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 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 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
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 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 Heir-male for the Portion of the Heir-female 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 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
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 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 Ward-holdings 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 Non-entry 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 Sub-vassals yet the Confirmation of other Superiours of Sub-vassals
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 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 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 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
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 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 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 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 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 Sub-tacks 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 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 Tack-Duty 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 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
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 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 re-imploy 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 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 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 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 Forth-coming 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
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 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 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
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 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 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
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 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 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 Inner-Chamber 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
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 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 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 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 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
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 〈◊〉 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 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 â—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
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 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 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
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 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 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 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
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 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 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
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 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 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
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 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 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
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 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 Feu-duties 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 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
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 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 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
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 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 Sheriff-Clerks 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 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
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 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 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
Liferent of these Tenements after which the Father having Infeft her of new in that half the 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 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 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 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
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 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 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
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 Non-entry 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 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 Non-entry 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 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