not mention how long, the Defunct was found to be no Bastard, but a lawful Child, Jan. 15. 1676. Mr. Robert Swinton contra Marion Kaills; Yet this was eleided by contrary probation, that the Father had then another Wife, and a lawful Child thereby, and that the person in Question was reput Bastard, Hope Bastardrie, Archbald Chirnside contra Isobel Grieve, and Christian Williamson.

Bastardry is also eleided, by proving the person in Question, to be holden and reput Lawful, unless the pursuer condescend, and instruct the contrary, by particular circumstances, Hope Bastardry, Hog contra Hog. Ninian Chirnside contra William Hoom. The like where the person in question was 50. years old, James Hope contra Scot: The like being 80. years after the Bastards death, who died an old man. The Lords would not grant process [Page] de statu defunctorum post tantum tempus, Feb. 25. 1642. Malcom Crawfoord contra Hellen and Bessie Russels.

43. Bastardrie hath no effect till Declarator, which proceeds upon a general Citation against all and sundrie, at the Mercat Cross of the Shire where the Bastard dwelt, at the instance of the Kings Advocat, or Donatar, because the Bastard can have none to represent him, but if the Bastards debitors be called specially, there will not only follow a general Declarator, that the person was Bastard, but a decernitur against the debitors, which is a special Declarator, though these may be disjoyned in several processes, but if any partie appear, as nearest agnat, he would be admitted to defend, Decem. 11. 1679. James Somervail contra William Stains.

It was found that a Declarator of Bastardry was not relevantly Lybelled, that the Father and Mother were not Married, unless it were added, that the Defunct in his life, was holden and reput Bastard, which was found and instructed, by his taking Legitimation from the King, Feb. 19. 1669. Kings Advocat contra Craw, June 15. 1672. Livingstoun contra Burns, Jan. 6. 1680. Somervail contra Stains.

44. As to the effects of Bastardrie, from the former principile, Pater esi quem justa matrimonia monstrant; Children not begotten of parents lawfully Married, are called vulgo quaesiti, And are compted in Law, to have no Father agnats, nor Kinsmen on the Fathers side, and therefore they cannot succeed to their Father, or any of their Agnats: Neither can any of these Agnats, succeed to them, either in Heritable or Moveable Rights, but only their own Succession, by Lawful Marriage. So then Bastards dieing without Lawful issue, their goods become caduciarie and void, and so fall to the Fisk: Yea, if the Lawful Issue of the Bastard at any time fail for the same reason, their goods become caduciarie, and return to the King, either by reason of the Bastardrie, or as ultimus Haeres, July 13. 1626. Haltro contra Somervail.

Though Bastards can have no Ascendent or Collateral Heirs of Lyne, yet they may have Heirs of Tailzie, in Lands which did exclude the Fisk, when the same was provided to the Bastard, and the Heir of his bodie. Which failzing, to any other person and his Heirs, Spots Bastardrie, Weir contra Kings Donatar. They may also be Heirs of Tailzie specially nominat, as Craig observeth, in the case of the Earl of Errol contra Hay of Cockstoun, who, and the Heirs of his Body made a member of Tailzie, which was sustained, though he was Bastard.

Bastardrie hath only effect against Succession to the Bastard, but doth not incapacitat the Bastard, to dispose of his own Estate, Heritable or Moveable in his leige paustie: And likewise the Bastards Wife hath her share of his, Moveables as other Relicts have: But if the Bastard have no Issue, he hath no power of Testing, and can neither nominat Executors nor leave Legacies unlesse he obtain Legitimation from the King.

[Page]45. Legitimation, though it have many ample Clauses, yet the main effect of it is that the Bastard having no Lawfull Children, hath thereby power to Test, June 18. 1678 Commissioners of the Shire of Berwick contra John Craw. But it hath no effect, as to his Heritable Rights, which his Testament cannot reach: It will have the like effect, if the Bastard obtain from the King, the power of Testing: And therefore a Bastards Legatar was preferred to the Donatar of Bastardry, July 7. 1629. Wallace contra Mure. In which case it was found, the Relict had her half: And if the Bastard had Lawfull Children surviving, he may Test without any gift, none being concerned, but his Children, to whom also he may name Tutors, as was found, March 8 1628. Mare contra Kincaid, and these will succeed him as Heirs, or Executors.

The effects of Bastardry, in hindring there Succession to others, falleth to be considered in the subsequent Titles, concerning Succession.

46. It remains to be cleared, whether the Bastards Debts follow his Estate, and that diligence of Lawfull Creditors will exclude, the Donatar or Fisk: It was so found, that the Bastards Creditor, arresting before his death, had access, notwithstanding the Bastardry, Feb. 26. 1611. Clerk contra Earl of Perth. The difficulty will be, of the diligences competent after the Bastards death seing he hath none to represent him, yet Bastardry is but a species of ultimus Haeres, the ground in both being the same, that the King is Heir, because there can be no other Heir, and so is last Heir. And therefore in both cases, the Estate is lyable to the Debt, which may affect it, contra Haereditatem jacentem by Adjudication, calling the Officers of State, and Donatar, Craig is of the same opinion, lib. 2. Dieg. 17. It was so found, July 25. 1560. Kings Donatar contra

It was also found, that the Donatar of Bastardry pursuing for payment of a band due to the Bastard, was lyable to fulfill the Bastards back-band, June 20. 1671. Alexander Alexander contra Lord Saltoun.

47. Ultimus Haeres may seem to be a Succession from the dead, and to come in amongst other Heirs, yet though it hath the resemblance of an Heir, because it hath effect, when there is no other Heir, and makes the Heritagelyable to pay the Defuncts debts, it is only a caduciarie Confiscation of the Defuncts-Estate, with the burden of his Debt, but no proper Succession to him therein, which appeareth, thus; The Heir is one person in Law, and is therefore personally obleiged for all the Defuncts debts, so is not the Fisk, against whom, or the Donatar, there lyeth no Personal Action for payment, but for Restitution, if he have intrometted, and of Real Action, contra Haereditatem jacentem, which is most proper by Adjudication, being the Supplement of ordinary Actions, or Executions competent by Law. For there being no partie to represent the Defunct debitor, there can be no Decreet, but cognitionis causa, and Adjudication following thereupon, in which the Fisk, or Donatar is to be called passive, as the party having Interest, to see that the Debt be due, which will affect the Defuncts caduciarie Heritage, to the detrement of the Fisk, or Donatar. So then ultimus Haeres, and Bastardrie, are of the like Nature, which being caduciarie Confiscations, fall to the Fisk, because no other can have right, there may be this difference betwixt them; That in the case of the last Heir, Creditors, for their satisfaction, may confirm the Defuncts Moveables, and so recover the same, for their own Satisfaction, in [Page] which case, they would be lyable, as other Executors, to the remanent Creditors of the Defunct, and to the Fisk, or Donatar, for the superplus: As in the place of nearest of Kin, & to the Relict also for her part, but this being only for obtaining their own Satisfaction, and for shunning a more extraordinary way, by Adjudication (which also they may use at their option) they ought not in prejudice of the Fisk, to have the third part of the Defuncts part, as other Executors, but in the cases of Bastardry, Confirmation of Executors is not competent, because the Bastard, being excluded from the power of making Testament, can have no Executor.

Concerning last Heir, the greatest doubt is, who they are, and in what Cases they take place? As to the first, Craig, lib. 2. Dieg. 17. is not positive, whether Superiours be last Heirs of the Defunct, in the Fies held of them, or if the King be the last Heir for all: And according to the antient Feudal Customs, there is no doubt, the Feus return to the several Superiours, for thereby none could succeed (without Express provision in the contrary) but the lawful Issue of the Descendent of the first Vassal, whose Person and Race was peculiarly chosen, and confided in by the Superiour.

But now Fies not being gratuitous, as at first, but for onerous causes, besides the reddendo & service, and ordinarly granted to the Vassal, and his Heirs whatsomever: Which failzing, the King, by his Prerogative Royal, excludeth all other Superiours, who are presumed to retain no right, nor expectation of Succession, unless by express provision of the Investiture, the Fies be provided to Heirs Male, or of Tailzie, which failzing, to return to the Superior: In which he is proper Heir of Provision.

As to the other Doubt, in what case the King is last Heir, Craig, in the forenamed place relateth, that some were of opinion, That if the Defunct had no Heirs within the 7th degree, the King taketh place as last Heir. And that others thought it to hold in Collateral Successions, but his own opinion is in the contrary: That any Heir, of what degree soever hath Right, which suiteth with the ground now laid, that the King hath right, as last Heir to the Heritage become caduciarie; Because no other partie can be instructed lawful Heir. So he reporteth, it was found in the case of the Earl of Marr, who was served Heir to Lady Elizabeth Dowglas Countess of Marr, beyond the tenth degree. And that the Lord Seatoun, that he might have a Title to the Redemption of the Lands of Longnidrie, against Forrester, served himself Heir to the granter of the Wodsett, beyond the 7th degree, whereof several degrees were Collateral. And the French King Henrie the 4th Succeeded to Henrie the 3. though not within the 15. degree.

The gift, or right of ultimus haeres hath no effect, till Decreet of Declarator be obtained thereupon, in the same way as in Bastardry, July 20. 1662. Laird of Balnagoun contra Dingwal. July 31. 1666. Thomas Crawford contra Town of Edinburgh.

TITLE XXVI. Succession.

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1. Whether in equity there be a Rule in Succession.

2. That Rule is the expresse will, or presumed will of the Defunct.

3. The first degree of Succession by the presumed will of Defuncts.

4. Whether in equity, there be right of representation.

5. Failing descendents, ascendents succeed in equity.

6. Failing both brothers and sisters succed.

7. Failing these the nearest Agnat succeeds.

8. The succession of Cognats.

9. The Jewish succession, whereby all the sons succeed, and exclude the daughters, and the eldest son hath a double portion.

10. Fathers could not prejudge the primogenitur of their eldest Sons.

11. By the Jewish succession, failing descendents the inheritance passeth to Brethren, and these failing, to Fathers Brethren, and failing these to the nearest Kinsman.

12. Whether in the Jewish Succession, there be right of representation.

13. Why no Femals but daughters succeed among the Jews.

14. Why Parents Succeed not amongst the Jews.

15. Succession amongst the Romans was first by Testament.

16. If there was no Heirs institute by Testament, the antient Roman Law called all the Children of the Family unforisfamiliat male & female, not excepting adopted Children to Succeed.

17. These failing, the nearest Agnats, but no Parents thereby Succeed.

18. The Romans Succession be the pretorian Law.

19. Their Succession, by Justinians novel constitution.

20. In Feudal Succession, the first Rule is the expresse will of the partie by the investitur.

21. The nixt Rule is, the conjectured will, according to the nature of the Fee.

[Page] 22. Primo-geniture now established, by common custom in Feudal Rights.

23. Succession in Scotland, is wholly different. in moveables and immoveables.

24. The several degrees of Succession in moveables,

25. Succession in Heritable Rights.

26. The difference betwixt the two successions.

27. The priviledge of Heirs, not to be prejudged by their predicessors deedes on Death-bed.

28. What is estimate Death-bed.

29. Against what rights Death-bed is extended.

30. Death-bed annulls no deeds for causes onerous.

31. Dispositions in Testaments, are as on Death-bed.

32. Annus deliberandi.

33. Kinds if Heirs in Scotland.

34. No place for Adopted, or Cognats in succession with us.

35. Parents Succeed to their Children, & exclude the Parents Collaterals, or these representing the Colaterals

SUCCESSION to Defuncts, is the most Important Title in Law, for thereby the Rights of all persons, do necessarily passe once, and frequently often, in every generation, and therefore the Rule and Course of Succssion ought to be accurately searched out, and followed; and because the Channel of Succession is with us divided in two currents, by the one whereof, all Heritable Rights; and by the other all Moveable Rights are conveyed from the dead to the living. The first passing unto Heirs, the second unto Excutors: We shall in this Title consider, that which is common to Succession, and in the subsequent Titles, that which is proper to the several kinds thereof.

As to the common Consideration of Succession, we must severally inquire. First, what Natural Equity holdeth forth of Succession, 2. What the Judicial Law. 3. What the Civil Roman Law. 4. What the Feudal Customs. last, What our own Law, and consuetude, provideth concerning Succesion.

1. For the first, it may seem, that Succession hath little Foundation, far lesse a competent Regulation, in Equity, or by the Law of Nature; Because the matter of Succession is so variable, That every Nation, Yea, almost every Province, and many Cities, have their several Constitutions and Customs for Succession, arguing it to be wholly in the Arbitriment of People, and Authority over them.

Yet this will not follow, that Succession hath no Rise, nor Rule in Equity; For, as hath been ofttimes showen before, most of the Rights of men, are ordered in Equity; Yet so, as they are put in the owners power, who may [Page] alter the same by there will. So it will be found in the matter of Succession, which appeareth thus.

First, Succession was before Constitutions or Customs, of Constitution there will be no doubt, these are but Rare to this day, Succession being yet ordinarily by Custom, and Custom necessarily implyeth Antecedent Acts of Succession, Inductive thereof, which therefore, behoved to have some other Rule, then the Custom thereby introduced. 2. Where there is neither Law nor Custom, concerning Succession: As when People from divers Countries do gather into new Plantations, in America, and live not severally, as parts of their Mother Countries, but joyntly: Such have goods, which by their death, become not caduciarie or nullius, to be appropriat by the first Occupant. If therefore, they remain in the Property of some persons, which needs must be by some Law, it can be by no other, then Natural Equity, or the Law of rational Nature. 3. It is not to be thought, that GOD, who hath allowed Propertie, would leave Man distitute of a Natural Rule, whereby to Regulate it after the Owners Death, though there were no Law, nor Custom about it.

2. But it is not so dubious, that there is a Rule of Equity in Successions, as what it is, for clearing thereof, we shall parcel it out thus: First, every Right, being a Faculty, or Power of Exaction, or Disposal; It is a chief interest and effect of it, that the Owner may dispose thereof, not only to take effect presently, but if he please to take effect after his Death, and by the Law of Nature, the sol will of the Owner is sufficient to passe, or transmit his Right, if communicable, both in his life, and after his Death.

So then, the first Rule of Succession in Equity, is the expresse will of the Owner, willing such persons to Succeed him in whole, or in part. It may be objected, that the will of the owner is not the Rule of Succession, because there lyeth upon the Owner a Natural Obligation, to provide for his Relations, not only during his Life, but after his Death; As it is said, 1 Tim. 5. v. 8. He that provideth not for his own, especially these of his own Familie, hath denyed the Faith, and is worse then an infidel. Which importeth that infidels have naturally that Principle: And therefore, the first member of Succession, in Equity, must be those of the Defuncts Family, and not those of his Institution, or Choice. This doth indeed well conclude a Natural Obligation on all men, to provide their own; But first, it will not extend so far, as to incapacitat the Owner, to dispose of his own, either in his Life, or after his Death: So that there remains a competent provision for his own, otherwise, he might not even gift in his Life, but he may gift, both to take effect in his Life, and after his Death: And is not necessitat, to institute his own as Heirs, but to provide them. 2. The dutie of Provision, is a Personal Obligation, but the power of Disposal, and Succession thereby, is a Real Right, which are toto genere different Rights; Now Real Rights are not hindred, nor altered by Personal Obligations, though the Disponer hath failed, and remains Debitor, as an obliegment to dispone, is no Disposition: But the present dispositive Act of the will doth only Constitute, or convey the Right: Which, though it be posterior to an obliegment, in favours of any other, that doth not annull the Disposition, though it oblidge the Disponer. If there be no express will of the Defunct, the main difficulty is, what is the second Member of Natural Succession: wherein the presumed will of the Defunct [Page] takes place, which hath this Rule, quod naturaliter inesse debet, presumitur.

And therefore the Defuncts will is presumed to institute his own, whom he is naturally oblieged to, provid in the first place: So that it is not the obligment to provide, but the Defuncts will presumed thence, which disposeth upon his Succession, for the oblidgment to dispon, and the actual dispositon, are different toto genere: And if the oblidgement to provide, were the Rule, the express will of the ownèr could not over rule it; Where there is a custom of Succession, the Defuncts will is presumed, to be according to that custom; But that hath its efficacie, rather from the Custom, as it is a positive Law then from Equity.

The presumed will of the Defunct, to provide his own, is not indefinit of all his own; But it hath a natural order, or substitution, standing in the nearest degree of Consanguinity: For natural reason sheweth, that as there is not an equal Relation, so there cannot be an equal Devision to all, and there being no Natural Rule of proportion, the nearest Degree must exclude the farther Degrees in Succession, which is clearly held forth in the foresaid Text; Having an Explicatorie, and Applicatory Term, especially these of his own Family: And as the proportion is unknown, so the benefite, being extended to all [...], would evanish. Therefore, what ever Natural Affection, or Charity, may obleige the Defunct to have done expresly, his presumed will hath no Rule beyond the first Degree.

3. Fourthly, Therefore the first Degree of Succession, by the conjectured will of the intestat, is of Children, according to that, Rom. 8. 17. If children, then Heirs: Which consequence doth necessarily import, That all Children are Heirs: Neither can this be an allusion from the Judicial Law, by which all Children were [...] Heirs; But the Male excluded the Female: Therefore it must needs be a consequence form the Law of Nature, and seing there is no different proportion, held forth by this Text, or by the Light of Nature; The Succession of all Children must be in Equal shares, whether Male or Female, for in all Communions, and Partnerships, an Equal Division takes place, except an Unequal be expressed.

4. It is more dark, whether by the Law of Nature, there be competent, the Right of Representation, whereby the Issue of the Defunct Children represent them, and come in with the surviving Children, to get that Share, which their Defunct Parent would have got, if alive; whereby they would not succeed in capita, the whole Successors getting Equal Share, but in stirpes: Whereby the Issue of the Defunct Children, though they succeed equally among themselves, yet unequally with the surviving Children, because the whole Issue of the Defunct, get but an equal share with each of the surviving Children: As if a Father having three Children, the eldest dying before him, leaves one Child, and two Oyes by another Child, if there be place for representation, the Heritage would divide in three, the two surviving Children will have two third parts, the other third will divide in two, whereof the Child of the Defuncts will get one half, and the other half will divide equally betwixt the two Oyes: So then the question is, whether the Descendents will thus succeed, or if the Survivers will wholly exclude the Issue of the Deceasing.

[Page]This Right of Representation, taketh place with us, and most other Nations, in the Right of Immoveables; Which we call Heritable Rights, whether it be of Descendents, or Collaterals: But doubtless in that the Course of the Law of Nature is altered, for the preservation of the Stock or Stem of the Familie: So that it is clear, that there is no Right of Representation, in Collaterals, by the Law of Nature, as that the Child, or Grand-child of a Brother should come in with a Brother, because the Propinquitie of Blood, Natural Affection, and so the Presumed Will of the Defunct is diminished: But it is not so clear in Descendents, neither shall we be positive in it, but it seems most suitable to Reason, and the Text adduced; That if the Issue of Defunct Children remain in the Familie, that they should come in by Representation, in the place of their Defunct Parent, for, these that are in the Family, extendeth to all that are not Forisfamiliat, whether Children or Grandchildren, to whom there remaineth like affection, in the common Parent: but when the Defunct Child was forisfamiliat, and so presumed to have been provided, and to have gotten a Share, and therewith put out of the Familie, to live in a distinct Familie; In that case, there seems no ground for Representation, which doth agree to our Custom, in the Succession of Moveables, wherein there is no Right of Representation, but the nearest of Kin exclude the Issue of the Defuncts, which were of the same degree, which Suceession is certainly more near unto the Natural Succession.

What hath been said, may sufficiently clear the Natural Succession, of the Defuncts descendents, whether Children, or Grand-children, and while there are any Descendents, there is place for no other.

5. The third Branch of Natural Succession, failing the express will of Defuncts, and their Descendents, or the Issue of their Bodies, is of Parents, among whom, these in the nearest degree are preferable, as Father and Mother: And if the Father be dead, there seems to be place for Representation to his Father, to come in with the surviving Mother Equally; But other Parents of, or by the Female Line, who are in another Family, from the ground laid in the Text, of providing these in the Family, seem not to come in to exclude Brothers, and Sisters, and other Collaterals in that Family, as the Grand-father, and Grand-mother, on the Mother side: It will not be opposite to this, which is said, Children are not to lay up for Parents, but Parents for Children; which is not to be understood absolutely, but comparatively, and according to the ordinar course of Nature.

6. The fourth Link of Natural Succession, is Brethren and Sisters, among whom Brethren and Sisters German, being related by both Bloods, exclude these who are only of one Blood, by the Fathers side: the reason is, because the presumed will of the Defunct, being from their Interest and Relation, these of double Relation, by both Bloods, are preferable to these of single Relation.

7. The last degree of Natural Succession is, of Uncles, Aunts, Nepheus, Neices, all which being in equal propinquity to the Defunct, come in together, And failling these, the Succession would befall equally, to the nearest degree of Cousines, among whom the nearest degree excludeth the father, without Right of Representation: And these conjoyned by both Bloods, exclude these onjoyned by one. Husband and Wife, doth not succeed properly, either to [Page] other, but having a communion of goods, there is a Division by the Death of either.

8. The main question is here, whether there be Naturally, any difference in Succession, betwixt the Collaterals on the Fathers side, who are called Agnats, and the Collaterals on the Mothers side, who are called Cognats. Justinian in his novel Constitutions, cap. 4. 127. took off all distinction of Agnats, and Cognats in Succession: For which he is generally reprehended by Interpreters, Who behold such a difference, even in equity, Cognats being conjoyned by Women, who ordainarily, are under the power of others, even naturally by Marriage. And so being of another Family, they are not of the Defuncts own Family, as the Agnats are (amongst these, the Mother, Fathers Mother, or other Ascendents, on the Fathers side in his Family, are not hereby excluded) and so neither these or other, by their express, nor presumed will, can transmit any Goods, or Estates. Yet this point remaineth more dark: And I conceive, what hath come by the Mothers side, or by the Grand-mother, &c. therein the Cognats of her Blood would naturally succeed, because there are two grounds of Presumption joyned, Propinquity of Blood, and Gratitude, or Remuneration to that Linage, by whom, such things by Succession came. So that Paterna Paternis, Materna Maternis, ought to take place in equity, as the presumed will of the Defunct, unless the express will, or the Law, or Custom of the place be to the contrare.

So much for the Natural course of Succession, which hath been the more insisted in, not only to shew the goodness and righteousness of GOD, instructing man, with an in-bred Law, written in his heart; though he were destitute of any humane constitution or custom, so that he might walk justly, in this important matter of Succession: Albeit all the Lines of this Divine impression, be no clear, to our Sin-dimmed eyes; But also that, where positive Law, or Custom is dubious, in the matter of Succession, or is defective therein, Emendation, and Extention may be fetched thereto, from the Law of Nature, we shall now proceed to the positive Law of God, given to Israel, concerning Succession.

9. The Judicial Law, in the case of the Daughters of Zelophehad, Num. 6. 27. Determineth the order of Succession, in Lands or Immoveables, to stand as a perpetual Statute to the Children of Israel. Thus the first degree of Succession is, of all the Sons, whereby the Daughters, and their Descendents are excluded, but the Sons do not Succeed equally: For the first born had a double Portion, of all that the Father had, Deut. 21. 17. By which the eldest Son had twice as much as the other Sons: So that the Heritage being divided in one Portion more then there were Sons, of these the eldest had two, and each of the rest one; As if there be two Sons, it divides in three, whereof the elder hath two third parts, and the younger one third part; If there be three, the Heritage divides in four parts, whereof the eldest hath two fourth parts, which is the half, and each of the rest hath one fourth part.

10. This Right of primogeniture, was so secured, that the Father could not preser any other Son thereto, Deut. 24. v. 16. Failling Sons, the inheritance passes to the Daughters equally; For though the Text expresseth it to [Page] passe to the Daughter, in the singular number; Yet it is cleared by the context, that all the Daughters are therein included, for the Daughters of Zelophehad, though more in number, are found to have the said Right, and to get an Inheritance among their Fathers Brethren, by which it appeareth that the Right of Representation had place there, for all the Daughters of Zelophehad were but to have that share which their Father would have had, if he had been alive among his Brethren, for they claiming the Right of their Father, whom they show not to have been in the company of Corah, thereby forefaulting his right: So then, right of Representation must take place amongst all descendents: So that the Children of the Sons, though these Sons survive not their Father, would exclude the surviving Daughters, or would come in with the surviving Sons, not equally, and in capita, but in stirpes, whereby they would succeed to the shares of their pre-deceased Fathers, by Right of Representation.

11. The third degree of Jewish Succession, is failing Descendents, the inheritance passeth to the Defuncts Brethren, and these failing, to his Fathers Brethren, and these failing, to the nearest Kinsman of his Familie, that is, the nearest Agnats on his Fathers side, where all the male Agnats, of the same degree are understood. It doth not appear whether in this Collateral [...], there be place for Representation; and though there be no mention of the Succession of Women, or their Issue, but only of Daughters, Some have thought, from the paritie of Reason, in everie degree, failing the Males, the Females are to Succeed, and to exclude further degrees of Males, as if there be no Brothers, but Sisters, these should exclude the Fathers Brother: It may be also thought strange, that in all this course of Succession, there is no mention of the Succession of Parents.

12. In answer to these doubts, as to the first, I conceive, that in Collateral Succession, there is also place for Representation, so that the Brothers Sons as representing the Defunct Brother, their Father would exclude the Fathers Brethren. And so of the rest, because it is said, if there be no Brethren, the Inheritance shall passe unto the Fathers Brethren, which [...], unto the nearest Kins-man, and if there be no Right of Representation, the Cousin-german, or Father Brothers Son would exclude the Nephew, or Brothers Son, for Uncle and Nephew are never understood by the name of Cousins or Kinsmen, but have that special nominate relation of Uncle and Nephew, or Father, and Brother Son, and therefore the Brothers Son, as representing the Brother, must succeed, and exclude the Fathers Brother. 2. Cateris paribus, Succession will certainly descend to the Brothers Son, and not ascend to the Fathers Brother.

13. As to the second doubt, Ihold, that only Daughters and their Issue do succeed, and no other Females, or their Issue; the reason is, First, from the Text, where failling Sons, Daughters are exprest, but failling Brothers Sisters are not substitute, but Uncles. 2. The Division and Succession, and the Land of Canaan was Typical, and was not to passe from Tribe to Tribe, and therefore, Daughters succeeding, are appointed to Marry in their own Tribe; because ordinarily they were to be Married, when their Fathers succession did probably appear; but this could not have been, if Fathers Sisters, and these of further degree had succeeded.

[Page]14. As to the third, concerning Succession of Parents, it is sure, Mothers, and all Cognats, by the Mother side, being ordinarily of other Tribes, and Families, were for the reason now adduced, excluded from the Succession. The Text is clear, that only Kins-men in the Family, that is on the Fathers side succeed; But the reason why there is no mention of Fathers, &c. May be, because the Land of Canaan, being Typical, is fixed to Tribes and Families, it uses not to passe by Testament, or provision, or to be acquired further then by Wodset, to return at the Jubile; Therefore among the Jewes, Lands passed by the ordinar course of Legittime Succession, and so came from the Fathers to the Children, which presupposes the Father to have been pre-deceased, and could not succeed.

By this Tract of the Jewish Succession, it is clear, that GOD, by his Positive Law, altered the effect of Equitie, and of his Moral Law, in succession: For, it hath been now shown from that place (if Children, then Heirs,) That all Children must needs be Heirs, not by the Judicial Law, but by Equity; And yet by the Judicial Law, not all Children are Heirs, but Sons exclude Daughters, and Females are excluded by Males of a far distant degree, which necessarily infers, that for expedience, the course of Succession may be altered. The like must also be in other effects of Equity, which are in our power.

15. The order of Succession in the Civil Law, did exceedingly varie, being in many points different, in the Ancient Law of the twelve Tables, in Honorarie Law, introduced by the Edicts and Customs of the Pretors, who had Authority to Supply, and Correct the Ancient Law; and in the Imperial Constitutions, especially in the Novel Constitutions of Justinian, they did all agree in this, that the chief mean of Succession, is the Will, or Testament of the Defunct, which they held so Sacred, That all Pactions, or Provisio s, which might any way hinder the Free Liberty of Testing, or any Act, whereby Defuncts might be Restrained, or Constrained in the free Disposal of their Estates, were not only null, but exclusive of such Persons, from having any interest in the Defuncts Inheritance; Yet were the Romans so sensible of the Natural Obligation of Parents to provide their Children, that their midle Laws, necessitat Fathers either to institute ther Children, or expresly to exhaeridat, or disherish them, expressing their delinquencie of Ingratitude, the kinds and measures whereof, the Law did determine: So that if the Children were past by in silence, and neither Institute nor exhaeridat, the Law declared the Testament void, and if they were exhaeridat without a due and true offence, it did allow the Children querelam inofficiosi Testamenti, that is, complaint against the Testament made contra officium, which is the Natural Obligation, or duty of Parents to provide their Children; For the like Reason, the same Complaint was competent to the Fathers, against the Testament of their Children, but because that remeid might have been eleided, by exhausting the Heritage by Legacies, whereby the institution of the Children might prove ineffectual, for their provision: Therefore, the Law allowed Children a Legittime Portion, being the sourth part of the Heritage; which that, it might extend to all Heirs. Falcidius was the Author of that Noble Law, restraining Legacies, so that there might remain a Portion to the Defuncts Heirs, which Law and Portion, in Honour of his Name, was called the Falcidian Law, and Portio Falcidia, whereby the fourth part of the free Goods of the Testator, remained [Page] always Secure against Legacies, and when a new Subtilty was invented, to frustrat the Falcidian Law: By taking away the Heritage, not Directly by Legacies; but Indirectly by Trust or Fidei-comisses. Trebellianus procured that Ordinance of the Senate, called Senatus-Consultum Trebellianum, whereby that Portion called also Trebelliarica, should remain safe against FideiCommissarie Trusts: And though it be the Common Opinion of the Doctors: That if the Defunct Expressly Prohibit the Heir, to take the benefit of his Falcidia or Trebellianica, they will be thereby excluded, yet the Common opinion, is that it cannot be extended to Children, as to their Legittime, whom the Law hath fullie secured, either by Ordaining them to be institute Heirs in Whole, or at least in a fourth Part; which is their Natural, or Legittime Portion: And if they be Institute in less, they have Right to the Supplement of their Legittime Portion, or otherwise they must be Expressly, and Justly Exheredat, and they have the Common benefit of other Heirs, of their Falcidia, or Trebellian, which the Testator cannot Frustrate, with out express Prohibition.

16. If there be no lawfull Testament by theLaw of the twelve Tables (which is the Ancient Roman Law, and in comparison of the Pretorian, or Imperial Law, is only called the Law, or the Civil Law) the Succession of Defunct, falleth in the first place to the defuncts Children, or nearest descendents without Distinction of any lawful Children, though Adopted, or Posthumus, or though of diverse lawful Marriages; whether Male or Female: So that they remain in the Defuncts familie, and in his Paternall power, for these who are emancipat, and demitted from the familie, and from under the Paternall power, they are either really or presumptively provided, and so have no share of the Succession (of this Paternal Power, and Emancipation, see before, Tit. Obligations of Parents) These in the familie were called Haredes Sui & necessarij; because they were ipso facto Heirs without solemnity or entrie; Among these, the Right of Representation had place, so that for example, the Grand Children succeeded with theChildren but not equally, et per capita; but per stirpes: For theGrand Children had but the share of their defunct Parent equally among them, and so of all other descendents being in the Familie. The Pretors did in a part alter this, and brought in the Children or Issue emancipat with those in the family, without distinction, providing the emancipat brought in their goods, and adjected the same to the Inheritance, per collationem bonorum; yet because only the Law, that is, the Ancient Law, could make Heirs: The Emancipat were not called Heirs, but bonorum possessores. The Pretorian Law did also take off the necessitie, and dammage of the Succession, that none might be necessitate to be Heirs, yea all Heirs had the benefite of an Inventar, being timeouslyand duelie, made beyond which they were not lyable for the defuncts Debts.

17. The next degree of Succession, by the ancient Roman Law, was failing Descendents in the Familie, the nearest Agnats of the same degree succeeded; But there was no Succession ofParents, nor of Cognats related by the Mothers side (here Mother comprehends Grand-mother and all other Ascendentsof that kind) So the next Degree was of Brethren and Sisters, &c.

18. The Pretorian Law did also emendat this, and first brought in the Fathers, with the Brothers and SistersGerman, or of both Bloods: And thereafter [Page] the Tertullian Senatus-consult, failling the Fathers, brought in the Mother with the Sisters in their share, but not with the Brothers German, who if there were no Sisters German, excluded their Mothers totally, and, if for example there were a Brother German, and a Sister German, the Father being dead, the Brother had the half, and the Sisters half, was devided equally betwixt her and her Mother, and so the Mother is preferred to the Fathers Father, and to the Defuncts Brethren, and Sisters of one blood. Failling those of this degree, the Brothers, and Sisters by the Fathers side, and these failling the nearest Degree of Agnats, in which the paritie of reason inferreth, that as in Brothers and Sisters, so in other Collateralls, these of both blood make a nearer Degree, then these of one blood. Failling all these, the Pretorian Law admitts Spouses to be Heirs, each to other, the Husband to the Wife, and the Wife to the Husband, and last, the Fisk takes place as last Heir.

19. But the. Emperor Justinian, by the Novel Constitution, 118. cap. 4. Took off all destinction of Agnats, and Cognats, and brought in the Mother, equally with the Father: with what reason or approbation, we have touched before.

This is the sum of Succession, by the Roman Law, wherein there is no [...], oveables, or Immoveables, and which takes up no small part of the bodie of the Law, and writings of the Lawyers; wherein to insist particularlie, would raise a great bulk, unnecessar for our purpose: Whereunto, we conceive this Summarie may suffice. But while the Roman Empire, and Laws were trampled down, by the Northern Nations, the Feudal Law arose, and doth yet continue with the Civil Law of the Romans, and other Nations, by which there is a great distinction introduced, in the Succession in Moveables, and in Lands, or Immoveables; which are now of a feudal nature: We shall therefore go on to the Common Feudal Customes.

20. The Feudal Customs are locall, and it is hard to find a common rule therein, for Succession, which is variable, according to the diversity of place only, if we call to mind what was formerly said, Title, Infeftments of the Distinction of Ancient and Proper Fees and of Declining, and Improper Fees: The nature of Proper Fees, wil hold forth the matter of succession therein for a Proper Fee being freely granted by the Superior to his Vassall for Military service, the Vassalls person being chosen by the Superior, and a speciall trust reposed in him, and the like hope of his Issue; Patrene sequitur sua proles: It was at first so simplie done, that the entering of the Vassall in Possession, in [...] of his Peers, was a sufficient Constitution of his Right, and the Investiture signified, then not so much the Act constituting, as the Write evidencing the Fee, in the which case from the nature of the right, it is consequent, first that none should succeed in the Fee, but such as were fit for the Militarie Services, and so Women, and their Issue were utterlie excluded; and all the Males Succeeded equally. 2. In Proper Fees, none could Succeed but the Lawful Issue of the first Vassall, whose Person and Issue was specially chosen, among which, first the Male Issue of the Vassall who dyed last infeft, according to their nearness, do succeed with the right of Representation, and so not per capita, but per [...]; next unto the Descendents among the Collateralls, Brothers and their Male Issue: and among these, the Brothers German, and their Issue, exclude the Brothers by one blood; and after Brothers, Father Brothers and their Male Issue; And so other Agnats of the last deceased being, alwayes of the Male Issue of the first Vassall, which being extinct the Fee ceaseth, and returneth [Page] to the Superior not as the Vassalls, but by vertue of that Directum Dominium, which still remained in the Superior, In this course of Feudall Succession, there could be no place to the Vassalls Father, or other Ascendents, because if the Fee were a new Fee, or Conquest by the Son, his Father nor his Brethren could not Succeed, as not being of the Issue of the first Vassall: and if it were an old Fee, not purchased by the Son, but whereunto he did succeed, it doth necessarly presuppose the Death of the Father, and other Ascendents, to whom the Son could not be Heir, nor succeed, till they were Dead.

But when by the course of time, Fees declined from the proper nature of Ancient Fees, and the Investiture did express the Tenor, and speciall nature thereof, the Tenor of the Investiture became the first rule of Succession in such Fees, and came in place of the Testament or Will of the Defunct; for seing the Vassall could not alter the Succession, without consent of the Superior, he could not effectually Test thereupon.

21. In the next place, what is not the Express Will of the Vassall, and Superior by the Tenor of the Investiture, is regulate by their Conjectured Will, from the nature of the Fee, and Propinquity of Blood: So if the Fee be Originally granted to a Woman, her Issue [...] succeed, as well as the Male: or if the Reddendo be not Militarie Service, but Money, Grain, or Services competent to a Woman, or Manual Services, wherein there is no choise of Persons, as Tilling, &c. And so generallie Fees holden Blench or Feu: In all these Woman may Succeed, because they are not excluded by the Nature of the Service. 2. If the Fee be Granted to Heirs whatsomever, not only doth the Issue of the first Vassall, but all other his Lawfull Heirs, or the Lawfull Heirs of the last Deceassing, Vassall, whether of the Issue of the first Vassall, or not, do succeed: And now Fees being ordinarily acquired by Sale, Excambion, or the like Onerous Title, Feuda ad instar [...] sunt reducta; Heirs whatsomever are commonly exprest, and if they were not, they would be understood, for that which is Ordinar is Presumed.

22. But now Custome hath altered the Course of Feudall Succession, and given the Prerogative of Primogeniture, to the eldest Male of the nearest Degree to the Defunct Vassall; who excludes not only the Females of that Degree, but the Males also, and their Issue; not only among us, but in England, France and most other Nations, and therefore before we descend to our own Customes, it will be fit to consider the Justice, and Expediency of this common Custome in Feudall Succession.

The Lawfulness of Primogeniture, will be easily evinced from what hath been said already upon Succession, wherein the will of the Proprietar is the Rule even in Equity: and though he be Naturally oblidged to provide for his own, that Personal Obligation reatcheth him, but not the Inheritance, nor doth it Oblidge him to make these to Succeed, but to give them Competent Provisions, and therefore the Judicial Law which is the Positive Law of God; evidenceth sufficiently, the Lawfulness, and in some Cases the Expediency of altering the Natural Course of Succession, and therefore not only the Male Issue, is thereby preferred to the Female; All the Females are utterly excluded, but only Daughters, that the Inheritance may remain within the Tribe, and the Preference of Males, is because Femoles are less fitted for [Page] Management of Lands, and therefore are to have a Portion, which the Judiciall Law calleth the Dowry of Virgins.

The Expediency of Primogeniture, is partly Publick, and partly Private: The Publick Expediency, is that the Estate of Great Familyes, remaining intire and undivided; They with their Vassals and followers may be able to defend their Country, especially against Sudden invasions, for with us in France Polland, and many other Places, the Great Families are the Bullwarks of their Countrey: Having [...] to Maintain them selves, and their Followers, for some time without Standing Armies, Constant Pay, and Subsidies.

The Private Expediency, is for the Preservation of the Memorie, and Dignitie of Families, which by frequent Division of the Inheritance, would become despicable, or forgotten. Primogeniture taketh Place in Germanie, and France, in proper Fees like unto Our Ward-holdings, but not in Allodialls and Lands holden Freely, or for Cane or Rent, Gudelinus, de Jure novissimo, lib. 2: cap. 13. relateth, that in many of the German and French Provinces; the Male gets two third parts, and the Females one, in the other Provinces the Children of the first Marriage, succeed in all the Lands the Parents had, during that Marriage, and so in order, the Children of after Marriages; And in other Provinces and Cities, the Youngest Son Succeedeth in all, Excluding the rest, and Generally, Bastards are not admitted, even to the Succession of their Mothers, and in England, though Primogeniture, have the Prerogative by the Common Law, yet it hath an Exception of the Custom of Kent, where Primogeniture hath no Prerogative; And therefore that Custom is called the Gaball kind of Kent, which is as much as to give to all the kind.

The Customs of England, and Germany, are contrary in this; That in Germany, Parents come in the next place after Descendents, and exclude Brothers, and Sisters, and all other Collateralls; but in England, Parents do never Succeed; so if the Defunct have no Issue, Brothers nor Sisters, nor their Issue, the Fathers Brother Succeeds, and excluds the Father, though his Relation be by the Father, and much further distant then the Father: And it sometimes falls out, that the Uncle Succeeding, dying without Issue, the Father Succeeds his Brother, and so Accidentally, and Mediatly to his own Son.

23. To return to our Customs in Succession, in respect of the Matter, it is divided in two Branches, the one is of Moveables, the other of Immoveables, which do as much differ, astheCustomes of diverseNations; The Successor in Immoveables doth only retain the Name of Heir, and therefore Immoveables are called Heritable Rights, and that part of the Moveables, which belongs to the Heir, is called Heirship-moveable.

The Successor in Moveables, from the Office of executing the Defuncts Will, express, or presumed, is called Executor.

We shall here Summarily, at one view, set forth the whole matter of Succession with us, which we shall more fully, and distinctly follow, in the ensuing Titles.

Heirs in Law are called Universal Successors, quia succedunt in universum [Page] [Page] [Page]jus, quod Defunctus habuit, they do wholly represent the Defunct, and are as one Person with him, and so they do both Succeed to him active, in all the Rights belonging to him, and passive, in all the Obligations and Debts due by him; and when they do not orderly enter, they become Successors passive, lyable to the Defuncts Debt, but not Heirs active, having power to claim his Right, till they be entered according to Law: Other Successors are called singular Successors, as Assigneys, Purchasers, but Heirs only are universal Successors: And now, when Heirs are of divers kinds, as some in Moveables, some in Lands, and other Heritable Rights, and of these ac cording to the Investiture, some succeed to Lands provided to Heirs of Line, some to Lands provided to Heirs Male, some to Lands otherways Tailzied, in all which some Heirs Succeed alone, and in solidum, some Succeed in parte & pro rata, yet all may be said to Succeed in universum jus quod Defunctus habuit, by universum jus, the whole Right, not simply, & in solidunt, but the whole Rights of such a kind, either in solidum, or at least pro rata parte, as he who Succeeds in a half, or third part of all the Defuncts Rights active & passive, Succeedeth in universa & singula jura, in all and every right, thought not in totum & solidum, the whole or every part of every Right.

As to Moveables, we shall not repeat, what hath been said, Title Real Rights, of the distinction of Heritable, and Moveable Rights, whether Goods, or Moveable Debts; but shall only hold forth, what becometh of Moveable Rights, after the Owners decease. And first, if the Defunct be Married, there was thereby acommunion of Goods, betwixt the Defunct and the other Spouse, which being disolved by Death, the surviver may withdraw their share, which share is estimate by the condition of the Familie at that time; for if in the Family there were a Husband, a Wife and Children, not forisfamiliat, the Wife her share is the third; but if there were no Children unforisfamiliat, the Wifes share is the half, which is not properly a Succession but a Division.

24. The first degree of Succession, in Moveables with us, is by the will of the Defunct, by his Testament, or Codicil, whereby the Defunct may name Executors, and dispose of his Moveables, either in part by particular Legacies, or in whole, by an universal Legacie, whereby, in effect the universal Legatar is institute Heir in the Moveables, and if the Executor nominat, be not also universal Legatar, he hath but one office, and is not Heir for himself, but in name, and to the behove of the Legatar, and hath but fidei-comissum of the Moveables.

These Legacies, whether Particular or Universal, doth immediately transmit the Right to the Legatars, and their Successors: The Solemnities of Testaments, or Legacies are very plain with us, but we shall leave them to the Title Executrie.

The will of the Defunct is restrained with us, in three cases, the First is, Bastards cannot at all Test, or leave Legacies, unless they be Legittimat or have power from the King of making Testament, or have lawful Children. 2. A Father is bound up in respect of his Children in his Family, which are not forisfamiliat, and provided for, these have necessarily their Portion Natural, and Bairns part of Gear, wherefrom their Father cannot exclude [...] by [...] or otherways, as by Donations, in contemplation of [...] [Page] tion to a Moveable Band granted on Death-bed, was found null, as to the relict, and Bairns part, Spots. Assignations, Margaret Pyrie contra Ramsay. Yea, it was found, that the Gift of Money by the Defunct, out of his own hand, on Death-bed was null as to them. ibid, Mr. Andrew Moncrieff contra Mr. Archibald Moncrieff. The like of an Assignation, to a confident Person, to the behove of the Defuncts Bairns, which was found not to prejudge the Relicts third, Durie, July, 10. 1628. Cant contra Edgar. And therefore, a Father hath only power to dispose upon such a part of his Goods, which are thence called Deads part, which if he have a Relict, and Bairns in the Family, the Bairns part is the third, the Relicts part is also a third, and so the Defuncts part is only a third, but if there be no Relict, then the Bairns part is the half, and the Deads part is the other half; But if there be neither Wife nor Bairns, the Defunct may dispose of the whole, as Persons never married, or Wives upon whom there is no Restriction, though they have Husband or Children, for they may dispose of their share of the Husbands moveables, or if they acquired, or succeed to any moveables, in Viduity they may iniurley Dispose thereof, though they have Children.

If his Legacies exceed his own part, then they abate proportionally, unles there be a preference granted by the Testator, or a priviledge, whereof I know none with us, for even a Legacie, ob pias causas, viz. A mortification to a Kirk, was found to have no priviledge, but it, and other Legacies suffered proportional deduction, seing they exceeded Deads part, Durie, July 6. 1630. Doctor Monro contra Scots Executors: The reason of this Restriction is, that Natural Obliegment for provision of Children, of which before, it is extended only to the immediate Children, and not to Grand-children, neither doth it Restrict the Mother, but only the Father.

3. The third Restriction of the Defuncts will, is in favours of their Heirs of Line, for Heirs having the sole interest in Heritable Rights, are by our custome justly excluded, from coming in with other Children, in moveables, except that which is called Heirship-moveable, which is the best of every kind of moveable, wherein the Defuncts will cannot prejudge the Heir.

The second member os Succession in moveables is, from the Intestat; So that failing the Defuncts will, with the Restrictions aforesaid, the nearest of Kin have interest, both in the Defuncts moveables, and office of Executrie, and though they claim not the office, yet have they [...] Right to the Goods, leaving a third of Deads part to the Executors, [...] administration of the office.

These nearest of Kin, take place all in [...] all the nearest degree, Male or Female, come in equally, and there is no Right of Representation in moveables. The first Degree is Children, Male or Female, with whom Grand-children come not in by Right of Representation, in place of their Defunct Parents: So Children have an interest in their Fathers Moveables, viz. their Bairns part, wherein their Father cannot prejudge them, and their interest, as nearest of Kin; Whereby they succeed to the deads part, in so far as intestat, next unto Children, are Grand-children, or any Descendents of the nearest degree. Next unto these, are Brethren and Sisters, wherein, Brethren and Sisters German, or by both Bloods, exclude these by one Blood. Next unto Brethren and Sisters, are there Descendents, in the nearest degree, without Representation. And last, are the nearest degree of [Page] Agnats, Male and Female joyntly, without Representation: If there be no Descendents, or Agnats, in the case of Bastards, who can have none, or others, who happen de facto, to have no Children, or Agnats, their goods become caduciary, and are Confiscat to the King, as last Heir or by reason of Bastardry, of which before, Title Confiscation.

In the Succession of Moveables, the same Goods, or Debts, are not in all cases accompted Moveable, since the Act of Parliament 1641. cap. 32. Whereby Bands, bearing Annualrent, which before in all respects, were Heritable, by the Destination of the Annualrent, (Which, being perfected by Infeftment, is an Immoveable, and Heritable Right) are declared to fall under Executrie, and so to be Moveable. And yet by the said Statute, the Relict, and Fisk, are Excluded. The Reason exprest in the Statute, is, because the Obliegment upon the Debitor, to pay Annualrent, is, for the Profit of the Creditor; and not a Destination of Infeftment of Annualrent, in Favours of the Heir, to exclude the Bairns: And therefore such Clauses make not such Sums Heritable, as to the Bairns, and nearest of Kin: unlesse they bear an Obliegment to Infeft the Creditor in Land, or Annualrent: In which case, they are properly Heritable, and belong only to the Heir; but if not, the same belongs to the Bairns, and nearest of Kin, Excludendo Fiscum & Relictam: Whereby there [...] a Different Division of Moveable Sums, falling under Executrie: One of such as were Moveable before the said Act, which, if there be a Wife and Children, are divided in three: Whereof the Bairns, is a third part, and the Deads part a third. Another in the Testament, of Bands bearing Annualrent, which if their be Bairns, is Devisible in two parts whereof the one half is the Bairns part, and the other half the Deads part, and the Relict hath no part, being Excluded. So that in case of Escheat, such Sums are not Moveable, nor fall not under Escheat.

Yet, if such Debts become Simply Moveable, by a Requisition or Charge, or by the Death of the Debitor, or Creditor, before the Term of Payment of Annualrent: Or, otherways they remain in the Ancient Condition. And the Statute doth not Exclude the Fisk and Relict. But where a Charge could not be given through the Debitor, or Creditors Death, and there was no Requisition provided, and Decreet for Payment, was not found to make the samine Meveable, as it would have been, if the Band had been Heritable, by a Clause of Infeftment. And that because, by a Posterior Band of Corroboration, for the same Sum, Executors were Excluded, which no Charge nor Requisition doth alter; but it is still presumed, that the Debitor would re-imploy the Sum, in the same way, to his Heirs, Excluding Executors. And therefore, a Process and Decreet for payment, was not found to make it Moveable, though these would make it Moveable, as well as a Requisition or Charge, if it had been Heritable, by a Clause of Infeftment, July 12. 1676. Crystie contra Crystie.

It is also consequent from the said Statute, 1. That such Bands, bearing Clauses of Annualrent, may be Exhausted by the Debts, due by the Defunct, bearing Clause of Annualrent. 2. It is Consequent, that the Executor, will get no Relief against the Heir, of Debts, bearing Clause of Annualrent, without Clause of Infeftment; in so far, as there are such Debts in the Executry, but the Heir will have relief thereof, against the [Page] Executor. 3. It followeth, that Debts, bearing Clause of Annualrent, and no Clause of Infeftment, will not Exhaust the Relicts part; Because, as she is Excluded from any Share of such Debts, due to her Husband; So she must be free of any such Debts due by him, as was found, December 23. 1668. Magaret Mckenzie contra Robertsons.

25. Succession, in Immoveable, and Heritables Rights, proceed wholly in a different manner. For Succession, in Moveables, is more near to the Course of Natural Succession, and to the Civil Law of the Romans, especially their Ancient and Midle Law; but the Sccession in Heritable Rights, aggreeth more to the Recent Feudal Customs, of most Nations, whereby Primogeniture is established, for the Honour and Preservation of Noble Families, and in them, for the good and safetie of their Kings and Countryes.

26. Succession, in Immoveables and Heritables, do mainly differ, First, that in Moveables, the expresse will of the Defunct, by his Testament and Legacies, and Donations, in Contemplation of Death, have the first place, but in Heritable Rights, they have no place at all; Yea, no Personal Contract, or Obliegment of the Fiar, can have any effect in prejudice of his Heir, to take from him any part of the Heritage, directly or indirectly, by Legal Pursuits thereupon, if the foresaid Personal Right, or Contract was done in lecto aegretudinis upon the Fiars Death-bed: And though the same Disposition, or Contract, were made in the Fiars Health, or Liege pouste, it doth not alter the Succession, unless it be in the investiture, though, as being of it self, or having in it virtuallie, a Personal Obligation, it may by Process compell the Fiar or his Heir, to denude themselves, and to obtain new Infeftments, conform thereto, as if by Contract, any partie may be provided, to be the Contracters Heir, in whole, or in part; his provision doth not make that partie Heir, in any Right, whereupon Infeftment hath followed, which only properly are Heritable Rights: Neither can that partie be served Heir of provision, to the Contracter thereupon, yet the Contracter may be compelled to take his Right accordingly to himself: And these Heirs of Provision, which if he have not done, his other Heirs may be compelled to enter, and to denude themselves, in favours of that partie provided to be Heir, conform to the Contract; but Dispositions, Obligations, or Contracts of any Heritable Right, on Death-bed, are null, and reduceable, in so far as may prejudge the Heir.

27. The priviledge of Heirs, not being prejudged, by their Predicessors Deeds, done on Death-bed, is, as most of our Laws, by Ancient Custom, time out of mind, and not by statute, or written Law, for, though the Books, called Regiam Majestatem, treat thereof, yet these are no part of our Law, but have been compylled by some Stranger, who hath not fully known our Law, but by mistake, hath resolved most Cases, by the Customs of other Nations, especially of England. The reason of this Custom, may be conjectured not only from the Nature of Feudal Rights not disposable by Testament, but only by investiture, but also for publick utility, because persons on Death-bed are weak, the mind being easily affected with the trouble of the bodie, and so is easie to be wrought upon by insinuations, or importunities, to do deeds contrary their Interest, and former Resolutions, Especially by the Popish Clergie, who, having, for their own corrupt ends, Forged Puragatory, and Prayers for the Dead, their power of Indulgence, [Page] and Prayers for the Dead, their power of Indulgence and Pardon of Sins, did thereby deceive the Christian World, and obtained upon Death-bed so large Donations to their Clergie, to the prejudice of the Donators lawfull Heirs which therefore Our Ancient Custom hath wisely provided against.

28. The main Difficulty is, in what cases the Law accounteth Parties to be on Death-Bed, or when they are in Health, and Liege poustie, for these are the two opposite Terms of Law, Liege poustie or Death-bed; for clearing whereof, these Points must be considered. First whether it be necessar to Prove that the Defunct before the Deed in question, had contracted disease, or become sick, and whether it be necessar to condescend and instruct the speciall kind of Sickness, or that it was Morbus Sonticus, or a disease affecting the whole Bodie and Brain, or if the keeping the House, and the Parties Dying before he went abroad, be sufficient to infer Presumptive, that he had Contracted the disease whereof he Dyed, so soon as he keeped the house. 2. Whether a contrair Probation of the Parties being in health, be sufficient, in that he was of a sound Judgement, and Memorie, and kept the Ordinar time of putting off, and on his cloaths, and of eating and drinking, as when he was in health, or Writing Securityes, that require clearness and distinctness of Mind, be sufficient, or if doing his ordinar Affairs, making Bargains, and Accoumpts, Trysting for others, or himself, playing at Cards, or other Games within Doors, giving Evidence of being Merrie, be sufficient to instruct Health, and Liedge Poustie. 3. If Sickness contracted, be presumed or proven, whether there be necessity to prove the Continuance of the Sickness till Death, or that the Defunct died of that Sickness, or if the Sickness once contracted be presumed to continue, unless Convalescence, and Recoverie of Health be proven. 4. Whether Liedge poustie, by Convalescence, be sufficiently proven by the Defuncts going to Kirk and Marcat freely, without help: And whether it be sufficient to go to the Marcat place, or to the Kirk, though there be no Convention, nor Congregation there; or whether it be requisite, that going to Kirk and Marcat, be when the Congregation is conveened, or in Mercat time. 5. Whether in that case Supportation being proven, it is more pregnant and preferable to the Probation of walking freely, and be what Acts Supportation is inferred; whether by helping the Defunct by his Oxter, by his Elbow, or by his Hand, be sufficient, or if helping him up Stairs, or down Stairs, to and from his Horse, or upon a Ragged way, or whether being helped by a Staffe, will inferr Supportation. 6. Whether going freely to Kirk and Marcat unsupported, may be taken off by any probation, that notwithstanding thereof the Sickness did continue, whereof the Defunct dyed. 7. Whether Convalescence and Liege poustie, may be proven by any other Acts, then going unsupported to Kirk and Mercat, or if equivalent Acts may be sufficient, and if going abroad about the House unsupported be sufficient.

Death-bed is of so great Importance with us, as reaching the Estate, and Heritage of Parties, that the Lords have been very careful for clearing and fixing the same, that it may not be under uncertain conjecture or probation, and whereas by an ordinar Act of Litiscontestation, the Pursuer might prove his reason of Death-bed, by any two Habile Witnesses, or the Defender might in the same manner prove, the going Abroad to Kirk and Mercat, or Acts equivalent in Defence, or the Persuer might prove Supportation, by way of reply, and all by any two Habile witnesses: The Lords have [Page] taken a farr more secure sway, to allow probation to be Adduced for either Party, concerning the condition of the Defunct, as to Sickness or Health, and concerning his going abroad thereafter, and the manner thereof, whereby neither Partie hath the choise of the Witnesses, to be in a Capacity to influence them, but either Partie adducing Witnesses, there is scarce any one unexamined, who knew any thing of the Matter, and so the Truth comes to clear and evident Light, and which probation stands in place of Litiscontestation; for albeit it bear to be before Answer to the Relevancie, and that after the probation is closed, they are permitted to resume the Debate, as to the Relevancie, as to such Points as they desire chiefly to be noticed, and wherein they do believe, that sufficient Probation is adduced; which probation is closed, and may not particularly be debated upon, how farr any point is proven, which is only proper to the Lords, to consider with closs Doors yet, no new Litiscontestation can be made, or any new Fact admitted to be proven, after the Probation, before Answer is concluded and advised, or renounced, unless the Lords, ex officio & proprio motu, for clearing of any part of the probation that remains Dubrous, require further, as they may do at the advising of any cause, even upon Litiscontestation; as was found upon Decem. 5, and 6. 1672. Clellands contra Clelland, of Falskin.

To come then to the Points proposed to be cleared, for the first Point, whether keeping the House presumeth Sickness contracted, or if Sickness must be proven, and what kind of Sickness. Albeit, the ordinar Stile of the reason of Reduction bear, thatbefore the Deed in question, the Defunct contracted the Mortall Disease, whereof he Died; yet it is not necessar to alledge or instruct, that it was Morbus sonticus, January 7. 1624. Schaw contra Gray. Neither that the Defunct was Bed-fast when the Deed was done, Feb. 1. 1622. Robertson contra Fleeming. And albeit, the Presumption of the contracting of Sickness, from his keeping ofthe House, be not alwayes sufficient alone, yet it is of great Importance, and a small probation of Sickness with it, will suffice; otherways, it were easie to keep all access from the Defunct of indifferent Persons, that might prove his Condition, and none be admitted, but Contrivers, and Concurrers in the Deed: And therefore a Deed done be a Man inclosed for the Plague, was found reduceable as done on Death-bed, as being done after the Defunct was inclosed on suspition of the Plague; and Dying before he came out, without necessity to prove he was Sick or Infected when, theDeed was done, seing there was no further access for fuller Probation, February 23. 1665. Jack contra Pollock and Rutherfoord. This Presumption doth withstand a far stranger opposite probation of Health, when the Defunct went not abroad as was found in the said ease, Robertson contra Fleeming. That it was not Relevant to eleid Deathbed, that the Defunct was in Strength and Ability, to have come to Kirk and Marcat, nor that the Defunct put on his Cloaths daily, and that any Disease he had was but Lent, and not Impedimentum rebus agendis; as was found in the said case, Schaw contra Gray. Neither that the Defunct lived a year and a half after the Deed in question, and was only hindered to come abroad by a Palsie, which troubled his walking, and made him not come abroad; albeit he did all his Affairs within Doors, as formerly, July 1. 1637. Cranston Riddell contra Richardson. And albeit, there be remembered a case of a Disposition made be David Graham Merchant in Edinburgh for a Pious use to the [...] that his having on his Cloath the Contriving and Writing the whole Disposition himself, was sufficient to eleid Death-bed and to instruct Health; yet the Circumstances of that case are not fully known, not [Page] being observed by any of the Lords, and the Decision hath ever been decryed since. But in the case of the creditors of the Lord Balmerino, against the Lady Couper, for reducing of the Disposition of his Estate to her, which was Decyded June 25. 1671. It was not found Relevant to instruct Liege poustie, that after the Disposition, my Lord made Bargains and Counts, seemed to be Merry and Laughed, keeped on his Cloaths, kept the Table, came from his Chamber to the Hall, Whisled to himself, and Danced, Albeit, no particular Disease, but only Sickness was proven. And in the foresaid case, Clelland contra Clelland, Health was not found proven, albeit, soundness of Judgement and Memory was proven: And that the Defunct did not only all his own affairs, but Trysted for others, and that he lived two years and a half, after the Disposition, and was in like condition, as he had been seven year before; so that it seems, that if the contracting of Sickness be proven, no contrary probation of any Acts within doors, will be sufficient to eleid the Reason of Death-bed; By all with decisions, the second Point proposed is sufficiently cleared.

As to the third Point proposed, whether Sickness being proven once Contracted, the Countinance thereof till Death must be proven. It is commonly held that if it be proven Sickness was contracted, and that Death followed, probatis extremis presumuntur media; And Sickness once being proven is presumed to continue, otherways it were scarce possible by a positive Probation to instruct the Continuance of the Sickness till Death, and this is only Presumptio juris: Laying the Burden of probation upon the Party that alledges Convalescence.

The fourth Point for proving Liege poustie, either that there was no Disease, or by Convalescence, if there had been a Desease; by going freely to Kirk and Mercat unsupported, is the ordinar and unquestionable defence against Death-bed, upon which Law and Custom hath pitched, as the most publick, and sure evidence of Health andConvalescence: So that albeit, the going to Kirk and Mercat, were but of design to Validat theDeed, yet if the attempt, be perfectly made out, it would be sufficient; and much more will be allowed, when the going abroad is Principally to hear Sermon or for Devotion, or about affairs to the Mercat: In which case, taking the Party by the Hand, or helping him at a ragged Ground, would not inferr Supportation, there being no design of Cautiousness in the Partie, but useing his ordinar way; as if a Gentlewoman accustomed to by led be the hand, should go so led to the Kirk or Mercat: By reiterated Acts it might be sufficient for inferring Health or Convalescence, but if it did appear to be upon design, she behoved to forbear the prerogatives of herQuality, and go freely alone without being led, or if an old man, infirm by age, or any defect in his Legs or Feet, not arising from inward Sickness, should be helped in difficult places, in reiterated Acts in going to Kirk and Mercat: without design. And as to that qualification, whether it be sufficient to go the Kirk or Mercat Place, or at the Congregation orGathering at the Mercat, I have not observed it perticularly debated or decided, but that Parties when they went to the Kirk, ordinarly went to the Prayers, and certainly it is the most secure way, that the going be to the Congregation, or Meeting at the Mercat, otherwayes pick't out witnesses, may be Chosen to wait upon the Party to the Kirk or Mercat-place, which in many cases will be very private, and will not expose the Party to publick View.

[Page]The fifth point concerning Supportation, is the ordinary reply against going abroad, and as hath been said, it is ever to be considered, whether the Act appear to be of design or not, and that if the Acts be reiterat, and of course nothing that was ordinar for the Defunct in taking of help, when he was in unquestionable Health, will import Supportation; and therefore in the case, Pargilleis contra Pargilleis, decided Febr. 26. 1669. It having been proven that the Defunct was a very old Man, and that after the Disposition quarelled, he had severall times come to Calder, and done Affaires there: And that he went up from the Merca-place, in the Mercat time, to the place of Calder, being a Steep way, borrowed Money from the Lord Torphichen, told and received the same, which was found sufficient; Albeit, he was helped up Stairs, and down Stairs: and was helped to his Horse, and from his Horse, and his Man led his Bridle, and that he had a Staffe in his hand.

But when the going to Kirk and Mercat, is upon design, the least defect in the exact Performance will render it Inefectuall, and so in the case of the Disposition made by the Lord Couper, it having been evident that it was, of design to Validat the Disposition, that the next day after the Disposition, my Lord went to the Mercat at Couper, the laying hisHand upon Thomas Ogilbies Hand, who walked by him, and that only at someimes, and in Ragged places where he was accustomed to take any walking by him, by the Hand before: Yet seeing he put nature to the outmost reach, to manifest Health by that Act, and could not fully perform it, it was not found Sufficient; but he was found to be Supported, and in the case, Clellands contra Clelland of Faskin, the Defunct finding that his Disposition was quarrelld and stopped at the Exchequer: As being done in Lecto; Immediatly after he caused make a Chair, with a Fixed [...] to bear his Feet, in which he was carried with Men till he came within two pair or thereby to the Kirk, and thence he walked to the Kirk, but there was no Congregation: And returned back to the Chair, and so was carried Home, and the Witnesses that were about him, being examined, whether he Walked freely, or with help, many deponed that severall Persons having walked close about him, they could not Distinctly know; and severall Witnesses having Deponed, that he Walked Freely without Help, and two having Deponed that he was Helped by themselves, his so going Abroad was not found Sufficient, neither was his being carried in the Chair found equivalent, as if he had Ridden upon his Horse; because a Sick-man might have required help even upon Horse-back, and would not have been able to have Ridden Freely without Help, and yet might have been Able to sit in a Chair: In this case a lso it was found that Supportation was more positively Proven; Albeit, be fewer Witnesses: The Witnesses themselves being Supporters.

As to the sixth point proposed, whether going to Kirk and Mercat unsupported, inferreth Health, or Convalescence, presumptione juris, & de jure, So that a contrary Probation, that even then he was Sick, and so continued tiil IDeath, hath not yet been destinctly decided: Albeit, in Pargilleis case, it was not regarded, that the Witnesses deponed, that Pargilleis, when he came to the Mercat, appeared Sick, and continued Sick thereafter; Neither can any Conjectural Probation, in such case be Respected; Because Squalor morbi, doth ordainarily remain, afterConvalescence, which, if it were [...], would render that Defence uncertain, and conjectural; So that there can be no question, unlesse the Probation of the being then Sick, were positive, [Page] and pregnant, as if a Person in a hot Fever, wherein there is ordinarily strength enough, should come abroad to a Mercat, the Foam, and Furie of the Fever continuing in his Face, or if the Partie did Groan, and Bemoan himself, as Sick Persons use to do.

For the last point offered to consideration, whether Convalescence, can be proven otherways, then by going un-supported to Kirk and Mercat. I have seen no decision, whereby Death-bed hath been elided, upon such equivalent Acts; But on the contrare, it was found, in the Case of the Lord Salton, that his coming to a Green, near his House un-supported, and standing there, till he saw men play at Foot-ball, was not sufficient: And in Coupers case, his coming frequently with Strangers to their Horse, and sometimes going up and down Stairs un-supported, and oftimes going out, and walking in his Garden, and once to a House, a quarter of a myle off, and all un-supported, were not found equivalent, to going unsupported to Kirk and Mercat. And in Clellands Case, his going several times to his Barn, and to some Trees, a pair from his Gate un-supported, were not found equivalent to going to Kirk and Mercat. Yet it cannot be doubted, but there may be Acts equivalent: As if any Person should go a far Journey, but the equivalence must not stand in this, that the Defunct did Acts, requiring as much strengh, as going to Kirk and Mercat. In respect of this Difference, that going to Kirk and Mercat, exposes the Partie to publick view: Whereas other private Acts about his House, may be proven by a few Persons, prompted for that purpose: Which probation cannot be ballanced with any other; for clearing, that there was support, or help, as in the Case of going to Kirk or Mercat, or going a long Journey, where they may be had many un-prepossessed Witnesses.

Death-bed was not found elided, by ryding on Horse-back, a Journey, of about sixteen myles, Seing the party had a man, who rode behind him, and for some part of the way, was tyed to the man, which was found to be Supportation. Nor was it respected, that long before his Sicknesse, he had in his Testament left the same things in Legacie: And therefore was not prevailled upon, with Importunity; Seing his purpose might have altered, after that Testament, December 11. 1677. William Lockhart contra Cromuel Lockhart of Lie.

29. As to the extent ofDeath-bed, it doth not only annul Dispositions ofLands, but Assignations to Heritable Bands, Feb. 24. 1624. Donaldson contra Donaldson. Or to a Band, Moveable in it self, becoming Heritable, by a Posterior obliegment, to imploy it for Annualrent, Spots, Juramentum calumniae, Margaret Arthur contra James Watson. Yea, it will annull any Band, though Moveable, in so far, as thereupon the Heritage may be Appryzed, or Adjudged, Jan. 7. 1624. Schaw contra Gray. But an Heritable Sum being payed to the Defunct, on Death-bed, his discharge thereof was not Reduced, ex capite lecti, though the money was instantly given away, after it was received, which was found valid, as a Legacie, out of the Deads part, March 15. 1634. Margaret Broun contra Thomson; but such Deeds on Deathbed, will not prejudge the Relict, or Bairns part, but is null as to them, as well as to the Heir; As hath been now shown.

[Page]Death-bed was extended aganist Bands, though granted by a Father to a Son, having no other Provision, which were not sustained, though ossered to be restricted to a competent Portion, due Naturally by Parents, to Children, July 1. 1637. Cranston Riddel contra Richardson; Yea, Deathbed was found relevant, to Reduce a Disposition, in Favours of the Disponers only Daughter, in prejudice of the Brother, and Heir Male: Though the Disposition contained a power, to alter the Tailzie, or dispone at any time in his Life, but bore not etiam in articulo mortis, Feb. 25. 1663. Adam Hepburn of Humbie contra Hellen Hepburn. But where the Disposition was neither to an Heir Male, nor of Line; That clause was sufficient, to [...] the Disponer, on these Terms, to burden, though it mentioned not Deathbed, or in articulo mortis, June 22. 1670. Douglas of [...] contra Douglas. And Death-bed was not sustained, to Reduce a Disposition, by a Father to his Son; Seing the Father reserved such a Sum, to be at his disposal in his Disposition to his appearand Heir, though it mentioned not, at any time in his Life, June 28. 1662. George Seaton of Barns contra Charles Seaton. And now, since the Lords have frequently decerned Aliment to Bairns, against the Fathers Heirs, having competent Estates, it is like the Lords will allow, all provisions on Death-bed, in so far as they may be competentAliments.

Holograph writs without Witnesses, prove not their own dates to have been Prior to the Subseribers Death-bed, and therefore, they are presumed to be on Death-bed, withoutwhich, that priviledge would be evacuat; it being as easie to induce a Sick Person to Antidate a writ, as to Prejudge his Heir: But if it be proven by Witnesses, that the writ was seen, and delivered, before the granter contracted the Sickness, whereof he died; Or if it was Subscribed before his Sickness, though not delivered; if it was in favours of his Children, or had a Clause dispensing with delivery, or did reserve his Liferent: The presumption to have been done on Death-bed, will be thereby elided. But a Disposition to Neices, having been proven, to be Subscribed, before the Subscribers Sickness; but blank in the Name, was reduced, as upon Death-bed, because the name was not filled up: [...] the Writter did depone, that it was delivered to him to fill it up, with the Neices name, seing he filled it not up, till the granters Sicknesse, July 22. 1678. Birnies contra Polmais and Brouns. But Death-bed, was not found to hinder the recalling of a Disposition, made by a Grand-father to his Oye, and delivered to a third Party in Leige poustie; if it should appear, that the delivery was not Simply, to the behove of the Oye, whereby it became Irrevocable; but Conditionally, that the Disponer might recal it; for eviden ce whereof, it was proven, by that third Parties Oath, That the Defunct, on Death-bed, called for it, and he delivered it; and that the Defunct, on Death-bed, delivered two Blanks, for dividing the Right, in the first Disposition, which he delivered, with his said first Disposition, to a Nottar: And ordered the filling up of the one half to the Heir, the other half to a second Son, but for further clearing the Partie, to whom the first Disposition was first delivered, was appointed to be examined, what the Defunct exprest, when he delivered the first Disposition to him, Decem. 9. 1676. Janet Ker contra Ninian Ker. But thereafter, the third Partie not being found to be examined, The Lords found, that there being nothing proven, exprest at the delivery, The recalling, and the re-delivery did import, that the delivery was not Simple, to the behove of the Oye, making it Irrevocable; But that it was [Page] Conditional, to be delivered to the Oye, if the Disponer did not recall it, and that his recalling of it for a special effect, to divide the same betwixt his Heir and the second Son, was effectual, both against his Oye, to whom he first Disponed; and as effectual against his Heir, as to the one half, albeit the Revocation was onDeath-bed: Seing thereby, the Heir had no prejudice, but benefit, being formerly Excluded, by the Disposition to the Oye, delivered in Liege Poustie, January 25. 1677. inter eosdem.

30. But onlyFree deeds onDeath-bed, are thusReduceable, for if there were an equivalent Cause Onerous, which was truly Imploy'd upon the Defunct, or might affect the Heir, it is not to the Heirs Prejudice, and so not Reduceable; thus the Reason of Death-bed was eleided, because the Band quareled, was offered to be proven for Furnishing, truly Delivered to the Defunct, July 13. 1632. Pollock contra Fairholme.

The like of a Discharge, granted by a Bastard, after he was Infected of the Plague, against the Donatar of the Bastardry, November 23. 1609. Marr contra Auchinleck. In all these Witnesses are Sustained to prove the Cause Onerous in the write. And likewise a Band granted on Death-bed, being proven for a Cause Onerous in part, viz. Droggs, and Service to the Defunct on his Death-bed, was sustained pro tanto, and Reduced for the rest, January 7. 1624. Schaw contra Gray. But a Liferent granted to a Wife on Death-bed, and a Liferent-Tack of Teinds, of the Lands Liferented, were not reduced, Hope Teinds Lady Dunlap contra Laird Dunlap. The reason whereof is observed to have been, because the Husband before Sickness, was bound to Infeft his Wife in Lands, or Anualrent equivalent Nicol. de haereditarijs actionibus inter eosdem.

31. AsDeeds on Death-bed, prejudge not the Heir: So deeds in Testaments, though done in Leige Poustie, have no more Effect, then on Death-bed And it is not habilis modus, by Testament to dispone any Heritable Right, December 14. 1664. Colvin contra Colvin: Death-bed is not competent by Exception, but by Reduction, January 11. 1666. Grizell Seatown contra Dundas; But in Declaratorie or Petitory Actions, as Recognition, it is receivable by Exception, July 20. 1669. Barcley contra Barcley; Or in a Reduction it is competent by Exception or Reply, February 3. 1672. Barbara Hoom contra Bryson.

A third difference is, that Successors in Moveables, or Executors are not lyable Passive, for the Defuncts Debts, in Solidum, but Heirs are; Though they farr exceed the Value of the Inheritance, without the benefit of an Inventar. And though Craigs Opinion is, that Heirs may Renounce, even after their Entry, if the Heritage appear overburdened. The course of Decision since his time hath cleared the Contrary.

32. Because Heirs entring cannot Renounce, there is Annus deliberandi, allowed to them by Law, in which they may abstain from entering, and Immixing themselves with the Heritage, and then they are not conveenable for the Defuncts debt, upon charges to enter Heir or otherwise, but if they enter, or meddle sooner, they are lyable: This Annus deliberandi, is ordinarily accounted, a year from the Defuncts Death, which was so accounted though during a great part thereof, the Heir remained unborn; February 7. 1610. Knows contra Menzies. But the Contrary was found thereafter, that the year was accounted from the Birth of the Posthumus Heir [Page] that the benefit of Deliberation, might be profitable to his Tutor in his Name, Spots, Heirs, Livingstown contra Fullertown; If the Day of Compearance be after the Charge to enter Heir, and after the year, it will be Susrained, June 27. 1667. Dewar contra Paterson: In which case it was found, that even Actions Real, as Reductions, [...], &c. which require no Charge to enter Heir, are not Competent within the year of Deliberation, because in these the Heir cannot Defend, without the Hazard of behaving as Heir.

33. Succession in Heritable Rights in Scotland, are either by the will of the Fiar, or by Law, Provistone Hominis or Legis. Heirs by the [...] of Law, are called Heirs of Line, as befalling by the Line of Succession appointed, and known in Law, all other Heirs do Cross or Cut that Line: and therefore are called Heirs of Tailzie, from the French word [...], to Cut; whence Craig conceiveth this Tailzied Succession, hath been first denominat amongst the French and Normands, and thence being brought into England, by the Normand Conquest, both in Custom and Name, hath been Derived to Us; Yet it is liker to have come to us Immediatly from France, with which we keeped greater Intercourse, then with England of Old; And our Tailzies, at least to Heirs Male, are Ancienter than the English, which begun but from the Famous Law, called the Second Statute of Westminster, in the Reign of Edward the First, of that Name of the Normand Line.

Heirs of Tailzie are also called Heirs of Provision, which terms are Equiparat, both comprehending all Heirs, which are not according to the Line or Course of Law; and among others, Heirs Male, and Heirs of Marriage: Yet our Stile doth ordinarily distinguish them so, that where there is no alteration from the Lineall Heirs Male, and where there are severall Substitutions of certain Persons, or Lines, failling others by the tenor of the Infeftment, they are Specially called Heirs of Tailzie; but when there is an Alteration of the Lineal Succession, yet not Simply to Heirs Male, nor to divers Members of Tailzie they retain the common Name of Heirs, of Provision, as is most ordinar by Contracts of Marriage, providing Lands to the Heirs of the Marriage, whereby the Heirs Lawfully Procreat betwixt the Married Persons whether Male or Female do succeed; So that Daughters of that Marriage will exclude Sons of another Marriage, or Heirs of the Bodie of the Members of the Tailzie, whereby there Collateralls, or Ascendants are excluded: And in proper Tailzies, there are always divers Lines and Persons, Male and Female, substitute as Members of the Tailzie, as when Infeftment beareth Lands to be granted to the Fiar, and to the Heirs of his Body, or to the Heirs Male of his Body, or to his Heirs of such a Marriage, which Failling to such an other Person Named, and to the Heirs of his Body, or to the Heirs Male of his Body, &c. And so to a Third or Fourth, which all Failling to the first Fiar, and his Heirs whatsomever; or to return to the Superior, or to any other Person, and to their Heirs whatsomever: And where such Persons and Lines are not Substitute, it is not properly called a Tailzie, but if it be simply to Heirs Male, it is so specially Denominate; all other Heirs which are not Heirs of Line, or Heirs whatsomever, retain the Name of Heirs of Provision, the Chief whereof, are Heirs of a Marriage, which Failling the Husbands, or Wifes Heirs whatsomever, in which there is but one Blood or Line, and not divers Persons, and different Lines Substitute in these Tailzies, the Person Nominat may Succeed, and be served Heir of Tailzie, though otherwise Incapable [Page] of Succession as Bastards, as hath been shown in the former Title; But the Persons Nominate are never the Immediat and fast Heirs in Lands, but always the Fiars Heirs of his Body, which Failling, the Persons Nominate; for if the Heritage should be granted for example to John, and after his Decease to William and his Heirs: John would be thereby Naked Liferenter, and William Fiar, who could not be served as Heir to John: But if it were Granted to John, and the Heirs of his Body, which failing, to William; These failing, William would be served Heir of Tailzie to John: But this holds not in Bands, or Securityes for Sums of Money, for Parents do srequently take thier Bands and Infeftments for Security thereof, to themselves, they being on Life, and after their Decease, to such Children Nominat, yet the Parents are Fiars, and the Children are but Heirs Substitute. So then, all Succession with Us, is either of Heirs of Line, Male, Tailzie or Provision, Heirs of Line are also called Heirs General, so also are Heirs Male, and of Conquest, and these may be served Heirs by a generall Service: But other Heirs of Tailzie or Provision, by Investiture, cannot be served Heirs, but by a Speciall Service, serving them to such Particulars, whereunto they Succeed, by Infeftment or Provision; Heirs of Line are also Called Heirs whatsomever, because they are absolute without Limitation, and in all cases where Heirs whatsomever, is not specially altered by the Infeftment rights follow the Lineall Succession, as among Heirs Male, the same course taketh Preference, except that Female Heirs are excluded, as that first Descendents, then Brothers, &c. do Succeed, and Amongst Heirs of Marriages, the Eldest Son doth exclude the rest, and so in the Members of Tailzies.

We shall not need here to debate the Lawfulness, or Expediency of constituting Heirs Male, or of Tailzie, or of Provision; having now cleared, that the first Ground and Rule in Equity, is the Will of the Propriatar, though he be Personally Oblieged to provide Competently for his own, especially those of his Family; And therefore, though severall of our KINGS, in their generall Revocations, have Revocked Tailzies, it can inferr no more, but a Scruple in them, and a Preserving of their Power, against the course of Prescription: But doth not infringe such Rights being Lawful in themselves. The Expediency of Tailzies, is the same with Primo. geniture, to preserve the memory, and Dignitie of Families: But as Primo-geniture, for that end, excludeth Females of nearest Degree, Heirs Male excludeth them Simply and Heirs of Tailzie, have had their Rise from Dissatisfaction, with some of the Fiars Race, or preference of them, otherwayes then by the Propinquity of Blood; Some have also Tailzied their Lands, so as by Infeftments, to Introduce a Primo-geniture among Familyes, as the Law hath done among Males; as if the Land were granted to the Fiar, and the Heirs Male of his Bodie, which Failling, to the Eldest Heir Female of the Bodie, without division, and their Heirs carrying the Arms, and Name of the Family: The intent of these Heirs of Provision, is also to preserve the Unity and memorie of the Family.

To come now to the Heirs of Line, the Law hath ordred them thus; first the Eldest lawfull Son, and his Descendents in order, by Right of Primo-geneture, excludeth all other Descendents, Male or Female; Failling Sons, the Daughters, and their Descendents do all succeed Equally, except in Rights Indivisible, which fall to the Eldest; Failling Desendents, the next Degree is of the next immediat Brother German, and his Descendents, and among Middle Brethern, the immediat Elder Brother succeedeth in Conquest, whereunto the Defunct [Page] did not, nor could not succeed as Heir, but in all others, the immediate Younger Brother succeedeth, and therefore is called the Heir of Line; and the other the Heir of Conquest: If the Fiar be a Woman, her Brother German excludeth Sisters German, and of her Brothers, the immediate Elder Brother succeedeth inConquest, and the immediat Younger in heritage; Failing, Brothers German, Sisters German, and their Descendents exclude both Brethren and Sisters, by the Fathers side only, June ult. 1629. Mr. Robert Cuningham contra Multray. Failling Brothers, or Sisters German, Brothers by the Fathers side, succeed to the Defunct, whether Male or Female, the immediat Elder in Conquest, and the immediat Younger in Heritage. Failing all Brothers and Sisters, the Father or other Masculine Ascendent of his Line, succeed to the Defunct, whether Male or Female, and exclude the Brothers, or Sisters of that Ascendent, as a Grand-grandfather excludes his Brethren: Fathers Brethren to the Defunct: Failling Ascendents, the Fathers Brothers, and Fathers Sisters, and their Descendents, succeed in all points as Brothers and Sisters, the double Blood excluding the single Blood, and the immediat Elder Brother succeeding in Conquest, and the immediat Younger in heritage, and all Failling the Grandfather; and Failling him, his Brothers and Sisters the same way: And so upward, till there can be any Propinquity of Blood proven, which all Failling, the King taketh place as Last Heir.

34. In this Line of Succession, observe, First, that there is no place for Adopted Children, or their Issue, but only for the Naturall Issue of the Vassal; Which cannot be changed by a Voluntar Act of Adoption, without consent of the Superior, in the Investiture, neither is Adoption in use with us in any case. 2. These Naturall Heirs, must also be Lawfull, whereby Bastards are excluded; who are such, appeareth by the former Title. 3. There is no place for Cognats, as to the Mother, Grandmother, or other Feminine Ascendent, or these of their side, but only to Agnats conjoined by the Father, Grandfather, &c. Which holdeth, even though the heritage descended from the Mother, or these of her side, for in the service of Heirs, the nearest lawfull Heirs are only inquired, and retoured either by the Lineall Succession aforesaid, or by express Tailzie, or provision in the Infeftment, without respect from whence the Inheritance flowed; for which we have no Satute nor Custom; But in England, it is otherwayes for Paterna paternis, and Materna Maternis takes place, but with us the contrare was found in the case of John Gilbert, as Craig observeth, Lib. 2. Dieg 17. And he there relateth that many afterward changed their opinion therein, and though there be equity in it, yet no Law nor Practique since, hath favoured the Maternal Line, but the Father was found Heir to his Son, even in the Lands where the Son was Infeft, as Heir to his Mother, and did exclude his Brother Uterin, by that Mother, February 5. 1663. Lenox contra Lintoun. 4. In all this Line of Succession, there is place for Representation of Descendents, in place of their Defunct Parents: So that Females of a further degree, by the Right ofrepresentation, exclude Males of a nearer degree, as the eldest Sons Daughter will be preferred in theGrandfathers Inheritance, to his other Sons in private Rights, though that be contraverse, by the more comon Feudall Customs, as is largely and learnedly dispute by Tiraquellus.

[Page]35. In this Lineall Succession, the Father, Grandfather, or other Ascendents of the Paternall Line, succeed in heritable Right, next unto Brothers and Sisters, and before all other Collateralls, or Agnats. We have shown before, why, there is no mention of Ascendents in the Jewish Succession, because such a case could hardly occurr among them. Craig, Lib. 2. Deig. 13. affirmeth that it was doubtfull in his time, whether Ascendants could succeed in heritable Rights, and that he heard the opinion of some learned men in the contrary, and that he had not found the Lords decide in it, and that it is contrare to the Feudal Law, and also to his own opinion; yet he brings both evident reason and example in the contrary, the reason is, that no Inquest can justly Retoure, that the Father Brother, is nearer then the Father: He bringeth also the Example of the Earl of Angus, served Heir in the Earldom of Angus, to his ownSon, whom he had infeft therein: And the Lord Colvill in likemanner, having infeft his Son in all his estate, though sum affirmed that this was by provision, in the infeftment; yet that the Service was, is sure, but that provision is uncertain, and though some also were doubtful, whether the Earl of Angus was served, and infeft as Heir to that same Son, which well inferreth that the Father was not infeft as Heir to his Son, but not that he was not served Heir to him therein, for he might have been served, and not infeft; Whereby, the service as incompleat, became void, and the next Earl behoved to serve of new to the Son, who died last vest, and seased as of Fee: The Custom. and common opinion since, is for the Ascendants, and so the Earl of Roxburgh was served as Heir Male to his Son; The Lord Ker, and many others which ought to be the more favoured, as more conform to equity, and the Law of nature, which in Dubio ought to take place, where there is no Law, nor custom to the contrary, as with us there is none; Neither did I ever hear of one who attempted to exclude a father, by the Fathers Collaterails: And though there had been no Decision upon it, neither have there been upon many other uncontroverted Customs, especially in Succession, but the acquiescence of all Parties, having interest in matters of so great moment, is a strong Evidence of the Nationall consent by Custom: But it hath aho been so decided by the Lords, Hope, Succession, Mr. Robert Burnet contra Mauld; Yea a Son, being infeft as Heir to hisMother dying without Issue, his Brother uterin by the Mother was not found Heir to him, but his Father, February 5. 1663. Lenox contra Lintoun.

As to the alledged opposition of the Feudall Law, as hath been oft times said, it is Local; And therefore, as in England, all Ascendents are excluded, so in Germany they succeed in the next place after descendents, and are preferred to Brothers and sisters, according to theNaturall course ofSuccession. The reason why Brothers and Sisters of the Defunct, are preferred to the Fathers with us, may be, because such Fees do commonly proceed from the Father: And therefore by the continuance of that sameFatherly affection, are derived to the Brothers and Sisters, and because they are in more need of Provision then the Father.

TITLE XXVII. Heirs.

[Page]

1. Appearand Heirs may pursue exhibition, ad deliberandum.

2. They may defend their predecessors Rights and Possessions, being called, or compearing for their interest; and their executors have right to the Rents of these years, they were appear and Heirs.

3. The Aliment of Heirs from the Donatars, and Life-rentars.

4. Heirs not entred, have the benefit of Clauses, which by Nature import, they should not be actual Heir.

5. Heirs have interest in all Rights granted to their Predecessors, though not mentioning Heirs, who are not exclusive of Heirs, by their Tenor and Nature.

6. Heirs have the benefit of all Rights heritable, by Destination, or having a future Tract of time, after the Defuncts Death.

7. Heirs have Right to Moveable heirship, or obleigment for Sums wherein Executors are excluded.

8. Heirs of Lyne, are heirs generally; their interest.

9. Hirship Moveables.

10. Heirs of Conquest their interest.

11. Heirs Portioners their Interest.

12. Heirs Male, Tailzie, and Provision, their interest.

13. All Heirs are lyable pasivè for the Defuncts debt, but not in the same way.

14. Heirs Portioners how far lyable.

15. The effects of different Provisions, or Obligations by Defuncts, in Favours of Divers heirs Portioners.

16. Heirs not being Portioners, no substitute in Bands are lyable in solidum.

17. The order, by which heris are lyable passivè, and may be discust.

[Page] 18. Heirs of Tailzie ripresent not the Defunct, in obligations contrary to the Terms of the Tailzie.

19. Heirs of Marriage, may quarrel their Predecessors Deeds, being meerlygratouitus in their prejudice, but not such as are onerous, or rational Deeds.

20. Heirs having the benefit of discussing, may propone the Exception, that all parties having interest, are not called, without instructiug the Right whereto they may succeed.

21. The exception of the order of discusing, is not sustained without condescending on the heritage, whereunto the anterior heir may sueceed, and what is discusing.

22. The order and effect of a Genral Charge to enter heir.

23. The order, and effect of a special charge to enter heir.

24. Renounciation to be heir, its order and effect.

25. The entrie of heirs general, and effects thereof.

26. The entrie of heirs upon precept of Clare Constat.

27. The entrie of heirs by hesp and steeple within Burgh.

28. Entrie of heirs by Brievcs out of the Chancellarie.

29. To whom these Brieves are directed.

30. The manner of citting the Inquist, and Proclaming the Brieve.

31. Exceptions competent against members of Inquist.

32. The appearand heirs claim.

33. Exceptions against the Claim.

34. First head of the Brieve.

35. The 2. head of the Brieve.

36. 3. head of the Brieve.

37. The 4. head [...] of Brieve.

38. The 5. head of the Brieve.

39. The 6. head of the Brieve.

40. The 7. head of the Brieve.

41. The Service.

42. The Reture.

43. Reduction of Retures by a great inquist.

44. Reduction thereof otherways.

45. Reduction of Retures how competent.

46. Precepts out of the Chancellarie, to Superiours to Infeft.

47. Suspensions of the precepts, and the reasons competent therein.

48. The certification of the loss of the Superiority, during the life of the Superiors disobeying.

49. Further reasons of Suspension of these precepts.

50. Whether the Persons nearest at the Defuncts decease, may be entred where a nearer is in spe.

51. Who are Fiars of Conjuct-fees, or Provisions substitute.

52. The entreast of heirs of Provision, and import of Clauses of Conquiest, in Contracts of Marriage.

[Page]BY the former Title, it appeareth who are Heirs; let us now Consider what their Interests are by being Heirs: And that is either Active by the benefit, or Passive by the Burden whereunto they do succeed; For Heirs being successors in Universum jus quod Defunctus Habuit, they do fully represent the Defunct both in the Rights, belongiug to him, and in the Debts due by him. First, then of the Interest, common to all Heirs; And next of the interest, speciall to the severall Heirs.

1. The interest of Heirs are most properly Competent, when they are entered Heirs, according to the due Course of Law, of which afterward; Yet somethings are competent, not only to heirs entred, but to appear and Heirs, as first, they have interest to prusue Exhibition of all writs made by their Predecessors to their Wives, Children, and others in Familia, but not of writes made by them extra Familiam, December 6. 1661. Margaret Forrester, and Schaw of Sor nebeg her Spouse, Contra Tailzefere. Or to their Predecessors Simply, to the effect, they may know the condition of the heritage: And may desiberat whether they would Enter Heirs, or not; Seing if they do Enter, they are lyable for all the Defuncts Debts, though they farr exceed his Estate, and have no benefit of Inventary, as in moveables: And therefore they are allowed to pursue for inspection of all Writes, Importing a debt of the Defunct; Yet not so as to open the Charter Chists of Strangers, who have purchased Lands from the Defunct, on pretence of the Burden, by the Warrandice; for in that case the Strangers Infeftment will exclude them, and only dispositions made to these in the Family, hinder not inspection of the Heirs whole Rights Flowing from the Defunct, or his Predecessors: But I doubt not, but all will be oblieged to produce Bands, or Personal obleigements, which might burden the appearand Heir, if he enter. As was found in the Case of Dispositions, and Bandsgranted by the Defunct, to Strangers, Feb. 26. 1633 Laird of Swynton contra Laird of Westnisbit. But if Infeftment had followed upon the Disposition, the Defender would not be oblieged to produce the Disposition, because the appearand Heir might, by the Registers, find his Predecessors denuded. This inspection is competent, during their Annus deliberandi. It was so found, in Favours of the appearand Heir, pursuing Exhibition within the Year, Feb. 26. 1633. Laird of Swinton contra Laird of Westnisbit, where the Writs pursued for, were likely to be the ground of a Plea, against the Defender himself. This Exhibition, ad deliberandum, is competent at any time, before the Heir enter, even after the Annus deliberandi, which is granted to appearand Heirs, that they may be free of all Actions on Chargesto enter Heir, Reductions, or Declarators during that time, if they do not enter, or behave as Heirs: But on this accompt, the appearand Heir hath no Interest to put parties to Compt and Reckon, ad deliberandum, June 22. 1671. Lessies contra Alexander Jeffray. In these Exhibitions, the Relations, or Propinquity of Blood, of the appearand Heir, passeth, without probation, [Page] as Notorium: So, as if the Defender be absent, the Decrcet will not be null, for want of Probation of the Title. Yet a Scots man born of Parents, residing in Holland, was found to have no Interest, to pursue Exhibition, as appearand Heir to his Father, till he produced an Authentick Declaration, and Tryal, by the Magistrants in that place; that he was the eldest lawful Son of his Father, December 17. 1627. Fleming contra Broun.

2. Appearand Heirs, may defend all Rights competent to them, upon Production of their Predicessors Infeftments, whether they be called, or compear for their Interest, January 19. 1627. Laird of Rosline contra his Tenents and George Fairbairn for his interest. They may also continue their Predecessors Possession, and pursue for Mails and Duties of there Lands, finding Caution, in case of doubtfulnesse, to make these forth-coming to any other, having Interest, Spots Heirs, James Oliphant contra his Tenents.

Yea, the Rents of Lands, were so far found, to belong to an appearand Heir, That though he died un-entered, the next Heirs not entering to him, was found obleiged to pay the former appearand Heirs Aliment, in so far as he intromitted with the Rents of the Years, during which the former appearand Heir lived, December 20. 1662. Ladie Tarsapie contra Laird of Trasapie. And consequently, the Rents might be confirmed by his Executors, or arrested for his debt. The like was found of moveable heirship, wherewith the appearand Heir was intertained by his Mother, June 29. 1629. Robertson contra Dalntahoy. They may also pursue the Life-renters of their Estate, for Aliment, Feb. 12. 1635. James Hepburn contra Dam Margaret Preston and Isobel Seatoun.

3. The Aliment of Heirs, out of there Lands, being Life-rented, or in Ward, is constitute by the Act of Parliament, 1491. cap. 25. Bearing a reasonable Living to be given, to the Sustentation of the Heir, after the Quantitie of Heritage; if the said Heir have no Blensh, or Feu ferm to sustain him, as well of Ward Lands fallen in the Kings hands, as in the hands of any Barron, Spiritual or Temporal, whereby, it is clear. 1. That the Quantity of the Aliment is indeterminat: And therefore is modified by the Lords, according to the Quality of the Heir, and his Estate, 2. It takes no place, if the Heir have Blensh, or Feu Lands, sufficient to sustain him; but if these be not sufficient, the same will be made up by the Life-renters and Wardatars proportionally, March 16. 1622. Heir of Milioun contra Calderwood. Yea, where the Minor had any other means, sufficient to intertain himself, as the Heir, being a Writer, and thereby able to Aliment himself, he was found to have no Aliment from his Mothers Life-rent, who brought 8000. Merks of Tocher, and had but 10. Chalders of Victual in Life-rent, July 21. 1626. Laird of Ramorny contra Law. The like, where the Heir was not Minor, but designed himself Preacher, and so having a calling, Feb. 11. 1636. Sibbald contra Wallace. Here the Relict was Infeft in no Land, but had an Annualrent of 400. Merks, out of Land, and the Heir was not Minor: Whereas, the Lords thought the Act of Parliament, was not in favours of Majors, who ought to do for themselves, but all must be considered complexly, in this Decision: Some Heirs, by their Quality, not being bound to follow Callings, but the Life-rent was a mean Annualrent, no more then an Aliment to the Relict, the Pursuer Major, and having a calling: And certainly, where the Life-rent is but an Aliment, the appearand Heir must rather want then the Person provided for a cause onerous.

[Page]Though the Act mention only Ward Lands, yet it was extended to a Minor, having no Ward Lands, against a Life-renter of all his Fstate, being Houses, and Annualrent of Money, Feb. 22. 1631. Fiinnie contra Oliphant. In this case, it was not found sufficient, that the Life-renter offered to maintain the Minor, her own Child, upon her own charges, she being married to a second Husband: But the Tutor obtained modisication, with consideration of the moveable Heirship, on the contrary, where the Mother was not married, her offer of Intertainment was received, July 14. [...]. Alexander Noble and his Tutors contra his Mother: Neither was the modifi cation excluded, because there were free Lands, at the Defuncft Death, seing they were appryzed thereafter, for the Defuncts debt, Hope de haered. White contra Caldwall. The like, the debt being great, and the Annualrent thereof, equivalent to the rent of the Lands not Liferented, Feb. 13. 1662. Antonia Broun contra her Mother: But Aliment was not found due by a Father Life-renter to his Son, on this Act, but only, super Jure Naturae, July 21. 1636. Laird of Rumorney contra Law. Nor by a Grand-father to his Oye, who had disponed his Estate to his Son, reserving his Life-rent, of a part, the rest unsold by his Son, being Life-rented by his Wife, July 7. 1629. Hamilton contra his Goodsir: But where the Heirs Mother brought a great Tougher, and the Grand-father fell to a plentiful Estate by his Brother, the Heir was found to have Aliment of his Goodsir, though he disponed the Land to the Heirs Father, burdened with his Mothers Life-rent, June 27. 1662. Heir of Gairn contra Laird of Gairn. This behoved not to be from the Statute, but ex debito naturali. Aliment was found due by a Liferenter to her daughter, the appearand Heir, though she renounced to be Heir, July 16. 1667. Hamilton contra Symonton. But, where a Father disponed to his Son a part of his Estate, reserving his Life-rent, and another to his Son, and his Wife in Conjunctfie, after his Sons Death, his appearand Heir got no part of his Aliment from his Goodsir, but only from his Mother, Feb. 26. 1675. Sr. John Whitfoord contra Laird of Lamington. Aliment was found due to the Heir, by an Asigney to a Gift of Ward, without necessity to prove, that he intromitted with the Ward Lands; unlesse he had been Legally excluded, which was Modified by the Lords: And it was not found sufficient to intertain him in the Assignyes Family, but nothing was Modified for that time, that the Minors Mother Alimented him gratis, Feb. 19. 1679. Sibbald of Cair contra Sr. Alexander Ealconer.

4. Heirs also not entered, have the benifite of such obliegments, or provisions conceived in Favours of Heirs, which by their Nature, or Meaning, require to be fulfilled before the Heirs entry. As when a Party was obleiged to imploy a Sum upon Land, and to procure himself, and his Umquhil Spouse Infeft therein, in Life-rent, and the Heirs Procreat betwixt them in Fee, the Bairn of the Marriage, who would fall Heir, was thereby found to have Right to crave his Father, to imploy the Money accordingly, though he never was, nor actually could be Heir, his Father being alive, December 16. 1628. Laird of Collington contra Granton. In this case, the Lords inclined, so to decide, but decided not; But that day, Durie observes a like case decided, July 7. 1632. Young contra Young. The like was decided, Feb. 13. 1677. Alexander Frazer contra John Frazer. In which case, a Father, by his Contract of Marriage, being obleiged to imploy a certain Sum, upon security to Him and his Wife in Conjunct-fee, and to the Heirs of the Marriage, and likewise to take all Conquest during the Marriage, the one half to the Wife in Life-rent, and the other to the Heir of the Marriage in Fee, after [Page] the Wifes Death. Process was sustained, at the instance of the apparent Heir of the Marriage, against his Father, who was decerned to imploy the special Sum to himself, and after his decease, to the Heir apparent of the Marriage albeit, therby, the Father would remain Fiar, and might dispone, or burden the Sum so imployed, for reasonable Considerations, but not by Deeds, meerly gratuitous, to evacuat the obleigment: And if he did Deeds prejudicial, he would be obleiged to purge the same, or re-imploy [...]: But it was not so found, as to the Conquest, before the Marriage, which might be altered during his Life, for that only could be accounted Conquest, that he had more at his Death, then at his Marriage. And so Heirs of a Marriage, in an obleigment, in case a Wife deceased, without surviving Heirs of the Marriage, these were Interpret Bairns of the Marriage, who survived their Mother, but died before their Father; and so could never be served Heir to him, January 26. 1630. Turnbul contra Colinshlie. The like, where a Father was obleiged to Infeft himself and his Spouse in Conjunct-fee, and the Heirs procreat betwixt them, &c. The apparent Heir was found, to have interest, to pursue the Father for fulfilling thereof, and of the obleigment adjoyned, not to dispone in their prejudice, Hope de haeredibus, Hamilton contra Silvertonhil. Tacks set to Heirs, require no service, but being Notour, to be the Person, who might be served Heir, they have right without service, June 9. 1675. Hoom contra Johnston of Oldwells.

5. As to the benifit of Heirs, they have Right, not only to Obleigments conceived in favours of the Defunct, and his Heirs; But though there be no mention of Heirs, unlesse by the nature of the obleigment, there be a speciallity, appropriating the same to the Person of the Defunct only, as in Commissions, Trusts, &c. So Heirs were found to have the benifit of a promise. made to their Predicessors, for disponing of Lands to him, acquired for his use, though it mentioned not Heirs, Feb. 22. 1610. Heir of Jean [...] contra Livingston. The like of a Reversion, not mentioning Heirs, which was thought to be omitted by neglect, seing it bore not Redeemable to that Partie during his Life, as it is ordinarily adjected, when that is meaned, January 9. 1662. Earl of Murray contra Laird of Grant. The like of an Annualrent, though it bore only to be payed yearly, and not perpetually, or heritably, or to heirs, Feb. 2. 1667. pourie contra Dykes. And a Substitution, mentioning only a Person substitute, without mention of Heirs, was found competent to that Persons Heirs, January 7. 1670. Innis contra Innis.

6. Heirs have the benefit of heritable Rights, not only whereupon Infeftment hath followed, or which, by Destination are heritable, or requiring Infeftment to their accomplishment, as heritable Bands, bearing Clause of Infeftment, for these bearing only Clause of Annualrent, are declared Moveable, by, and since the Act of Parliament, 1641. cap. 57. Revived, Par. 1661. cap. 32. Of which, in the last Title. So also, are Reversions, Pensions, Tacks, without necessity of being entered Heir, June 17. 1671. John Boyd contra Hugh Sinclair, July 9. 1675. Hoom contra Johnston of Oldwells. And all Rights, having a Tract or Course of time, after the Defuncts Death. In these Cases, where the Defuncts Right is Temporary, and runneth out by a certain Course of Time, that time runneth, whether the Defuncts Heir be entered, or do Possesse, or not, as Tacks, Pensions, or Annuell Prestations, during so many Years: And therefore, these require not Service, or Solemnitie; but that Person, who might be Served, may continue, [Page] or recover the Defuncts Possession, and his Possessing makes him lyable passive, as Representing the Defunct. Neither needs there any Service of Children nominatim, substitute immediately to their Parents, but if they be Substitute in the Second place, a Service must be used to instruct, that the Heirs appointed in the first place did fail, July 21. 1676. [...] of Drumelzier contra the Earl of Tweddel. What Rights are heritable, and what moveable, vide Title Real Rights.

7. Heirs, have also Right to Moveable Heirships, and to all Obleigments, though the matter be in moveable Rights, if Executors be expresly secluded, otherways, if the matter be moveable, and Heirs only be exprest, but not Executors, yet Executors will not be Excluded, because Heir is a General Term, comprehending Exectors, Hope Ejection, Sr. Lewis [...] contra Tenents.

The special Interest of Heirs, are according to their several kinds, viz. Heirs of Line, and of Conquest, heirs Portioners, heirs Male, and heirs of Tailzie, and Provision.

8. The Interest of heirs of Line, is, that they are heirs Generally, not only, because they may be Served by a General Service, but chiefly, because they must Generally represent the Defunct. So, that what cannot be claimed by a special Title; either as being Conquest, or Specially provided, by the Tenor of the Infeftment, befalleth to the heirs of Lyne: And therefore, in dubious cases, what doth not appear to belong to other, Heirs appertaineth to these, in respect of whom, heirs Male, and of Tailzie, and provision, are accounted as Strangers, and may come against the Defuncts Deeds, in favours of the Heirs of Line; But the Heirs of Lyne, cannot come against such Deeds, in favours of others, because, as heirs of Line, they are reputed as one Person, with the Defunct; and so are obleiged to maintain, and fulfil his Deeds, not done on Death-bed. It was so found in the Case of an heir of Tailzie, against an heir of Line. Spots Earl of Hoom contra And as heirs of Line have generally the Benefit, so they have more effectually the Burden of the Defuncts debts, which ordinarily reach them in the first place: So that ofttimes the heirs of Line, have little or nothing free. We shall not need to be Special, what befalleth the heirs of Line; being to show particularly, what befalleth to the other heirs: For what remaineth, belongeth to the heirs of Line only. Heirships moveable belong only to heir of Line, and not to heirs of Tailzie, January 27. 1668. Collonel Montgomrie contra Stewart.

9. Heirship moveable, is the best of every kind of moveables, belonging to the Defunct, which the heirs of Line may draw from the Executors, whereof there is an ordinary list: The reason of this Heirship moveable, is, because, by our Law, by primo geniture excludeth the Defnncts other nearest of Kin in Heritage, wherethe nearest of Kin Succeeds alone in moveables; and as they have no share with the heir in heritable Rights, so most sitly the heir hath no share with them in moveables, but hath only the best of every kind, which therefore is called heirship moveable. In which the Defunct cannot, in his Testament, or any other Deed done on Death-bed, prejudge his heir, as was shown last Title; but if the nearest of Kin be all Femals, they are both heirs [...] Executors, or, if but one Male, he is both heir and Executor: in which cases. there is no heirship moveable drawn.

[Page]Heirship Moveable is established by the Act of Parliament, 1474. cap. 53. Ordaining the Heirs of Prelats, Barons and Burgesses, to have the best of every kind, according to the Burrow Lands, and so was found not to belong to the Heir of a Defunct, who had only heritable Bands, being neither Prelat, Baron, nor Burgess. Hope de haered. Todorig contra [...]. But the heirs of Prelats was Extended to other Beneficed Persons, as was found in the heirs of the of Person of Dingwal, Novem. 28. 1623. William Rig contra Mckenzie. And likewise, the heirs of Barons was extended to any Persons heirs, dying in Fee of Lands, though not erected in a Barrony, Hope de haered. Keith contra Mckenzie, Todoirg contra Purdie. heirship Moveable was found competent to the heir of a Person, who died only Infeft in an Annualrent, July 19. 1664. Elizabeth Scrimzeor contra Executors of Mr. John Murray. But heirs of a Burgess was found not to extend to an honorarie Burgess, who died not Trading, or Working in the Burgh, Spots heirs, James Leslie contra Hugh Dumbar.

Heirship Moveable, is not always a single thing, but goeth sometimes by Pairs, and sometimes by Dozens, as in Spoons: So the heirship of Oxen was found to be a Yoke, and not a single Ox, Nicol. de haereditatis petitione, July 20. 1610. Black contra Kincaid. And heirship taketh place, only in corporibus, but not in quantitatibus, as in Money, Cloath, Mettal, &c. And so the Shell of a Salt-pan, which was out of use, was accounted but Iron, and not to fall under heirship Moveable, Had. January 19. 1611. Reid contra Thomson.

10. Heirs of Conquest, though they be also heirs of Line, as befalling by the Course of Law, and not by the tenor of the Infeftment, and therefore were set down as Lineal Successors, in the preceeding Title; Yet because heirs of Conquest have only place, where there is an Elder and Younger Brother, or an Elder and Younger Father Brother, &c. and their Issue to succeed: In which case, the Law alloweth two heirs, the immediat Elder succeedeth in Conquest, and the immediat Younger in the heritage: Therefore, the one is specially called the heir of Conquest, and the other retaineth the common name of the heir of Line.

Conquest is feudum novum, whereunto the Defunct did not succeed as heir to any Person, or whereunto the Defunct could not succeed as heir, for if that were disponed to him by the Defunct, whereunto he would have succeeded, it were but Preceptio haereditatis, and so remained to be repute as heritage to descend to the Younger, and not to ascend to the Elder, as Craig observeth, lib. 2. dieg. 15. Such heritages are rare, and befall only by Tailzie, or Provision amongst midle Brethren: Because the eldest, by primogeniture, excludeth the rest from being heirs of Line, but it may befall, in case of the heirs of Lyne, when the nearest Successor, is the Fathers, or Grand-fathers Brothers, or their Issue, there being Elder and Younger Brothers; but Conquest is frequent, because, not only that which is acquired properly, by the means and industry of the Defunct: But that which is by Gift of the Defuncts Parents, or any other, or, whatsoever the Defunct could not succeed to, is Conquest. Yet, if the heir of Conquest succeed, that which was Conquest becomes heritage, and descends: As if there were four Brothers, and the third acquiring Lands, Died without Issue, the second would be his heir therein, who, if he Died also Infeft, the Lands would fall downward to the Youngest Brother, and not upward, to the Eldest Brother. The custom of [Page] England is contrary, for thereby, the eldest Brother succeedeth to all his Brothers, failling the Issue; But with us, the Immediat elder or younger doth always succeed, though of different Marriages, none of them being Brothersgerman: And therefore, in the case proposed by Craig, lib. 2. [...]. 15. In fine of a Brother, by a second Marriage, dying without Issue, and having three Brothers of a former Marriage, no doubt the youngest would succeed: according to the Opinion of Oliphant and King, there related: Albeit, that Craigs opinion be, that the eldest would succeed. It was so decyded, contrary Craigs opinion, July 20. 1664. Laird of Clerkington contra Stewart.

Heirs of Conquest succeed, not only to Lands Conquest by their immediat Predicessors, but in other heritable Rights, passing by Infeftments, as Annualrent, or such as are heritable by distination, and which are accomplished by Infeftment, as Despositions of Lands, or Annualrents, Appryzings, or Adjudications, &c. The like, where an Annualrent was first Disponed, and a Clause of Requisition, and Reversion subjoyned, July 7. 1675. Robertson contra Lord Halkertoun, and in Reversions, Hope de Successionibus, heirs of Pitcairne. But in this case, it is not cleared, whether the Lands given in Wodset, were heritage or conquest; but it seems, if the Lands had been heritage, as they were Wodset, the Reversion would also belong to the heir of Lyne, as the Lands whereto it was accessory would; Yea, heirs of Conquest succeed in heritable Bands, bearing Clause of Annualrent: As was found amongst the heirs of Doctor Craig. But the heirs of Lyne, and not the heirs of Conquest succeed in Tacks, acquired by the Defunct, Hope Succession, Earl of Dumbars heirs, June 23. 1663. Ferguson contra Ferguson. The heirs of Lyne do also succeed in Pensions, or any other Right, not requiring Infeftment, as in these which having a tract of time, after the Defuncts Death, do thereby exclude Executors, and do belong to the heir of Lyne, and not of Conquest, though they be acquired.

The heir of Lyne, and not the heir of Conquest falleth to be Tutor, or nearest Agnat to the Pupil, to whom the heir of Lyne might Succeed. The heir of Lyne hath right to the heirship Moveable, and not the heir of Conquest.

11. Heirs-portioners are amongst Heirs of Line, for when more Women or their Issue succeed, failing Males of that degree, it is by the course of Law that they succeed; and because they succeeed not in solidum, but in equal Portions, they are called Heirs-portioners; and though they succeed equally, yet Rights indivisible fall to the eldest alone, without any thing in Lieu thereof to the rest. As first, Dignity of Lord, Earl, &c. 2. The principal Manse being Tower, Fortalice, &c. which doeth not extend to houses in Burghs, nor to ordinary Country-houses, the former being divisible, the latter falls under division, as pertinents of the Land whereupon they stand, and are not as separata jura, or distinct Rights. 3. Superiorities are accounted indivisible, and befal only to the eldest Daughter and her Issue, and thereby all the Casualities of the Superiority, either preceeding or following the Defuncts death, as Ward, Relief, Marriage of the Vassals Heirs, Nonentry, Liferent, Escheat, &c. The reason is, because the Vassals condition ought not to be worsted and made subject to many Superiors by such Successions, Craig lib. 2. dieg. 14. excepteth the Superiority of Feu Lands, the Feu Duties whereof are divisible amongst all the Heirs-portioners, yet the former reason of the indivisibility of the Superiority in respect of the Vassals Interest, reacheth Feu Superiorities as [Page] well as others; and it is hardly conceivable how Superiorities should belong to the eldest, and yet the Feu Duties divide to the rest, seing the Superiority as being Dominium directum, is the only Title for poynding the Ground, or pursuing the Possessors or Intrometters with the fruits thereof. It seems for the reason adduced, the Superiority, and therewith the Feu Duty befalleth to the eldest; yet so, because the Feu Dutie is constant and liquid, and is not like the other Casualities of Superiority, which are illiquid and accidental; therefore the other Heirs-portioners ought to have Compensation for their parts of the Feu Duty, in or off other proper Lands: Or if there were moe Superiorities of Feu Lands, so that some of the Superiorities might befal one Heir, and others to other Heirs, no particular Superiority being divided, or the Vassal made Vassal to many Superiors, I conceive it would be allowed; or otherways the eldest Co-heir would be dicerned to infeft the rest in Annualrents out of the Fee correspondent to their share of the Feu Duty. A Vassals Heir, though the Defunct had taken Infeftment of more Heirs-portioners, was not found oblieged to take Infeftment of some of them severally, but either of all jointly, or the eldest, July 30. 1678. Lady Luss contra Inglis.

How far Heirs-portioners succeed passive, and are lyable for the Defuncts Debt, shall forthwith appear.

12. Heirs Male, and of Tailzie, and Provision, succeed not by Law, but by the tenor of the Infeftment or Provision, and therefore have that benefit and no more, which is so provided to them, or which is accessory thereto, whereby any Right or Security of Lands, or others befalling to these Heirs, which is thereafter acquired by their Predecessors, though the same be acquired to him and his Heirs whatsover, yet the same will befall with the principal Right, to which it is accessory to the Heir Male, or of Tailzie, or Provision. As if a Proprietar Infeft himself, or his Heirs Male, or of Tailzie, or Provision, in Lands or Annualrents, and thereafter acquire Reversion, Apprisings, Tacks, or others, further or better security of the same Lands to himself and his Heirs whatsoever; these will accress to his Heirs Male, or of Tailzie, or Provision, whether the Infeftment in their favours be anterior or posterior, which is the more dubious Case; for it cannot be thought that the Defunct having before provided such Lands or Annualrents to his special Heirs, doth by acquiring new Rights mean to set his Heirs by the Ears to debate upon their several Rights: Neither can his posterior Deeds be repute an alteration of the former Provision; which can only be done by Resignation, unless the Defunct debarred expressly, his former special Heirs, and obtained his Heirs whatsoever Infeft. And though Heirs whatsoever do ordinarily signifie Heirs of Line, who are heirs general, and take place, when the Right of no special heir appeareth, yet the adequat signification thereof, is not heirs general, but heirs generally, whether of Line, Male, Tailzie, or Provision, as is more clear passivè in the Defuncts Obliegment, as if he oblieged himself and his heirs whatsoever. By heirs whatsoever, will be understood all kind of heirs in their order, yea in some Cases only his special heirs, if the Obliegment relate to Lands or others so provided, as will shortly appear: And therefore, heirs Male, or of Tailzie and Provision, in respect of the heirs of Line, are as Strangers, and may come against their Predecessors Deeds in favours of his heirs of Line; as if any person provide any Lands or Annualrents to his heirs Male, or of Tailzie, and thereafter dispone the same to his heirs apparent of Line, his heirs Male, or of Tailzie, will in several Cases not be oblieged to fulfil that Provision; and if such express Provisions be ineffectual to the heir of Line, it seems a general taking [Page] a new Right in favours of heirs whatsoever should be less effectual: But the difficulty is, how special heirs can be served heirs in such Rights supervenient, conceived in favours of heirs whatsoever, which will be loosed if the heirs special may be comprehended, and so served under the common Title of heirs whatsoever. How far heirs of Tailzie or Provision may alter the Tailzie of the Fee, or affect or burden the same, is largely considered, Title 13. §. 58. which therefore needs not here be repeated.

13. The common Interest of heirs passivè, is, that they are lyable for their Predecessors Debts, for they are repute in Law as one Person with their Predecessors, and so represent them, not only active in their Estates and Goods, but also passive in their Debts and Burdens, Quem sequuntur commoda eundem & incommoda sequuntur; and this is common also to Executors as being heirs in the Moveables, but as the Executors succeed only in Moveable Rights active, so they succeed only in Moveable Debts passive, yet the Creditor hath his option to pursue either, or both of them, whether the Debt be heretable or moveable, and the heir hath relief against the Executor, in so far as he is distressed for Moveable Debts; so hath the Executor releif against the heir of the heretable Debts, March 7. 1629. Falconer contra Blair. Spots. Executors Laird of Carnousie contra Meldrum. But heirs and Executors differ in this, that the Executor is only lyable secundum vires inventarli, according to the Inventar of the confirmed Testament, unless he disorderly intromet with more; but the heirs are lyable in solidum, though the Debt far exceed the value of the Estate.

Heirs are lyable for their Predecessors Debts, but not all the same way: First, Heirs portioners though jointly they be lyable for their Predecessors Debts in solidum, without benefit of Inventary; yet severally, each Heir-portioner is regularly lyable but pro rata parte, though the proportion whereunto they succeed be more then the whole Debt, February 7. 1632. Hoom contra Hoom. Spots. Improbation Laird of Laars contra Dunbars, John Duncan and the heirs of John Ogilvy.

14. Yet one Heir-portioner was found lyable in solidum, as Successors in his whole Estate by disposition post contractum debitum, though there were other two Sisters, the one of whom being called, renounced, the Pursuer condescending upon nothing, unto which she could Succeed; and the other having no means, but being called passive, Feb. 15. 1634. Peter Orr contra Elizabeth [...]: Neither did it avail, that the other Sisters had received portions of money near to the value of the Estate, by the Father in his Life, but Action of Relief was reserved against them, as accords, March 21. 1634. Inter eosdem: The reason thereof adduced, is, that the getting Portions in Money, could be no [...], and so could not make the Receivers Lucrative Successors, [...] contractum debitum, as the Disposition of the Lands doth. Yea, an heir portioner being convened without the other, was found lyable in solidum, because the other was found not solvendo, and had disponed all right to the Defender, January 29. 1642. Scot contra Hart. But here the matter was but of small moment, and this was a doubt in the first Decision, in this Case, if some of the heirs Portioners should be insolvendo, whether or no recourse might be had, against them that were solvendo, at the least, to the value of their proportion; which, though it seem Equitable, and is favoured by this last Decision, yet it is not decyded in the former, neither have I observed it decided since, but in the pursuit, Decem. 23. 1665. at the instance [Page] of Dam Rachel Burnet, now Lady Preston contra Sisters of her first husband: The Lords only discerned, against the heirs portioners, pro rata, but with Reservation to the Pursuer, to Insist and Dispute her Right against any of them, for more, if any of them proved insolvent: But it seems, the Portion of the insolvent, would not reach the solvent, above the value of their Succession. Because the only ground they could be lyable on, for more then their part would be in quantum lucrantur. For as heirs they could not be lyable in solidum, neither by our Law, nor the Civil Law. And if the Creditors Taciturnitie, whereby the other heirs became insolvent did appear, it would prejudge the silent Creditor, and not the heir, who did not know the debt, and so could not prevent the others Dilapidation.

15. There is a case occurreth oft-times amongst heirs Portioners, when Several Obligations, and Provisions are granted in their Favours by the Defunct, whereby, after his Decease, they become mutual Debitors, and Creditors; and sometimes these Provisions exceed the Estate, quid juris, whether do these Obligations evanish, and become extinct confusione; because the same Persons become Debitors and Creditors; or whether they do all stand, and in that Case, whether the first in Order will be preferred, or, if they all will be abated proportionally, to the value of the heritage. Thus Maitland observes, December 20. 1550. That a Father Infeft himself, and the heirs of the first Marriage, and thereafter resigned, and Infeft himself, and the heirs Male of the second Marriage, which failling his nearest heirs whatsomever, these heirs Male the second Marriage failled: And therefore, not the Daughter of the first Marriage only, but she, and the Daughters of a third Marriage Succeeded, by the second Infeftment, as his heirs whatsomever, substitute to be his heirs of the second Marriage. Craig hath the Case, but otherways observed, lib. 2. dieg. 14. Where a person had provided his Lands to the heirs of three several Marriages; of each whereof there survived a Daughter: The question was, which of the Daughters should succeed? Whether the first, as having the first Provision, or the last having the last Provision: The parties were three Sisters, Aikmans. In which the Lords admitted all the three Sisters as heirs Portioners, and so confounded the Provisions, being all equal; and about the same thing, which must be the Reason, and not that which is there rendered. Because the Defunct, notwithstanding of these Provisions, in Favours of heirs might have Disponed effectual, to a Stranger: And so likewise to his own Children of another Marriage; For that Reason would have excluded the Daughters of the first Marriage, and preferred the Daughter of the last Marriage. And as hath been shown, Tailzies of Provisions, upon an anticedent, onerous obligation; Such as is Marriage, hinder the Fiar to dispone, or provide the same to his heirs of Lyne, representing him simplie, and must fulfil his Obliegment; Albeit his Disposition to Strangers, not so representing him, will be effectual: And therefore, Craig in that same place observeth, in the case of Isobel Barron, who being heir to her Father of his first Marriage, by which it was provided, that the heirs of the Marriage should Succeed to all Lands conquest during the Marriage: And thereafter, having a Son of the second Marriage, who was his Fathers heir of Lyne, to whom his Father Disponed, or provided a Tenement acquired, during the first Marriage; Yet the said Isobel, as heir of that Marriage, recovered that Tenement from her Brother, as heir of Lyne. But the main difficultie remaineth, when the obliegment in favours of the heirs portioners are un-equal for when they are equal, whether they become extinct by confusion, or not, it is alike: But if they be so extinct, when they are un-equal, there will not be [Page] an equal suffering, or abatement; but the greatest obliegment will be extinct, as well as the least: Neither can such obligations be wholly extinct, by confusion, but only pro rata. So that if there be three heirs Portioners, for example, the obliegment granted to every one of them, can only be extinct for a thirdpart, because they are but heirs in a third part, and as to two third parts, each two of them are debitors to the third: And if the obligation exceed the value of the heritage, such of them as find themselves losers, if they enter heirs, may abstain, and renounce, and they, or their Assigneys, may pursue any of the rest that shal enter, for fulfilling of the Defuncts obliegments, but if they be considerat, when all the obligations joyntly exceed the value of the Estate, they will all Renounce, and Assigne there obliegments, and their Assigneys will be preferred, according to their dilignece, without consideration of the priority, or posteriority of the obliegments; but if they happen to enter, or when their provisions are not Personal to themselves, nominatim, but as they are heirs of Provision; and therefore necessarily require, that they must be heirs, before they can obtain their Provisions, then the obliegments or Provisions of each Portioner are extinct, as to their own proportion; but they have like Action against the others heirs portioners, for there proportion, as other Creditors have, the point will be clear by example; if three Sisters were provided by the Father, to un-equal Portions. The first to 15000. Merks, the second to 12000. Merks, the third to 6000. Merks. and the Defuncts whole Estate, had only been worth 18000. Merks. All of them entering, the case would be thus: The eldest would succeed to 6000. Merks of the heritage for her part, and the second would be lyable to her for 5000. Merks, as the third of the her provision, to whom she would also be lyable, for 4000. Merks, as the third of the seconds Provision, which being compensed, the second would be lyable to the first in an 1000. Merks, dc claro. In like manner, the first would be lyable to the third in 2000. Merks, and the third would be lyable to the first, in 5000. Merks, which being ballanced, the third would be debitor de claro, to the first, in 3000. Merks. So the Interest of the first would be 6000. Merks, as her own portion: and one out of the Second, and Three out of the Thirds Portion, being in all a 10000. The second falleth 6000. as her share, out of which she is lyable in 1000. Merks, to the eldest and the youngest is due to her, de claro, 2000. Merks, whereby her interest will be 7000. Merks, the youngest Portion will be 6000. Merks, out of which she is due to the eldest, 3000. Merks, and to the second 2000. So there will remain only free to her 1000. Merks, This may clear the case as to liquid Sums, and as to Dispositions, or Provisions of Lands, or other obliegments in facto. These, or the Interest, or Value, will be the same way effectual, amongst the Heirs Portioners, as if they had been made to Strangers; Except, where the same Disposition, or Provision is made to divers of them: For then either being equally oblieged to others, as representing the Defunct, the same become void, and in-effectual, protanto. As was found in the case of the Sisters Aikmans: But since the Act of Parliament 1621. against fraudulent Dispositions, the first Disposition, or Provision, constituting, that Party Creditor may give ground to Reduce a posterior Disposition of the same thing, to another of the Heirs Portioners, as being without a Cause onerous, after contractiong of the first debt, but that will not hold in Bands, for Sums of Money, all which will have their effect, as is before said. Neither will it hold, when the Provision of Lands, provideth the Party provided to be Heir, for thereby the party cannot Quarrel that Predecessors Deed: Otherwayes the first Obliegment, or Disposition to any of the Heirs Portioners nominatim, may Reduce any posterior Disposition to others, of the Heirs Portioners.

[Page]Two Daughters being served, both Heirs Portioners to their Father in some Teinds, but one of them Succeeding to her Brother, who was Infeft as Heir to his Father in Lands, excluding the other Sister, who was not Sister German to her Brother, by both Bloods, and both being pursued for their Fathers Debt, they were not found lyable equally, but proportionally, according to the Interest they Succeeded to; the one being only immediat Heir to her Father, in a Right of Tiends, wherein her Brother was not served, and Infeft, the other being equally, and Immediately Heir to her Father, in these Teinds, and mediatly Heir to her Father, by being Heir to her Brother, who was Heir to his Father, being Infeft in the Lands, by precept of Clare Constat, without Service, June 10. 1673. Christian White contra Janet White.

16. Other heirs not being Heirs-portioners are lyable for the Defuncts Debt in solidum, except heirs substitute in Bands, who are only lyable quoad valorem in the sums in these Bonds, July 3. 1666. Fleeming contra Fleeming.

17. Heirs are not conveenable at the Creditors option, as in the case of heirs and Executors, but they have the benefit of an order of discussing. Thus, first Debts and Obliegments, relating to any particular Lands or Rights, and no other, do in the first place affect the heirs who may succeed in these Lands or Rights before the heir general: So an Obliegment oblieging the Defuncts heir of Line or Tailzie, so soon as he should come to his Estate, was found to affect the heir of Tailzie who came to that, Estate without discussing the heir of Line, Hope de Haeredibus, Lyon contra Sir Robert Scot. Nicol. de haereditariis actionibus inter eosdem: So an Obliegment oblieging a Debitor and his heirs Male succeeding in such an Estate and not all other heirs, was found to burden the heir Male, before the heir of Line or Executors, July 22. 1662. Margaret Anderson contra Andersons. So likewise, an Obliegment to infeft a Party in an Annualrent out of Lands designed, was found to affect the heir of Provision in these Lands, without discussing the heir of Line, Nicol ibid. Edmonstoun contra Edmonstoun. This was also the opinion of the Lords, though there was no decision in it, February 19. 1611. Laird of Blair contra Fairlie. And in these Cases, the heir of Tailzie or Provision will have no Relief against the heir of Line, or other nearer heirs of Blood, who otherwise, and also Executors, must be discuss'd before heirs of Provision or Tailzie. General Obliegments not relating to particular Lands, do, first, affect the heirs of Line, who are heirs general. 2. The heirs of Conquest, July 21. 1630. Fairlie contra Fairlie. 3. Heirs Male must be discuss'd before heirs of Tailzie or Provision, not being so near of Blood, Hope de haered. Dunbar contra Hay of Murkill. the like must follow as to heirs of Marriages, who are also heirs of Blood, and must be discuss'd before other heirs of Provision or Tailzie, who therefore are only lyable in the last place, the rest being discuss'd, unless they become oblieged to relieve the heir of Line, November 22. 1665. Lawrence Scot contra Boswel of Auchinleck.

18. But an heir of Tailzie was not found to represent the Defunct in Obligations contrary to the terms of the Tailzie, as to which, heirs of Tailzie are as Creditors and Strangers; as when the security of a Sum was by way of Tailzie payable to the Creditor and the heirs of his Body, which failing, to a Person named, his heirs and Assigneys whatsoever, the Creditor being oblieged to do no Deed hurtful to the Tailzie; and the Debitor oblieged not to [Page] pay without the consent of the Person named, that Person was found to have Interest to obtain Declarator that the sum was unwarrantably payed by the Debitor, without his consent or order of Law, by consigning it to be imployed in the same terms, and therefore, the Debitor was ordained to make up the Security again as at first, reserving to Creditors how far they could affect this Sum for the first Fiars Debt; or whether the terms of the Tailzie would exclude the Fiars Debts or Deeds for his necessary use, or only unnecessary and voluntary Deeds, Feb. 3 1674, Drummond contra Drummond. And in like manner, a Father having granted two Bonds of Provision to his two Daughters payable to them and the heirs of their Body, which failing, to return to the Father and his heirs, the one of them having died without heirs of her Body, but having assigned her Bond to her Sister, the Assignation was found ineffectual, as being done on design to disappoint the Tailzie made by the Father of the return of the Provision, in case the Daughters had no Heirs of their Bodies, and so was done without any onerous Cause or just Consideration, January 31. 1679. Jean Drummond contra Drummond of Rickertoun.

19. And likewise heirs of Marriage are heirs of Provision, and partly Creditors, and therefore may quarrel Deeds fraudulent, or meerly gratuitous, done by the Defunct whom they represent in prejudice of their Provisions, as was found in the forementioned Case of Isobel Baron, observed by Craig, who being heir of a Marriage, to whom all Lands conquest during the Marriage were provided, the Father having disponed a Tenement acquired during that Marriage to his eldest Son by another Marriage, yet that heir of the Marriage did recover the same from that Son, albeit the heir of the Marriage did represent her Father, and yet not simply, but according to the provision by the Contract of Marriage, which being an onerous Contract, uberrimae fidei, the Father Contracter can do no Deed contrary thereto, but upon an onerous Cause or just Consideration; and therefore, if he sell any thing falling within such Provisions, the heir of Provision cannot quarrel that Stranger, but is oblieged to fulfil to him, but might quarrel the same, if it were meerly gratuitous, much more might heirs of a Marriage quarrel Deeds prejudicial to their Provision in favours of the Children of other Marriages, without which, the great trust of these Contracts would be eluded, whereupon Parties rely and make Matches and give Tochers; and therefore take Provisions to the heirs of the Marriage, either of definite Sums, or of all, or a part that the Contracters have, or shall acquire during the Marriage, by which, the whole Estates of Citizens are ordinarily conveyed; or otherwise, Contracts of Marriage bear particular Lands, or Sums to be provided to the heirs or Bairns of the Marriage, and also the conquest during the Marriage, which clause of Conquest will reach only to what the Father had more at his Death then the time of the Contract, and is ordinary both in the Contracts of Citizens and others, which therefore should not be elusory, but effectual, according to the true meaning of the Parties, which is not to bind up the Father that he cannot do Deeds for Causes onerous, or rational Considerations, but that he can do no other Deeds meerly gratuitous and arbitrary in prejudice of such Provisions: for though by such Provisions when fulfilled, he himself must become Fiar, and so may dispone, yet he is also Debitor, and so cannot effectually dispone against the import and meaning of the Provision: And therefore, a Father by his Contract of Marriage having provided certain Tenements to himself, and his future Spouse in Conjunct-fee, and to the Bairns of the Marriage, &c. and the Wife having restricted her self to the half of the Liferent of these Tenements, after which the Father having Infeft her of new in that half, the [Page] said last Infeftment was found reducible at the instance of the Bairns, as heirs of the Marriage, and that they were not oblieged to fulfil their Fathers Deed in favours of their Mother, who was competently provided, in respect the same was contrary the provision in the Contract of Marriage, July 10. 1677. Carnagie and Clark contra Smith and Baird. Yea, a Father by his Contract of Marriage having provided a definite Sum to the eldest heir Female of the Marriage, and thereafter having disponed his Estate to her, she marrying a Person that would assume his Name and Arms, wherein if she failzied, providing the same to his second Daughter upon the same terms, &c. the said eldest Daughter having married suteably before she knew that Disposition, and her husband refusing to take her Name, she was found to have Right to take her to her Portion by her Mothers Contract, and so the Right of her Fathers Estate was divolved to her second Sister, upon the terms therein contained, who was found lyable to pay the Provision to her eldest Sister, contained in her Mothers Contract, July 26. 1677. John Stevinson contra Marion Stevinson. But these Provisions do not hinder just and rational Deeds of the Father, as providing a Joynture for a posterior Wife, as was found in the Case of Katharine Mitchel contra the heirs of Thomas [...], June 16. 1676. Nor will they hinder Fathers to provide Children of an other Marriage with competent Provisions according to his condition, though thereby the conquest during the Marriage will be affected; Yea, where in a Contract of Marriage, the Husbands present Means, and the Wifes Tocher, were provided to be imployed for the Man and Wife in Liferent, whilks failing, the one half to the Mans heir, and the other half to the Womans heir. There being no Bairns of the Marriage, the Husband was not found lyable to imploy that Sum, and the conquest in favours of himself and the Wifes heirs, but that he might imploy the whole in favours of the Child he had by a posterior Marriage, December 21. 1680. Bailiff Anderson contra Andrew Bruce.

20. The exception that all Parties having Interest are not called, will be sufficient to sist Process against such Heirs as have the benefite of discussion, without necessity to condescend or instruct any Right they may succeed to, January 24. 1667. Laird of Luss and Glendening contra Earl of Nithsdale.

21. But the exception of the order of discussing will not be sustained, unless the Defender condescend on, and clear an Heritage, to which the anterior heir may succeed, which being a Dilator, must be instantly verified, as where it is notour; and where that cannot be, sometimes Process will be sustained against both heirs of Line and of Tailzie together, superceding Execution against the heirs Male or of Tailzie, till the heir of Line were discuss'd, July 13. 1626. Edgar contra Heirs of Craigmiller. And heirs of Line and Provision being pursued joyntly, the heir of Line renouncing, was assoilied and Protestation admitted for Adjudication against the heir of Line, which the Pursuer was ordained to assign to the heir of Provision, and was not found oblieged further to discuss the heir of Line, or to put him to his Oath upon any other passive Title, seing the heir of Provision required not the same, when the heir of Line renounced, nor shew any visible Estate which might befall to the heir of Line, June 22. 1678. Thomas Crawford contra the heirs of the Laird of Rater. The question is here, what is meaned by discussing, which is not understood by that heirs renouncing to be heir? July 26. 1622. Cowan contra Murray, but in that Case the renounced Heritage must be adjudged. Discussing therefore, is by Horning, Caption, and Apprising, March 22. 1627. Edgar contra Heirs of Craigmiller; or otherwise by Adjudication, in case the heirs [Page] renounce, by alledging his behaving as heir, was found in the foresaid Case, Cleghorn contra Fairlie. This passive succession of heirs in their Predecessors Debts and Obliegments, making them personally lyable thereto, befalleth in three Cases. First, When the Heir is entered heir. 2. When he is not entered, but immixeth himself by medling himself as heir, or becoming lucrative Successor, after the Debt contracted. 3. When the Heir is lawfully charged to enter Heir, though he hath neither entered nor medled, if he do not renounce, he is personally oblieged; and if he do renounce, his Person and proper Estate is free, and only the Heretage is lyable, and the Creditor hath Action contra haereditatem jacentem. The first Case is most ordinary and orderly, the second inferreth the vitious passive Titles, Gestionem pro haerede, or Preceptionem haereditatis: of which in the ensuing Titles. Let us here consider, first, the Charge to enter Heir, which is antecedent to the Entry; and then the Entry of Heirs it self.

22. The Charge to enter Heir, is founded upon the Act of Parliament, 1540. cap. 106. and it is of two kinds; a general Charge, and a special Charge: The general Charge to enter Heir proceedeth thus; the Creditor, upon Supplication, without Citation, obtaineth from the Lords of Course, Letters passing under the Signet, to charge the Party complained upon to enter heir, to the Compleaners Defunct Debitor, within 40 days after the execution of the Charge, with Certification if he enter not, such Process will be granted against him, as if he were actually entered Heir: The reason of this Charge with us, is, because Heirs are not lyable passive, if they enter not, nor immix themselves in the Heretage; and therefore, that the Creditor may not ly out beyond the Year and Day granted to Heirs to deliberate, the Law hath introduced this remeid, that the Creditor may charge the Debitors appearand Heir to enter, whereupon he hath personal Action against him, if he renounce not, and thereupon may reach not only his Heretage, but his own proper Goods belonging to him aliunde; and if he renounce, he hath Action contra haereditatem jacentem.

The general Charge to enter Heir, may be execute against the appearand Heir, after the Defuncts death, even within the annus deliberandi; but the Summonds thereupon, must be after the Year and day expired, not only from the Defuncts death, but from the Heirs [...], if he be posthumus, Spots. Heirs of Livingston contra Fullertoun; and therefore a Summonds execute after Year and Day expired, upon a Charge to enter Heir within the Year, was sustained, June 19. 1628. David Maculloch contra Marshal and Reid. July 10. 1610. Neil Montgomery eontra Laird of Langshaw. There is also an Act of Sedorunt in Anno 1613. allowing general Charges to enter Heir within the Year and Day, or within the days of the Charge, if the Heir renounce and omit that Defence, the Decreet Cognitionis causa, and Adjudication thereupon, werefound valid, and that alledgance proponed by another Creditor, was repelled; because it was free to the Heir as well to renounce when he pleased, as to enter when he pleased, July 10. 1631. Blair contra Broun; but it is like the posterior Creditor hath been negligent, otherwise that prae natura diligentia of pursuing and renouncing within the Year, would have been accounted collusive and fraudulent, and so would not prejudge the other Creditor doing diligence in the ordinary way.

General charges to enter Heir, do evanish as incompleat diligences, if the Party charged die before Litiscontestation or Sentence; and though the fourty [Page] days be expired before the death of the Party charged, yet the Charge useth not to be transferred or made use of against any subsequent Heir apparant, but it is not consequent that if the Charger die before Litiscontestation or Sentence, that the same should also become void, because the Charger doth not necessitate the Party charged to enter or renounce in favours of the Chargers heirs, but of himself. And it was found, that an Assigny might insist upon a Charge at the Cedents instance, after the Cedents death, though nothing followed thereupon during his life, June 18. 1631. Prior of Archattan concra Captain of Clanronnald.

23. A special Charge to enter Heir, differeth from the general Charge in this, That the general Charge is in lieu of the general Service: for thereby the Creditor reacheth the Person of the apparant heir of his Debitor, and his Estate or Goods established in his person, unless he renounce: and so the general Charge is the ground of Process and Decreet for Payment. But thereby the Creditor cannot reach the Lands and Annualrents, which are not as yet established in the Person of the apparant heir, he not being specially served thereto, or infeft therein. And therefore, that the Creditor may reach these, he must use a special Charge, which supplieth the special Service and Eutry.

This special Charge, though it proceedeth upon Supplication without Citation, yet it must be upon production of a Decreet at the Creditors instance, not only cognitiònis causâ, but for performance. And it is competent in two Cases: First, upon the proper Debt of the Party to be charged. For if the Debitor be unentered to some of his Predecessors, and so their Rights not established in his Person; in that Case the Creditor must charge his own Debitor specially to enter heir in the Rights competent to him by that Predecessor, with certification if he enter not, the Creditor shall have such Process and Execution against that Land and heretage to which he might enter, as if he were actually entered therein: whereupon Apprising doth proceed. In this Case there is no necessity of an antecedent general Charge, which only is used to the effect that the Debt may be established in the Person of the Debitors apparant heir passivè, by a Decreet upon the general Charge. The other Case is, when the Debt is not the proper Debt of the Party charged, but of some Predecessor to whom he may be heir: in which Case the Debt must first be [...] against him passive, and then followeth the special Charge. In this Case the special Charge cannot be till after Year and day, because it presupposeth not only the Summons, but also the Sentence upon the general Charge, both which must be after Year and Day. When the Debt is the proper Debt of the Party charged, if the special Charge may not be at any time, even within Year and Day, or if it must be after the annus deliberandi? This makes for the Negative, That it needs not abide the Year of Deliberation, because the intent of the Deliberation, is not so much whether the Party charged will be heir, as whether he will personally subject himself to the ground of that Charge, For albeit he renounce not, it will not make him lyable to any of the Defuncts Debts, except it be by his fraud and collusion with one Creditor in prejudice of another. And therefore seing he cannot deliberate, whether he will be subject to his own Debt, he ought not to have the benefite ofYear and Day before the special Charge be effectual. Yet before the late Act preferring the diligence of the Defuncts Creditors to the heirs proper Creditors, there was no reason to allow special Charges for the apparant heirs own Debt, but more summar Execution than other Charges so to prefer the apparent heirs proper Creditors to be Heir.

[Page]The Act of Parliament, which is the ground of the Charge to enter Heir, and is only the rise of the special Charge, insinuates an Exception, if the heir be major: But the custom of the Lords hath introduced the general Charge to constitute the Debt, and allows both Charges against minors.

There is no necessity either of a general or special Charge, as to real Actions, which may proceed against apparant heirs; as poynding of the Ground, January 2. 1667. Oliphant contra Hamilton. Neither in Declarators or Reductions.

24. The remedy against both Charges to be heir, is a Renounciation to be heir, whereby the Renouncers Person and his proper Estate, will not be lyable for his Predecessors Debt, but only his Predecessors heretage. This Renounciation useth to be offered by way of Exception in the Process upon the general Charge: and if the Defender be not absent, it is not ordinarily admitted by Suspension, except in favour of Minors: who though being apparant heirs they take a day to Renounce and fail therein, yet they will be restored against the same by Suspension, without Reduction, January 25. 1628. Kennedy contra Mackdougal. Spots. Minors, Nisbet contra Nisbet. But if the Minority were controverse, and not instantly verefied, it must be by Reduction, Spots. Minors, Mr. Thomas Craig Advocat contra Cockburn.

Renounciation to be Heir, was admitted rebus integris, though the Decreet and Charge were six years before, July 20. 1626. Harvie contra Baron. Yea it was admitted, though there was an Adjudication, and the Decreet supsended, which was declared to stand, and the apparant heirs Person and proper Estate were only freed. Spots. Restitution in integrim, John Oliphant contra Mr. William Blackburn. A Renounciation to be heir was not admitted with this quality, Excepting to the Renouncer certain Lands whereinto he was appointed to be infeft by his Fathers Contract of Marriage, and whereupon Inhibition was used before contracting of the Chargers Debt, to the effect he might enter heir to those Lands, January 23. 1627. Lady Ogilvy contra Lord Ogilvy. But in the like Case, Hope Inhibition, Donald Thorntoun contra Bailzie, June 15. 1615. and the like, November 30. 1620. Adamson contra Hamiltoun, the apparant heir was suffered to renounce to be heir to his Goodsire, except as to those Lands which his Goodsire had disponed to his Father in his Contract of Marriage, whereupon Inhibition was used: which the Lords found a singular Title consistent with a Renounciation of the heretage ex titulo universali.

The Exception upon Renounciation to be heir, is elided, If the Defuncts Estate be burthened with the heirs proper Debt: whichis taken off by the duply of purging the same: as appears in the Decisions before adduced. The said Exception is also elided by the Reply, As behaving as heir, albeit the same were libelled as a several passive Title, March 18. 1631. Reguel Bennet contra Bennet.

25. The Entry of Heirs, is either of heirs general, or heirs special. The former requires only a general Service, which is necessary to all heirs, except heirs in Tacks, Pensions, and heirs nominatim, immediately substitute in Bands. But heirs of Tailzie or Provision must be served, that it may appear that the heirs to whom they are substitute are failed. And therefore the only Child of a Marriage was found to have no title to pursue Implement of the Contract of Marriage, till he was served heir of the Marriage, July 21. 1676. Hay of [Page] Drumelzier contra Earl of Tweeddale. The general proceedeth thus, a Brieve is taken out of the Chancery of course, without Citation or Supplication, for serving such a Person nearest and lawful heir to such a Defunct. It may be directed to any Judge ordinar at the Parties option, albeit the Defunct nor the heir never lived within that Jurisdiction, March 6. 1630. the Laird of Caskiben Supplicant.

The Lords may in Cases where an ancient or important Service is required, choose the Judge most fitting for the Affair. And when Brieves pass of course, they are obtained to any Judge desired. But they are easily Advocat, and remitted to the Macers, with Assessors in cases of difficulty.

The tenor of the Brieve, is by way of Precept from the King to the Judge, To enquire per probos & fideles homines patriae, That such a Person died at the Faith and Peace of our Soveraign Lord: And that the user of the Brieve, is the nearest and lawful heir. So this Brieve, hath only these two heads. And thus not only Heirs of Line may be served generally, but also Heirs of Conquest, being to Succeed to Reversions, heretable Bonds, or the like Rights, not having an Infeftment, or requiring a special Service: Hope Succession, Earle of Dumbar's Heirs. And no doubt, Heirs Male may be served generally, that they may succeed to the like Rights which may be conceived in their Favour, and whereunto they can have no other Access. And for the same reason, Heirs of a Marriage may also be served, and Heirs of Provision in Bands.

General Services, use to be included in special Services, as Members thereof; and a Retour to an Annual-rent, bearing to be granted to Heirs whatsoever, and that the persons retoured Heirs in the said Annual-rent, was found to instruct him general heir, though it did not bear per expressum, that he was heir generally, but only in that Annualrent: Feb. 9. 1676. Ricartoun Drumniond contra Stirling of Airdoch.

The general Service of Heirs being retour'd, doeth so establish Rights not having Infeftment (as Dispositions, Heretable Bonds, Reversions, Apprisings, and Adjudications) in the Person of the heir served, as that no posterior heirs can have Right thereto, unless they be served heirs to the Person last served heir, though the Right stood in the name of the firstAcquirer, and not ofthe last heir, as an heretable Bond or Reversion remaining in the name of aFather, to whom his eldest Son was served heir generally, who dying without Issue, the second Brother must be served heir to his Brother, and not to his Father therein: as was thought by all the Lords after dispute in praesentia, albeit the matter was agreed without decision. Spots. Heirs, Captain Peter Rollo contra Stewart of [...]. The reason is, because the general Service is a compleatestablishing of the Right in the Person of the heir: and therefore as in special Services the heir is served to him who died last vest and seised as ofFee, whereby that Right is established; so in the general Service, the heir must be served to him in whose Person the Right stood last. And though in special Services, the heir cannot be served to him who is last served special heir, unless he had been also Infeft: the reason thereof is, because the special Service as an incompleat Right evanisheth, and the next apparant heir must be served again to the same Defunct, but it is not so in general Services.

26. The Entry of Heirs to Lands or Annualrents, the Fee whereof is by Infeftment is either by consent of the Superior voluntarly, or by Law. The former is by the Superiors Precept, which from the initial words thereof, Quia [Page]mihi clare constat, &c. is called a Precept of Clare constat, by which the Superior acknowledgeth, that the Defunct died last vest and seised in such Lands or Annualrents, and that the same are holden of him by such a Tenor, and that the obtainer of the Precept is nearest and lawful Heir to him in the said Lands, &c. and that he is of lawful Age for entering thereto. And therefore commands his Bailiff to Infeft him therein. Infeftment being past accordingly, giveth that Party the real Right of Lands or Annualrents if done by the light Superior. It doeth also constitute the receiver thereof Heir passivè, and makes him lyable to his Predecessors Debts: but it will not constitute or instruct him Heir activè, or give him an active Title to pursue as Heir. Yea it will not be a sufficient title as to the real Right of the Ground against any other Party, than those who acknowledge the Giver thereof to be Superior, and the Receiver to be Heir. For if upon any other colourable Title, they question any of these, the Infeftment and precept of Clare Constat will not be sufficient alone, unless it have obtained the benefit of a Possessory Judgment or Prescription.

27. Like unto this is the entry of Heirs, within Burgh Royal, by Hespand Staple, according to the Custom of Burgh, which is instructed by the Instrument of Seasing only, without other adminicles, November 13. 1623. Mershall contra Mershal, July penult. 1629. Wilson contra Stewart. In which case, though a Seasing by Hesp and Staple, was sustained to instruct an Heir activè: yet it was only because this pursuer had been proven Heir passivè the eby, at the instance of that Defender.

28. The securest Entry of Heirs specially, in Lands or Annalrents, is by Law. The procedor whereof is in this manner: Any Person may summarely [...] a Brieve, out of the Chancerie, in the same manner, as the general [...] which is directed by way of Precept from the King, or Lord of the Regality, having Chapel and Chancelarie; whereby the Judge to whom it is directed, is ordained, by an Inquest upon oath, to enquire, Who died last Vest and Seized, as of Fee in such Lands, or Annualrents: And if at the Faith and Peace of our Soveraign Lord, and Who is his nearest and lawful Heir therein, Of whom it is holden in Chief, By what Service, and What the Value of it is, now, and in time of Peace; And if the said Heir be of lawful Age, In whose hands the same now is, From what time, How, By what Service, By whom, and through what cause. It is needless to be Curious concerning the number of the heads of this Brieve, some parts thereof not being distinct, but explicatory of the former.

29. These Brieves are accordingly direct to the Judges ordinary, where the Land, or Annualrent lyes, as to Sheriffs, Bailiffs of Royaltie, or Regality, or Bailiffs of Burghs-royal. But if there be just exception, against the Judge ordinary of the place, or if the Lands, or Annualrents lye in divers Jurisdictions, and so be represented; Warrand will be granted, upon Supplication to the Lords, that the Director of the Chancerie, issue Brieves to other Persons: and frequently, in the case of diverse Jurisdictions, they are directed to the Macers.

30. By Vertue of this Brieve, the Judge ordinary, or Delegat, to whom they are direct, citeth Persons to be members of inquest, upon 15. dayes: And [...] the Brieves at they Mercat Cross, unless they be Served at the [...] Court, when all the Free-holders are oblieged to be present, [Page] and then the Brieve may be served, without further delay, conform to the Act of Parliament 1429. cap. 27. and Par. 1503. cap. 94. where it is left arbitrary, to summon the Inquest on what dayes the Judge server of the Brieve pleaseth: or presently, if they be Persons of Inquest present in the Tolbooth, un-summoned. But in all cases, the Brieves must be proclaimed publickly, at the Market Cross, in plain Market, where most confluence of people is gathered, so as it may come to the knowledge of the partie, before whom it should be served. And then, that the said Brieve be thrice cryed, plainly together: which is by three several Oyesses, with a loud and audible Voice, before the reading of the Brieve, and the Sheriffs Precept thereupon: and each Oyes to be at as great distance from other, as the time required to give the said Oyes, thrice: and that the Officers of the Town be present. But if the Brieve come to be served so near Whitsunday, or Martinmass, that there does not intervene a Market day, the Brieves may be proclaimed upon any week day; the Officers and six. others of the Town being present: Yet, either the day of Compearance, or the day of Citation is numbered, as one of the fifteen. July 27. 1626. Mackculluch contra Mackculloch.

There is no necessity to Summon any Defender: in lieu whereof, is the publication of the Brieve, by Proclamation at the Market Cross. Yet upon the Supplication of the partie interessed, Warrant was granted by the Lords, to the Director of the Chancerie, that no Brieves should be issued for serving Heirs to such a Defunct, unless they contained a Clause to cite the Supplicant, who was Donatar to the Defunct's Bastardrie, Spots. de haereditarijs actionibus, Mackculloch contra Laird of Martoun.

31. The Inquest being called, consisteth ordainarly of 15. Persons: against whom, like Exceptions are competent, as against Witnesses. And though Craig, lib. 2. dieg. 17. regrateth, that any person is admitted to be one of the Inquest, whose Rent exceedeth not 40. lib. though they be not pares curiae, nor Con-vassalls with the partie to be served, neither of the vicinity, or Neighbour-hood, contrary to the Intent and Ancient Custom of these Services: Yet he acknowledgeth, that it was so ordainarly, especially in the Service of Noblemen: and Custom hath containued the same hitherto. But those of the Neighbour-hood were fittest: because, as Craig observeth in that place, Inquests are in the middle, betwixt Judges and Witnesses, partaking part of them both for two, or more of them, of their proper Knowledge, will be sufficient for Witnesses, in the matter of fact; and upon their declaration, all the rest will Serve affirmativè, without any other Testimony. And it is like they have been of old, sole Judges in Brieves, the Judge ordinary, having no more power, but to call and order them. And they are yet with the Judge ordinary, or Delegat, as Judges: for they must serve, and do sometimes seal the Service with him.

32. The Inquest being settled, the Heir apparant gives in his Claim, craving to be served Heir to his Predecessor, in such Lands, or Annualrents: and therewith the Brieve and Executions thereof, together with the instructions of the same.

33. The Brieve and Claim are as a Libel; against which, any partie compearing, and found to have Interest, may propone their Exceptions; which are many more than those, contained in the said last Act of Par. 1503. cap. 94. And first against the Executions, as being blotted in the [Page] date, or other Substantials, and so null; which thereby may not be mended, as other Executions: as the Name, and Sir-name of the Followers, and of the Defender; the name of the Land, and Cause upon which the Brieve was purchased. Which was found, not only to extend to the blotting of the Brieve, but to the Executions thereof. July 27. 1623. Mackculloch contra Martoun. Or as not proclaimed upon fifeen days, which also will be relevant, by way of Reduction. Or that the Defunct was Bastard, and had no lawful Issue. Or, that the pursuer of the Brieve is Bastard, and so incapable of Succession: wherein, if the proponer be more special, and pregnant, than the apparant Heir, in his alledgence of being nearest and lawful Heir; he will be preferred. Exceptions also are Competent, as to the point of Right, by proponing, and instructing, that the Defunct was denuded of the Fee: but Exceptions upon paralel Rights, that the Defunct had not a good Right, are not competent here. And also Exceptions upon the age of the apparent Heir, or his being forefault, or Rebel, &c. are here competent: and likewise Objections and Debates, upon Instructions and Writs adduced for proving of the Claim and Head of the Brieve. In which cases, if there appear difficultie, or intricacie; the Lords upon supplication, will constitute Assessors or grant Advocation of the Service: and after discussing of the points in jure, will remit the same. either to the same, or to other Judges delegat. But no Objection or Exception will be admitted, unless it be instantly verified; because this Brieve is no Brieve of Plea, Par. 1503. cap. 94. and therefore cannot admit of terms to prove Exceptions.

34. The Debates upon the Brieve being discussed, the Pursuer thereof must prove, and instruct sufficiently the Heads of the same. As first, that the Defunct died last vest and seised, as of Fee, at the faith and peace of our Soveraign Lord: which comprehends, first, the Death of the Defunct, which is ordainarly proven by the Knowledge of the members, Notorietie, or common Fame, without necessity to instruct the same, by ocular Witnesses who saw the Defnnct die, or buried. But in case of the Defunct's Death out of the Countrey, or if it be dubious or controverse; the testimony of Witnesses, or proper knowledge of two, at least, of the Inquest, or Testificats from abroad, especially from the Magistrats of the Place where the Defunct died, or was buried, are requisite: or common Fame, as to Persons who perish, or are killed.

The second poynt of this Head is, that the Defunct died, last vest and Seised as ofFee: which must be instructed, by production of theInfeftment, specially the Instfrument of Seising, and warrant thereof or ground of the same: For though in antiquis the very Precept cannot be shown, yet the Charter, or Disposition willbe a sufficientAdminicle, to corroberat thisSeising, that it be not accounted only as the assertion of a Natar: Yea, there is no doubt, but since the Act of Prescription, consequent Seisings having the Course of fourtie Years, may instruct this point: being sufficient even in the case of Competition, which is much exacter than this. And Spotswood observeth upon Retours, that in Anno 1547. a negativeService was reduced, upon production of a Transumpt of theDefuncts Seising, out of a Protocol transumed before a Comissar, with a Decreet against the Superior; bearing, to have confessed, that he had infeft the Defunct. But here the instructing the Defunct's being once infeft, will infer a Presumption, that he so continued, and so died Infeft: unless the contrary be proven, that he was denuded.

[Page]The third poynt in this Head, That the Defunct died at the Faith and peace of our Soveraign Lord, is also presumed: quia quod inesse debet [...]. And therefore needs no other Probation, but layeth the burthen of Probation upon theAlledger in the contrary, viz. That the Defunct died Rebel, or that he was Forfaulted, or his Blood attiainted: which may be elided, by the Replyes of Relaxation, Dispensation, or Restitution. But there useth small notice to be taken of Rebellion upon civil Debts: but only open Rebellion of War, or upon Treasonable Causes, whereupon the Defunct was declared Fugitve; which makes the Defunct, as to this poynt, not to die at the Faith of our Soveraing Lord. November 21. 1626. Seatoun Supplicant.

35. The second Head of the Brieve, is, That the Pursuer is nearest and lawful Heir to the Defunct in these Lands. Which resolveth in two points: First, that the Fee was provided to such Heirs, as are contained in the Claim, whether they be Heirs of Line, or of Conquest, Heirs Portioners, Heirs of Marriage, Heirs Male, or of Tailzie and Provision. And this can only be instructed by the Defunct's Infeftment, and other ancient Evidents where in dutio, the Presumption is always for the Heir of Line. So that if it be not sufficiently instructed, that the Fee was provided to special Heirs, it will belong to the Heirs general, of Lyne, or Conquest according to Law: as if it be instructed by three consequent Seisings, which ordinarly do not express the the several Kinds of Heirs.

The other point of this Head is, That the Pursuer of the Brieve is nearest lawful Heir: which sometimes also is instructed by the Infeftment. As when the Person to be served, is a Member of Tailzie nominat: as if the Infeftment bear Land, or Annualrents, to be granted to the Feer, and to the Heirs of his Bodie; which failling to George his Brother, &c. George pursuing a special Service, needs no further instruction: because, That he is George, the Defuncts Brother, passeth without probation as Notorium. But ordinarly the Propinquity of Blood must be proven to the Feer, who died last infeft, or to some member of Tailzie substitute. For proving whereof, the Relation must be particularly condescended on, according to the Line of Succession, mentioned in the former Title, as that the Pursuer is the Defunct's eldest Son, or the eldest lawful Son of that Son; or that they are the Daughters of that Son, &c. or the lawful Daughters of the Defunct, &c. And it will not be sufficient to instruct, or serve the Pursuer nearest lawful Heir, without condescending. Here also the propinquity of Blood, being condescended on, and proven; it is sufficient, in whatsoever Degree can be proven, though it were beyond the tenthDegree. Yea, any Degree being presumed to be the nearest Degree, unless a nearer Degree be instructed; for it resolves in this Negative, that there is no other nearer Degree; which as other Negatives, proves it self. And that thePursuer is not only nearest Heir, according to Lineal Succession, by Course of Law; but that he, nor none of the Intervenient Blood were Bastards, or unlawful Children, (which is instructed sufficiently by common Fame, or being so holden and repute, in the Intermediates) it will be sufficient, that nothing is known to the Inquest, on the contrary, unless Bastardrie be on the other part alledged, and instructed. This propinquity of Blood is proven, either by Writ, or by Retours, Infeftments, or Designations, or Acknowledgments of the Feer for the time, bearing such a Person to be of such a Degree, or Relation to him. And in antiquis, Writs bearing such Designation and Acknowledgment, even by others of Fame, will be sufficient. For there is not equal evidence of Fame [Page] required in all Cases. And therefore, when the Fee is to fall Caduciarie, and to cease from the Feer's proper Blood, lesse probation will serve, than when the Competition is betwixt divers Persons of the same Blood; or at least members of the same Tailzie: amongst whom the pregnantest probation will take place. So the Service and Retour of the Earl of Airth, then designed Earl of Strathern, was reduced; because the propinquity of Blood not sufficiently instructed: which could not be known by the Inquest, or was Witnesses, the progresse thereof being far past memory of man; and Hear-say, or common Fame was not found sufficient. Neither were the Writs produced sufficient to prove the said Earls Propinquity of Blood to David Earl of Strathern, Son to King Robert the second, or to Eupham, only Daughter to the said David, and Patrick Graham her Spouse: which progress not being sufficiently instructed, the Right remained with the King, as the unquestionable Descendent of the said King Robert the third, and so Heir of his Brother, the said David Earl of Strathern So that no other lawful Issue, being proven of the said David's own Bodie, nor of any other nearer Brother; all his Right remained with the King, as descending from King Robert the third, who was Brother to the said David Earl of Strathern. March 22: 1633. The King contra the Earl of Strathern. There is another Exception against this Head, That the pursuer hath slain his Father, Mother, Good-sire, Grandsire, &c. whereby he, and all his Issue are excluded from the Heritage of the Partie slain, if he be convict thereof by an Assyse and the next Agnat may be served. Par. 1594. cap. 220. Which was not sustained, where the Slayer was only declared Eugitive, for not appearing to underly the Law, in a Dittay for Slaying his Mother. Feb. 3. 1674. Mr. George Oliphant contra Oliphant.

36. The third Head of the Brieve is, Of whom the Fee is holden in Chief, or who is immediat lawful Superior thereof: and this also be instructed by the Infeftments: whereby the Giver of the last Infeftment will also be presumed to continue Superior, and the Inquest will serve accordingly; unless another Superior be instructed, or acknowledged by the Pursuer. Which acknowledgment, in respect of the Pursuer's hazard of Disclamation, and that the subsequent Superior's Rights are in his own hand, and he cannot be prejudged by the Service; therefore that poynt will be so served Periculo petentis.

37. The fourth Head of the Brieve is, By what Service the Fee is holden, whether it be Ward, Blench, Feu or Burgage; which also must be instructed by the Evidents. And if nothing else appear, the Fee is presumed to be Ward, because that only is the proper Fee, and the others are improper, declyning from the nature of Fees: and therefore are not presumed, but must be proven: And as Craig observes, lib. 2. dieg. 17. It will not instruct the Fee not to be Ward, though it contain a particular Reddendo, of a Cane or Dutie; yea, though it bear pro omni alio servitio & questione seculari: unless it express the said Reddendo to be in name of Blench Dutie, or in name of FeuDutie; So an Infeftment, bearing a particular Duty payable at Whitsunday, and Martinmass yearly, cum servitiis in curiis nostris debitis & consuetis; was found to be a Ward Holding. Hope de Feudi Renovatione Williamson contra Thomson: And an Infeftment bearing sex denarios nomine canae, with a Taxed Marriage, was found Ward. Feb. 7. 1610. As was resolved by Oliphant the King's Advocat, in a Consultation with the Bishop of St. Andrews, for entring the Lord Lindsay to the Lands of Struthers.

[Page]38. The fifth Head is, The Value of the Fee now, and in time of peace. The reason of inserting of this Article, is, because there is due to the Superior a years Rent of the Fee, for the entire of the Heir, which is called the Relief: of which formerly, Title Superiority. And that it might be constant, and liquidat, there was a general Valuation of the whole Kingdom, which is called the old Retour, or old Extent. Thereafter there was a second Retour, called the new Retour, or Extent; whereby the new Retour of some Shires was made the Triple, and some the Quadruple of the old; Yea, different new Retours were in the same Shyre, but there is no new Retours in Southern Shires, upon the Border, which were frequently wasted with War, and little addition in the Northern Shyres. So the meaning of the Article is, what the Fee is worth now, that is, what the new Retour, or Extent thereof is, and what it was worth in the time of Peace, or what is the old Extent thereof. Craig declares, he could never find clear satisfaction in the reason of these expressions, especially, why the old Retour is called that which was in the time of Peace. And he conjectureth, that because our fore Fathers are said to rest in peace, therefore, by the same peace, is meant the time of our Predecessors. But I conceive the matter may be better cleared thus. The Casualities of the Superiority were, of old, the Chief Patrimony of the Crown of Scotland, and were further extended than of late: and therefore it seems, that the time of the making the new Retour, and cause thereof, was the frequency of War, requiring an Addition of the Royal Revenue And though, through the alteration of the Rate of Money, neither of the Retours be now considerable; Yet doubtlesse they were very considerable in those times. So that by quid valet nunc, is to be understood in time of War, at which time the new Retour was made: which is the more evident, by the opposite member, what was the Value in the time of Peace. So that the old Retour, being that Value which was before the necessity of heightening thereof, by the War, is fitly said to be that which was in time of Peace: and the new Retour, that which was made in time of War. And immediately, after the Constitution thereof, the Brieve was made to expresse it, by the then present time, Nunc: which hath been always so continued, because the Style of Brievs is not to be altered. This is the more evident, that the Bordering Shyres, which were frequently wasted, by Incursions, were not altered in their Extent: So that it hath been made in a time of War.

The new Extent is not only the Rule of Relief, but of Non-Entrie, in Lands holden Ward, and Blench: for the new Retour Mail is only due till general Declarator. But in Feu Lands, there is only regard to the Extent for during the Non-Entry thereof, at least before general Declarator, nothing is due: but the Feu Dutie, and the Duplication thereof for the Relief. Annualrents have no difference, before or after Declarator: and therefore are alwayes Retoured to the full Value of the Annualrent, and is thus exprest, quod valet seipsum.

39. The sixth Head is, Whether the Pursuer be of lawful age. Wherein we must distinguish betwixt Ward Holdings and other Holdings, Blench, Feu, or Burgage; For in these, any Age is lawful Age. but in Ward: Holdings, because the Superior by vertue of the Ward, hath the profit of the Land, during the Heirs Minority; therefore they cannot enter till their Majority, at which time, only the Heir is of lawful Age: which in Men is, twenty one Years compleat, and in Women fourteen Years compleat. January 27. 1610. Laird of Kilbirnie contra Fairly. Yet if the King, or any other Superior give Dispensation [Page] of the Age, the Service will proceed, but the benefit of the Ward continueth with the Superior, by the Dispensation in the Disposition. The Heir Age must also be instructed to the Inquest, either as being Notour, by inspection of the Persons; for it would be Ridiculous, to prove a Grayheaded Heir to be Major, but in dubio, Witnesses, or other sufficient Adminicles must be adhibited.

40. The seventh Head of the Brieve, is, In whose hand the Fee is; that is, to whom the profit and benefit thereof doth now belong. For ordinarly the Fee is Retoured; to be in the hands of the Superior by reason of Non-Entrie, but sometimes retoured to be in the hands of the Supeiors, Superior, when the Sùperior hath lost the Casualities of the Superioritie, during his Life; and sometimes it is in the hands of the Liferenters, by Conjunct-Fee, or Liferent holden of the Superior; which doth not hinder the Entrie of the Heir to the Fee, yet excludeth Non-Entrie.

The remanent Particles of the Brieve, From what time, how, by what Service, by whom, and through what Cause; are but circumstances relative to the last Head: that thereby it may appear, First, How long the Fee hath been in Non-Entry, or in the hands of the immediat Superior, or Liferenter. 2. How it came to be in that Condition: So it became in Non-Entrie, by the Vassal's Death, and in the hands of the mediat Superior, by the contumacie of the immediat Superior, in not entring his Vassal; and in the hands of the Liferenter, by the Infeftment of Liferent, granted by the Superior. 3. The kind of Service which relateth to the Fee's being in the hands of the Liferenter, in respect that the Liferent, is oftimes a different Holding from the Fee, and is ordinarly Blench; and therefore it is the Superiors Interest, to know what such Service is, and also to know by whom, and through what Cause, the Fee is in the hands of such a Person. These Circumstances therefore, do not make distinct Heads of the Brieve, and are not al ways necessary to be retoured, as the former Heads be.

41. The points aforesaid being cleared, and instructed to the Inquest, the Service is the Sentence or Decreet: which ought to be sealed with their Seals, and with the Seal of the Judge, to whom the Brieve is directed, and is returned to the Chancerie, whence it is called a Retour, being Registrate there, and Extracted; till which it is not compleat: neither doth the Service ordinarly instruct the active Title but only the Retour. The Service is keeped in the Chancery, for Warrant of the Retour: Yet it was found, that Services before the year 1550. were sufficient to satisfie the Production in Improbations, or Reductions, without producing the Retour it self; because at that time the Books of the Chancerie were destroyed by War. Feb. 17. 1624. Lord Elphinstoun contra Earl of Marr.

42. Retours are easily annualled, or reduced, because no Desender is called thereto, and the Probation in most part, is by presumption, as hath been shown; and by the proper Knowledge of the Inquest, or Witnesses, whereof there seldom remaineth any Testimony in retentis. The Lords would not reduce a Retour for want thereof; But ordained the whole Inquest to be examined upon oath, upon what Evidence they served. Feb. 24. 1665. Sr. James Mercer of Aldie contra William Rowen. A Retour being found null in one Head, was found null in otum, Hope, [...]; Laird of [...] contra

[Page]A Retour of a Sister as Heir to her Brother, was found null by Exception upon production of another Brother's Retour, though posterior, who thereupon was preferred; albeit an excommunicat Papist. Feb. 16. 1627. Lord Colvil contra Mr. Walter and Christian Herds. And a Retour of a second Brother served Heir to his Father, where the elder Brother was absent, and repute dead: but returning home again, and granting Band to a Creditor, who charged him to enter Heir, and apprised and possessed; the Retour of the second Brother was thereupon found null by Exception; albeit twenty Years after the Date thereof: though by the Act of Patliament, 1617. cap. 13. Retours are not quarrellable by Reduction, or Summonts of Error; unless the same be intented, execute, and pursued within twenty Years after the Service, and Retour, in respect of the Apprising, and Possession within these Years, which import an interruption; and that the second Brother's Retour was null by Exception, and needed no Reduction. January 11. 1673. Lamb contra Anderson.

A Retour was also annulled by Exception, by referring to the Parties oath, that he had no contingencie of Blood with the Defunct, Feb. 10. 1636. Murray contra Sinclair and Meikle. The like in the case of a Woman retoured sole Heir: it being instantly verified, that there was another Sister. Hope. Retour of Idiotrie, Fairly contra Fairly. The like was found by Reply, referring it to the Partie's Oath, that he was Bastard. Spots. Retours, Murray contra Murray.

43. Retours are ordinarly annulled and reduced by a great Inquest, of twenty five Members: who do enquire, not only concerning the Verity, and [...] of the Retour; but also concerning the Ignorance and Malice of the Jurantes super assisa: which is not always inferred, when the Retour is reduced. As if it be found, that the Defunct died not, last vest, and Seased; as of Fee; by instructing that he was denuded: July 7. 1663. Isabel Mow contra Dutchess of Buccleugh. Or that he died not at the Faith, and Peace of Our Soveraign Lord; by instructing that he was forefault: or that he was not nearest and lawful Heir; by instructing a nearer Heir: is no Error in the first Inquest; seing these points were presumed, and needed no probation. And in like manner, if by Reduction, there be a more pregnant Condescendence and Probation for another Partie, than for the Heir served; it will be no wilful Error, unless competition had been at the time of the Service. But it must be an evident and grosse Error, in the positive Probation, specially concerning the Death of the Defunct, and his being once infeft; the special Relation, and Degree of Blood of the Heir, his Age, and the Extent of the Fee, which though the poynt of least moment, yet will annull the Retour. But if there be a probable cause for the Inquest, as by production of Writs containing wrong Extents; they will be declared free of wilfull Error. Spots. Retours, Mark Kerr contra Scot of Hartwoodmires. The manner of reducing of Retours, is, by a Summons of Error against the Assysors before the Kings Council, which is now the Lords of Council and Session. Par. 1471. cap. 47.

44. Though it be the ordinary way to annull Retours, by a great Inquest; yet the Lords do sometimes sustain Reductions thereof as erronious, by Witnesses before themselves, without a great Inquest, July 7. 1663. Isabel Mow contra Dutchess of Buccleugh.

[Page]45. The Reduction of Retours being of such hazard to the members of Inquest it is statute Par. 1494. cap. 57. That they shall not be reducible, but within three years after the Date; so as to inter Error against the Inquest: albeit they may be reduced, as to render the Retours null in themselves at any time, within twenty Years after they were deduced. Par. 1617. cap. 13. Which Act reacheth only Retours after it, but not Retours before, and actions against the same; which Prescrive by the general Act of Prescription, Par. 1617. cap. 12. As was found November 28. 1665. Younger contra Johnstoun.

46. The Heir being thus specially served and retoured, if the Fee immemediatly hold of the King, he doeth thereupon obtain Precepts out of the Chancery, of course without Citation; commanding the Judge ordinary of the Place where the Feelyes, Sheriff or Balliff, to give Seasine to the Person retoured, capiendo securitatem, taking Security for the Non-Entry and Relief due to the King: for which the Judge ordinary is countable in Exchequer, unless the Profites belong to himself as Bailiff of Regality. If the said Judge ordinary do not grant Seasine accordingly, the Lords upon Supplication, and Instruments of his disobedience, will grant Warrant to the Director of the Chancery, to issue Precepts to an other Person as Sheriff in that part specially constiture, without first using Horning against the Ordinary disobeying. Spots. David Balfour Supplicant.

These Precepts, because of the Clause capiendo securitatem, were found to make both the person of the Heir, and the Ground lyable for the Sums due thereby, though Infeftment was never taken. Spots. Sheriff, Laird of Stobs contra Laird of Lauristoun. These Seasines are appointed to be given by the ordinary Clerk of the Jurisdictions, Parl. 1540. cap. 77. Parl. 1567. cap. 27. Parl. 1587. cap. 64. If the Fee be holden of any other Superior than the King, if he do not willingly grant Infeftment upon fight of the Retour; the Heir will of course get Precepts out of the Chancery, to charge the Superior to enter and infeft the Heir so retoured: with certification if he fail, he shall lose the benefite of the Superiority during his life: containing also this Clause in favour of the Superior, faciendo vobis quod de jure facere debet. And upon Instruments of the Superior's Refusal or Delay, being thrice required; Precepts are directed out of the Chancery in course, against his Superior, to supply his place: and if he should refuse, the like Certification is competent against him, and so Precepts are direct against his immediat Superior, till at last it come to the King as supreme Superior; who refuseth none, but thereupon Precepts of Seasine are direct out of the Chancery to the Judge ordinary of the place to give Seasine.

47. For preventing of the loss of the Superiority during life, the Superior being charged, if he obey not, must supend the Precepts: which is done most ordinarly upon this Reason, that the Heir hath not satisfied the Relief and Nonentry Duties, due to the Superior, conform to the Clause of the Precept, faciendo vobis, &c. Which Craig lib. 2. dieg. 17. shows not to have been sustained by the Lords, seing the Superior had poynding of the Ground competent therefore: yet the custom since hath been contrary, July 29. 1624. Laird of Capringtoun contra Laird of Keirs. In which case, Keirs being pursued to receive Capringtoun in place of Capringtoun's immediate Superior, Foulshiels, who being charged to enter Heir within fourty days to the Superiority, that he might receive Capringtoun his Vassal, obeyed not; and therefore Keirs, Foulshiel's [Page] Superior supplying his place, was ordained to receive Capringtoun, he always paying the Non-entry; neither was Capringtoun the Sub-vassal put to take out Charges against Keirs as he had done against Foulshiels, but this Action was summarly sustained. The like July 16. 1628. Earl of Wigtoun contra Lord Yester. March 12. 1630. Somervel contra Downie. Where the Annualrenter craving Entry, was not found lyable to pay the full Annualrent during the Non-entry, but the Blench duty only. And though in the Case of Peebles contra Lord Ross, January 23. 1630. Peebles as Superior craving the Nonentry Duties for three Terms subsequent to the Ward, to be payed to him by the heir craving Entry not according to the new Retour, but according to the full Duties, as being subsequent to the Ward; was ordained to enter the heir without payment of those Duties, without prejudice of his Right thereto Prout dejure: the reason is rendered, because the Duties were not liquid as the new Retour is, neither was the case it self clear and unquestionable, and therefore was only reserved. If the Superior himself be not entered, he may be charged to enter within fourty days, with certification if he fail, to lose the Superiority during his life, conform to the Act of Parliament 1474. cap. 57. and if he fail, his Superior may be pursued via actionis, to supply his place, and receive the Sub-vassal with the same Certification, without necessity of charging him with Precepts out of the Chancery: As was sound in the said Decision, Capringtoun contra Keirs.

48. The Certification of loss of the Superiority during the Superior's life, though it would seem to extend to all the Casualties of the Superiority befalling after contumacy; yet it was found only to extend to the Non-entry, which was purged by the immediat Superior who supplied the place of the mediat Superior: but that subsequent Wards and Liferent-Escheats did notwithstanding belong to the immediat Superiors. March 24. 1623. James Hay contra Laird of Achnames. In which Case it was also found, that the Feu and Blench Duties contained in the Reddendo, did no ways fall by the said Certification: which is clear, because these are not Casualities of the Superiority. But whether these Casualities will not be lost during the life of the contumacious Superior, as the Certification would import, and will belong to the mediate Superior supplying his place, is not so clear: because if the negative hold, the Certification which seems so great, signifies nothing.

49. The next Reason of Suspension of these Charges for entring of Vassals, is, That the Heir retoured doth not produce the ancient Evidents, that the new Precept of the Superior for obedience may be made conform thereto. This Reason was repelled, November 14. 1609. Laird of Drum contra Laird of Ley. And though that might have been admitted, because of old Infeftments were simple; but now since they are clogged with many Provisions, which fall under the Service of the Brieve, there is reason that the ancient Evidences should be showen with the Retour, and those Provisions in the Precept offered to the Superior; otherwise the said Provisions may become ineffectual: because these Precepts and Infeftments thereupon, will be sufficient Rights, without showing any elder. And seing it is the Vassal's duty to show his Holdings to the Superior, there can be no time so sit as at the Entry.

A third Reason of Suspension of these Charges, useth to be upon the Superior's Right to the Property by Recognition, or upon Improbation of the heir's Retour. Which if Decreet be not past thereupon, will be repelled, and only reserved as accords: but will not be sustained upon a Reason of prejudiciality [Page] of a Reduction at the Superior's instance. Spots. Sheriff, Laird of Taich contra Hume. Craig lib. 2. dieg. 17. moveth this Question, When one Person is the Feer, and another Liserenter of the Superiority by Reservation of his Frank-Tenement, or Liferent; and the like is, when Liferentis by Conjunct-fee: Of whom in that Case ought the Heir crave to be entered? In which he relates, that the Lords in favour of the Vassal, found in the Case of Cransioun, Brother to the Laird of Cranstoun, That the Heir might enter by any of them he pleased, being without detriment to either of them. As to the Casualities of the Superiority, how far such Casualities belong to Liferenters, Vide Title Liferents.

50. There is another weighty and subtile Question in the Enty of Heirs, Whether that Person who falls to be nearest Heir at the time of the Defunct's decease, may not then be entered, though there be a nearer in possibility, or in hope? There is no question but when a nearer Heir is really or probably in Being, in the Womb, though unborn; that the Service must be stopped till the Birth. For in all things working in favour of those unborn, they are accounted as born: and that not only for presuming that there is a living Child, not a salfe Conception; but presuming that it is a Male Child, not a Female. And therefore Daughters of a Defunct cannot be served Heirs, if there be a probability of a posthumus Child, who is presumed to be a Son: whereby they will be excluded till the contrary appear. It was so amongst the Romans, who therefore sent the Womb in Possession for the Child. But with us, the Fee of necessity must remain in Non-entry: and the Friends or nearest Agnats of the Birth, as Pro-tutors, may continue the Possession. But the difficulty is, when the nearer Heir is in possibility, and neither conceived nor born: and it occurs specially in two Cases. First, in the Case of Heirs ascendent: as when the Father succeeds to the Son, having no Issue, Brother, or Sister. For in that Case, though at the Defunct's death there be neither Sister nor Brother gotten or born; yet the Father may have them after. So that the question will be, Whether the Father may enter immediatly upon the death of his Son, having no Children, Brother, nor Sister born, nor in the Womb; or if he must attend the future possibility of a superveening Brother or Sister? The other Case is in Heirs of Tailzie, whereof there was a notable instance, long debated in Anno 1647, and 1648. on this occasion. The Laird of Blackwood married his Natural Daughter Marion Weir, having no other Children, to Major James Bannatine; and in Contemplation of the Marriage, and for a Sum advanced by the Major for satisfying his Debts, he disponed his Estate of Blackwood to Major Bannatine and the Heir to be procreat betwixt him and Marion Weir; which failing, to the Heirs of the said Marion Weir by any other lawful Husband; which failing, to the Heirs of the Bannatine. The Major died without Issue: So the question was, whether Bannatine's Heirs should succeed, or if the Succession behoved to be pendent, till it appeared whether there would be any lawful Heir of the Body of the said Marion Weir, who was no Member of the Tailzie her self, but only the Heirs of her Body. The whole question resulted in this Point, Whether whilks failing was to be understood failing de praesenti at the time of the Feer's death, or failing simply as being [...] at no time. The matter was not dicided, but transacted, Whereby Marion Weir being married to William Lowrie, and having Children during the dependence of the Plea, the matter ended by Transaction betwixt the Laird of Corhouse, who was Major Bannatine's Heir, and William Lowrie taling Burthen for his Heirs with Marion Weir, thus; That the tailized [...] should belong to Marion Weirs, Heirs: That William Lowrie for them should pay to Corchouse 20000 pound Scots, as the Sum which the Major his Brother [Page] had contracted for payment of Blackwood's Debts, and had payed out upon Contemplation of the Marriage. There was a very equitable Transaction to the same effect, as if the Clause in the Tailzie had been interpret thus; That failing Heirs of Marion Weir, that is, so long as the Heirs failed, the Major's Heirs should succeed to him in the tailzied Estate. So that where there became to exist Heirs of Marion Weir, both that they should succeed to Major Bannatine's Heirs, to wit, Corehouse who was served Heir of Tailzie to his Brother Major Bannatine; and should exclude Corehouse his Heirs of Line. Whereby the Fee should never be in pendente at the death of the last Feer, but that Person should be entered as Heir of Tailzie, who at the death of the Defunct Feer, or at the time of the Service, was nearest Heir of the Tailzie: whereby Corehouse should succeed as Heir of Tailzie to his Brother, because at his death, neither of the two former Branches of the Tailzie were existent, viz. the Heirs betwixt the Major, and Marion Weirs heirs by another husband. And therefore, a judicious and just Inquest lerving a Brieve for the Heirs of Tailzie of Major Bannatine, could not but find that he died last vest and seased as of Fee, in the tailzied Estate of Blackwood; and that the Majors Heir of Line, to wit Corehouse, his immediate elder Brother, is the nearest Heir to the Major by the Tailzie, there being no Heir of Marion Weir then existent, conceived or born, she being unmarried. For if she had then had a lawful Child, the Inquest behoved to have served that Heir, as nearest Heir of Tailzie to Major Bannatine, then his Heir of Line. Neither would that Child be excluded; because the Child could not be Heir to Marion Weir while she was on life: for Heirs in that case were only mean'd, such as might be Heirs if she were dead. Suppose then there had been a Son betwixt the Major and Marion Weir, who had been infeft as Heir to his Father, and died without Issue; Marion Weir at her death having then a Daughter by asecond Husband: that Daughter would have succeeded as Heir of Tailzie, albeit a Son of Marion Weir were in possibility, and in the nearest hope, and to whom the title of her Heir would be most proper, as being her Heir of Line, or Heir simpliciter: yet the Fee would not remain in pendente and vacant till the event of that possibility, but the Daughter would be served as nearest, at the last Feer's death. And therefore, the Inquest could not justly swear, but that Major [...] Heir of Line, is his nearest Heir of Tailzie the time of the Service. For if it should be [...], that there were a nearer Heir in possibility or hope; the Inquest could not demur thereon: because an Heir in possibility is not, but only may be. And therefore, the Major's heir is the nearest heir of Tailzie, who needs not be served heir of Line to the Major. If the Major had an untailzied Estate; his Brother might renounce to be heir of Line to him in that Estate, and yet might be heir of Tailzie to him in the tailzied Estate, as being still his heir of Line demonshrativè: that is, the Person who might be his heir of Line. And therefore, after Corehouse his death, if he died infeft as heir of Tailzie to his Brother; if the question again had arisen betwixt Corehouse his Son as his heir of Line, and Marion Weirs Son being then existent; an Inquest could not justly ferver Corechouse heir of Tailzie to him in the Estate of Blackwood: because then Marion Weirs Son was a prior Branch of the Tailzie, and so behoved to exclude Bannatine's heirs of Line, which are the posterior Branch. Therefore, in lieu of this temporary Succession of Corehouse, resolving in his Liferent, as the Branches of Tailzies frequently do; he accepted 20000 l. which was his Brothers true Interest, and denuded himself in favour of Marion Weirs Son, the prior Branch. So we are left in both to a rational Debate, without decision. As to the first Case, we have already showen, both by Reason and Practice, That failing the Feer's Children, Brother and Sisters, [Page] his Father and Grand-father succeed, and exclude their Collateralls. So thence it necessarly followeth, that these Ascendents may be served without delay: otherways they could never be served; there being ever possibility of the Issue of Men. Yet if they should not be entered before the superveniency, even though but in the Womb, the same would take place: but if the Ascendent be actually entered, the Law affordeth no remedy, Reversion, or Restitution. Neither can this difficultie be a Reason against the Succcession ofAscendents: because the question is only betwixt them and their own Children, and nothing operats in favour of their Brothers and Sisters, or their Descendents. As to the other Case, in the instance proposed, it seems the Succeession ought to have depended, till the event of the lawful Issue of Marion Weir. First, because that had a determined time, by the Course of Nature, viz. the fifteth or fiftieth two year of her Age; at which time, the Issue of Women is repute extinct: which is not so in the case of Men. Secondly, in Tailzies upon Contracts, and for onerous causes; respect is to be had to the meaning, and interest of the Parties contracters: and in dubio pars mitior est sequenda. And that sense is to be imbraced, by which the provisions can have some effect: and not that by which they can have none. Whereby it may seem, that it was Blackwood's meaning, that the Succession of his own Natural Daughter should be substitute, in the second member, to the Heirs betwixt the Major and her: and that while these were possibe, his Heirs should have no place. Otherways the second membet had been elusory. For if by sailling the Heirs of the Major with the said Marion, at the time of the said Major's Decease, Marions Heirs, by another lawful Husband should take place; her other Heirs could never take place. For she could not have another lawful Husband, at the time of the Majors her first Husband's Death.

Yet the Reasons on the contrary are no lesse pregnant; and that in this Case, as in the Case of Heirs ascendent, the Heirs nearest at the time of the Feer's Death, should have Rights immediatly to Succeed: because the Fee necessarly must belong to some Person, and it cannot hang in the Air, on a future possibility. Which is a principle, whereof mention and use hath been made frequently before. Secondly, if that were the meaning, then at the time of the Major's Death, the Lands were truely nullius: and so as caduciary, behoved to sall to the KING, as ultimus Haeres. But if it had been so exprest, That no place should be to the Heirs of the Major's other Heirs, till there were no possibility of Heirs of Marion Weir; the defficulty seems the same, that the Fee should be pendent, and nullius. It may be answered; That even in that other Case, the Major's other Heirs would succeed, notwithstanding that provision, which doth but resolve in aPersonalObligation to those Heirs, to forebear. Yet they were Heirs: and if contrary the provision, they should enter, it would give interest to the Heirs of Marion Weir, to compel the Major's Heirs having entered, to denude themselves in their favour. But there was no such thing in this Case. And as to the Reasons upon the contrary, though it may seem, Black-wood's interest, that the Heirs of his Natural Daughter should be in the second Place; yet non fuit habilis modus to make the Fee pendent and nullius. But to that which is the main Reason; Otherways the second member behoved to be elusory: it is answerd, That it is not elusory, because the most ordinary and hoped Case was, That there should have been Heirs betwixt the Major and Marion; who, if they had died without Issue, the Lands would have fallen to Marions Heirs by another lawful Husband, and not to the Major's other Heirs. So that the [Page] case which fell out, that there was no Children procreat betwixt the Major and Marion was not feared, and so not provided for: as it oft-times fares in such cases. Therefore we conceive it more probable, that in all cases, that Person, who at the time of the Defunct's Death, is in being born or unborn, may be Heir, and immediately enter, so soon as by the birth it appears who may be Served.

There hath a later Case occurred, and been determined on that occasion. The late Earl of Leven tailzied his Estate and Dignitie to the Heirs Male of his Body: Which failling, to the eldest Heir Female, without Division: Which failling to the second Son of the Earl of Rothess: Which failling to the second Son of the Lord Melvil, who had Married the Earl of Levens Sister: Which failling to the second Son of the Earl of Weemes, who had married his Mother. Leven left three Daughters after him, who died all un-entered. Rothess having no second Son, David Melvil second Son to the Lord Melvil, took a Brieve out of the Chancery, to serve himself Heir of Tailzie to the Earl of Leven. The Earl of Rothess took a Gift of the Non-entry, in the name of Sr. William Bruce, who raised an Advocation of the Brieve, with a Declarator, That while there was no hope of a second Son of the Earl of Rothess's Body, David Melvil, nor no Son of a subsequent Branch could be entered: Or declaring, That the Lands were in Non-entrie. Both members of the said Declarator the Lords did sustain, and stopped the Service: albeit many inconveniences were represented, thence arising. As that there could be no active Title for pursuing the Rights of the Familie, or for receiving Vassals: nor any Accesse to the Estate passivè by Creditors. But the Lords did reserve to the special Declarator, how far the Non-entry would reach, whether to the retoured Duties only, or to the full Rents. But many of the Lordswerc of opinion, that David Melvil should enter as Heir of Tilzie; Yet so that if the Chancelor had a second Son, he or his Issue would succeed, as Heir of Tailzie to David Melvil: and neither his own Heirs of Line, nor the Earl of Weemes's second Son. Because at the time of David Melvils Death, the Chancelor's second Son would be a nearer Heir of Tailzie to David than his own Son, as being of a prior Branch of the Tailzie. Feb. 22. 1677. Sr. William Bruce contra David Melvil. But the Lords found, that the Non-entrie by the special Declarator, could not reach to the full Rents, but only to the Retoured Duety; Seing the apparent Heir, was neither in culpa nor mora, Which doth only infer the full Duties. And therefore found the Donatar had right to the retoured Duties: and that the remainder continued in haereditate jacente, to be managed by the Lord Malvil, as Curator datus bonis of the Estate of Leven by the King, having power to manage the Affairs of that Estate as a Tutor, or as if an Heir had been entred. July 24. 1677. inter eosdem.

51. It cometh oft-times to pass, that through the unclear conception of Clauses of Provision, it becomes dubious, who is thereby constitut Feer, and who Liferenter: as is ordinary when Sums of Money are lent, and the Obligement to repay is conceived thus; To be payed at such a Term to the Lender, and in case of his Decease, or failing him by Decease, or after his Decease to such a Person. Whence these Questions result; first Whether the Lender be Feer of the Sum, and the Person substitute Heir of Provision? Or whether the Person substitute be Heir; whether he may succeed at any time, or only if the Lender die before the Term of Payment? As to the first Question, the Person substitute is not Feer but Heir: and the Lender is not Liferenter [Page] but Feer; and therefore may dispose of the Sum at pleasure, by Assignation, Legacy, or otherwise, as other Feers may. February 22. 1623. Mr. John Leich contra Laird of Balnamoon. February 28. 1626. Tulliallan contra Laird of Clackmannan. And where the Clause bare to be payed to Clackmannan and his Spouse, the longest liver of them two; and in case of their Decease, to Alexander Bruce their Son in Fee, with an Obligement to infeft the Spouse in Liferent and the Son in Fee, in an Annualrent effeirand thereto; yet the Father was found to have Right to dispose of the Sum. The like was found Feb. 20. 1629. Laird of Drumkilbo contra Lord Stormount: where the Father surviving the Term of payment, though he freely and without a Cause onerous, discharged the Sum provided to be payed to him, and failing him to his Son; though it bare a Clause of Infeftment to the Father in Liferent, and to the Son in Fee, but no Infeftment followed. The like, though the Father and the Son subtitute, were both infeft in one Seasine: July 23. 1675. Laird of Lamingtoun contra Muire of Annistoun.

As to the second Question, The more ancient Decisions have interpret such Clauses strictly, thus; That the Sum payable at such a Term to the first Person, should be payed at that Term to the Person substitute; so that it should be payable at no Term thereafter to the Person substitute: but if the first Person survived the Term of payment, though he did nothing to alter the Substitution, the same should not belong to the Person substitute, but to his heirs. Hope succession. Spots. Assignations, Laird of Bonytoun contra John Keith. Feb. 22. 1623. John Leich contra Laird of Balnamoon. Where it was found, that such Sums came under the first Persons, surviving the Term, their Testament, and belonged to their Executors. But more frequent Decisions have with better reason interpret such Clauses on the contrary, that the Person substitute is heir of Provision whensoever the Defunct dies, whether before or after the Term. Because constitution ofheirs is simply, and not ad diem: but mainly because the ordinary intent of such Clauses, is to appoint Portions for the Bairns named therein, who therefore are substitute heirs of Provision to their Father; so that if he do not expressly alter or prejudge the Substitution, his intent is, that they succeed him whensoever. Spots. Assignations, Currie contra Nimmo: Relict of John Thomsom contra William Thomson. The like in a Legacy left to a Person, and failing her by Decease to another: which was not found à fidei commissum, to be restored by the first Person to the second at her death. And therefore the Assigny of the first Person was preferred. Spots. Disposition, Sarah Reid contra Alexander Downie. January 18. 1625. Wat contra Dobbie. June 26. 1634. Keith contra Innes. Therefore such Sums bearing no Clause of Infeftment, yet fall under Testament, neither hath the Relict a third thereof, Hope, Successions.

In these Substitutions, though the Person be substitute as heir, yet he is not properly heir, and so needs not to be entered by any Service, because he is nominate, and there is no other heir. But inTailzies, though some of the Members of the Tailzie be nominate; yet because in Lands as is before said, the Person nominate is never the first heir: therefore there must be a Service, to enquire whether the first heir fails or not, which is unnecessary where there is one Person only nominate to be heir, concerning which, there needs beno enquiry.

Though the Persons substitute be as heirs, it followeth not that they must be lyable as heirs of Provision to the first Person's Debt, contracted before the [Page] Substitution: because they are not properly heirs, not requiring any Service They are interpretativè like to heirs, because the nature and intent of such Clauses is not to constitute the first Person as a naked Liferenter, but that they are understood as if they were thus express'd; With power to the first Person to alter aad dispone at his pleasure during his life. So thereafter, only the heirs substitute take place, though in these respects as heirs, yet in reality as secundary, conditional, or substitute Feers. But the Substitute is lyable, other [...] Heirs and Executors being discussed; unless the Person substitute abstain. Because the Substitution is a gratuitous Deed in prejudice of Creditors, post contractum debitum, and so annullable; and the Substitute medling, is lyable to repay quoad valorem only, but never by an universal passive Title. July 3. 1666. Fleeming contra Fleeming.

The next difficulty is, who is Feer in Provisions, or Tailzies of Sums, Annualrents, or Lands in Conjunctfee: wherein these general Rules do ordinarly take place. First, That the last termination of Heirs whatsoever, inferreth that Person of the Conjunctfeers, whose Heirs they are, to be Feers, and the other Liferenters. 2. When that is not express'd potior est conditio masculi, the Heirs of the Man are understood. But these have their own Limitations; as first in Moveable Goods, and Sums provided to a Man and a Wife, and their Heirs, without me ntioning, which failing to whose Heirs the same should be due, were found not to fall to the mans Heirs, but to divide equally betwixt the Man and Wifes Heirs. February 2. 1632. Bartholomew contra Hassingtoun. February 18. 1637. Mungle contra John Steill. Yea, a Clause in a Reversion redeemable by a Man and his Wife, and their Heirs, was found to constitute the Wife Feer of the Reversion; because she was Feer of the Land Wadset. Hope, Liferent, Kincaid contra Menzies of Pitfoddels. But an Assignation to a Reversion provided to a Man and Wife, the longest liver of them two and their Heirs, was found to make the Man only Feer. Hope, Husband and Wife, Walter Collistoun contra Laird of Pitfoddels. A Clause in a Charter providing Lands to a Man and his Wife, the longest liver of them two, and the Heirs betwixt them; Which failing, to the Heirs of the Mans Body; Which failing, to the Wife her Heirs whatsoever: though the last termination was upon the Wife, yet the Husband was found Feer. July 24. 1622. Ramsey contra Laird of Conheath. The like in a Clause providing a Sum, being a Wifes Tocher, to the Man and Wife, and the longest liver of them two in Conjunctfee, and to the Heirs betwixt them; Which failing, the Wifes heirs; yet the Husband was found Feer: and therefore the Creditor apprising, excluded the Wife and her heirs. January 29. 1639. graham contra Park and Jarden. And a Bond providing a Sum to a Man and his Wife in Conjunctfee, and the Bairns procreat betwixt them; which failing, to two Bairns of a former Marriage nominatim, containing a Precept for infefting the Spouse and the two Bairns named, whereupon all the four were infeft: yet the Father was found Feer, and all the Bairns of the Family, Male and Female equally, were found heirs of Provision; and the two Bairns named were found Heirs substitute, failing the Bairns of the Marriage, January 14. 1663. Thomas Beg contra Sir Thomas Nicolson. And a Bond bearing a Sum borrowed from, and payable to Man and Wife, and longest liver of them two in Conjunctfee, and to the heirs, betwixt them and their Assignys; Which failing, to the Heirs and Assignys of the last liver: found to constitute the Husband Feer and the Wife Liferenter, albeit she was last liver, and that her heirs of Line were found heirs of Provision to the Husband. January 2. 1668. John Justice contra Mary Barclay his Mother. A Tocher provided to the Husband and Wife, the longest [Page] liver in Conjunctfee and Liferent, and to their Bairns in Fee; was found to make the Husband Feer, and that the Father might alter the Substitution. December 12. 1665. Mr. John Pearson contra Martine. And generally in all Infeftments in Conjunctsee betwixt Man and Wife, the Husband is always interpret to be Feer, and the Wife Liferenter: albeit the last Termination be the Wifes heirs; who are heirs of Provision to the Husband, unless the Right flow from the Wife originally: as if she should resign her Lands in favour of her Husband, and her self in Conjunctfee, and the heirs of the Marriage; which failing, her heirs: or if the Right did flow from the Wifes Father by a gratuitous Deed. But by the Contract of Marriage, a Father oblieged himself to infeft the Husband Contracter, and his Daughter, in Conjunctfee and Liferent, and the heirs betwixt them; which failing, the Daughters heirs and Assignys whatsoever. And by the same Contract, the Husband was obliged to provide all Lands that she should acquire or succed to, to himself and Wife, the longest liver of them two in Conjunctfee, and to the heirs betwixt them; which failing, the one half to the Husband's heirs, and the other to the Wifes heirs, and their Assignys. By both these Clauses the Husband was found to be Feer, and the Wife Liferenter: albeit the Tenement disponed by the Father was not nomine dotis, yet there was no other Tocher, July 2. 1671. Adam Gairns contra Isabel Sandilands. Yet a Clause in a Minute of a Contract of Marriage, obliging the Husband to infeft his Wife in Conjunctfee and Liferent in such a Barony named, and obliging him and his Heirs and Assignys, that all and whatsoever Lands or Sums of Money should be purchased by him during the Marriage, that Security should be made in Liferent thereof, as of theforesaid Barony, to his future Spouse in case of no Issue of Children, the one half of the said Conquest to be disponed upon as the Wife shall think fit; the Conquest was found to be equally to the Husband and Wife, and that she was Liferenter of the whole, and Feer of the half: in respect the Minute did not bear whose heirs should succeed; and that the Conquest was all to be expected by the Wifes Means, therefore she being Conjunctfeer, that the one half of the Conquest should be disponed as she pleased; she was found Feer of that half, as not being a Faculty, but a Power of Disposal importing Property. June 27. 1676. Earl of Dumferling contra Earl of Callendar.

52. There do many questions arise, as to the Succession of Heirs of Provision, by Clauses of Conquest in Contracts of Marriage. The main question is, what is accounted Conquest; Whether that which is acquired, and thereafter disponed, be accounted Conquest, either as to the Wife, or to the Heirs, or Bairns of the Marriage. As to which it hath been shown before, that such Provisions infer not only a Succession to the Heirs, or Bairns of the Marriage, as Heirs of Provision; but thereby the Wife or Heir, and Bairn of the Marriage, have an interest as Creditors that the Husband, or Father cannot, ad arbitrium, do Deeds prejudicial to that which is once acquired: but the Husband is not thereby bound up from disponing to Strangers, for causes onerous; or to other Wives or Children, for competent Provisions. But he may not otherways intervert the design of those Provisions, by taking the Rights to Wives, or Children of another Marriage; unlesse he have not means aliunde to provide them. And therefore the Husband being oblieged, to take all Sums acquired, during the Marriage to to himself and his Wife inConjunct-fee; having taken a Sum acquired during the Marriage, in the name of his second Son: his Relict was found to have Right to the Annualrent thereof. July 16. 1625. Knox contra Brown. The like, where the Bonds were taken originally in the name of the Bairns, leaving [Page] out the Wife. March 14. Graham contra Representatives of her Husband. But Clauses of Conquest, of all Lands acquired during the Marriage, do not extend to Lands, acquired and disponed during the Marriage. Yea Conquest of Lands was extended where there was Disposition without Infeftment: with a burthen of a part of the Price upon the Disponer. January 24 1629. Lady Rentoun contra Laird of Rentoun. Spotswood, Husband, Countess of Dumfermling contra Earl of Dumfermling. And where the Clause of Conquest bare Lands or Annualrents; the same were extended to Bonds bearing Annualrent, though without clause of Infeftment. Feb. 20 1629. Douglas contra White. And these Clauses are interpret strictly, according to the tenor thereof: for sometimes they only bear Lands Conquest, sometimes Lands or Annualrents, sometimes Lands, Annualrents, or Sums of Mony, and sometimes also Goods or Geer: in which case the Executors will be obliged to imploy moveable Goods, and Sums; for the Wife in Liferent, and for the Bairns and Heirs of the Marriage in Fee. These Clauses of Conquest do never extend to any thing, whereunto the Husband succ eds as Heir, or Executor; unless Succession be exprest. A clause of Conquest, oblieging the Husband to take all Lands, Annualrents and Sums, conquest, during the Marriage to himself, and the Heirs and Bairns of the Marriage, one or moe; found to constitute all the Bairns of the Marriage, Male and Female, Heirs Portioners: and that it was not alternative, that the Husband might either take the Conquest to himself; and the Heirs of the Marriage; or to himself, and Bairns of the Marriage, at his option. And therefore having taken a considerable Sum, in favour of himself and the Heir of the Marriage, who was his only Son; yet after his Death, his four Daughters, of that Marriage, obtained Decreet against their Brother, to denude himself of their Shares. January 29. 1673. Stewart contra Stewart. But Conquest is only understood, of what the Husband acquired more, after his Contract of Marriage, than what he had before. And therefore if he acquired Lands, Annualrents, Sums or Goods; if he instruct, That he had as much, (or a part thereof before) as he sold; the superplus will only be counted Conquest. And though he have not disponed on any thing he had before, [...] he contract Debt for purchasing the Conquest; it will be burthered with the Annualrent of the Debt: as was found in the former cases. And the like, December 20. 1665. Lady Kilbocho contra Laird of Kilbocho. June 27. 1676. Earl of Dumfermling contra Earl of Callender. The like was found in a Provision of Conquest, of all the Husband's Goods and Geer acquired during the Marriage, to the Wife for her Liferent use: which was found to be with the burthen of the Husband's Debt, contracted before, or after: and so to import only Liferent of the free Geer. December 23. 1660 Jane Smith contra Margaret Muire. And where a Husband was obliged to imploy a definite Sum, for himself, his Wife, and Bairns of the Marriage; and also his Conquest, and having acquired a Tenement during the Marriage: to himself, and his Heirs whatsoever; that Tenement was applyed to the definite Sum, primo loco, and the superplus as a Conquest, January 4. 1672. Beaty contra Roxburgh.

So much for the Being and Interest of Heirs. As for the proving and instructing who are Heirs, the most ordinary by way of Retour, or Infefment as Heirs; or by a Service, though not Retoured: but those Instructions must be repeted in every several Process. For so an Heir active, was found not to be instructed, by a Decreet at his instance, as Heir, against the same Defender. and in the same Matter, without reproduction of the Instructions. Feb. 22. [Page] 1629. Stewart contra Wilson: neither was it instructed passivè by a Decreet of the Comissars, by production of the Defender's Seisine without [...] thereof, Had.

Neither was it instructed passivè, by the Kings gratuitous Restitution of the apparant Heir, of a forefault Person; which made him capable of his Father's Rights, but not Heir nor Successor to him. Hope, forefaliure, Halyburton contra Lord Balmerino. Neither by a Bond, wherein the Party designed himself Heir, or at least apparant Heir; which relateth nothing to the benefit of Succession. January 24. 1626. Laird of Glenkindie contra Crawfoord. Neither by an Award of a Town Court, recognoscing a Burgess, Heir to his Predecessor. Spotswood Heirs, Gudelet contra John Adamson.

TITLE XXVIII. Behaving as Heir.

[Page]

1. Gestio pro Haerede described.

2. The time when this passive Title was introduced.

3. The reasons of introducing it.

4. The latitude used in this Title.

5. This Title not competent after the Intromette's Death, or where there was any colour able Title.

6. Behaving as Heirs by Intromission with Heirship, only competent against Heirs of Line.

7. Intromission of Tutors or Curator's infer not gestionem against the Pupills or Minors.

8. Cases inferring gestion by Intromission with the Heirship moveables.

9. Exceptions against this member of the Title. As first, The Pursuer must instruct that the Defunct was either Barron, Prelat, or Burgess, by Infeftments of Lands, or [...].

10. The 2. Defence against Intromission with Heirship Moveables, and vitious Intromission, That the Defunct died Rebel, and his Escheat gifted before intenting the Creditor's pursuit.

11. The 3. Defense, That the apparant Heir intrometted, by a Gift to himself, or to his behoofe.

12. The 4. When Moveables belonging to a Defunct remain in his House, whereunto his apparant Heir hath right by Infeftment.

13. Gestion by intrometting with Lands, Tiends, or Tacks, wherein the Intrometter might be Heir.

14. Defenses against this member.

15. Gestion by intrometting with the Defunct's Charter Chest.

16. Item, by intromission with Sums due to the Defunct, or doing any Deed, that may transmit the Defunct's Right.

[Page] 17. This passiive Title excluded, unless established in the behavers in the behavers lifetime.

18. How far Heirs Portioners, behaveing as Heirs are lyable, and whether behaving as Heir excluds the benefit of [...] and relief competent to Heirs actually entering.

GESTIO PRO HAEREDE, is the apparant Heirs disorderly Entry, and immixing himself with the Heritage, without order of Law: and therefore it gives him no Right nor Active Title, as Heir, but makes him only Heir, [...], whereby he represents the Defunct in all his Debts and Burthens, and is lyable for them all.

2. This passive Title, as Spots. observes, was but introduced by the Lords of Session, and was not before the institution of the Colledge of Justice; the apparant Heir being only lyable for restitution of the single value formerly. As was found in the case of an Heir's Intromission with the Heirship moveable. November 14. 1546. Janet Seatoun Lady Dirlton contra Anna [...].

3. The reason of introducing this passive Title, is in favour of Creditors, that they be not un-satisfied, or shifted by the heirs of the defunct Debitors: who, if they might continue possession of their Predecessors Means, and Estate, and be but countable; would rarely enter, and hundle up their Intromission, and with time ascribe it to singular Titles, abstracting their Predecessors Rights. And therefore it is an expedient Custom, that they should either enter legally, and for good and all; or that they should wholly abstain. Especially seing the Law allows them a year, to enquire into the condition of the Desunct's heretage, whether it will afford them losse or gain: during which time they may deliberat; and if they abstain, can be troubled by none. So that though it may seem rigourous, for a small Intromission to make the Intrometter lyable for all the Defunct's Debts, how great soever; Yet it being so easie to abstain, and the hazard known; the Expediency and Favour of the Creditor, proponderateth the wilfull Disadvantage of the Debitors Heir.

4. In this Title the Lords have always taken great Latitude, and sometimes have found smal Intromission not relevant, to infer this Title, in odions [...] November 6. 1622. Laird of Dundas contra Hamilton of Peill. Where a Decreet of Spulzie of Tiends being obtained against Peill's [...], and never insisted in, till in his time he was convened as Heir to his Father, who had behaved himself as Heir to the Good-sire, in so far as he had entred and dwelt in the house of Peill: and there being, in the house, the Goodsire's [Page] best Board, standing Bed, and brewing Caldron; he used the same, by eating at the Board, lying in the Bed, and brewing in the Caldron: and desivered the Good sire's Beiff Pot to a Flesher, for Flesh furnished to the Defender's Father: the Defenders Mother having keeped possession of these Heirship Goods for five years before.

5. Yet this Condescendence was not found relevant in this Case, The passive Title was not established before the Defender's Father's Death. As the Lords lately found, That these passive Titles, quae sapiunt delictum, should not be competent after the Intrometter's Death. It was also thought by the whole Lords, after dispute in presentia upon this Title, That it takes only place, where there appeared the apparant Heir's animus immiscendi, & adeundi haereditatem; and not where he hath any probable, or colourable Title. Spots. Heirship, Corser contra Durie. Yet in favourable cases, a smal Intromission was sustained as making use of the Defnuct's chief Bed and Board, though standing in the Defunct's House: seing the Heir entred the House, before he obtained Inventary of the Moveables, made by authority of a Judge; though the House belonged to himself proprio jure. March 8. 1610. John Bailzie contra Hoom of Bassenden. Or by Intromission with a Mazer Cup of the Defunct's, and drinking therein; entering in the House when he died; lying in his Bed and bed Cloaths standing there; and wearing his Silk Stockings: though all these were undisposed upon, and that the Defunct's Mother, who had given them to her Son, had medled therewith, who died in a Chamber belonging to his Mother, and his name was upon the Mazer. January 15. 1630. Cleghorn contra Fairly.

6. There are two Cases of Behaving as Heir, viz. Intromission with the moveable Heirship, and Intromission with the Lands, Teinds, Tacks, or other Rights which might have belonged to the Intromitter as Heir. In both which cases the Intromission will not infer this passive Title, unlesse the Intrometter might succeed in the same particulars. And therefore the apparant Heir of Line and no other, can be lyable by Intromission with Heirship moveable, because the same can only belong to the Heir of Line. So the Intromission with Rents of Lands, Tiends or Tack, will not infer gestionem, unless by the apparant Heir, who would succeed therein, according as they are provided to Heirs of Line, of Conquest, Heirs male, or of Tailzie, or Provision. Neither will any other Intromission be relevant, but what is immediat, or by express Warrant, Command, or Ratihabition.

7. A Tutor or Curator's Intromission will not infer gestionem upon his Pupil, unless he accept the same from the Tutor in his Accompts. Nor the Intromission of one having a general Commission, as Factor, &c. It was so found in the Case of a Tutor's Intromission with the Rents of the Pupil's Predecessor's Lands, for the restitution whereof he was only found lyable. Nevember 3. 1665. David Boyd contra Tailzfair.

8. Behaving as Heir by Intromission with the moveable Heirship, is most unquestionable, when the said moveable is chosen, drawn, and separat by the Heir from the remanent moveables. In which case the apparant Heir will not be admitted to alledge, that the Defunct could not have an Heir or Heirship moveable, when he formerly drew the same. July 13. 1631. Laird of of Gadgirth contra Laird of Auchinleck. But it seems very hard where the apparant Heir's choice of such particulars as the best of every Kind for her [Page] Heirship, doth not evidently appear: for that must be accounted the best, which is such in the opinion of the apparant Heir. And yet in favourable Cases Intromission with any Kind of moveables, out of which Heirship may be drawn, will be found sufficient, and repute as the Heir's choice. As the apparant Heir's making use of his Fathers Board, lying in his Bed; though he disposed not thereof, and though the same were standing in a House disponed to him by his Father before contracting of the Debt pursued on: seing he continued two years in possesion, and got no Warrant from the Lords, or made any Inventary thereof. July 14. 1626. Gilbert Johnston and Masson his Spouse contra Masson. The like by making use of the Defunct's Bassin, Silver Spoons, Timber Beds and Boards, without alienation thereof: though the beginning of the Intromission was, when the Intrometter was not apparant Heir himself, but was Tutor to another Heir who was Idiot: seing he continued five years after the Idiot's Death, himself being then apparant Heir. January 17. 1627. Frazer contra Monimusk. Yet the contrary was found, where the Intromission began before the Intrometter was apparant Heir, there being a nearer apparant Heir: though it continued after that nearer apparant Heir's Death, when the Intrometter was apparant Heir. July [...] 1629. Mr. Robert Cuuingham contra Moultry. Yea, Behaving as Heir was sustained by Intromission with certain Goods of the Defunct which might have been Heirship, though they were confirmed promiscously by an Executor, and bought from him by the apparant Heir. But this Executor was his own domestick Servant, and confirmed to his own behoof. December 16. 1630. Weir contra Ker of Cavers. The like where the Heirship Goods were sold to the apparant Heir by a stranger: seing they were not delivered to that stranger, but possest by the Defunct till his Decease, but his possession continued by the apparant Heir. Nicol. Plus valet quod agitur. Feb. 9. 1621. Melvil contra Melvil. But the contrary was found, the Goods being disponed by the Defunct to the apparant Heir, albeit not delivered before his death, otherways than that the Defunct being un-married, came to his Son's House, and lived with him till his death. January 30. 1630. Calderwood contra Porteous. Neither was the same inferred by a Disposition of the Defunct to his apparant Heir of certain moveables, in satisfaction of his Heirship moveables whereunto he might succeed. Feb. 24. 1636. Meidhope contra Hepburn.

9. The ordinary Objections and Exceptions against Behaving as Heir by Intromission with the Heirship moveable are; First, That the Defunct was neither Prelat, Baron, nor Burgess, to whose Heirs only Heirship moveable is competent by the Act of Parliament: the extent whereof is shown in the former Title. And therefore the Pursuer must condescend, and instruct that the Defunct was either Baron, Prelat or Burgess: which would besufficiently instructed by the Defunct's Infeftments of Lands or Annualrents, at any time: for thence it would be presumed that he continued undenuded till his death, semel baro semper baro presumptivè. And this will be elided by this Exception, That the Defunct was denuded before his Death. For though some have been of opinion that semel baro semper baro is meant, that though a Person once infeft were denuded; yet his Heir would have Heirship as a Baron. For which I find neither Reason nor Decision: But it is most reasonable that he who is once proven to be a Baron, should be presumed so to continue, unless the contrary were proven, that he was denuded, It was so found January 27. 1636. Straiton contra Chirnside. But if the Legal was not expired at the Defunct's Death, he is not esteemed denuded: and therefore his Heir hath Heirship. Feb. 26. 1663. Cuthbert of Drakies contra Monro of Foulis. July 8. [Page] 1628. Dumbar contra Lesly. Neither will it be sufficient that the Defunct was once Burgess, but itmust be proven that when he died he was acting as a Burgess. So that neither the Heirs of honorary Burgesses, nor they who once were trafficking Burgesses and take themselves to a Country Life, their heirs, will have heirship moveable. And therefore semel civis semper civis is not presumed. Neither semel paerlatus semper praelatus: for if a beneficed Person were deprived or demitted before the Death, his heir would have no heirship moveable.

10. The second Defense against Intromission with heirship moveable, and which is also competent against Vitious Intromission, is, That the Defunct died Rebel, and his Escheat was gifxted and declared before intenting of the Creditor's Pursuit. June 10. 1663. Gordon of Lismoir contra Keith. June 10. 1674. Lady Spenserfield contra Hamilton of Kilbrachmount. December 22. 1674. Heirs of Seatoun of Blair contra Sr Alexander Seatoun. And It is not necessary to alledge, That the apparent heir had any Right or Tollerance from the Donatar. For the Exception is equiparat to Executors confirmed, against Vitious Intromission: whereby Vitious Intromission is excluded, albeit the Intromission was before another was confirmed Executor, if the Confirmation was before intenting of the Creditor's Cause. But it is no relevant Defense, That the Defunct died Rebel, and so had no moveables, but that they were confiscat. Neither was it sufficient that the Escheat was gifted, not being also declared, before the Creditor's Pursuit. As was found in the said two first Cases.

11. The third Defense is, That the apparant Heir intrometted by a Gift to himself, or to his behoofe; or by a Right or Tollerance from a Donatar. These being prior to the Creditor's Pursuit, although posterior to his Intromission, albeit not declared, are relevant: because the Donatar thereby is in possession, and needs no Declarator. Feb. 26. 1663. Cuthbirt of Drakies contra Monro of [...]. June 10. 1663. Gordon of Lismoir contra Keith. July 4. 1674. Mr. William Innes contra George Wilson. June 10. 1674. Lady Spenserfield contra Hamilton. of Kilbrachmont. Feb. 10. 1676. Grant contra Grant.

12. The fourth Exception is, When Moveables belonging to a Defunct, remain in his House whereunto his apparant Heir hath Right by Infeftment, wherein the Defunct had his Liferent or Tollerance: if the Heir enter in possession of the House, if at his entry he represent to any competent Judge, that there are Moveables in or about the House belonging to the Defunct, which he desires to be inventaried, or that such as cannot be preserved may be sold, that the price may be made forthcoming to all parties having interest; if Inventary or Sale be made by warrant of that Judge, the continuing of these Moveables in the House, or the Sale of those which cannot be preserved, will not infer Behaving as Heir. Yet the making use of the things in the Inventary, or the Sale of that which is not warranted; yea the ommission out of the Inventary of Moveables of any considerable value, was found to infer Behaviour. January 25. 1632. Helen Scarlet contra John Paterson.

13. The other ordinary member of Behaving as Heir, is by Intromission with the Rents of Lands, or Tiends, whereunto the Defunct had Right by Infeftment; or entering in possession of these Lands and Tiends unto which the apparent Heir would succeed, which is the most direct Behaviour as Heir; [Page] and is only competent against such persons as might be Heirs in that whereinto they immix themselves. And so an Heir of line poslessing or intrometting with the Rents of Lands provided to Heirs male, or to Heirs of Tailzie or Provision; or the Intromission of these with the profits of Lands or Tiends befalling to Heirs of line; will only infer Restitution or Reparation: but will not infer a general passive Title, making the partie lyable to all the Defunct's Debts.

14. There are many Defenses which use to be proponed against this species of Behaviour. As first, it was an ordinary custom to shun this passive Title, that the apparant Heir granted a Bond of purpose to adjudge the Defunct's Right, upon the apparant Heirs Renounciation, and then take Right to the Adjudication: till the Lords by an Act of Sederunt, Feb. 28. 1662. did declare, that if apparant Heirs should in time coming, take Right to any Appryzing or Adjudication of their Predecessors Rights for their own Debt, and did [...] thereby, whether before or after expyring of the Legal; they should be lyable as behaving as Heirs: which hath always since been followed. And therefore no Defense for such Rights will be sustained, albeit it were a true Debt of the apparant Heirs, and not a simulat Bond granted of designe to adjudge or apprise.

Neither is it a relevant Defense, That the Lands or Teinds were appryzed or adjudged from the Defunct, albeit Infeftment had followed thereupon; if the heir apparant intromet without Right, or Warrant from the Appryser or Adjudger, within the Legal. Feb. 21. 1663. Henrie Hamilton contra William Hamilton. But it is a relevant Exception, That the apparant heir's Intromission or possession was by Right from an Appryser or Adjudger, though the Legal was not expired: unless the Sum were fully satisfied by Intromission or otherways. January 10. 1662. Barclay contra Laird of Cragievar. The like though the apparant heir continued to possesse, for some time after the Apprysing was satisfied by Intromission. Feb. 26. 1663. Cuthbert of Drakies contra Monro of Foulis. Yea Intromission with the Rents of the Defunct's Land by his apparant heir, waselided by a Tollerance from a Donatar of Recognition, albeit not declared till after his Intromission; the apparant heir paying the single value of his Intromission. July 17. 1666. Thomas Ogilvie contra Lord Gray. But a Tollerance from Apprysers after their Intromission, was not found relevant, July 11. 1671. Sr. George Maxvell contra Maxvel. Yet the apparant heir's Intromission was elided, because the Defunct's Rights were improven, though after the Intromission. March 22. 1628. Roderick Farquhar contra Campbel of Kingingcluch. And an apparant heir's Intromission was elided by a colourable Title, though not valid, whereby the heir of a Marriage being entered and infeft as heir to her Mother, yet her Infeftment being reduced, and her Father being found Feer in a dubious provision of Conjunct-fee; the heir so served, was not found liable, as behaving as heir to her Father: but only quoad valorem of her Intromission. July 12. 1671. Adam Gairns contra [...] Sandielands. But it was not elided because the apparant heir past by his Father, and was infeft as heir to his Good-sire, though his Father was infeft: that colourable Title was not sustained the apparant heir being in mala fide, having the Evidents in his hands. November 23. 1671. Rorieson contra [...]. Yet Behaving as heir was not inferred by the heir apparant's intrometting with the Rents of Lands, which his predecessor had disponed in trust to a third party, for the behoofe of the apparant heir, and whereupon the Intrusted was infeft. January 14. 1662. Nicol contra Home of Plandergest. [Page] But Intromission by the apparant heir was elided by a Disposition by a Defunct to the apparant Heir's Son, his Oye, though without Infeftment: or by a Tack to the apparant Heir's Husband, though expired before the Defunct's Death; as being continued per tacitam [...]. January 16. 1667. Reid contra Salmond.

Behaving as Heir was inferred by the apparant Heir's entering in possession of a Coal-heugh, whereof the Defunct had Tacks for Terms to run: albeit the apparant Heir took a new Tack. June 26. 1610. Atchison contra Laird of Cockpen. The like though the apparant Heir took a Gist of the Defunct's Escheat, who had an unexpired Tack of the Lands, and pretended to possess as Donatar to the single Escheat. June 28. 1610. Crawford contra Cockpen.

15. Behaving as Heir was also inferred by the apparant Heir's giving a Receipt of the Defunct's Charter Chest, and keeping it two Years without Protestation, or Inventary. June 28. 1670. Ellis of Southside contra Carse.

16. Behaving as Heir will also be inferred by Uplifting or Discharging Sums, Principal or Annual, which would befall to the Party Heir: or by doing any Deed that might transmit the Defunct's Right. But it was not found inferred by the apparant Heir's Renouncing to be Heir in favour of the Heir Male, to whom their Father had disponed: seing they gave no Right thereby hurtful to Creditors; though they got a Sum for their Kindness and willing Renounciation. July 5. 1666. Lawrence Scot contra Heirs of Auchinleck. Neither by the apparant Heir's getting benefit by a Transaction with a Party having Right from the Defunct, granted on Death-bed, and being obliged to acquire the Defunct's Debts, and apprise thereon, and to communicate the benefit of the Apprising: unless a Deed had been done communicating any Right of the Defunct. July 19. 1666. Margaret Nevoy contra Lord Balmerino.

But Behaviour was not inferred by the apparant Heir's taking out of Brieves: seing the same were not served. June 28. 1670. Ellis of Southside contra Carse. Neither was it inferred by proponing Payment of the Defunct's Debts, and succumbing: which is only effectual as to that Process. July 16. 1629. Murray contra Ross. January 21. 1675. James Tailzifer contra John Corsan. Neither was it inferred by the apparant Heirs voluntary Payment of their Predecessor's Debt. January 26. 1628. Commissar of Dunkel contra Abercromby.

17. There is the same ground for excluding this passive Title, unless it were established against the apparant Heir in his own life, as to exclude vitious Intromission: which hath frequently been repelled when not established in the Intrometter's life.

18. It remains now to consider, Whether Behaving as Heir being a vitious passive Title, will import more than if the apparant Heir had been actually entered: which may occur in two Cases; First, where Heirs-portioners behave themselves as Heirs, whether they will be lyable in solidum, or only pro rata? 2. Whether those who behave themselves as Heirs, will have the same benefit of the order of Discussing and Relief, as if they were actually entered.

As to the first Case, the Behaviour of Heirs-portioners cannot oblige them in solidum, but in so far only as if they were actually entered Heirs: which is always pro rata parte, according to the number of the Heirs-portioners, non [Page]per capita, sed per stirpes, But as it hath been yet undetermined whether Heirsportioners may be lyable for more than their share of the Debt, not exceeding their share of the benefit to which they have succeeded; there is no question but if Heirs-portioners behave as heirs, they would be made lyable quoad valorem of their Intromission, if it did exceed their share.

As to the other Case, Behaving as heir being a vitious passive Title, they will not have the [...] of Discussing: which is only competent to heirs lawfully entered. Yea they will not have Relief from the heirs who are lyable before them: because they have in their Person no active Title. Yet it is in arbitrio judicis to ordain the Creditor, on satisfaction to assign his Right, by which the heir behaving may indirectly attain Relief, as Assigny by the Creditor This favour will not be refused, unless the manner of Behaviour be very odious: as when it is fraudulent, by concealing the Immixtion; or that the Creditor himself having an other Interest, may be prejudged by his Assignation. And therefore heirs behaving, if distress'd for moveable Debts, they have no direct recourse against Executors. And if the Executory be mean, so that there be small provisions for the Wife and Children; the Creditor would not be ordained to assign. And it may so fall out in other Cases. The same Reason may occur, where heirs of Conquest, or heirs Male, of Tailzie, or Provision behave; if the prior heirs who are nearer of Blood have little benefit and provision.

TITLE XXIX. Lucrative Successors.

[Page]

1. The rise of this passive Title.

2. It takès place though the Disposition bear Cause onerous, [...] it be otherwise instructed.

3. It is extended to Dispositions in Contracts of Marriage, in some Cases.

4. Lucrative Dispositions of any part of the Heritage inferre this passive Title.

5. This Title is extended to Dispositions made to Oyes, though then not immediate apparant Heirs; but not to Brothers, though none then nearer.

6. Whether it suffiseth to infer this Title, that the Infeftment was after the Debt; or if the Disposition whereon the Infeftment proceeds, must also be after.

7. Cases in which this Title takes no place.

THERE is no Nation hath been more favourable to Creditors, or more studious of their satisfactions than this; which hath anticipate all Conveyances, Devices, and Frauds prejudicial to Creditors, either in favour of singular Successors by simulate Assignations or Dispositions, without equivalent onerous Causes: or in favour of apparant heirs, that they might in no way enjoy their Predecessors [...], without satisfying their Debt; which hath given the rise to this passive Title, whereby apparant heirs accepting Dispositions from their Predecessors, of their Heretage wherein they would have succeeded, or any part thereof, are made lyable to all their Predecessors Debts, contracted before such Disposition or Right. And the acceptance thereof is accounted praeceptio haereditatis, and as an Immixtion [Page] with the Inheritance, makes the apparant heir to represent the Defunct passivè. Yet with this temperament, that he shall be lyable only to the Debt contracted before the Disposition or Right made to him by the Defunct, in which Right he might have succeeded. Wherein apparant heirs are most expediently differenced from the other singular Successors without onerous Causes, that these are not ordinarly personally lyable, except in so far as they have disposed of such Rights as were fraudulently disponed to them in Trust, and in which they were interposed Persons to the behoof of the Disponer or his Children; but these Rights are alwayes reduceable at the instance of anterior Creditors. But because such Fraud is more incident to apparant Heirs, therefore these are personally lyable for the whole anterior Debts, and the Right granted by them may also be reduced upon the Statute 1621. Yet the personal Obligement doth remain and both are compatible: Hope, Successor Lucrative, Gray contra William Burgh.

2. This passive Title is not only extended to Dispositions of Lands bearing expressly a lucrative Title, as for Love and Favour, &c. but though the Narrative thereof bear expressly a Cause onerous, which being betwixt the Disponer and his apparant heir proves not: and therefore the Cause onerous must be proven aliunde. Vide Title Reparation upon Circumvention: where the Narrative of Writs amongst conjunct and confident Persons, proves not the Cause to be onerous. And though there be a Cause onerous instructed, it will not be sufficient, unless it be equivalent to the worth of the Lands, to substain it against Reduction: but if the Cause onerous be considerable, the heir will not be lyable simply, or personally, but the Right may be reduced, and the heir may be lyble in quantum est lucratus. And therefore an apparant heir having accepted the benefit of a Disposition and Infeftment, granted by his Predecessor to a third Party, but to the apparant [...] behoofe; the Lords before answer ordained the Cause onerous of the Disposition to be instructed, reserving to their consideration how far the apparant heir should be lyable personally thereby. January 14. 1662. Nichol Harper contra Hume of Planergest. The like of a Disposition of Lands by a Mother to her apparant Heir, though it did bear a Sum of Money: which did not prove betwixt Mother and Son. February 15. 1676. Patrick Hadden contra George [...]. The like was found of a Disposition by a Father to his Son and apparant heir, though the Son offered to prove it was for equivalent onerous Cause: seing the Disposition it self did bear for love and favour and other good Considerations. November 22. 1671. Beaty contra Roxlurgh. But Bonds of Provision by Parents to Children infer no passive Title, though the Children be Heirs apparant. As when the Bonds are granted to the eldest Son, or Bonds of Provision, or a Tocher to Daughters, when there are no Sons, though in that Case the Daughters might be esteemed heirs apparant, although truly they be not; for a man is ever understood to be capable of having a Son: and therefore Daughters are little more heirs apparant than Brothers. Yet Bonds of Provision or Tochers are reducible by anterior Creditors, if the Defunct had not a visible Estate sufficient for these Portions and his whole anterior Debts. And therefore accepting a Tocher did not make a Daughter lyable as lucrative Successor, though there was no Son; yet the Daughter and her Husband were found lyble to the Father's anterior Creditors, for what was above a competent Tocher, suteable to the Parties. December 23. 1665. Dame Rachel Burnet contra Lepers. Neither will taking Bonds in the name of the Daughters, or assigning Bonds to them, make them lyable as lucrative Successors. And yet the accepting of Assignations to heretable Bonds by a Father to his eldest [Page] Son, in which the Son would succeed as Heir, may inferre this passive Title. December 2. 1665. Edgar contra Colvil. But where the Father in his Contract of Marriage provided his Son to several Bonds, which before any Creditor pursued, were payed and cancelled, and it did not appear by the Contract whether they were heretable or moveable; the Lords did not sustain the passive Title, but found the Son lyable in quantum [...]: and did presume the Bonds to be heretable, unless they were proven to be moveable. January 7. 1679. Hamilton of Burdowie contra Mr. Andrew Hay. But a Disposition of Lands to the eldest Son, was found to make him lucrative Successor, although by his Father's Contract of Marriage with his Mother, his second Wife, the Father was obliged to infeft the eldest Son of the Marriage in the said Lands; which did import a Succession: seing the Obligement contained no determinate time, and so might be performed by the Father any time in his life. November 29. 1678. Hagens contra Maxwell. The like was found in a Disposition of Lands or Annualrents to the eldest Son of the Marriage: seing these were provided to the Heir of the Marriage. February 22. 1681. Grizel More contra Ferguson. The Disponer's Bairns Portions are not a Cause onerous, being granted after the Creditors Debts; albeit undertaken and secured by the apparant Heir, bona fide, before any Diligence at the Creditors instance; not being payed before the Pursuit: ibid. because the Heir may suspend upon double Poynding, and will not be made to pay both the Bairns and Creditors.

3. This Title is extended to Dispositions granted in the apparant Heirs Contracts of Marriage, which in many respects is accounted a Cause onerous. July 8. 1625. Gray contra William Burgh. Where the Son was not liberat, though he offered to renounce the Lands he had by Contract. And it was found that Lands being disponed and resigned by the Father in favour of the Son, by his Contract of Marriage, though they were for the present wadset and disponed with that burthen, and thereafter redeemed by the Son by his own means, so that there remained nothing in the Father, but the Superiority and the [...]; yet the Contract of Marriage was found onerous as to the Wife's Luerent. And in respect the Son was Minor and presently revoked the Disposition, and renounced all other Rights, except that of the Wadset which he had redeemed; he was liberat of the passive Title, and the Lands declared redeemable by any Creditor anterior to the Contract. January 14. 1634. Mr. David Courtney Minister contra Weems of Lothoker. In the like Case, where Lands were disponed by a Father to the Son in his Contract of Marriage, for a Tocher payed to the Father for some Debts and Bairns Portions far within the worth of the Land; the Son was not found lyable in solidum as lucrative Successor, nor yet the Pursuer put to a Reduction: but the Son was in hoc processu put to compt and pay the superplus of the true price of the Land. June 17. 1664. Lyon of Murask contra Bannerman.

4. This Title takes place not only in universal Dispositions, of the Predecessor's whole Estate; but a Disposition of any part thereof, is sufficient: seing the least as well as the most, is praeceptio haereditatis.

5. This Title is extended also not only to Dispositions made to, and accepted by the immediate apparant Heir; but also to the mediate apparant Heir, so that he be alioqui successurus, by the course of Law, necessarly: as what is granted to the eldest Son of the apparant Heir. Because the ground of this Title being to prevent Deeds in favour of the Disponer's Successors, prejudicial to the Disponer's Creditors, whose Debts are anterior; the reason holds as much where [Page] he dispones to his Oye, who by the course of Law is to succeed to him, as to his Son. 2. It is Praeceptio haereditatis in the Oye aswell as in the Son. And therefore the Rule in this Title is not, that the Accepter be that Person who would succeed at the time of the Disposition, and so may seem to be immediat apparant Heir pro tempore: for so a Disposition by one Brother to another, or to a Brother's Son, the Disponer for the time having no Children; will not inferre this Title. November 22. 1662. Lawrence Scot contra David Beswell of Auchinleck, Nephew to umwhile Auchinleck. December 22. 1674. Heirs of Seatoun of Blair contra Sir Alexander Seatoun. The like though the Disponer was an old man, the time of the Disposition, and had little hope of Issue. December 17. 1632. Lady Spenserfield contra Laird of Kilbrachmont. The reason is, because the Brother or Brother's Son is not alioqui successurus by the course of Law, while the Brother's Children are in spe: and therefore such are never called apparant Heirs; neither is the presumption in them, that the Defunct would, in prejudice of his Creditors, adventure simply to dispone to such, while he had hope of Issue: but all this holds in Oyes. And it was so decided January 29. 1639. Lady Smeatoun contra Richardson of Smeatoun: where an Infeftment was granted by the Good fire to the Oye, reserving his Son's Liferent. And in the like Case, the Father who was but Liferenter, and his Oye Feer, by the Grandfather's Disposition, was found lucrative Successor. February 23. 1637. Lightoun contra Laird of Kinaber. But this Decision was stopped to be further heard.

6. But here occurreth the Question, If the Disposition be anterior to the Debt contracted, but the Infeftment posterior to the said Debt; quid juris? The ground of Doubt is, that though the Defender had a prior Disposition, yet by the Infeftment only, he was Successor: seing Lands pass not by Dispositions, but by Infeftments: and therefore he was clearly Successor post contractum debitum, and also ex causa lucrativa. 2. If this were not the meaning, the intent of the Law would be frustrate: for it were easy to make Dispositions and to keep them up, and in the mean time to contract Debts, when the Creditors could not know the Debitor's condition, and so contracted bonafide. This Case was not decided: but the like Case was formerly decided negativè, that the Infeftment though posterior to the Debt, did not inferre this Title; being upon a Disposition anterior to the Debt. February 23. 1637. Lightoun contra Laird of Kinaber. The like was found, where there was an Obligement in a Contract of Marriage, to dispone Lands, prior to the Debt contracted: albeit both the Disposition and Infeftment were posterior to the Debt, and did not bear expressly in implement of the Contract; which was presumed, seing no other Cause was showen. July 27. 1678. Thomas Ferguson contra Lindsay of Wauchope. For answer to the contrary Reasons; the first is upon misapplication of the words, post contractum debitum: which are not to be referred to Successor thus, successor post contractum debitum ex causa lucrativa; but successor ex titulo lucrativo, qui titulus est post contractum debitum. So that if the lucrative Title be not after the Debt, this Title takes no place. As to the other reason, the same inconveniency will be of Dispositions to Strangers, which being keeped up, Creditors may contract bona fide. And yet Inhibition before Infeftment will not be effectual, unless it preceed the Infeftment and the Disposition: which will also be effectual against the apparant Heir. But if there be fraud in keeping up such Dispositions, which will be easilier presumed in the person of the apparant Heir, than a Stranger; it will be sufficient upon the common reason of fraud, to reduce the Infeftment, though the general passive Title be not inferred. The like was found where there was an Obligement in a Contract [Page] of Marriage, to dispone Lands, prior to the Debt contracted: albeit both the Disposition and Infeftment were posterior to the Debt, and did not bear expressly in implement of the Contract; which was presumed seing no other Cause was showen. July 23. 1678. Thomas Ferguson contra Lindsay of Wauchope. And lucrative Successor was not found inferred by the Infeftment of a Father to his apparant Heir after the Debt contracted: seing there was an anterior Obligement in the apparant Heir's Contract of Marriage, to grant the Infeftment, and Inhibition thereupon. Nicol. de haereditariis actionibus. March 31. 1626. Ker contra Sterling.

7. This Title can take no place, first, where the Party to whom the Right is granted is not alioqui successurus in that same Right: because it cannot be praeceptio haereditatis where there can be no haereditas. And so a Disposition to an heir of Tailzie, of Lands not provided to that heir of Tailzie, cannot inferre this Title: though it may be reducible, as without a Cause onerous. Neither will a Disposition of tailzied Lands to an heir of line, inferr this Title. For in that case it cannot be praeceptio haereditatis: albeit the Disposition will be reducible, as without a Cause onerous. But there is more reason, that Rights acquired originally by Predecessors, in name of their apparant heirs, cannot infer this Title: because the Predecessor himself never being Feer in that Right, the apparant heir could not be his Heir therein. Neither can such Rights be reducible by the Act of Parliament, 1621. because the falling thereof, will not make the Fee return to thePredecessor who never had it: but the same can only be reached by a Declarator, That it was acquired by that Predecessor's means, after the Debt contracted; and therefore ought to be affectable, as if it were in the person of the Debitor, or his heir: which hath frequently been found relevant.

TITLE XXX. Executorie, Where, of Testaments, Codicills, Legacies, Relict's part, Bairns part, Dead's part, Confirmations, and Office of Executorie.

[Page]

1. The Romans carfeulnesse to preserve the freedom of Testing.

2. The ancient form of Testing amongst the Romans.

3. The modern form of Roman solemn Testaments.

4. Their nuncupative Testaments.

5. Their military Testaments.

6. Requisits for Roman Testaments.

7. How far Sons in familia could Test.

8. Persons who could not Test.

9. Persons who could not be institute, or substitute.

10. Restriction of the freedom of Testing, in favour of Children.

11. The Legittimes ofChildren.

12. The Falcidian portion.

13. The difference of the Legittime and Falcidian.

14. The Trebellianica.

15. Fidiecomissa.

16. Codicills.

[Page] 17. Institution of Heirs.

18. Substitution.

19. Substitutions vulgar and pupillar

20. Legacies.

21. Legacies are void if the Legatar die before the Testator, or if the Testament be void; unless there be therein a codicillar Clause.

22. The Kinds and Effects of conditional Legacies, or Fideicommissa.

23. Special Legacies.

24. Conditions adjected to Legacies in Fideicommissa.

25. The Inventary.

26. Collation.

27. Jus accrescendi.

28. The Power of Testing with us may be restricted by Contract or Portion.

29. It is restricted to Moveables, and extends to no heritable Right.

30. Wherein the Office of Executors consists.

31. The nearest Agnats are Successors in Moveables to the Intestat.

32 The line of Succession in Moveables.

33. The Nomination of Executors, and Codicills.

34. Solemnities requisit in Testaments with us.

35. The Effects of Testaments made abroad.

36 Verbal Legacies.

37. The Power of Testing is competent to Minors having Curator, without their Consents, and to Wives without their Husbands Consent: but not to Pupills, Idiots or furious persons.

38. Legacies with us.

39. Legacies and Donations mortis causâ are proportionally abated if they exceed Dead's part.

40. Whether special Legacies will be so abated.

41. The Effect of Legacies of things not in the power of the Testator.

42. The Effect of Legacies left siverally.

43. The Relist's part of the Executory.

44. The Bairns part.

45. What Foris-familiation is.

46. Collation by our Custom.

47. Sums bearing Annualrent without Clause of Infefiment, fallin Executory as to the Defunct and his Children, but not as to the Relict.

48. Heirs have no benefit of the Bairns part, except they renounce in favour of the remainent Bairns.

49. If there be but one Childeun-forisfamiliat, the same is both Heir and Executor, and has the full Bairns part.

50. The Executory is divided as it was at the Defunct's Death, and the time of the Confirmation.

51. The interest of the nearest of Kinne

52. Dead's part.

53. The interest of Executors nominat, and Dative.

54. The Order of confirming Executors.

55. How Executors nominat in England are admitted here.

56. Licences to pursue.

57. Executors interest, as to the Rent the year the Defunct died.

58. Executors have Right to Steellhow Goods.

59. Co-executors and their power.

60. The Effect of Executors Assignations before Sentence.

[Page]61. Executors ad non executa.

62. Executors ad ommissa & malè appretiata.

63. Executors Creditors.

64. How far Executors are lyable passivè, and of their Diligence.

65. The Releef betwixt Heirs and Executors.

66. How Executors may safely pay Creditors.

67. What time Executors have to do Diligence, before they be lyable to Creditors.

68. All Executors, and Creditors doing Diligence within six months ofthe Defunct's Death, come in pari passu.

69. After six moneths, Creditors come in according to the priority of their Diligence.

70. Executors paying Relicts, Bairns and Legatars, after 6. monethes, and before Citation of Creditors, are secure; and the Creditors have only Repetition against these.

71. Executors after obtaining Bond or Decreet, are not in Pleno dominio, of the Defunct's goods: nor do they fall under the Executors Escheat, but the Defuuct's Creditors are preferable to the Executors proper Creditors.

72. Executors may pay priviledged Debts, at any time.

73. Arrestments hinder the Executor to prefer any other Creditor.

74. Compensation is not competent to the Defuncts Debitors, upon Debts due by the Defunct, assigned after the Defunct's Death.

75. Exoneration of Executors.

76. Exhaustine ofExecutors, how competent.

77. The Diligence necessary to liberate Executors: Executors are not obliged to depone upon their Knowledge of the Defunct's Debt, except as to their own Share.

78. How farCo-executors are conveenable severally.

80. Executors furviving, are not lyable for the Share of the deceassed in so far as they executed the Testament, and lifted their part.

81. Executors are lyable for the Inventary, without proving their Intromission.

82. Where Testaments are to be confirmed.

REMAINS now the other Branch of Succession, viz. in Moveables: which is of two Kinds, The one of Executors, which is the only lawful Succession in Moveables, and therefore is both an active and passive Title; the other illegal and Vitious, and is therefore called Vitious Intromission, and is only a passive Title. Of the former in this Title, and of the later in the next.

The whole interest of the moveable Goods and Rights of Defuncts, is comprehended under the term of Executory, wherein not only that which proper to the Executor by his Office, or Succession, is contained; but also [Page] [Page] [Page] that which befalleth to the Defunct's Relict, Children, and nearest of Kinne and to his Legatars and Creditors. We shall not here repeet what hath been said of Succession in general, of which at large in its proper place, Tit. 26. Where the rise and rule of Succession, both according to Equity and the Law of Nature; and according to the positive Law, and Custom of this and other Nations, is held forth. This much only in general; that the Will of the Owner is effectual in equity to dispose upon his Rights, either to take effect during his Life, or after his Death. The former being compleat, constitutes a present Right, irrevocable by the Disponer: the later is ambulatory, and dependent upon the Owner's Will, and hath alwayes implyed in it the Condition of his Death; and therefore may be altered, abrogat, and derogat by a posterior Will. And thence it is called the Laterwill of the Defunct: because the Later-will is alwayes effectual, and preferable to the former Will. It is also more favourablie interpret and extended, than Contracts or Dispositions amongst the Living. And if there were no positive Law, the expresse or presumed Will of theDefunct would be the adequat Rule of his whole Succession.

But Succession being of great consequence, whereby all the Rights of men are at least once, and many times oftner, transmitted in every generation; therefore positive Law for utilitie's sake, hath justly and fitly preicribed the forms and solemnities thereof, that it may be clear and sure: and hath applyed remedies to make it effectual. And hath restrained the power of the Defunct's Will in some cases, especially in favour of the Defunct's Wife and Children, whom by the Law of Nature, he is obliged to provide. And hath also declared the Degrees of Succession, Meaning, and Presumption of the Will of Defuncts.

1. The Romans of all Nations, were most solicitous in this matter, and accounted it a publict interest; reipublicae interest, voluntates defunctorum effectum sortiri. And therefore they did exactly guard the power of testing, not only against Violence and Fraud, by severe Punishments, and exclusion from all benefit of Succession; but also they rejected and annulled all Pactions, restraining the power of testing, as pactum corvinum de haereditate viventis. Which was not only extended to Pactions made by Persons disposing of the Heretage of Persons, to whom they might succeed, but even to Pactions of Persons in relation to their own Heritage. They did also clearly determine what Persons had not the power of testing; and in whose favour Testaments might not be made; and the manner of all Kindes of Testaments, Institutions, and Substitutions of Heirs, Legacies, Fideicommisses, and the sense of most ordinary Clauses in all these: and also the Succession of the intestat. Which hath made the matter of Succession swel into a mighty bulk, and to make the chief Integral of the Civil Law; wherein to insist here, would neither be necessary nor profitable for our purpose: but as in other cases, a short Sum, without Ampliations or Citations, will suffice.

2. Succession amongst the Romans, was either by Testament, or from the intestat. The ancient way of testing amongst the Romans, was either in peace and solemne, which was done in presence of the People, being convocat callatis comitiis: or otherways by a simulat Sale, per aes & libram; wherein the Testator, in presence of five Witnesses Romans, did hold a Ballance, and weighed Money therein, and under that form, as it were, sold his Inheritance for the Money, and asked Witnesses. Or otherwayes Testaments [Page] were made in precinctu, when they were standing in Battaile before the Fight, without other Solemnity than three or four Witnesses.

This was the ancient form of testing. The matter and power of testing was very absolute, according to Equity: concerning which, this was the Law of the twelve Tables uti quisque rei suae legasset ita jus esto.

But the after-course of the Civil Law, changed both this ancient manner and power of testing, and redacted Testaments into three kindes, Solemne, Nuncupative, and Military.

3. Solemne Testaments were so called, because they required the most Solemnities: as First, That the Testaments were in writ, the Name of the Heir, at least, being written by the Testator, or one of the Witnesses. Secondly, There behoved to be seven Witnesses, specially required, all present, and subscribing by themselves, or another, and sealing the Testament at the foot thereof: none of which might be Women, Pupills, Servants, Prodigalls, or furious Persons; neither the Heir himself, or any of his Domesticks: each Subscription bearing. I Titus, &c. being called and required to be a Witnesse to this Testament, which is contained in this Schedule, have subscribed it with my hand, and sealed it with such a Seal. Thirdly. The Testator also behoved to subscribe thus, I Mevius, &c. declare this Schedule to be my Testament, and I have tested as is contained therein: or by another if he could not write, who stood as the eighth Witnesse. Fourthly, The Testament behoved to be made by one continued Act, without interruption of any extraneous act, least by extraneous acts the mind might be diverted, or inconsiderat, in so solemne an Act. So the Testament was closed up, and sealed. And if the Testator opened the Testament, it was presumed he changed his mind. But after his Death, the Witnesses were called together, to acknowledge their Seals and Subscriptions, at the opening thereof. Or otherwayes it was opened by the authority of a Judge, before other honest Witnesses. And if any of the Witnesses acknowledged not their Subscriptions, the Testament was held suspect.

4. A Nuncupative Testament is that which was by Word only, before seven Witnesses qualified as aforesaid. Yet two Witnesses were sufficient in a Father's Testement amongst his Children; and a Woman might be Witness therein. Or in a Testament for pious Uses, five Witnesses did suffice, where there was penurie of Witnesses.

5. A Military Testament, was that which was made by the Souldiers in Warre: wherein they had these Priviledges. First, when they were in procinctu, ready to joyn Battaile, any declaration of their mind, by word or writ, though it were written but in the sand, was sufficient. It was also valid, if made during the Expedition, with such Solemnities as can be had for the time: Yet so, that if the Testator lived a year, in which he might make it more Solemn; it became void. Military Testaments have this further Priviledge, that the Testator may institute for a time, and may institute in a part, and so die partly testat, and partly intestate: which is against a Principle of their common Law.

6. The ancient absolute power of testing, was by the subsequent course of Law, cleared and restrained, not only by the declaratory Laws, finding [Page] testing, and otheracts invalide, as done by furious Persons out of their lucid intervalls, and by Idiots, and by Pupills, who have not the use of reason; or those made by Fraud, or Error in the Substantialls, or by extortion: but more particularly it is limited in these particulars.

7. First, Filii familiâs, Persons in the power and family of their Fathers, could not test upon their Goods; whether profectitious from their Father, or adventitious aliunaè; even though their Father consented: but only on their bona castrensia, acquired in Warre; or quasi casirensia, as in militia togata.

8. Secondly, Captives with publict enemies, or Persons given in pledge to them; or Persons condemned to capital Punishment, whose goods are con fiscat; or those condemned of Infamy; could not test.

9. Thirdly, by Testament some Persons can neither be institute nor substitute Heirs, such as the spurious Children of the Defunct: to put a restraint upon such unlawful Procreations. But Children begotten on Concubins, while those were tollerat, could not be institute or substitute, (these being lawful Children) in more then a sixth part of the heretage. Only there could be left to spurious Children, Legacies for their necessary Aliment. Neither could Persons guilty or condemned of Treason, be institute or substitute Heirs.

10. Fourthly, power of Testing is restrained in those who have lawful Children: who were necessitat, either to institute their Children their Heirs, or expresly to exheredat or disheirish them, expressing the Cause of so doing. For if these institute others, and past over their Children in silence, the Testament was void. And if they unjustly exheredated them, they had Quaerelam inofficiosi testamenti, to annul the Testament, as done against the natural Dutie of Fathers, without just Cause.

11. Fiftly, the power of Testing was restrained in favour of lawful Children, that the Testator could not by Legacy or fidei commissum abate from the Children their Portions natural, due to them by the Law of Nature, obliging Parents to entertain their Children: which the Law defyned to be the fourth part of the Inheritance, Debts deduced, when there were fewer than four Children; a third part, when four; and a half when more. If there be no Children, this Legittima is due to the Parents, Grand Father, and Grand Mother; but not to Brethren, unlesse a base Person be institute. Which Portion natural the Testator could not prohibite the Children to withdraw from the Heretage.

12. Sixthly, the Falcidian Law did restrain Legacies, that they might not exceed three fourth parts of the Inheritance: so that there behoved to remaine one fourth part to the Heir, which therefore was called portio Falcidia. And therefore if the Legacies did exceed three Quarters of the free Inheritance, Debts being deduced; they were abated proportionally, that the Falcidia might remain to the Heir.

13. This Portio Falcidia differs from the natural Portion in this, that the Testator could not prohibite the Heir to take the benefit of the Portion natural; but he could effectually prohibite the Heir to take his Falcidia. The Reason whereof was, because the Falcidia was introduced, to the effect that [Page] the Wills of the Defuncts might be execute: which could not be, if the Legacies left nothing to the Heir considerable, but trouble, as oft-times it falls out. So that this being a Remedy in favour of the Testator, to make his Will effectual; he might prohibite it: and could not be presumed so irrational as to prohibite it, if he had not good ground to know that his Heirs would enter without it. Or indirectly, if the Testator prohibite the alienation of the Heretage, the Law esteemed it as a prohibition of the Falcidia.

The Falcidia had no place in Military Testaments, or in Legacies left to Pious Uses, or left to the Relict of the Testator, nomine dotis. The reason of these exceptions was in favour of Souldiers, Pious Causes, and Tochers. And if the Heir ommitted to make Inventary, he lost the benefit of his Falcidia

14. When the fiduciary Succession became in use, whereby Heirs were institute or substitute, to the use and behoofe of others, to whom they were to restore the Inheritance, or some part thereof, or thing therein; which therefore was called fideicommissum, as being committed to the trust and faithfulnesse of the Heir: the Senatusconsultum Trebellianum did introduce the reservation of a fourth part to the Heir, institute or substitute by these fideicommisses, in the same way that the Falcidia was a reservation from Legacies. And therefore this fourth part was called Trebellianica: which therefore, hath the same exception with the Falicidia, of which in the former Paragraph. And this further, if the Heir were forced by Law to enter, or if within a year thereafter, he do not fulfil the Will of the Defunct; he lost the benefit of his Trebellianica. And if he had either Legacy or Portion of the Inheritance, it was reckoned to him as a part of his Trebellianica.

15. The use of these Fideicommissary Trusts was, when the Testator designed his Inheritance, or some of his Goods, either for Persons that were not capable to be Heirs, or not fit to manage; as through Pupilarity, prodidigality, or some other defect; then he institute other Heirs fit for the present managment; and desired, or required them by his Testament, to restore the Inheritance, or some part of it, to such Persons. And that either simply to a day, or conditionally. And oft times the day of Restitution, was after the Heirs own Death, whereby he had his Liferent or Vsufruct thereof. At first this was wholly left to the trust and faithfulness of the Heir, without any legal Remedy or Compulsion: which afterward were adhibite, with the Reservation of the Trebellianica, as hath been shown. But where the Persons in whose favour the Trust was, were such as could not be Heirs, or succeed, as spurious Persons; then those Heirs were not compelled to restore.

The essential and chief poynt of a Testament is, the Nomination of an Heir, either by Institution, or Substitution: without which it was not allowed the name of a Testament, but only a Legacy, or at best the name of Codicills, which is called by some an imperfect Testament.

16. Codicills might be made before five Witnesses, either in writ or nuncupative: and they were ordinarly additions to Testaments. Yea because, if when Testaments, through want of Solemnity, became voyd, the Legacies failled; therefore there used to be adjoyned this Clause, If this be not valid as a Testament, Let it be valid as a Codicill, which thence is called Clausula codicillaris.

[Page]17. The form of Institution of Heirs, was in plain and short terms, thus; Titius haeres esto. These were either institute solly, or joyntly: and that either equally, or indefinitely, which is understood equally; or otherways by certain Portions. No Institution can be conditional, or to a day: or if it be, it is presently effectual. Because the Heritage cannot hing in the air, and belong to none: else it would prove caduciary. Yet in military Testaments this Priviledge is indulged, as hath been said.

18. Substitution is the Nomination of substitute Heirs, who take place failing the institute. There may be as many subordinate Members of Substitution as the Testator pleaseth. The Institute or prior Substitute, is found to fail, when either he cannot, or will not enter: but if once he enter, the Substitution for ever evanisheth. And if he or his should be extinct who was institute, the Heretage becomes his Patrimony, and no more the first Defunct's Heretage: and so falls not to the Substitute, who is Heir of the first Defunct; but to the Heirs of the Institute. It is otherways with us, in Tailzies, or other Substitutions, as hereafter will appear.

19. Substitution was of two kindes, vulgar and pupillar. Pupillar is that, whereby Fathers were allowed in their Testament, having named their Children being Pupils, to be their Heirs, to substitute Heirs to them: which Substitutes had not only the Father's Heretage, but the Son's, dying in Pupillarity. Under which is comprehended that which is called substitutio exemplaris: whereby Parents having institute their Children, being Idiots, their Heirs; did substitute other Heirs to them, if they entered not, and died Idiots, or Furious. And in military Testaments, the pupillar Substitution is not only effectual, if the Testator make his own Will, and institute his Children: but though he only substitute. And though the Children survive their Pupillarity; yet if they entet not, the Substitution is valid. All other Substitutions are ordinary, or vulgar; when the Testator institutes Heirs, and substitutes others: but hath only effect as to the Testator's own Goods, if those institute enter not; but not as to the Goods of Heirs institute.

20. The matter of next moment to the Institution or Substitution of Heirs, is the leaving of Legacies; which may be left in Testements, or Codicills, and without either in some cases. Any thing may be legat, which is in the Defunct's Goods, alienable; except in so far as is restrained in the Legittima, Falcidia, & Trebellianica: of which formerly. Yea though the thing legat be not the Testator's, the Heir is obliged to purchase it to the Legatar, or the value of it, if the Testator knew it was another's: for then his mind is followed, to make it effectual; at least by the value. But if the Testator legat any thing, thinking it to be his own, which is not his own; the Legacy is ineffectual For Legacies being Donations, they are undestood to be given, but so far as the Giver hath Right: and therefore there is no Warrandice of them, as to the Testator's Right. But if the Heir deliver any thing, not specially legat, in satisfaction of the Legacy; if that be evicted upon defect of the Heir's Right, he is lyable for Warrandice. As if an Heir were appointed to give in Legacy, a Horse worth such a price, not being in the Heretage, but delivered by the Heir, to satisfie the Legacy; if the Horse be evicted, the Legatar hath Warrandice against the Heir: because it is not the Defunct's Right, but the Heir's Right that fails.

[Page]Legacies, and particular Fideicommisses, not being for Restitution of the whole Heretage, or any special Part, or Quota thereof; are equiparat: as Fideicommisses of the Heretage, or a Quota thereof are equivalent to the Institution, or Substitution of Heirs. And either Legacies, or Fideicommisses may be general, whereby a quantity is left; or special, whereby an individual Body is left, as such a Horse, &c. so may they either be left purely, or conditionally, or to a day.

21. This is common to all Legacies, that if the Legatar die before the Testator, the Legacy becomes void, and is not transmitted to the Heirs, and Successors of the Legatar. Neither doth the Legacy belong to the Legatar ordinarly, if the Testament wherein it is left be void, for want of the requisit [...], (of which formerly;) unless it have the codicillar Clause, or if the Heir do not enter, or if the Codicills in which it is left, or if the Testament, having the codicillar Clause, want the Solemnities requisit to Codicills.

22. If the Legacy, or Fideicommisses be conditional, the Legatar dying before the existence of the Condition, loseth the Legacy; and doth not transmit it to his Heir, if it be a casual Condition: but if it be a potestative Condition depending upon the power of the Legatar, and not upon accident without his power; or if left to an uncertain day, which is equivalent to a casual Condition: if so the Condition be in the Legatar's power, (unless he did all diligence to satisfie the same) he loseth the Legacy. But if the Condition fail not through his fault, as being offered and not accepted, or being impeded by any third party; the Legacy is thereby transmitted to the Legatar's Heirs, who are only lyable for the interest of the Condition.

Legacies pure or to a certain day, are transmitted by the Death of the Testator; especially if the Heir be entered, though the day be not come: quia cessit dies, sed non venit.

23. In the several Cases, by which Legacies are established, and transmissible, the property thereof is in the Person of the Legatar, if it be a special Legacy: but the possession thereof remains in the Heir, against whom the Legatar hath not only a personal Action, for payment or delivery of the Legacy; but hath also a real Action of vendication, against him, and all other havers thereof, for delivety of the same. So fideicommisses, which are not conditional, are not alienable by the Heir, but are recoverable from every singular Successor.

24. Conditions adjected to Legacies, or fideicommisses, are of diverse kinds; of which shortly observe; 1. That when Conditions are copulative, they must all be joyntly performed: or when diverse Conditions are severally set down in several places of the Testament. But if they be disjunctive, the [...] formance of any of them is sufficient. 2. If the Condition be divisible, and performable by more persons; each performing his part, hath access to his Legacy. But if it be imposed upon one person, the performance of a part thereof, doth not give access to a proportionable part of the Legacy: but the Condition must be wholly performed, otherways there is no part of the Legacy due. 3. Conditions impossible in facto, as not being lawful, regularly are void, and as not adjected. Amongst which that is accounted one, if Marriage be absolutely prohibited: which the Authenticks restricted only to [Page] [Page] [Page] Maids, and found it lawful in the case of Widows, to adject such a Condition, si Titionubat; and therefore if the Legater married not to that Person, the Legacy was not due.

In Legacies and fideicommissis, a false Narrative vitiats not: as when the efficient Cause, mentioned therein, was not true. for example; if a Legacy be left, bearing to have been for Services done, generally or particularly; albeit these were not done, it is valid. But the expression of the final Cause implys a condition: and if it be not performed, the Legacy ceaseth, causâ non sequntâ, As when Legacies are left for such Uses, Services, or Deeds to be done. Legacies being gratuitous, are of the nature of Donations: and therefore are revocked by Ingratitude, Ipso facto; not only in reaching the Defunct, as if Inimity rose betwixt him and the Legatar; but even after his Death, as if he curse him, or endeavour to make him infamous. Yea, those things against the Heir, will be sufficient to take away the Legacy.

So much may serve for a Summary of the Roman Law, in the matter of Testaments. As for the Succession of the Intestat, it being one, without distinction of heretable and moveable Rights, we have spoken thereof before, Title Succession. We shall therefore only touch on those points which are common, in all Successions, by the Roman Law; viz. of the Inventary, Collation of Goods, and Right of Accrescence.

25. The Inventary of Heretage, was a Repertory of every Particular contained therein: and was contrary to the Rules of the ancient Roman Law, l. si dotis nomine, 33. ff. soluto matrimonio; by which there was neither a Duty nor Benefit to the Heir by an Inventary. But the use thereof was introduced by Justinian in favour mainly of Heirs, and in some cases of Creditors, and Legatars. Of Heirs, that they might not be lyable for the Defunct's Debts in solidum, but secundim vires inventarij, according to the value of the Inheritance. And this much in favour of the Creditors and Legatars, that the Inheritance might not be imbesled. And therefore the making of the Inventary was appointed to be with great Solemnity, before a Judge, upon Citation of the Creditors, and Legatars, so far as they were certain; and publick Proclamation for the rest: and before famous Witnesses. And in place of the absent Legatars and Creditors, three persons were to be present, besides the Witnesses, of good Fame and Means. The Inventary behoved to be made within 30 dayes, after the Heir knew and could enter to the Heretage; and behoved to be compleat within 60. dayes after the beginning thereof. The Inventary not being thus made, the Heir was lyable to the Creditors for their whole Debts, and to the Legatars for their Legacies; without deduction of his Falcidia. Neither could the Testator dispense with, or prohibite the making of the Inventary, in prejudice of the Creditors: but he might in prejudice of the Legatars, so as the Falcidia would be due, in that case, though the Inventary were not made.

26. Collation is the Obligation of the nearest Heirs descending, to communicate what the Defunct Parent bestowed upon them, by Donation, or Tocher, unto the Inheritance: that an equal Proportion or Division might be of the whole, amongst the Co-heirs.

The reason of this Collation was, the equality of interest and affection of Parents, to their Children, of the same Degree, and thence their presumed [Page] Will, that these should enjoy equal benefite by their Parents. And therefore if it appeared, not to have been the Parents Will, Collation had no place. As if the thing were bestowed, with express exemption, ot prohibition of Collation, or if it were left as a Legacy, or Donation, mortis causa: for thereby the Parents purpose appeared, to prefer that Child to the rest, even after the Parents Death.

Collation was competent amongst no other Heirs, than Descendents in the same Degree; and not amongst extraneous Heirs, institute, or substitute; or amongst Ascendents, or collateral Heirs: but only when the Co-heirs were by Testament, or from the Intestat, who are in the same Degree, as being all Children, or all Oyes, &c. But if Children, or Grand-children were institute or substitute together, there was no Collation.

Amongst things bestowed upon Children by their Parents, their peculiar Provisions and Tochers were comprehended: but not their Entertainment, or Expense of their Education. And therefore though one Child were elder, or longer entertained than the rest, or though more sumptuously; or though educated with more noble Accomplishments, and at a greater Rate, as being bred at Schools, Trades, Exercises, &c. neither the Instruments requisite for these as Books, Cloaths, or the like, came under Collation, or was there any estimate or consideration thereof. The reason is, because Entertainment and Education is presumed to be according to the fitness and capacity of the Persons, whereunto a proportion is observed in all Societies and Communions. And therefore the Parents are presumed to have expended upon their Children proportionally, according to the capacity and excellency of their Spirits, and to render them fit to the services of their Generation: which as they have a Benefit, so have with them a large Burthen, and oft-times Hazard. Neither do Donations to Children for any special Service done to the Parents, come under Collarion: because these are not properly Donations, but Remunerations.

27. The Right of Accrescence, is that whereby the Portion of an Heir, Legatar, or fideicommissar, befalleth to another: not by a new and several Succession, but by the first Succession, and as a part thereof. We have litle use of this: and therefore I shall be shorter, in the many and subtile Debates, agitat amongst the Doctors thereupon. For taking clearly up this Right, we must take notice, that Co-heirs by Testament, or Legatars, or [...], are either appoynted conjunct by the words of the Testator, or by the matter: or conjunct as to the words, but [...] as to the matter: or wholly several, both as to words and matter. As if the Testator say, Titius and Mevius shall be my Heirs: there the copulative conjunction joyns them in the same Sentence, and they are joynt in the same Inheritance, without expressing their distinct Portions; in which the Law interprets them equally institute. The like is, if he leave a Legacy, or fideicommissum, in the like terms. But where the Proportion is express, equal, or unequal, thus; Let Titius and Maevius be my Heirs equally; or, let Titius be Heir in one half, and Maevius and Caius in another half: here Caius and Maevius are conjunct in words and matter; but they are several from Titius, both as to words and matter. Or in the first case, Titius and Maevius are joyned in one Sentence, but separat as to the matter: because their Portions are severed and exprest. But if the Testator say thus; I leave Titius my dwelling House, and say after, I leave Maevius the same dwelling House, there is no conjunction of words: because to both severally [Page] the same thing is left. In all these Cases there may be Substitutions: we shall then set down the Right of Accrescence in the several Cases thereof.

First, in the Institution or Substitution of Heirs directly, there is place for Accrescence, whether the Co-heirs be conjunct or disjunct. The reason is, because of that principle of the Civil Law, that no man can die partly Testat and partly Intestat, except in Military Testaments. And therefore if any of the Co-heirs will not, or cannot enter; the Inheritance accresceth necessarly unto the other Co-heir, with its own burthen, whatever it be. Neither can the Heir reject that Portion, for the same reason: and if he enter before the other Heir be excluded, he hath no remedy, and can neither reject the whole nor a part: because he might, and should have seen to the other's Entry, with him, or else he enters on his peril. This takes no place in Legacies, or [...]; because in these, the ground of Law proceeds not. And therefore if any Heretage be ordered to be restored to such persons, severally in distinct Portions, if one of them will not, or cannot accept, that Portion accresceth not to the other, but returns to the Heir. And so in Legacies, if there be a Substitution to any of the Heirs, the Portion accresceth not: because there is place for the Substitute, who becomes Co-heir with the other Institute. This Accrescence is so necessary, that the Testator cannot prohibite it, because he cannot die tested, pro parte. And therefore provisio hominis, non tollit provisionem legis, being as to the necessary Requisits, Essentials, and Solemnities of Law.

Secondly, in the Institution or Substitution of Heirs, or in Legacies, and [...], if there be more Persons, and some of them joynt as to both matter and words; the Rights of those so conjunct do accresce, (if any of the Persons so [...], do not, or cannot accept,) to the rest of the Conjuncts: and not to those that are disjunct in the matter, though they be conjunct in the words. As if the Testator say, Let Titius be my Heir; and thereafter say, Let Seius and Mavius be my Heirs: if Seius or Maevius cannot, or will not enter; their Portion accresceth to the other, and not to Titius. And therefore this Conjunction is called a tacit Substitution, because the Law presumes that the Testator did not inconsideratly, or in vain, joyn Seius and Maevius in one Sentence; and put Titius in another by himself: and so construeth that these two should be more conjunct, and their Portions accresce to one another, and not to Titius.

Thirdly, This proceedeth where the conjunction is only in words, if there be any disjunct both in matter and words: for then the Conjunction makes the Portions of the Conjuncts to accresce each to other, and not to those who are wholly disjunct. As if the Testator say, Let Titius be my Heir in the Half, and let Seius and Mevius be my Heirs equallie in the other Half: Here Seius and Mevius are conjunct in words and not in the matter; because their Portions are severed, and yet their Portions accresce to other, and not to Titius, who is wholly disjunct; and that from the presumed will of the Defunct, as having consideratly put them in one sentence for that purpose. But this takes place only in Institution and Substitution of Heirs, that the Testator die not partly testat: but not in Legacies and Fidei commissis; for in these the Portion of the Conjuncts only in words not being accepted, doth accresce to none, but returneth to the Heir.

[Page] Fourthly, In al, Cases where there is conjunction in the matter, and not in words, there is place to Accrescence. As if the Testator say, I leave my dwelling House to Titius, I desire my Heir to restore the same dwelling House to Mevius; the Portion of either Party not accepting, accresceth to the other, and returneth not to the Heir. But if the Testator say, I leave my House to Titius, I leave the same House to Seius and Mevius, either indefinitly, or expressing their Portions; Seius and Mevius their Portions accresce each to other, and not to Titius: because if they and Titius be conjoyned in matter only, yet they are also conjoyned in word; and so the more Conjunctions prevail, by the presumed Will of the Defunct.

This kind of Accrescence is called by the Doctors, jus non decrescendi: because each party being provided to the whole, which cannot be effectual: therefore concursu partes faciunt, and the Deed is made effectual to them in part equally; if the Will of the Defunct appear by the Provision, not to take away the former wholly, as in many Cases it falleth out. And therefore in this Accrescence, if any burthen be adjected, if that Party accept not, his Portion aceresceth to the other, without that burthen: because the other enjoys his own Right, which was total, and becomes now effectual as to the whole: the impediment that retrenched it, being wholly taken off. But in all other Conjunctions, the Portion accresceth with its burthen. And therefore the accrescing Portion, as being special, may be rejected in Legacies, and Fidei commissis: but it cannot be rejected in Institutions or Substitutions, lest the Testator should be intestat in part. But in jure non decrescendi, when Portions accresce, amongst those that are conjoyned in the matter only; the Accrescence is necessary, and the Portion accrescing cannot be rejected: because it befalleth by one integral Right, which either must be accepted wholly, or rejected wholly: and therein approbans non reprobat, no man can both approve, and disapprove, of the same individual thing.

28. The Law and Customs of Scotland have reduced the matter of Testaments, and Succession in Moveables, much nearer to natural Equity, and made it much shorter and plainer than the Roman Law. For first, the Civil Law did lay the greatest weight, upon the free power of testing: which our Law hath so far abridged, that all Contracts, Pactions, and Provisions in relation to the Heretage of Persons living, are valide and ordinary, in Contracts of Marriage &c. And even pactum corvinum, in the worst sense, is valide: as when one, being provided by Contract of Marriage to be a Bairn in the House, sells that Portion in the Lifetime of the Contracter. Which was sustained, 6. of Julie 1630. Mr. James Aikenhead, contra Bothwel. So an Obligement to leave a Legacy, was found valide, and to stand as an irrevocable Legacy: yet only to be taken out of the Defunct's part of his free Goods. 13. of Januarie 1631. Houstoune contra Houstoune.

29. Secondly; Not only may the power of testing, be restricted by Paction; but is actually restricted by Law, to extend to no immoveable or heretable Right: which cannot be alienate, or affected upon Death-bed, or, which is equiparat, by Testament, though the Testator were in his liege pousty, or perfect Health. And that on good considerations: because Persons are ordinarly and still presumed to be weak, when affected with Sickness, and so not fit to alienat or affect things of their greatest concernment, as their Lands, Heretage, &c. And because it is the great interest of Persons, to be free of all importunities when they come to their Death-bed. At which time they [Page] are only capable of their Deads part, which is seldom [...] and so they cannot affect their Lands, nor can they further dispose of their Goods, upon the Solicitation of Church-men, which is very powerful in the Popish Church, where Indulgences and Prayers for the Dead, to bring them out of Purgatory, are believed, and cannot but be forcible upon dying Men who then are more concerned for the safety of their Souls, than preservation of their Estates. And every where, the pressing Desires of Wives for themselves, or for such of their Children as they most affect, or of Children, Relations, and Friends, may have great impression upon the Sick for preserving their Peace and Quiet. So there remains nothing testable, but moveable Rights. What Rights are moveable, and what heretable, see in the beginning of the Title, Rights Real, which shall not be here repeted. Thence it is, that there is a total Separation of the Succession in heritable Rights, which are only competent to Heirs; and in moveable Rights, as to which because they were intrusted to Prelats, and their Officials, as being presumed most careful of Widows and Orphans, and that the Will of Defuncts should be effectual, who did appoint or confirm Persons to execute the Defunct's Will: the Persons so appointed, or confirmed, were called Executors, and the whole moveable Rights of Defuncts, whether tested on, or from the intested, are comprehended in Executory.

30. The whole interest of Executory with us, is in the Office of the Executor; the Division of the Communion of Goods, betwixt Man and Wife, (whereby the Relict hath her Part;) the Saccession of Children, and nearest of Kin; or Legacies. There is with us, properly, no Institution or Substitution of Heirs. for albeit the Nomination of Executors, be in the Defuncts power, in the first place; and doth resemble the Institution of Heirs, and may receive Substitutions, in the same way; yet is it not properly a Succession, but rather an Offce, which therefore hath a part of the Goods. Executors are Heirs in mobililus, and when Heirs only are exprest, Executors are comprehended, quoad mobilia. If there be Nomination of Executors, with a material Legacy to another, it is a fideicommissiry Succession, to be restored to the universal Legatar. And Executors dative have also a fideicommissary Succession, which they must restore to the Wife, and nearest of Kin of the Defunct. So must Executors nominat, not being also universal Legatars, and being strangers: retaining only a third of Dead's part to themselves, for executing their Office. The greatest power of Defuncts, either by Testament, or otherwayes, is the power of legating by particular or universal Legacies. The interest of the Wife is not so much a Succession, as a Division, of that Communion of moveable Rights, which the Law stateth betwixt the Husband and her stante matrimonio, and which is dissolved by the Dissolution of the Marriage: and so she taketh her share of the free Goods by way of Division.

31. The Succession in Moveables from the intestat, belongeth to the nearest of Kin; who are the Defunct's whole Agnats, male or female, being the Kinsmen of the Defunct's Father's side, of the nearest Degree, without primogeniture or Right of Representation: wherein those joyned to the Defunct by both Bloods, do exclude the Agnats by one Blood.

32. The Line of Succession in Moveables, is first, the nearest Descendents, male or female, in the same Degree, equally; whether Sons or Daughters, without Right of Representation. So that if the Defunct, the time of his Deceass [Page] had two Daughters, though he had an Oye by a Son; the Daughters will exclude the Oye, albeit the Defunct had nothing but Moveables.

The next Degree of the nearest of Kin is, Brothers and Sisters german: and failing these, Brothers or Sisters by the Father's side only, or their nearest Descendents of the same Degree, without Right of Representation.

As to the third Degree of Succession in Moveables, failing Descendents, and Brothers and Sisters, and their Descendents; the Question is, Whether the Father surviving, will exclude his own Brother, or if there be any place for Ascendents, in the Succession of Moveables? Such Cases occur rarely: and I have not observed it debated, or decyded. It is but of late since the like Case hath fallen in the Succession of Heirs, and Heritable Rights: wherein our Custom hath according to the course of the Law of Nature, found the Father to be Heir to his Son, and not the Father-brother, or any of his Descendents; and in that have differed from the Custom of England. And there is no reason why, if the Question should occurr, that the like should not be done in Moveables.

The next Degree is, the Father's Brethren and Sisters german; which failing, the Father's Brethren and Sisters by the same Grand-father, and their Descendents, in the next Degree. In all which both Bloods exclude one Blood. And if there be no Agnat or Kinsfolk found, who can instruct their propinquity of Blood; the Goods become caduciary, and confiscat, and belong to the King, as ultimus haeres; who, and his Donatar, have the same interest, that the nearest of Kin would have had. Vide Title, Confiscation, Section Ultimus hares.

Children in familia, have not only the common Right, as nearest of Kin; but have their legittime Portion, called the Bairns part: in which their Father cannot by Testament, Legacy, or Donation 'mortis causâ, prejudge them; or by any other Deed, on Death-bed.

By the Premises it appears that the whole power of Defuncts, as to Succession in their Moveables, is to nominate Executors and give Legacies.

33. The Nomination of Executors, is properly called a Testament, Additions thereto, or Alterations thereof, are Codicils. Legacies may be left, whether there be Testaments or not; and either in the Testament, Codicils, or apart: but all is ambulatory during the Defunct's Life, and may be taken away expresly, or implicitely, by posterior or derogatory Deeds; unless the Defunct be obliged by Contract, inter vivos, not to alter the same. In which case Contract and Paction, doth so far over-rule the power of testing; that posterior Deeds whether expresly, or implicitely altering, would be ineffectual, like to that Obligement, to leave a Legacy, which was found an effectual Legacy without further Solemnity. January 30. 1631. Houstoun contra Houstoun.

34. The effect of Testaments being so small, the Solemnities thereof are no other, than what are requisit to accomplish any other Writ. For two Witnesses suffice, and if the Testament be holograph, it is valid. Or if the Testator cannot, or be not able through Sickness, to write, a Testament will be sufficient by a Notar and two Witnesses: notwithstanding the Act of Parliament [Page] 1579. cap. 8. requiring to Writs of importance, two Notars and four Witnesses; which holds not in Testaments, though containing matter of great importance. 18. of January 1623. Bog contra Robert Hepburn. Yea Ministers are authorized as Notars, in the case of Testaments. Par. 1584. cap. 133. The reason here of is; because Ministers are ordinarly with sick Persons the time of their Death.

Nuncupative Testaments are not of force in Scotland. For though Legacies left within an hundred pounds, may be nuncupative, without Writ; yet the Nomination will not so subsist, nor be respected by the Commissaries. And therefore a verbal Testament, taking away a formal Legacy, subscrived but by initial Letters; was not sustained, though made at Sea, and so in a Case of necessity: and not admitted to be proven by Witnesses in the Ship. Feb. 18. 1631. Houstoun contra Houstoun.

35. The effect of Testaments is not greater, though made in England, the Testator residing there: and so extends not to an Heretable Sum due in Scotland, left in Legacy by the Testator, being a Scots-man. July 3. 1634. Melvil contra Drummond. Hope Testaments, Purves contra Chisholm. Executors of Collonel Henrison ibid. Neither do nuncupative Testaments of Scots-men, though residing, animo remanendi, abroad, and dying there; have any effect with us: albeit nuncupative Testaments be valid according to the Law and Custom of that Place. For albeit the Custom of the Place, may supply the Solemnity of any Writs, or Evidents, for instructing a Right; as Writs made abroad by Nottaries, and Tabellions, are valid, though not done according to the Law of Scotland, which requires two Notars and four Witnesses, in Writs of importance: yet the Custom of those Places cannot constitute any Right of Succession, not allowed by the Law of Scotland. And therefore William Schaw, Factor and Residenter in London, having lived and died there, in the House of one Mary Lewins, who had confirmed, in England, a nuncupative Testament, whereby he had designed her as Executrix and Legatrix; and the nearest of Kin of the said William, having confirmed themselves Executors to him, in Scotland, and the competition being betwixt them: the Lords preferred the Executors confirmed in Scotland, and had no respect to the nuncupative Testament, as having no effect by the Law of Scotland. January 19. 1665. Schaw contra Lewins.

36. The like Solemnities will be sufficient for Codicils and Legacies. A nuncupative Legacy within an hundred pounds, is probable by Witnesses. November 24. 1609. Russel contra July 7. 1629. Wallace contra Mure. Where a greater Legacy, left by word, restricted to an hundred pounds, was found so probable.

37. The power of Testing is competent to all Persons, who have the use of Reason, though Minors, having Curators not consenting: Wives cled with Husbands, without their consent; Persons interdicted, without consent of the Interdicters: but not to Pupils, Idiots, furious Persons in their Furiosity: neither to Bastards, not having lawful Issue, or testamenti factionem, by the Kings Gift; as in the former Case, Wallace contra Mure. Vide Tit. Confiscation §. Bastardry.

38. Legacies are either particular or universal, general or special. Universal Legacies are when the whole Moveables, in so far as is in the Defunct's [Page] disposal, and not left by particular Legacies, is legat. and so it is legalum per universitatem, and like to the Succession of an Heir.

Special Legacies are, where some Individual is left, as such a Horse, Cloaths, &c. or such a Sum due by such a Person: whereby the Property is stated in the Legatar, and at most, but the Possession or Custody in the Executor. And therefore the Legatar may pursue for Delivery, or Payment of the special Legacy, against the Havers or Debitors: but he must call the Executor, that his interest may be preserved; least the Debts exhaust even the special Legacy. Upon which consideration, the Lords sustained not a Pursuit upon a special Legacy, leaving a Sum due by such a Person, in such a Bond, pursued against the Debitor; the Executor not being called. March 9. 1627. Forrester contra Clerk And before, the Pursuit against the Debitor, at the Legatar's instance, was simply repelled; not being against the Executor. February 4. 1623. Laird of Balnamoon contra Balcomie. Yet Process was sustained at the instance of the universal Legatar, against the Debitor, the Executor being also called. Here there was Malversation betwixt the Executor and Debitors. But ordinarly, Legatars have no immediat Action, against the Debitors of the Defunct; but only against his Executor, Hope, Legacy, Ballantine contra Mr. John Eliot.

Legacies may be left, not only in Testaments, or Codicils; but where there is none: or where there is in Contract;, Letters, or Tickets apart; though the Legacies were not in the Confirmation. December 1. 1629. Executors of Sir William Scot contra Arthur Rae.

39. Legacies, and Donations in contemplation of Death, or done on Death bed, albeit as inter vivos; yet being of Moveables, as Bonds, Assignations, or Gifts of Money, or Goods on Death-bed: have the like effect, and are only effectual, as to the Defuncts free Goods at his disposal, which is called the Dead's part. And if the whole Legacies, exceed Dead's part of the free Geere; regularly they are abated proportionally. Wherein there is no preference, nor Priviledge granted to Legacies left ad pias causas: as for building of a Kirk, delivered by the Defunct long ere he dyed; which suffered proportionable Defalcation with the ordinary Legacies, July 8. 1630. Doctor Monro contra Executors of William Scot. But if the Defunct express his Will, to leave a Legacy without Defalcation; it will not be defalked with the other Legacies.

40. Whether a special Legacy, without such express Will of the Defunct, will be abated proportionally with other Legacies; I have not observed oft decyded. But I conceive it will not bear proportional Deduction: because though not the express, yet the tacit and presumed Will of the Defunct seems to be so. Else why should he leave that Legacy more specially, than the rest? Which is more clear in things left in Legacy; as when a Horse, Sword, Cloaths &c. are left; and the other Legacies are not special: there seems no reason, upon failing of the other Legacies, to burthen the special Legacies; abated they cannot be, directly, not being Quantities but Bodies. The same reason is in Sums specially legat: for though it may appear that the Defunct's reason may be, to leave such a special Debt, to such a Legatar, not as a [...], but because that Debitor is less solvendo; yet with that hazard, the other advantage is consequent; that as he will get no benefit with the other [Page] [Page] [Page] Legatars, solie should bear no abatement with them. It was so decyded July 21. 1665. Spreul contra Murray.

41. Quaeritur, Whether, as in the Civil Law, so with us, if the Testator leave a special Legacy, of that which he knows is not his own; it will be valid quoad valorem? It was found, that a special Legacy left of an heritable Bond, which fell not in Executory, was valid, to affect the Dead's part of Moveables, pro tanto. 22 of Januarie 1624. Drummond contra Drummond.

A Legacy by a Wife, ordaining an Executor to discharge a Bond to the Legatar, was found valid, and to be made up by the Wife's Executors; albeit the Half of the Bond belonged to the Husband jure mariti: as being legatum rei aliena scienter legatae; and the Wife was presumed to know that common Principle in Law, and not to be ignorant thereof. 18. of June 1664. Murray contra Executors of Rutherfoord. It was also so decided, of a Bond left in Legacy, which Bond had been assigned by the Defunct to another, shortly before his Death, whereof he was presumed not to be ignorant. 14. June 1664. Alexander Falconer contra Mr. John Dowgal The like was found of a Legacy, left by a Defunct, out of a Sum he had upon such Lands; which Sum he could not but know was heretable, and could not be legat: wherethe Executor, (who was also Heir,) was decemed to make good the Legacy. 2. of December 1674. Robert Cranstoun contra Brown. Yet a Legacy being special, bearing such a Bond to be confirmed, and communicat to the Legatar; was not found due, or to be made up: in respect that after the Legacy, the Defunct made that Bond heretable, by a superveening Security, which did import the Revocation of the Legacy. July 8. 1673. Grizel Edmondstoun contra Margaret Primrose. But where the Testator gives a special Legacy, of that which he supposeth to be his own; he giveth it, but as he hath it, without any warrandice, being meerly gratuitous: and the Executor is not obliged to make it good. As if he legat a Sum, which he supposeth moveable, and yet is truely heretable. February 21. 1663. Anna Wardlaw contra Frazer of Kilmundie.

42. Legacies are sometimes left together, in one Writ, and sometimes by posterior Writs, which do not derogat to the prior Legacies; but all come in together. If they exceed the Defunct's part, they suffer all, proportional Abatement, except such as are special Legacies. For if one Thing, or Sum be Specially legat to one Person, and by a posterior Writ, be legat to another; the posterior Legacy takes place, and is a Revocation of the former; and they do not come in together, concursu partes facere; as they would do, if left in one Writ, by the Roman Law; and each Legatar would have but a Half. But we have no such Custom, or Style, to legat the same thing intirely, to different Persons, in the same Writ. And if that should happen, it is like, that the posterior Legacy, though in the same Writ, would exclude the prior; as an alteration of the Testator's mind, while his Testament was a framing: for it is ordinary in the same Writ, to alter prior Clauses, by posterior. There is also this Exception, of the Consistency of Legacies, left at diverse times, that the Assignations, as inter vivos, on Death-bed, have only the effect of Legacies. Yet posterior Assignations, though not special, but generally, out of so much of the Defunct's Means, are preferable to prior general Assignations. July 21. 1676. Trails contra Gordoun. And Bonds of Provision to Children, on Death-bed, though they have but the effect of Legacies; yet they do not [Page] come in with prior Legacies, to suffer a proportional Abatement, but are preferred thereto. December 14. 1676. Katharin Mitchel contra Litlejohn. And a Defunct having, on Death-bed, given Assignation to one of his Children, to some of his Bonds, and thereafter by his Testament, nominat that Child, and an other his Executors, and universal Legatars; the universal Legacy, was not found to take away the prior Assignation: though the same was not delivered, nor did contain a Claūse, dispensing with Delivery; but that Child had both the Assignation, and the Half of the remainder of Dead's part. January 29. 1677. Aikman contra Successors of David Boyd. A Legacy by a Husband to his Wife, was found not to be understood, to be in satisfaction of her Third, but to be wholly out of the Defunct's Third. January 12. 1681. Trotter Lady Craigleith contra Rochead Lady Prestoungrange. And a Legacy left, for building a Bridge, being a definite Sum; the Executor having builded the Bridge, with less Expense, the superplus was applyed, to build another Bridge in the same Shire. June 18. 1678. Commissaries of Berwick Shire contra John Craw.

43. Legacies, Donations in contemplation of Death, or Deeds on Deathbed, may affect the Defunct's whole free Moveables, Debts being deduced; except only as to the Relict's, part, and Bairns part: which were found not to be prejudged by an Assignation to a moveable Sum, made by the Defunct on Death-bed. July 10. 1628. Cant contra Edgar. The reason of this limitation on Legacies, will easily appear, when the nature of the Relict's part, and Bairns part shall be considered.

The Relict's part of her Husban'd Executory, or Moveables, hath its rise from that Communion of Goods, betwixt Man and Wife stante matrimonio, of which, Title Conjugal Obligations, §. 12.

The Communion of Goods, betwixt Husband and Wife, is competent ipso jure, without Contract, as a part of that individual Society, wherein Marriage consists. And therefore by the Dissolution of the Marriage, the Communion is dissolved. So that if the Husband die first, the Wife hath her Share of his Executory: and if the Wife die first, her Executors, Legatars, and nearest of Kin, have a Share of the free Moveables, the Husband hath, the time of her Death. In which Children of that Wife though of other Marriages, will have part of her Share, with the Children procreat betwixt the present Husband, and the Wife, both being in a like propinquity to her.

44. The Bairns part is their Legittima, or Portion natural: so called, because it flows from that natural Obligation of Parents, to provide for their Children. Which is not extended, to restrain the Parent to dispose of any part of his Means; but only so, as to leave a Portion thereof to his Children: which because the Law orders, and determins; it is called the Legittime.

The Bairns part is only competent as to the Father's Means, and is not extended to the Mother, or Grandfather: nor is extended to any, but lawful Children. Neither is it extended to all lawful Children, but only to those who are not for is familiat. And it carries a Third of the Defunct's free Moveables, Debts being deduced, if his Wife furvived; and a Half if there was no Relict.

[Page]45. But here the Question ariseth, What is For is familiation, whether being actually out of the Family be sufficient; as if the Child exercise a Trade a part, or be married, without the Father's consent; at least without a Portion or Tocher from the Father? Or whether it be sufficient that the Child be forisfamiliat, and provided by the Father, albeit the said Provision be not accepted expresly in satisfaction of the Portion natural, and Bairns part? Or whether none be accompted forisfamiliat, to exclude them from the Bairns part; unless they discharge the same, or accept a provision in satisfaction thereof? There be probable reasons for all the three parts: but the main Doubt, is upon the last two, Whether Provision be sufficient, as being presumed, to be given and accepted, in satisfaction of the Portion natural. So much the rather that in Contracts of Marriage, Fathers of times use to adject a Clause, That the Child Contracted shall be a Bairn in the House: which would be superfluous, if the Child would be a Bairn of the House, unless the Bairns part were expresly discharged. And therefore Tochers, and Provisions being neither expresly in satisfaction of the Bairns part, nor yet with provision, That that Child shall be a Bairn in the House; must be holden to be given, and accepted, in satisfaction of the Portion natural. Which is confirmed by a Decision observed by Dury. February 1. 1622. Janet Eleis having pursued the Executors, af umquhil Patrick Eleis her Father, for her share, with the rest of the four Bairns, in the said Patrick's House; and that by a Clause, in her Contract of Marriage with John Smith, afterwards Provest of Edinburgh, providing her to be Portioner, of her Fathers free Geer, with the rest of his Bairns, provided the rest were forisfamiliat, and provided likeways by their Father. In which Case, the said Janet was found to have her Share, albeit two of the Bairns were not married, but only provided. Whereby it appears, that the Lords accounted Provision as Forisfamiliation. Yet the contrary opinion is more probable, viz. That nothing can take away the Bairns Legittime, unless it be discharged. And that a Presumption, of accepting a Tocher, or Portion, in satisfaction, will not be sufficient, unless it bear in satisfaction of the Portion natural and Bairns part. 1. Because the legittime is so strongly founded, in the Law of Nature, and positive Law, that Presumption or Conjecture cannot take it off. 2. This is more suitable to the Civil Law, which we follow in this Case, whereby the difference betwixt Children, being emancipat, or forisfamiliat, or sui under the paternal power, and in the Family is taken off as to the Succession and Legittime. And therefore there is introduced collatio bonorum, whereby all that the emancipat or forisfamiliat received from their Father, must fall in under the Accompt. So their Tochers, Gifts, Provisions &c. are imputed in a part of the Legittime; but are never presumed to be the whole, unless it were exprest. 3. Collatio bonorum is ordinary with us, by which the Tocher of the married Children comes in the Accompt of the Bairns part: which could not take place, if those Tochers were presumed to be in satisfaction of the Bairns part, unless the Clause to be a Bairn in the House, were expresly added. Which was so found. February 27. 1627. Janet Ross contra Marion Kellie. Where the Pursuer being married, and tochered; was not excluded from the Bairns part, there being no other Bairns in the Family. Yet there was a Wife in the Family, and so the Executory was tripartite. Neither was the Pursuer made to bring in her Portion, collatione bonorum. But here the Contract bare, that the Tocher was in satisfaction of that Daughter's right to her Mother's Third, who was her Father's first Wife.

[Page]If then it be urged, that the Clause, to be a Bairn in the House, signifies nothing: It is answered, that the Clause may be propter majorem evidentam & securitatem. But also as to the clearing of this Question, Whether that Clause hath not this effect, that that Child should not only come in, to have a Share of the Portion natural, with the Bairns of the Family; as if that Clause had not been adjected, but the Child had come in, only provisione legis. In which Case, the Child forisfomiliat behoved to have brought in the Tocher, or Portion, collatione bonorum: but when the Child comes in also provisione hominis, the effect is, that it be without Collation. Which is so much the more evident, that oftimes Children are provided to be Bairns of the House, after the rest are likewise provided. So that when that Condition is not adjected, the meaning is, that without consideration of the Tocher, or former Provision, the Children by that Clause should have equal share. It was so found Spots. Test. Elizabeth Carsen contra Agnes and Marion Carsens.

46. Collation then hath only place amongst Children, where it is not prohibite, expresly, or implicitely, by the Father, providing that Child to be a Bairn in the House. But Collation hath no place as to the Wife: because Tochers in such Provisions, being as inter vivos, of its own nature, it is no part of the Executory; but is done by the Husband in [...] potestate, who is dominus omnium bonorum, at least hath plenam administrationem, notwithstanding the Communion of Goods in the Wife: But Collatio is only a Remedy introduced in Law, to keep Equality amongst Children, who have an equal Interest in their Father and his Moveables: but it is not introduced, to keep an Equality betwixt the Wife, and them. Neither doth it design an Equality in all things, but in Provisions, or Tochers, in Money; which must be accompted to those who got the same. But Land disponed to a second Son for Love and Favour, not bearing for his Portion or in satisfaction thereof, was not found to exclude him from his share of the Bairns part, with his Sister: nor to require him to collate what he got in Land. January 14. 1677. Duke and Dutches of Balcleugh contra Earl of Tweedale.

Hence ariseth another Branch of the former Question, Whether if all the Children be forisfamiliat and provided; but have not discharged their Portion natural, or Bairns part, or accepted the provision in satisfaction thereof: If in that case they will have access to a Portion natural, in prejudice of the Relict and Legatars? I say, if they be all provided, because if some be in the Family unmarried and unprovided, the Relict and Legatars will be no more prejudged, if all the Bairns come in, or only some of them, because many, or few, they will have all the Bairns part and no more. The former Case, Ross contra Kelly, seems to bring in the Children, though all forisfamiliat, to a Legittime with the Relict: because there was but one Child, and she married, and tochered. Only it is observed, that her Provision was in satisfaction of her Mother's part: so that albeit she was married, yet it appears that she was not provided, ex bonis paternis, but only ex bonis maternis. And therefore it remains yet unclear: and there seems much reason that the Wifes interest being a division of her Communion of Goods, she should not devide with them who are out of the Family and provided, unless they had a Provision to be Bairns in the Family. By the common Practick also, Commissaries divide Executory in two, where there is a Wife, and the whole Children married, and so presumed to be provided. It was so found where there was but one Child married and provided, though not exprest in satisfaction. But the Child was admitted to a Third, offering to confer. February 18. 1663. Dumhar [Page] of Hemprigs contra Frazer And where a Defunct had only two Daughters, besides his Heir, the one in her Contract of Marriage, getting a Tocher in full satisfaction of her Portion natural and Bairns part; and the other in her Contract, being provided to be a Bairn in the House, was found to have the whole Right to the Bairns part, and to the Deads part, and Office of Executory, excluding the other: who was found to succeed to no part, as being renounced in favour of her Father, and returning back from him by his Succession; but that it accresced to the other, though she was not Executrix nominat, but dative. And therefore the Confirmation of her, sole Executrix, was sustained. January 27. 1680. Agnes Sandielands contra Rachel Sandielands.

There is an other considerable difference, betwixt the condition of the Wife and Children, introduced by the Act of Parliament 1641. revived Par. 1661. cap. 32. whereby Bonds and Provisions bearing Clause of Annualrent, which before were heritable, and so fell not within Executory; now are moveable, as to the Bairns, nearest of Kin, Executors, and Legatars, only excluding the Relict: and are disposeable by Legacy, or Nomination, and at the Defunct's disposal, by Testament, or any Deed on Death-bed. And they are exhaustible by Debts of the same nature, which Debts of that nature, do not exhaust the Relicts part: which is inferred by a necessary consequence from the foresaid Act of Parliament 1641. For seing thereby Wives have no Share of their Husband's Bonds bearing Annualrent; as they have not the benefit, so they ought not to be burthened with such Bonds: unless the Husband or Wife die before the Term of Payment of the Annualrent; or that the Bonds become moveable, simpliciter, by a Charge, or Pursuit for Payment thereof, whereby the Creditor's mind is presumed to make the Sum simply moveable. In which Case, the Wife hath both the benefit and burthen of such Bonds in her Share, July 14. 1664. Elizabeth Scrymgeour contra Murrays.

Yet the Wife hath her Share of the Annualrent of all Bonds, though heritable, due before Dissolution of the Marriage: but no Share of the said Annualrents after, nor of the Stock. June 24. 1663. inter eosdem. In this Case, a Bond being payable to the Husband and Wife, the longest Liver of them two, but bearing no Annualrent; the Relict was found to have her option either to lift the whole, and re-imploy it, for her Liferent use; or to have the Half of the Stock, seing it bare no Annualrent: but not to have both the Annualrent of the whold, and the Half of the Stock. But Bonds which exclude Executors, are heritable quoad creditorem: but moveable quoad debitorem. Because the Creditor excludes his Executor: whereas the Debitor's Executor is not excluded, but lyable. But Bonds bearing Clause of Infeftment are simply heritable, both as to the Debitor, and Creditor: for by these, the mind of the Creditor appears, to exclude all others but his Heir, except as to the bygone Annualrents.

48. Heirs are excluded from the Bairns part, though in the Family; because of their Provision by the Heritage: except two Cases. First, if the Heir renounce the Heritage, in favour of the remanent Bairns: for then the Heir is not to be in worse case than they; but they come in pari passu, both in heritable and moveable Rights, which is a kind of collatio bonorum: which will hold when there is no Bonds but heritable Bonds.

[Page]49. Secondly, If there be but one Child in familia, and so both Heir and Executor; that Child hath not only the Heritage, but the whole Bairns part, and so abates the Relict's part, and Dead's part. Nic. Division of testaments, Kennedy contra his Father's Relict. The like without Collation of the Heritage. January 12. 1681. Catharine Trotter Lady Craigleith contra Rochead Lady Prestoungrange.

50. In the Division of Executory, respect is had to the time of the Defunct's Death, as to the Relict and Children, though before Confirmation, or any one's owning of the Succession. For then if there be a Wise surviving, and Children, the Exeentory is tripartite, whether the Bairns be of the same Marriage, or some other Marriage. As was found in the former Case. June 17. 1631. Chapman contra Gibson. In which Case, there was but one Bairn, who if the Father had been dead, would have been Heir. The like. July 18. 1624. Henrieson contra Sanders. So the Wife and Children surviving, transmit their Parts to their nearest of Kin ipso jure. And Legatars have Right to, and do transmit Legacies, to their Executors, though they have not insisted or recovered them in their own Life: unless the Legatar die before the Testator, (for then the Legacy is not due,) or that the Legacy be conditional, and the Legatar die before the Condition be purified. And if any of the Children, who survive the Defunct, die before Confirmation, they transmit.

51. Yea the nearest of Kin, surviving, transmit their Right by the Act of Parliament 1540. cap. 120. Whereby it is clear that the nearest of Kin have a proper Right, and not solly by the Office of Executory. But it is more clear by the Act of Parliament 1617. cap. 14. which maketh jus agnationis, to the nearest of Kin, due by the Executors, though the nearest of Kin be not confirmed Executors, and so have Interest only by the Office. And so it was found amongst the Executors of umquhil Patrick Bell in Glasgow, whose three Sisters having confirmed his Testament, one of them was found to transmit her Share to her Children, though she died before Execution. For the Son of that Sister was found to have his Share, albeit the Office of Executory accresced to the two Sisters surviving, and with the Office, the Third of Dead's part. Feb. 11. 1662. The like was found since betwixt Dame Agnes Maxwel and the Earl of Wintoun. And after full Debate, it hath been determined, that the Jnterest of the nearest of Kin, is only extended to those who are existent nearest of Kin the time of the Confirmation of the Defunct's Testament, which is aditio haereditatis mobilium. And the Executor is haeres fideicommissarius, who must restore to the Relicts and Bairns, their part of the free Geer, Debts deduced; and to the nearest of Kin, whether Bairns or any other, in proximo gradu, the time of Confirmation, the Deads part, the Legacies deduced: reserving to the Executors nominat, if they have no proper interest, a Third of the Dead's part, unexhausted by Legacies. So that the Executor adit haereditatem, not for himself only, but for all Parties having interest. Which is suitable to the Entry of Heirs in heritable Rights: and whereby jus sanguinis, of the nearest of Kin, is not prejudged; seing immediatly after the Defunct's Death, Edicts may be served, and the nearest of Kin will be confirmed Executor, if a Nomination be not produced. And though any of the nearest of Kin, should die before a Confirmation can be expede; it is an extraordinary contingencie, which Law regardeth not. And the Act of Parliament 1617. which establisheth the Right of the nearest of Kin, by making Executors comptable to them, presupposeth a Confirmation, [Page] before the interest of the nearest of Kin be established. But though the Executor die, before the Testament be execute, there must be an Executor ad non executa, who will be comptable to those, who were nearest of Kin, the time of the first Confirmation. And if any of them die, before they attain their Share; their Bairns or nearest of Kin will have no Right, till they confirm the Testament of the nearest of Kin deceassed, and give up an Inventary, of what will be due to the Defunct's nearest of Kin, by the Executors of the prior Defunct. Neither will the Share of any Bairn, or nearest of Kin, deceassing without Children, belong to the Surviver jure accrescendi: who will not represent them passivè, and be lyable to the Debts. And therefore must be confirmed as Executors to them: and thereby have both an active and passive Title. All which was found. Feb. 14. 1677. Duke and Dutchess of Balcleugh contra Earl of Tweeddale.

52. By the premisses it is evident how Executory is to be divided, what Dead's part is, and how it may be affected with Legacies, or Deeds of the Defunct in Testament, or on Death-bed. For first, all Persons who have no Wife, or Children unforisfamiliat, without Husband, (and Wives, though they have Children) have the whole disposal of the Executory: and may leave Legacies, and Donations of their moveable Estates, and do other Deeds on Death-bed, equivalent to their free Goods: so that Dead's part is the whole. But if the Defunct had a Wife, and Children unforisfamiliat, then the Executory is tripartite: and Dead's part is a Third, the Wife's part is a Third, and the Bairns part a Third. But if the Defunct have a Wife and no Children unforisfamiliat, the Executory is bipartite: the Dead's part is a Half, and the Wife's part another Half. Or if he have Children unforisfamiliat, and no Wife, the Executory is also bipartite: and in either Case, his Legacies, or Deeds on Death-bed, may be equivalent to the Half of his free Geer. And if the Commissaries by error or mistake make the Division otherwayes, none are prejudged thereby, who are not called, and compearing: but may summarly, without Reduction of the Confirmation, be admitted to claim their Share. Which was so found. Feb. 27. 1627. Janet Ross contra Marion Kello.

Children have a threefold interest in their Father's Executory. First, their Bairns part, wherein their Father cannot prejudge them. Secondly, their interest in Dead's part, whereby they have Title to the Office of Executory, if the Defunct nominat none. Or thirdly, if he die, they have all that is free of Dead's part, not exhausted by Legacy, or by the Executor's Allowance, for his Administration; which is the Third of the Dead's part. And that, when he nominats Executors: unless they be also universal Legatars; or though the Children appear not, to claim their Office, when Executors dative are confirmed by the Commissaries.

53. This interest is common to all other nearest of Kin. This is clear by the Act of Parliament 1617. cap. 14. as to Executors nominat, that the nearest of Kin may pursue them, for the free Geer; even for Dead's part, except a Third to the Executors for their Administration. So that if they have any Legacy, it is imputed as a part of the Third, and the Executor nominat, hath not both, separatim: and he hath but the Third of Dead's part, Debts and Legacies being deduced. So that if there be an universal Legacy to another, the Executor nominat hath nothing. November 29. 1626. Forsyth contra Forsyth. July 9. 1631. Wilson contra Tinto. Where the reason is rendered, because [Page] before the Act of Parliament 1617. Defuncts might exhaust all their Dead's part by Legacies: and that Act was not to better Executors, but to restrict them. The like January 15. 1674. Pattoun contra Leishman. The like Spots. Executors of Moncrief contra Moncrief. And seing the said Act bears, Strangers being nominat, shall have but a Third of the Dead's part; therefore the Wife will have no more but her Third. Or if one of the Children should be nominat, or the nearest of Kin: for none of these are Strangers, and so have nothing for their Administration, but their Expenses. November 28. 1676. John Ker contra Jean Ker. But concerning Executors dative, this Statute gives them no Share of Dead's part.

54. The order of Confirmation is, that the Commissaries having emitted Edicts, affixed on the Church-door, where the Defunct died, calling all Persons having interest, to confirm; then, according as Parties compear, and compete, they prefer the greatest interest. First, the Executor nominat, then the nearest of Kin. Thirdly, the Relict, Legatars, and Creditors: and all failing, the Procurator fiscal, or such who are surrogat by him; who enjoyed the whole Dead's part, till their Right were reduced, on a better Title. But since, not only the Wife and Bairns, who may call all Executors to accompt, for their parts, but also the nearest of Kin, have been admitted, to call the ordinary Executors dative to an accompt, without Reduction. But before the said Statute, all Executors had the whole profit of Dead's part, as the Narrative of it bears. And yet of old, it appears the Executors had litle benefit, if there was any Debt, heritable, or moveable: for they only were lyable for a year: and thereafter to find Caution to relieve the Heretor, Par. 1503. cap. 76. But these Executors dative have not a Third of Dead's part, for their Administration, though they be Strangers: for the Statute gives that only to Executors nominat, being Strangers. But the Fiscal, by the Trust committed to Bishops to have a care of Defunct's Executory, and the Quota, which is the twentieth penny of free Geer, should execute the Executory, where none are nominat by the Defunct. And therefore, Executors dative are his Assigneys, surrogat in place of the Fiscal. November 28. 1676. John Ker contra Jean Ker.

This interest of Children, as nearest of Kin, is never taken away; unlese they renunce or discharge, not only the Bairns part, or Portion natural, but all that they may succeed to, by their Father's Death.

To come now to the Office of Executory, and what power Executors have activè, and how far they are lyable passive; we must distinguish Executors. They are either nominat, or dative, constitute by the Commissaries: and these are preferred according to their several interests in the Executory. And these who are Creditors of the Defunct, preferred hoc nomine, are called Executors Creditors. Executors are also principal, or ad ommissa, & malè appretiata; or ad non executa. And all these may be either Sole Executors or Co-executors.

All Executors are obliged, to give up Inventary upon Oath, bearing that they have omitted nothing known to them, nor have misapretiat the same; and must find Caution, to make the Executory foorthcoming, to all Parties having interest. They use also to protest, that what further comes to their Knowledge, they may [...] or add to the Inventary: which they may still do, [Page] before another do Diligence, to confirm a Dative ad omissa, & malè appretiata; or before they be pursued for Super-intromission.

55. An Executor nominat in England, was admitted to pursue in Scotland, upon a Confirmation there, without Inventary: in respect of the Custom there, not to make Inventary. Feb. 16. 1627. Lawson contra Bartholemew Kello. But in that Case, an Executor dative, confirmed in Scotland, having found Caution, was preferred to the Executor nominat and confirmed in England. Spots. Executors, inter eosdem.

An Executor being decerned, though not confirmed, may pursue not only the Defunct's Wife and Bairns, to give up Inventary; but also Strangers. Novemb. 11. 1609. Heriot contra Heriot. But till he be confirmed, or have Licence, he cannot pursue for Payment. Decemb. 12. 1622. Cathcart contra Cuninghame.

56. Executors intending to confirm, use to get a Licence to pursue: which ordinarly bears, excludendo sententiam. Which was sustained, though general, to pursue for all the Defunct's Debts, naming none. Hope, Executors, Farquhar contra Law. But the Obtainer must be first decerned Executor: for till an Edict be served, and an Executor confirmed, there can be no Title given to pursue. Yet before Confirmation, the Licence may be granted.

If the Decreet be extracted, on such Licence, before Confirmation, the Decreet is null. Hope, Executors, John Aitkin contra Richardson. Nicol. de acquirenda & amittenda hereditate, Janet Tweedie contra Magdalen Lawson. Licences use not to be granted, after the principal Confirmation: and therefore was not sustained as a Title. December 14. 1621. Haliday contra Yet it was sustained, for pursuing a Debt particularly exprest therein, being dubii juris. January 21. 1624. Carnousie contra The like where the Licence was granted to a Creditor surrogat as Executor Creditor, ad omissa. June 30. 1665. Stevenson contra Crawford. Feb. 21. 1668. Scot of Clerkingtoun contra Lady Clerkingtoun.

Executors confirmed, have Right to call for, and uplift all the Defunct's Moveables confirmed. The Executors of a Donatar ofa Liferent Escheat, was found to have Right to the Bygones of that Liferent, before the Donatar's Death: and his Heir to the Profits of the Liferent, after the Donatar's Death, albeit there was no Declarator in his Life. January 28. 1671. Keiry contra Nicolson. But Sums secured by a condition in a Reversion, that no Redemption should be till these Sums were payed, (where the Disposition was not granted for these sums, as the Cause thereof,) though they affect the Ground disponed, yet remain a moveable Right, befalling to Executors. Feb. 18. 1676. Thomas Wauch contra Doctor Jameson.

57. It useth to be controverted, betwixt the Heir and Executor, about the Rents of Lands, and others, which run according to the legal Terms. So if the Heretor, or Liferenter, survive Whitsunday and Martinmasse; their Executors have that whole year, albeit it be Victual payable at Candlemasse. because the last legal Term is Martinmasse. And it was so decided, even in the Case of a Miln. Feb. 21. 1635. Laird of Westnisbet contra Laird of Swintoun. The like was found, albeit the Entry of the Tenent was at Whitsunday and the conventional Terms of Payment of the Miln Rent, were, the first Half at Candlemasse, [Page] and the second at Whitsunday; That Liferenter surviving Martinmasse, being the last legal Term, had the Rent of the Miln, both payable at Candlemasse and Whitsunday, after that Martinmasse. July 20. 1671. Guthry contra Mackerstoun. But if they live only till Whitsunday, then their Executors have the Half of the Rent, Victual, or Mony: if they live till the Term-day, though they die that Day, their Executors have that Term wherein they died. It was so found, that the Defunct dying on Martinmasse-day, at eleven hours, his Executors had that whole Years Rent. Hope, Executors, Tenents of Merchistoun contra Napeir. The like, where the Defunct died on Marlinmasse-day in the afternoon, the Executor got that whole Year. 16. of February 1642. Lady Bruntoun Relict of the Bishop of Galloway contra his Executors.

58. Executors have also Right to Steelbow Goods, without prejudice to the Tenent's Tack thereof, to continue till it were expired. Decemb. 4. 1638. Countess of Westmorland contra Countess of Hume. January 28. 1642. Patrick Dundass contra George Brown. June 1681. Mackanlay contra Laird of Ardincaple. As to other particulars, it will appear what Rights are moveable, Title Real Rights.

59. Co executors cannot pursue, unless the rest be concurring, or called. March 8. 1634. contra Lag. Yet if any of the Executors confirmed will not concur, and contribute equal Pains and Expense; the Pursuit will be sustained without him: and he may be excluded by a Process before the Commissaries on that ground. June 29. 1629. Young contra Murray. But when Co-executors have ohtained Sentence, and so execute the Testament, every one may pursue for their Shares, severally, without concourse or calling the rest. January 25. 1665. William Menzies contra Laird of Drum.

One Executor cannot discharge a Debt, wholly: seing the other Executors have equal Share in all. March 17. 1630. Semple contra Mackie and Dobbie. Yet this Debitor alledging, that the Executors pursuing, had received their full Share; it was sustained. March 24. 1680. inter eosdem. An Executor's Discharge was sustained, though the Executor dyed before the Testament was registrat, he having confirmed, made Faith, and found Caution. Hope, Executors, Elizabeth Lawson contra Lady Humby.

Amongst Co-executors the Office accresceth to the Survivers, who are in the same case as if the defunct Executor had not been named. Only in so far as the Testament was execute before that Executor's Death, his Share is transmitted to his Executors, and accresceth not: but is transmitted cum onere debitorum defuncti pro rata. And it seems the defunct Executors, being Strangers, should have only a share of a Third of Dead's part, so far as execute in their Life: seing that benefit followeth the Office, and should be proportionable to the effect, and charge thereof.

60. Assignations granted by Executors, have only the effect of Procuratories, and ceass by the Death of the Debitor: unless they have attained effect by Sentence, or Satisfaction, whereby alone the Testament can be execute. And if all the Executors die before the Testament be execute, in so far as it is not execute, the Goods remain in bonis [...]: and the Assigny cannot pursue, but there must be an Executor ad non executa. But if the Testament was execute by the Executor, by obtaining Decreet for the Sum assigned; the [Page] Assignation is effectual, after the Executor's Death: or if the Assigny obtain sentence or Satisfaction in the Executor's life. For in either of these Cases, the Testament is execute as to that part.

61. If all the Executors be dead, and any part of the Testament unexecute; then there is place for Executors ad non executa. A Testament is execute when the Debt is established in the person of the Executor active, and the Debitor passivè; either by new Security, or by Decreet: or otherways, when it is discharged, or assigned to a party interessed in the Executory. But Litiscontestation doth not execute the Testament. Feb. 20. 1627. Duke of Lennox contra Alexander Weyms. But the Execution of the Testament, doth not establish the full Property of the Goods in the Executor, leaving only an Action against him, to the Defunct's Creditors: but he continues as Administrator. And therefore in competition betwixt the Creditors of the Defunct, and the proper Creditors of the Executor affecting the Sums or Goods which were the Defunct's, by Arrestment; the Defunct's Creditors, without respect of Diligence, are always preferred to the Executor's proper Creditors. July 8. 1664. William Veatch contra Lord Lee. December 16. 1674. Kelhead contra lrving and Borthwick. December 16. 1675. Crediiors of James Mastertoun and Eleis Thin. Neither doth the Executors Delinquency or Rebellion confiscat further than their own Interest in the Executory, but not the Interest of Creditors, Legatars, Wife, or Bairns: albeit the Executor have execute the Testament by Decreets. December 21. 1671. Mr. Arthur Gordoun contra Laird of Drum.

But it may appear, that seing now the nearest of Kin surviving, transmit their part of the Executory to their Executors, though they die testamento non executo; there should be no need of Executors ad non executa: but the Executors of the Wife, Bairns, and other nearest of Kin, might confirm the same in their Testament, and not in the first Defunct's Testament; not being in bonis primi defuncti, but secundi, being transmitted to his Successors. But this is not consequent, or consonant to our Custom. And therefore, to clear this difficulty, advert, that though the Right to the Goods, be in the nearest of Kin surviving; yet the administration and possession is in the Executor. And therefore, the Goods are still said to be in bonis defuncti, till they be established in another's person, active, by execution. So that their Goods remain in bonis primi defuncti, though all his Executors die, as well as one, and are not in bonis of the nearest of Kin, who have but an Obligation on the Executor, or jus ad rem, whereby the Goods are still said to be in bonis defuncti. So that all the Executors of the Defunct dying, there should be a Confirmation ad non executa: yet if the nearest of Kin die, there may be another Confirmation of his Executots to establish the Right of the nearest of Kin in their person; to the effect his Executors may pursue the first Defunct's Executor ad non executa. In the same way as if the first Executor had been alive, and the nearest of Kin had died before execution; the Executors of the nearest of Kin, behoved to confirm his Right, and thereupon representing the nearest of Kin, pursue the Executor of the first Defunct, as the nearest of Kin himself could have done. If it be objected, that there is no Representation in mobilibus: the answer is, that this is to be understood at the time of the Defunct's Death; whereby those only who survive, have Right per capita, and not the Descendents of those who died before the Defunct. But if all survive, the Right is in all, and transmitted, not by Right of Representation, but as jus quaesitum, to their immediat Predecessors. And though the Office will belong only to those, who are alive the time of the Confirmation, [Page] in the nearest Degree to the Defunct; yet the nearest of Kin to those who survived the Defunct, and died before Confirmation, will get the Share of their surviving Parent, as to the Bairns part or Relicts part: because these are not properly Succession.

But as to the Deads part, which befalleth to the nearest of Kin jure agnationis, it is conveyed by a proper Succession to the nearest of Kin: wherein Children unforisfamiliat, succeed as nearest of Kin, and so are lyable to the Legacies, and Deeds of the Defunct on Death-bed, as to the Deads part; but not as to their Bairns part. And therefore Bairns surviving their Father, though they die before Confirmation, they transmit their Bairns part, but not Deads part, unless they also survive the Confirmation; that being aditio haereditatis in mobilibus.

62. Executors ad omissa, & malè appretiata, ought to call the principal Executor to their Confirmation: else their Confirmations are null. February 14. 1622. Bain contra March 12. 1631. Duff contra Alves. But this holds not in Executors Creditors ad omissa. June 28. 1623. White contra These having a more favourable interest, for satisfying their own Debt.

It may be questioned here, Whether those things can be called malè appretiata, which are pretiat by the Defunct himself? Doubtless modica differentia is not to be regarded: but if the Price be considerably to the lesion of Creditors, Legatars, or others, as being a Half, or Third within the just Price, they may be repretiat. Feb. 1. 1662. Belshes contra Otherways it stands: though both the Quantity and Price were known to be greater, the Difference not being exorbitant. Feb. 2. 1672. Agnes Nimmo contra William Martin. And Executors are comptable, according to the ordinary Prices: seing id non agebatur by the Price, to gift to the Executor; unless it had been exprest that the Price should not be questioned. And then it is as a Legacy to the Executor, and to be imputed in part of the Benefit of his Office: and prejudges none, but Legatars. For the Defunct can do no Deed on Death-bed, or in Testament, further than extends to the Dead's part. An Executor ad omissa pursuing the principal Executrix, who deponed that she had confirmed her Husband's Corns, by an Estimat thereof, in the Barn-yard, by skilled Men; but that it had arisen some Bolls higher: and that she had confirmed a part of a Sum, contained in a Bond granted to her Husbands, because she knew the rest was payed: she was found lyable, not according to the Estimat, but according to the Quantitie the Corns arose to; and for the whole Sum contained in the Bond: unless she produced the Bond, that the Executor ad omissa might proceed thereon for the rest; or otherways, that she proved that part she omitted, was payed by the Debitor: and that her oath of Knowledge could neither exoner the Debitor, nor her Self. November 6. 1679. Alexander Bruce contra Anna Douglas. And an Executor was made to depone, upon the Goods, Quantities and Prices, in the Inventary, at the instance of an Executor ad omissa, notwithstanding the principal Executor's Oath at the Confirmation. July 18. 1667. Jean Ker contra John Kiv.

63. Executors Creditors must instruct their Debt before the Commissaries. And therefore if they have no Writ to instruct it, they may pursue the nearest of Kin cognitionis causâ. And having obtained Decreet, it will instruct [Page] their interest, to get Confirmation as Executors Creditors: which being done they need not instruct their Debt to the Defunct's Debitors, or others, but the Confirmation is sufficient; the Debt being but the ground, on which the Commissaries preferred them to be Executors dalive. Spots. Testament, James Reid contra James Lochier. So that no Objection against their Title or Debt, or that they are satisfied by the Executory or otherwise, will exclude them: as that the Debt was a Bond on Death-bed, though proponed by other Executors Creditors, confirming within some dayes after. Feb. 16. 1628. Creditors of Adam Marshal contra Byres. And therefore, they may confirm, and uplift much more than the Debt due to them: but are lyable for the superplus. But their Confirmation prejudgeth not other Creditors, who used Diligence before the Confirmation.

64. So much for the Office, Power, and Interest of Executors activè. Let us now consider their Duty and Burthen passivè. And that is, first, All Executors are lyable for Diligence in executing the Testament, but not all equally: for those who have a profitable Office, are lyable for more Diligence, than these who have not; as Executors nominat, where Dead's part is not exhausted with Legacies, are most obliged for exact Diligence. But if there be an universal Legatar, whereby the Executor hath no benefit, the Executor is only lyable quoad dolum & latam culpam, and for supine negligence; but not to use Horning and Poinding, but to assign when ever the Legatar insisteth. June 11. 1629. Nivine contra Hogs. The like as to a special Legacie, whereof the Executor had no benefit, and the Legatar might have pursued for it himself. December 2. 1628. Port contra Morison.

The ordinary Diligence required of Executors, is Sentence and registrat Horning against the Defunct's Debitors: but how soon this must be dispatched, is according to the difficulty and length of the Process, quod est in arbitrio judicis. Executors are lyable in the first place, to the Defunct's Creditors, secundûm vires inventarii, and no further. And that not only to the Creditors, to whom moveable Debts are due: but also to the Creditors in heritable Debts or Obligements prestable by the Executor, not consisting in facto proper to Heirs, as to dispone Land, &c. December 14. 1609. Gray contra Craig. February 24. 1627. Carnagie contra Lermonth. Hope, Executors, Adam contra Gray. And so were found lyable, to imploy a Sum on Land or Annualrent for a Wife's Liferent-use. Hope, Executors, John Tran contra James Jackson. February 17. 1632. Kincade contra Yeoman. Where the Executor was not only found lyable to imploy the Sum, but to pay the Annualrent of it. March 12. 1622. Sir William Fairly contra Executors of Fairly. And also for Warrandice of an Infeftment, being liquidat. July 22. 1630. Salmond contra Orre. And an Executor was found lyable to pay a Creditor of the Defunct, the Price of Lands sold to the Defunct by a Minute: without restricting the Creditor to the Heir, who only would get the Right of the Land by the Minute, which remained incomplete; or without causing the Creditor dispone the Land to the Executor, in lieu of the Moveables exhausted by the Price: reserving to the Executor Relief against the Heir as accords. July 1. 1662. William Baillie contra Margaret Henrison. And generally Creditors have their option, to pursue the Heirs or Executors of their defunct Debitors. Yet Executors were not found lyable for an annual Payment for Years after the Defunct's Death, but only his Heir. Febrnary 5. 1675. Mr. Ninian Hill contra Maxwell. But if there had [Page] been no heretable Right to affect, the Executor would have been found lyable.

It was long dubious, whether Executors Creditors were lyable for any Diligence, seing they confirmed for Payment of [...] own Debts, and therefore were only obliged to assign to Creditors after the Executors themselves were satisfied; or at least that they had sufficient time to recover Satisfaction. Till the Lords by Act of Sederunt of the 5. of March 1679. declared Executors Creditors, lyable for what they confirm, as other Executors dative: but that they are not [...] to confirm the whole Inventary. And that they might have Licence to pursue, to find out the most solvent Deb of their defunct Debitors, making Faith that they doubted of the existency [...], or [...] of these Debts; and finding Caution to confirm what they found good Debt. And that other Executors might be confirmed ad omissi, who should be lyable to all Parties as principal Executors. The reason whereof was, because the Means of Orphans, might be neglected by the Confirmation of Executors Creditors, who were obliged to give up, and confirm a full Inventary upon oath, though far exceeding their own Debt, whereby other Executors that were obliged to Diligence, were excluded and hindered.

Executors Creditors, are lyable for the Defunct's priviledged Debts: as funeral Expenses, Servants Fees for a Year or a Term as the Servants [...]: which are preferable to the Executors Creditors own Debt. Nov. 25. 1680. David Crawford contra Huttoun.

65. But the Executors have Relief of all heritable Debts against the Heir, as the Heir hath of moveable Debts against the Executor. July 30. 1630. Carnousie contra Meldrunt. December 11. 1632. Geills Shaw contra Shaw.

66. Executors may not prefer one Creditor to another: and so may not make voluntary Payment, but upon Sentence without Colinsion. And if before Payment any other Creditor use Citation, they may not pay securely, till in [...] Double-poynding the Creditors be called, and dispute their preference. December 2. 1628. Lyel contra Hepburn. December 16. 1629. White contra Relict of the Master of Jedburgh. July 8. 1634. Dame Margaret Prestoun contra Executors of Hepburn. Unless the Creditor citing, pass from that Instance. December 4. 1623. Rochead contra Manderstoun.

And therefore the ordinary Defence is, That the Executor is exhausted by Payment, made upon Sentences before intenting of the Pursuer's Cause. Yet if the Executor have payed, he may alledge, That the Creditor to whom he hath payed, had done more timous Diligence, and so was preferable: in which case he will be heard as that Creditor were competing. And Executors may pay Creditors whose Debts are acknowledged in Testament, without Process, if the same be payed before intenting of any other Creditor's Pursuit: but after Citation Debts may not be payed, though given up by the Defunct in Testament. March 31. 1624. Lady Curriehill contra Laird of Curriehill, Nicol. de haereditariis actionibus. March 28. 1627. contra Anderson. Neither may the Executor pay any other Debt, though before Citation, in prejudice of the Debts in the Defunct's Testament, which puts the Executor in mala fide, and in necessity to suspend on Double-poynding, [Page] though these Debitors testamentary insist not. March 8. 1631. Duff contra Alves. Nicol. de haereditariis actionibus. March 28. 1631. Scougal contra Horseburgh. Yea Executors may not safely pay any Creditor of the Defunct, not being a testamentary or priviledged one, but upon Sentence. Otherwise Executors might before any Pursuit prefer what Creditors they pleased. June 7. 1677. Andrew contra Anderson.

67. But because Creditors, Relict, Bairns, or Legatars, may pursue the Executor immediatly after the Confirmation, before Executors can do Diligence; therefore they cannot be decerned to pay: but either time will be granted to do Diligence; or the Executor will be liberat, upon granting Assignation to parts of the Inventary. Wherein the Creditors will be first preferred, and next the Relict, Bairns, and Legatars.

68. And because Creditors at distance, may be excluded, not knowing of the Defunct's Death; therefore the Lords by Act of Sederunt. February 28. [...]. did declare, That all Creditors of Defuncts, using legal Diligence, at any time within half a Year, of the Defuncts Death, by confirming themselves Executors Creditors, or by Citation of the Defunct's Executors, or vitious Intromettors with their Goods; shall all come in pari passu, without respect of the prioritie or posterioritie of their Diligence. Whereunto it is necessarly consequent, that all Decreets against Executors, within six Moneths of the Defuncts Death, except for priviledged Debts, ought to bear Superceeding execution for seven Moneths at least, after the Defunct's Death: that in the seventh Month Executors may suspend upon Double-poinding, all Decreets against them within six Moneths of the Defunct's Death. To the effect all the Creditors may come in joyntly, if they exceed not the Inventary: and if they do exceed, they must suffer proportional Abatement. But if the Inventary exceed all the Debts, the Relict, and Bairns, will have their Shares, of what is free: and Dead's part will be applyed to the Legatars, who if their Legacies exceed, must suffer proportional abatement; but if they be less, the Remainder will belong to the Children or other nearest of Kin.

69. After the six Moneths are run from the Defunct's Death, and all Debts, recovered in that time, are fatisfied; Creditors pursuing thereafter, are preferable, according to the Sentences recovered by them, without collusion. As if the Executor defend against one, and not another; or that after Process before the Lords, other Creditors prevent them by prior Sentences before inferior Courts: the first Citation will be preferable, if they have not been negligent.

70. If the Executor make payment, bona fide, to the Relict, Bairns, or Legatars of the Defunct, before intenting of any Creditors Cause; he will be secure, against Creditors intenting posterior Process: for he could not hinder the Payment of these, upon unknown Creditors. But voluntary Payment, without Sentence at the instance of the Relict, Bairns, and Legatars, will not secure him. By the Roman Law Legatars were obliged to find cautionem mucianam, obliging them to refound their Legacies, in case posterior Creditors did pursue. l. si cujus es ff. de jure deliberandi, which hath not been accustomed with us. But there is competent to such Creditors, Action of Repetition, against the Relict, Bairns, or Legatars, which will be instructed by the Discharge to the Executors.

[Page]71. Testaments or Confirmations are execute, when the Inventary is established in the person of the Executor, either by obtaining payment Bond or Decreet. Yet thereby the Executor becomes not to have the full Propertie of the Defunct's Goods and Debts so established: but he remains Fideicommissarie, and is obliged to restore. Yea the Decreet, or Bonds granted to him for the Defunct's Estate, may be affected for Debts due by the Defunct. And in Competitions betwixt the Creditors of the Defunct, and the Creditors of the Executor, the Defunct's Creditors are preferable: though the Creditors of the Executor proprio nomine, have done more Diligence. And for the same cause the Rebellion of the Executor or his Delinquency doth not confiscat the Executory, although established in his person by Decreets, in prejadice of the Defuncts Creditors; but only the Executors own Interest therein. December 21. 1671. Mr. Arthur Gordoun contra Laird of Drum.

72. But Executors may safely pay funeral Expenses, comprehending Medicaments to the Defunct: because these have a Priviledge, from the common Obligation of Humanity to bury the Dead; and therefore are preferable to all other Debts of the Defunct, and so may be payed at any time. Decem. 16. 1674. Kelhead contra Irving and Borthwick. Item Servants-fees for a Year or Term as they are hired, and a Term's House-maill or Cures to the Defunct on Death-bed, have the like Priviledge.

73. Arrestment was found habilis modus, to put the Executor in mala fide to pay other Creditors, not calling the Arrester, who being a Cautioner, arrested all Sums in the Executor's hands due to the Creditor, though he had not used Diligence thereupon to make foorthcoming. June 14. 1625. Andrew Couper contra Lady Haltoun. Yet without legal Diligence or Intimation, exhausting as aforesaid was not found relevant against a Creditor, whom the Executor had acknowledged ypaying Annualrent to him. Spots. Executors, Janet Telfer contra Moffat. The Executory is likewise exhausted, by Debt due to the Executor himself, without any Process but meerly by exception of Compensation, though he be not confirmed Executor qua creditor, but Executor otherwise.

74. The Defunct's Debitor will not get Compensation, upon an Assignation to any Debt of the Defunct's taken after the Defunct's Deceass, whereby that Debitor would be preferred to other Debitors doing Diligence. Feb. 8. 1662. Thomas Crawford contra Earl of Murray. Feb. 14. 1662. Children of Mouswell contra Lawrie of Maxwelstoun. And likewise, if the Executor had payed a Debt, for which he or his Predicessor was Cautioner for the Defunct, whereof the Terms were past before Payment, (though without Process) it may be allowed: but not for Cautionry, not payed before intenting of another Creditor's Cause. Januarie 26. 1628 Adie contra Gray.

75. The old Custome was, that Executors behoved to get Exoneration before the Commissaries, calling the Creditors and all having interest, and compting to them. And it was not relevant to alledge Exhaustine, by Exception, but there behoved to be a Deereet of Exoneration obtained, which is the only sull and general Liberation. But it is not valid against Creditors having out the Executor in mila fide, as being Creditors testamentarie, or [...] by the Executor, or using Citation or Arresiment. June 14. 1625. [Page] Andrew Couper contra Lady Haltoun. Neither is Exoneration valid being general, not containing a particular Accompt. March 10. 1632. Lady [...] contra Haddo.

76. But now for a long time, the Lords have been accustomed to admit the Exception of Exhausting, albeit there hath not been a Decreet of exoneration obtained. For instructing Exhausting, Executors may found upon Payment of the priviledged Debts at any time: upon the Expense of Confirmation: upon Debts due to themselves, before Confirmation; but not upon Debts assigned to them after Corfirmation: upon Payment of testamentary Debts, after six Moneths, though without Process: upon Payment of other Debts thereafter, according to the priority of Diligence: upon Absolvitors of Debts due to the Defunct in the Inventary: upon Diligence by Process or Execution for recovery of the Defunct's Debts not recovered: and upon Expenses of Process or Execution; seing Executors get no Expenses modified against the Defunct's Debitors, who are not obliged to pay, without Sentence. All which being allowed, if any thing in the Inventary remain unrecovered; the Executors will either get time to do further Diligence, or will be liberat, granting Assignations to the Creditors according to their Diligence.

Executors are not obliged to make faith on the Defunct's Debts, except in so far as may concern the Executor, without prejudice to Creditors, Legatars, Wife, Bairns, and nearest of Kin. Spots. Executors. Monteith contra Katharine Smith. March 6. 1627. Scot contra Cockburn. March 13. 1627. Ker contra Lady Covingtoun. And therefore they cannot exoner themselves by Decreet, upon their Oath or holding them as confess'd, without having other probation which may be taken off by the Executors Oath. Nicol. hic, Bell contra Gib.

Executors are not conveenable Severallie nor lyable in solidum but pro virili parte: unless they have intrometted with as much as will satisfie the Debt in question. July 22. 1630. Salmond contra Orre. July 23. 1625. Mr. Peter Ewat contra Atkin. July 12. 1626. Turnbull contra Mathison. Hope, Legacies, Mackmichael contra Mackwharie.

If any of the Executors be dead, the Office accresceth to the Survivers: and they are lyable and conveenable alone. But if the deceased have intrometted with, or done Diligence for any part; in so far as the Testament was execute before the Executor's death, it liberats the Survivers, and the Pursuers must have access to those representing the deceassed. But for what is wanting through negligence of the whole Executors, the Survivers are lyable. And so where the deceassed had intrometted with their Share, the Survivers were only found lyable for their own parts. Hope, Legacles, Haliday contra Halidly. July 16. 1628. Peacock contra Peacock. July 23. 1625. Atkin contra Mr. Peter Ewat.

Executors are lyable for the Inventary, without necessity for any to prove that they intrometted therewith: which is presumed, unless the Executor show his Diligence, and how he was excluded. Which was sustained as to the Moveables of the Defunct, consirmed by an Executor Creditor. Februarie 7. 1679. Pearson of Kippen-Ross contra James Wright. And likewayes an Executor was foundly able for Sums confirmed, due by Bonds whereof the Dates [Page] were exprest in the Confirmation: which were presumed payed, seing the Bonds were not produced. Januarie 29. 1681. Gray contra Brown.

Executors are to be confirmed ubi defunctus habuit domicilium: and these who have Houses or Residence in divers Commissariots, the chief Residence is the Domicile, and that Commissary only confirms the whole, though in other Jurisdictions. June 25. 1611. Laird of Abercrombie contra The Wife's Domicile follows her Husband's: and though she resided several Months in another Comissariot and died there, yet her Testament was confirmed where her Husband resided. July 23. 1622. Procurator-fiscal contra Lady Gordoun. But as to Defuncts residing out of the Countrey, their Testaments are confirmed at Edinburgh, Yet if they die in Edinburgh, or else where, not animo remanendi; their Testaments are not to be confirmed at Edinburgh, but where they had their Domicile. So albeit a Defunct had dwelt in Edinburgh half a year, in a House taken for a year and furnished for himfelf; it was found that his Testament behoved to beconfirmed in the Countrey: because he had his principal Domicile there with some Children and Servants, and attended only at Edinburgh on Law Affairs. Procurator-fiscal of the Commissariot of Edinburgh contra the Relict and Children of the deceass'd Earl of Panmoore.

TITLE XXXI. Vitious Intromission.

[Page]

1. Vitious Intromission onlie a passive and no active Title, even against other vitious Intromettors, without Assignation from the Creditor.

2. Vitious Intromission is the [...] etensive passive Title, reaching onlie those who might [...] Defunct, but all other [...] mettors.

3. The reason of the large extent of Title.

4. All vitious Intromettors are [...] in solidum, and conveena [...] verally.

5. Whether vitious Intromission be competent by Exception?

6. Vitious Intromission sustained generally, without the Pursuer's Condescendence.

7. Vitious Intromission is onlie competent to Creditors.

8. How far vitious intromssion must be universal.

9. Vitious Intromission is excluded, if Executors were confirmed before Citation, though after the Intromission.

10. Whether Executors Creditors, being confirmed, exclude [...] Intromission pursued thereafter.

11. How far Confirmation of Executors although after Citation, excludes vitious Intromission.

12. Super-Intromission.

13. Vuious Intromission how far excluded by Gift of Escheat and Declarator.

14. Vitious Intromission is excluded, by anie colourable Title, though defective.

15. The Cusiom of England as to Intromission.

16. Vitious Intromission sapit delictum, and is onlie competent against Intrometters themselves during their lise.

17. How far vitious Intromission is excluded by acquiring bona fide?

[Page] VITIOUS Intromission is only a Passive Title, making the Intrometter lyable to all the Defunct's Debts, passive: but is not an active Title, whereby the Intrometter can call and pursue activè. For thereupon there is no ordinary Action competent at the instance of the Intrometter, against his Complices, for mutual Relief: but the Intrometter paying, must only make use of the Creditor's name to give him a Title, upon the Creditor's Assignation; which will necessitat the other Intrometters to satisfie but only pro rata, they alledging that it is to the behoose of another Intrometter, whose part at least must be abated.

2. This is the largest passive Title, extending not only to those who have relation to the Defunct, and have a Title to be his Heir or Successor in moveables; but to any Stranger intrometting without any interest: whereas gestio pro haerede, and Successor titulo lucrativo post contractum debitum, can be incident to none but apparent Heirs, qui precipiunt haereditatem. But not only the Children and nearest of Kin intrometting, are lyable in solidum for the Defunct's whole Debts, but any other Person having no legal interest of Succession. Which is peculiar to this and no other Nation, and not without ground.

3. The rise and reason of this passive Title is, because Moveables are more easily abstracted from Creditors of Defuncts, than their Lands, or Profits thereof, which every one will not attain without a Title, at least without being apparent Heir therein. But if Defuncts Moveables might be medled with without Confirmation, or making Inventary upon Oath, and no further hazard than single R eitution; there would never be a Confirmation: but both Creditors and Orphans would be highly prejudged by abstracting and concealling the Moveables of Defuncts. And to remedy this, our Law hath introduced this passive Title, that without Confirmation or other Title, the Medler shall be lyable in solidum to Creditors.

4. Vitious Intromission is so far extended, that one Intrometter may be conveened singly in solidum, and his alledging other Intrometters will not liberat him pro tanto. July 12. 1628. Moristoun contra Laird of Frendraught. But where more persons (viz. two) were conveened together as Vitious Intrometters, and the Probation instructed that both intrometted; they were not found lyable in solidum, but equallie, without consideration of the proportion of their Intromission. November 16. 1626. James Chalmers contra Marshal and White.

5. Whether Vitious Intromission be competent by Exception, or only by Action, is not yet come the length of a current Custom. But there are Decisions [Page] favouring either side. As if any person pursue the Executor Heir or Cautioner of a Defunct, the Question is, Whether they may except, That the Pursuer is Vitious Intrometter with the Defuncts Goods, and thereby is lyable to pay his Debts, and so is Debitor aswell as Creditor, & confusu ne tollitur obligatio? It was decided affirmativè, Hope, Exception. Lindsay contra Douglass: but it was decided negativè, November 20. 1630. Pride contra Thomson. And the Negative seems more favourable, not to extend this burthensom and odious passive Title ultra [...]. And therefore Vitious Intromission may alwayes be purged by Confirmation, before intenting of the Pursuer's Cause. To which it is more consonant that they who alledge Vitious Intromission, should not be permitted to except but pursue: that before the Pursuit the Intrometter may have liberty to purge. It was so found in the Case of an Assigny pursuing, against whom the Debitor pursued alledged, That the Assigny could be in no better case than the Cedent who was Vitious Intrometter with the Debitor's Moveables, and so was both Debitor and Creditor. Januarie 20. 1671. Captain Ramsay contra William Henrison.

6. Vitious Intromission was also sustained generally, without necessity to the Pursuer to condescend on Particulars: seing the Libel bare the Defender to be universal Intrometter with the Defunct's Moveables, which is the ordinary Stile of this passive Title. In which Case the Defender was found obliged to condescend upon particular Moveables which were the Debitor's, and intrometted with by him by a Title. Januarie 20. 1630. Adamson contra Ireland. But if the Pursuit be against the Defender as Vitious Intrometter, he ought to condescend upon the special Intromission; unless he refer it to the Defender's Oath, who knows his own Intromission and must either adject a Quality where competent, or propone a Defense, to purge the Vitiositie.

7. This passive Title being so large, wants not its own Limitations and Exceptions. As first, it is only effectual to Creditors, and not to Legatars, or any other Party, who cannot pursue upon this ground, nor for any further than is truely intrometted with, in those Cases where these can pursue Intrometters, as in special Legacies, &c.

8. The Intromission must be universal: not that the Intrometter must medle with all the Defunct's Moveables, but must medle quasi prr universitatem, because Heritage is per universitatem. And he that medles with a Flock of Sheep, medles per universitatem: yet many of the Flock may be medled with by others, but what remains being still the Flock, he is only said to medle with the Flock. And so Intremission with one thing, or some small thing will not infer this passive Title, to make the Intrometter lyable. So a Relict was not found lyable in solidum, as having intrometted with the Crop of five Bolls of Corn, eating of four or five Sheep, and detaining in her possession thretty more; not upon the accompt of her being Relict, or of necessary Intromission, but for that her Intromission was not Universal. December 5. 1623. Scot contra Levingstoun. But if universal Intromission be libelled, though the Probation be not so ample, yet if it reach Particulars of diver Kinds, and these of moment; it was found enough. Januarie 12. 1623. Bruce contra Where fewer Kinds of less value proven, were found sufficient reo absente. And Vitious Intromission was inserred, by the Son of a Wright's continuing to work with [Page] his Father's Tools. June 15. 1625. Laird of Abercairnie contra Nicol. This was for a year's Rent due by the Defunct to his Master. But vitious Intromission was not [...] by the Servants of a Coal-heugh continuing to use the Instruments of the Coal-work for some time, without determining whether those Instruments were moveable or not: but the Heir was not found Vitious Intrometter thereby. June 9. 1680. William Brain contra the Earl of Lothian.

9. It seems to be on this ground, that it is a legal Desense against Vitious Intromission, to alledge, That there are Executors confirmed to the Defunct; whether it be the Intrometter, or any other, though the Intrometter derive no Right from these Executors, nor had no Warrant of Intromission. Because Executors being Universal Intrometters, there cannot be more Universal Intrometters severally: and therefore there cannot be both Executors, and other Universal Vitious Intrometters. And albeit more persons may be conveened as Vitious Universal Intrometters, yet one or other of them must be understood to be sole Vitious Intrometter; or otherwise that they all joyn in Universal Intromission.

Confirmation of Executors was found sufficient to elide Vitious Intromission, albeit after the Intromission the Intrometter caused a person wholly insolvent be confirmed and find a Cautioner insolvendo, and the Intrometter payed the Quote, and was at all the Expense. July 28. 1620. Tenent contra Tenent. Spots. Universal Intrometters. Stevenson contra Paterson.

10. Some have questioned, Whether Confirmation of Executors Creditors could purge Vitious Intromission, seing Creditors do only confirm for their own satisfaction, and not to execute the Defunct's Executory, and so need confirm no more than will satisfied themselves. But I have not observed it repelled, nor is the difference convincing. For albeit Executors Creditors confirm to their own behoofe, yet are they universal Intrometters, and must confirm all they know, and so make Inventary: albeit their interest to be Executors, be but qua Creditors. And albeit they be not lyable for so exact Diligence as others, it was found relevant to exclude Vitious Intromission, That an Executor Creditor was confirmed. June 20. 1629. Douglass contra Touris. January 20. 1663. Stevenson contra Ker and others. The matter may be more dubious now, since the late Act of Sederunt, whereby Executors Creditors are not obliged to confirm all they know, or make faith on the Inventary; but so much as they think may secure their Debts: and therefore other Executors may be confirmed. So that the danger and inconveniency of Vitious Intromission remains, and Executors Creditors so confirming, are not Universal Intrometters. And therefore it is like, that by such Confirmation Vitious Intromission with Moveables not confirmed, will not be excluded by such Confirmation.

11. Confirmation of Executors regularly, is not relevant to purge vitious Intromission, whether by the Intrometter, or others, in so far as concerns those Creditors, who had used Citation and Diligence against the vitious Intrometters before Confirmation, whose Sentences are drawn back to their Citation: especially si non sint in mora, and so est jus iis quaesitum, at least inchoatum, before Confirmation. Decem. 12. 1609. Durtie contra Clerk.

[Page]But this must be limited thus. If the Creditor hath used Citation shortly after the Defunct's Death, there being no competent time to confirm, neither any time limited in Law other than year and day, after which the Executor must be comptable to relieve the Heir: therefore unless the Intrometter were meerly praedo having no interest, as neither being Wife, Bairn, nearest of Kin, or having a Disposition without delivery; it is sufficient to confirm after the intenting of the Creditor's Cause, being within year and day. In which case the Intrometter confirming will be lyable secundum vires inventarii, albeit only conveened as Intrometter, not as Executor: without necessity of a new Process. It was so found in the Case of the Defunct's Son, who intrometting, and being cited, yet confirming within year and day; was but lyable as Executor. January 24. 1628. Aldie contra Gray. Hope Executors, Bald contra Hamiltoun. Spots. eod. Thomson contra Laird of Rentoun. Jan. 28. 1663. Margaret Stevenson contra Ker and others.

12. The Exception of Confirmation of Executors is elided, by alledging That the Intrometter, though having confirmed, yet hath fraudently concealed some part of the Goods and Means, not put in the Inventary. Which Superintromission dolosè, is relevant to elide Confirmation. Hope Executors, Raeside contra Cathcart. Spots. eod. Cleiland contra Baillie. Which holdeth, if the Intromission were before the Confirmation: but if it was after, it useth not now to be sustained, till the Creditor confirm as Executor dative ad omissa, that the Quote be not lost. July 8. 1676. Irving contra Forbess of Tolquhon.

Super-intromission was also sustained without a Dative ad omissa, to elide Exhausting proponed by an Executor. Jan. 14. 1639. Margaret Inglis contra [...] Bell.

13. When Defuncts die at the Horn, Declarator of their Escheat hath the same effect to exclude Vitious Intromission as the Confirmation of their Executors; not only competent to the Donatar intrometting, but to any other Intrometter: for both being Universal Titles, reaching the Defunct's Moveables, every Intrometter there with is lyable. Decem. 15. 1638. Ogilvie contra And a Gift of the Escheat obtained by the Intrometter, albeit after the Intromission, being before Citation at the instance of the Creditor pursuing; was found relevant to exclude Vitious Intromission: because the Donatar needs no Declarator for what was in his Possession, Nicol. de haereditariis actionibus, Moodie contra Hay of Fourlands. But if the Gift were taken before the Defunct's Death, if it be simulat, by the Defuncts retaining Possession during his Life; it will annull the Gift and Declarator, and exclude the Defense thereupon: as was found in the foresaid Case, Ogilvie contra

Nor will a Gift and Declarator be sufficient against any Creditor pursuing the Intrometter, the Gift being post motam litem. Or though the Gift was ante motam litem, it will only defend the Donatar intrometting, or those deriving Right from him: but not other Intrometters, as Had. observes, but expresseth not the Parties. Jan. 25. 1611. And as was found in the Case of the Intrometter's obtaining a Gift ante motam litem, though after his Intromission: although Citation was used before Declarator. July 17. 1635. Lord Johnstoun contra Johnstoun. Jan. 22. 1675. Chalmers contra Agnes Gordoun. And Vitious Intromission was elided by an Heir's Intromission with his Father's Moveables, having obtained a Gift as soon as was possible, his Father having died Rebel in Sepemb. and the Gift being obtained in Novemb. so soon as the Exchequer sat, albeit the Gift was after Citation. January 8. 1680. John Urquhart contra Arthur Delgarno. Yea if the Intrometter did intromet by Right or Warrant from the Donatar, whose Gift was ante motam litem albeit before Declarator, it is sufficient. As was found by a Tolerance from the Donatar. Nicol. de haereditarits actionibus [Page]Cairncross contra Crookshank. And by a Warrant from the Donatar. July 4. 1665. Mr. Walter Innes contra George Watt. But it is not relevant to alledge, That the Defunct died at the Horn, and thereby had no Moveables, which were become escheat to the King. Feb. 7. 1662. Gray contra Dalgarne.

14. Vitious Intromission is also restricted to the single value, when it is by vertue of a Disposition from the Defunct, albeit the Disposition was found null by Reply, as done in defraud of Creditors, by a Husband to his Wife. June 16. 1671. Bonar contra Lady Couper. And a Disposition of Moveables, with an Instrument of Possession, being for a cause onerous, granted while the Defunct was on Death-bad though there was no natural Possession till after his Death; wassustained to purge Vitious Intromission. July 6. 1664. Alexander Brown contra Lawson. But a Disposition of Moveables, where the disponer retained Possession during his Life, was not sustained. Nicol. de haereditariis actionibus, Strachan cont. Scot. The like where the Disposition was to the Defunct's Son's Wife: seing the Defunct retained Possession for a considerable time; his Son and his Wife being with him in Family June 28. 1632. Dalrymple of Waterside contra Laird of Closeburn. So that such Dispositions, if the Defunct live long after retenta possessione, are not sufficient, as in the last two Cases. But if the Disposition were shortly before the Defunct's Death, that his continuing in Possession would not [...] simulation or frand, the same would purge the Vitious Intromission, at least restrict [...] to the single value.

15. By the Law and Custom of England, Vitious Intromission with a Defunct's Moveables doth only extend to the single value. And therefore Intromission being made in England, was extended no further here. July 26. 1619. Lord Dingwal contra Wanderson.

16. Vitious Intromission being penal, sapiens naturam delicti, is not to be sustained against any as representing the Intrometter, when there is no Action intented against him in his own life: after which, no other can be able to clear the Title of his Intromission with moveableGoods quae transeunt per commercium, and so the Defunct might have bought them bona fide. July 10. 1666. Cranstoun contra Wilkison. And for the same reason Behaving as Heir by Intromission with Heirship-moveable, is not sustained after the Intrometter's Death, as hath been observed in that Title; though there can be less pretence of Commerce in that case. Yet though Decreet were not obtained before the Intrometter's Death, if Litiscontestation were made against him compearing, when it was proper to him to purge his Intromission by any competent Defense; if the same were proven after his Death, it might overtake his Successors: unless the Intromission had been simply referred to his Oath; for then dying before he gave his Oath, his Successors could not be lyable, because he might either have qualified or denyed his Intromission.

17. Vitious Intromission is simply excluded by those who acquire, by way of Commerce bona fide, for a just Price: albeit in some Cases Executors may recover Defuncts Goods reivendicatione. But where bona fides doth not appear, but Collusion or Fraud, the buying of Defuncts Goods will not be sustained. As was found in the Case of a Party deponing that he bought a Defunct's Goods within ten dayes after the Defunct's Death, when he knew there could be no Confirmation of the same, or lawful Title thereto: albeit he deponed that the Seller had a Disposition from the Defunct, but which he did not produce, and his Oath was not found to prove it, but the Acquisition was found to be a Collusion, the Buyer being the Defunct's Goodson, pretending to buy from a Stranger. Nov. 29. 1679. Irving contra Kilpatrick.

[Page]

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The institutions of the law of Scotland deduced from its originals, and collated vvith the civil, canon, and feudal- lavvs, and vvith the customs of neighbouring nations ... / by Sir James Dalrymple of Stair ...

Stair, James Dalrymple, Viscount of, 1619-1695.

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1681

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— The institutions of the law of Scotland deduced from its originals, and collated vvith the civil, canon, and feudal- lavvs, and vvith the customs of neighbouring nations ... / by Sir James Dalrymple of Stair ..., Stair, James Dalrymple, Viscount of, 1619-1695..

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