contrary acts of Injury by doing evil in stead of good Thirdly For the security of the people and anticipation of Error and Fraud and that evident probation may be had Men do most profitably order deeds to be done in such a palpable and plain form as may easily appear in which there can be no injury seing the manner of doing these deeds is free and in our power Thus though the dispositive will of the Proprietar be sufficient to alienate any thing that is his and to constitute the Right thereof in another Yet by the Civil Law and custome of most Nations delivery or apprehension of Possession for conveying the Right of Goods and Seasing is necessar for conveying of the Rights of Lands by the Feudal Law and so by our Customs Assignations are not effectual to transfer Personal Rights till Intimation follow Our Custome also appoints Write to be made where it is easie and ordinar to be done and therefore as the penalty of the neglect or contempt thereof doth exclude Witnesses in matters of importance and admitteth only Write or Oath of party in cases where Write is accustomed So the Romans ordained that because the agreements of the people when they stood in meer Conference that words were easie to be mistaken by themselves or Witnesses that therefore the parties should perfeit such Contracts by a solemn stipulation wherein the one party did interrogat if the other did agree to such terms as he exprest and the other immediatly repeated his answer closing with him in terms and therefore if they did not so stipulate they refused them Action upon naked paction Fourthly Nations for the flourishing of their Families do otherwise dispose of their Estates and Possessions and their Laws do order them otherways than the Law of Nature doth for in the most part the Heretage and Succession in the whole Land-rights belongs to the eldest Son as Stem and Line of the Family and the Parents are presumed to provide the rest of the Children with competent Portions though by the Law of Nature the Right of Succession doth belong to all and even in this positive Law altering the course of the Law of Nature hath its example from the Judicial Law of God by which the Males exclude the Females and the eldest hath a double Portion Fifthly According to the humours and inclinations of People men do lay the heavier penalties upon the Transgression of such Laws as stand in opposition thereunto which may be altered when these inclinations alter And so the Lord did frame the Law of Moses for the humors of that People in some things permitting without punishing the transgression of the most palpable and weighty Laws of Nature as in Poligamy and Divorce and also extending the proportion of Equality observed in the Law of Nature in Restitution and Retribution as in Theft hence it appears how necessar the Laws of men are yetsurely they are most happy whose Laws are nearest to Equity and most declaratory of it And lest altering of the effects thereof except in cases eminently profitable like unto these now pointed at yea and the Nations are more happy whose Laws have entered by long custome wrung out from the Debates upon particular Causes until it come to the Consistence of a fixed and known Custome for thereby the conveniencies and inconveniencies through a tract of Time are experimentally seen so that which is found in some cases convenient if in other cases afterward it be found inconvenient it proves abortive in the womb of Time before it attain the maturity of a Law But in Statutes the Lawgiver must at once ballance the conveniencies and inconveniencies wherein he may and often doth fall short and there do arise casus Incogitati wherein the Statute is out and recourse must be had to Equity But these are best which are approbatory or correctory of experienced Customs and in a customary Law though the people run some hazard at first of their Judges Arbitriment Yet when that Law is come to a fulness and consistence they have by much the advantage in this that what custom hath changed is thrown away and obliterat without memory or mention of it but in Statutory Written Law the Vestige of all the alterations remain and ordinarily increase to such a Mass that they cease to be Evidences and Securities to the people and become Labyrinths wherein they are fair to lose their Rights if not themselves and must have an implicite Faith in these who cannot comprehend them without making it the work of their life 15. Our Customes as they have arisen mainly from Equity so they are also from the Civil Canon and Feudal Laws from which the Terms Tenors and Forms of them are much borrowed and therefore these especially the Civil Law have great weight namely in cases where a custome is not yet formed but none of these have with us the Authority of Law And therefore are only received according to their Equity and Expediency Secundum bonum equum And though it may appear from some Narratives of our Statutes that the Parliament doth own the Civil and Canon Law to be our Law as in the Revocation of King James the fourth Parliament 1493. c. 51. where it is said and since it is permitted by the constitution of Law Civil and Canon that Minors may revoke Par. 1540. cap. 80. So likewise Nottars Forgers of false Writs are ordained to be punished after the disposition of Common Law Par. 1551. cap. 22. And in the Act establishing Religion all Acts contrair or Constitutions Canon Civil or Municipal are abrogated Par. 1567. cap. 31. Yet these amount to no more then that these Laws are an example after the similitude whereof the Parliament proceeded And though in the cases of Falshood the punishment be assumed as in the Civil Law which will make that a part of our Law it will not infer that in so far it was our Law before much less in the whole And there is reason for the Abrogation of the Canon Law at the establishing of the Protestant Religion because in the Popish Church it was held as an Authoritative Law but since it is only a Law as to these Cases that were acted by it when it was in vigour and in the rest only as our Customes assume some particulars thereof according to the weight of the matter But for the full Evidence of the Contrair there is an express and special Statute declaring this Kingdom subject only to the Kings Laws and no other Soveraigns Laws Par. 1425. cap. 48. Par. 1503. cap. 79. Yea the Law of Scotland regulats the Succession and Rights of Scottish men in Scotland though dying abroad being resident there as was found in the case of Collonel Hendersons Children who having died in Holland Legatted upon Heretable Bonds according to the custome there yet they were found not to be conveyed by Testament but belonging to his Heirs according to the Law of Scotland Dury 9. Decemb. 1623. The
Tutor Testamentar it being evident by the Testament that he was only overseer June 10. 1665. Swintoun contra Notman But a Write under the Tutors hand designing him Tutor found to instruct unless the contrair were proven by production of the Tutory December 2. 1668. Mr. Alexander Seatoun Advocat contra Seatoun of Menzies And a Tutor nominat with other two who accepted not was only found lyable from the time of his acceptance by acting as Tutor and not for what was lost before although there was a considerable Legacy left to him in the Testament and that shortly after the Defuncts Death he Confirmed himself qua legatar and had inspection of the Defuncts Writes and subscribed an Inventar thereof whereof the Testament was one yet did not act as Tutor for three years after but he was not found to have Right to the Legacy not having followed the Defuncts Will by accepting the Tutory at first February 2. 1675. Margaret Scrimzeor contra Wedderburn of Kingennie But where the condition of the Tutor nominate appeared otherways than when he was nominate Action was found sustainable at the Pupils Goodsirs Instance to cause him find Caution if the Overseers thought fit Nic. rem pupuli Salvam fore Thomas Foules contra Alexander Mcmath Neither needed there any making of an Inventar of the Pupils Goods as was prescribed in the Civil Law Nov. 72. l. ult Authen quod nunc generale l. de curat furiosi by which it is clear that all Tutors did make faith de fideli Administratione they behooved also to find Caution l. tutores 24. C. de Administratione tut and they behooved to make Inventar l. 7. Tutor qui 7. ff de Administratione tut l. tutores C. eodem But now by the late Act of Parliament 1672. Cap. 2. all Tutors e'r they can act must make Inventar of the Pupils Means with advice and consent of the nearest of Kin on both sides and deliver to them doubles signed or in their absence leave them with the Clerk to be delivered to them according to the order prescribed in the Act. 8. A Tutor Testamentar is ever preferred to a Tutor of Law or Dative even though the Tutor nominat forbear to act for seven years and that a Tutor Dative was nominate and in possession of the custody of the Pupils Person December 17. 1631. 〈◊〉 contra Oliphant or though the Tutor nominate had ceased six years and was Curator to a party against whom the Pupil had an Action or Process seing in both cases no detriment could be shown by his forbearance July 6. 1627. Campbel contra Campbel The like where the Tutor nominate had abstained seven years and yet was preferred to the custody of the Pupils person here the Pupil had no means to be Administrat Spots de tutel Irving contra Irving If there be no Tutor nominate there is place for Tutors of Law who ordinarily are these who have the benefite of Succession in the Pupils Estate and so by the Roman Law all the Agnats of the nearest degree as they were Heirs so were they also Tutors by the Law of the twelve Tables l. 5. 6. ff de legit tut and so after the Succession was extended as well to the Cognats as to the Agnats with the benefite thereof the burden also of the Tutory was extended Nov. 118. cap. 5. And with us upon the same ground as the prerogative of Primogeniture hath given the Succession not to the whole next degree of Agnats but to the eldest Male and his Issue so the Tutor of Law is only one viz. the nearest Agnat or Kinsman on the Fathers side of twenty five years of age Par. 1474. cap. 51. where it is expresly declared that though the Tutor of Law be ordinarily Heir yet not always for though the Pupil have a younger Brother who is immediat Agnat yet the nearest Agnat of twenty five years old will be his Tutor passing by all others within that age 9. The Tutor of Law is servded upon a Brief Directed out of the Chancellary by an Inquest as appears by the foresaid Act of Parliament but the Brief may be directed to and served by any Judge ordinar though the Pupil live not within the Jurisdiction March 8. 1636. William Stuart contra Agnes Henderson Tutors of Law before they Act must find Caution rem pupuli salvam fore which though it be a ground to compel them to find Caution or exclude them from authorising or acting for the Pupil till they find Caution yet it did not anull their office or prefer a Dative to them so soon as they find Caution though the Dative had already found Caution June 29. 1632. Irwing contra Elsick 10. The Tutor of Law must serve himself within year and day from the time that he is in a capacity to be Tutor either counting from the Defuncts death or from the Birth of the Pupil if posthumus or the ceasing of a just impediment so that after the Marriage of a Tutrix Testamentar place was found for a year for the Tutor of Law to serve himself before a Dative had access July 15. 1631. Grant contra Grant But there seems no prefixed time to the Tutor of Law to serve himself to the Tutory of an Idiot and therefore the nearest Agnat as lawful Tutor was preferred to a Tutor Dative though he had made faith and found Caution and though the Service was not till five years after the Idiots Majority February 22. 1628. Calquhun contra Wardrop It was also found that a Tutory Dative did not hinder the service of a Tutor of Law to an Idiot quandocunque January 21. 1663. Stuarts contra Spreul because by the Act of Parliament 1585. Tutors to Idiots must beserved by an Inquest cognoscing the Idiotry Par. 1475. cap. 66. Par. 1585. cap. 18. 11. Where there is no Tutor nominat nor the Tutor of Law claimeth right within the year there is place for a Tutor Dative which though by diverse Municipal Customs may be Constitute by the Ordinar Magistrate of the place yet is most fitly Constitute by the Supream Magistrate and so with us is given by the King in Exchequer and by the late Act of Exchequer 1672. It is appointed That before Constituting of any Tutor Dative the Pupils nearest friends on both sides shall be cited that they may offer and inform concerning the fittest persons to be Tutor Tutors may be given to strangers Pupils in so far as concerns their Lands in Scotland December 17. 1627. Fleming contra Brown The like Spots de tut Donaldson contra Skiltoun In the nomination of Tutors Dative though it be in the Arbitriment of the King to choise whom he thinks fit yet he will have regard to the Interest of the Pupil to give a Tutor either who was nominat by the Father but not Legally or who was nominat by the Mother or Grand-mother though having no Legal Power or the nearest of Kin though they have neglected to serve within the year
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
Customs rule ordinarly according to the Feudal-books The doubt remaineth which may be cleared thus First Though in some cases alienation be extended to Location yet it is not so by the common feudal Customs Secondly If the Subfeu-dation be a real Feu-ferm whereby the Feu-duty is considerable and competent to intertain the Vassal such Sub-feudation is thereby accounted only Lacation Nor doth it infer recognition being in effect no more then a perpetual Location whereby the Antinomy in the Feudal Law is sufficiently reconciled that such Sub-feudations are not alienations But if the Sub-feudation be Ward Blensh or in Mortification or though it be under the name of Emphyteosis yet for an elusory or an inconsiderable and unproportionable Feu-duty which by no estimation can be correspodent to the profite of the Fee but within the half of the true worth in these cases the Sub-feudation is alienation inferreth recognition 14. As to our own Customs in this point they do agree to the common Feudal Customs as to Subaltern Infeftments Blensh Ward or in mortification or Elusory or unprofitable Feus But as to Feues by which the major part of the profite of the Ward or Fee is not taken away though such cases have not occurred to be contraverted they seem not to infer recognition for if the major part be not alienate Subaltern Infeudations though Blensh or in Mortification infer not recognition when these rights are disjunctim of parts of the Fee There appears no reason that the Subfeudation of the whole with a Feu-duty equivalent to the half of the true Rent whereby in effect the half is not alienate seing the dominium directum of the whole and the profite of the half is retained should infer recognition especially now when generally Fees are granted for Causes Onerous 15. And by the Statute allowing Feues Par. 1457. cap. 72. It is provided that the Feu be set to a competent avail which by the said Statute is cleared to be without diminution of the Rental and which is commonly interpret the retoure duty because it was the publick valuation and rate at that time And by the said statute such Feues are confirmed and declared not to be prejudged by the Ward without mention of the hazard of recognition as not being consequent upon such Feues But this Statute being abrogate as to the Leiges Par. 18. Ja. 6. cap. 12. All Sub-feues of Ward-lands holden of Subjects without the Superiours consent are declared null and void But there is no mention of recognition to be incurred thereby And Feues are only prohibited as being in prejudice of the Over-lords who are not prejudged if the major part be not alienate seing all Subaltern Infeftments not exceeding the half are allowed by Law And albeit the Narrative of the Act respect Feues preceeding it yet the Statutory part is only as to Feues granted thereafter And the like prohibition is appointed for the King and Princes Vassals Par. 1633. cap. 16. The effect of this Act as to the Vassals of the King and Prince was suspended till the next meeting of Parliament and the Vassals exempted therefrom in the interim Par. 1640. cap. 36. And the said Act was wholly repealed Par. 1641. cap. 58. And so remained until all these Parliaments were Rescinded seing the private rights of parties acquired thereby by the general Act Rescissory Par. 1661. cap. 15. But it hath been found that alienations during these Acts now rescinded and during the usurpation when Wards were discharged did infer recognition seing the Vassal did not seek Confirmation after the Kings return December 15. 1669. Maitland of Pittrichy contra Gordoun of Gight The like was found in the recognition at the instance of Sir George Kinard contra the Vassals of the Lord Gray The like though the base Infeftment inferring recognitien was in Anno 1643. when there was a Statute then standing allowing such Infeftments seing after rescinding that Statute no application was made to the King for Confirmation January 7. 1676. Cockburn of Riselaw conira Cockburn of Chouslie But recognition was excluded where the Vassal required the Superiour to confirm the subaltern right debito tempore or did purge the same by procuring resignations ad remanentiam to himself from the Sub-vassals February 12. 1674. Viscount of Kilsyth contra Hamiltoun of Bardowie But recognition was not found against a Pupil upon his Tutors taking Infeftment for him during the Usurpation July 15. 1669. Jack contra Jack Whereby it is clear that Feues have no effect against the Superiour as to the Ward Non-entry more then Tacks 16. Whether the alienation be by Infeftment holden from or of the Vassal there is no recognition with us except in Ward-holdings yea if the holding be dubious and soa probable ground of error of the Vassal as being a payment of Money in the Reddendo with Service used and wont which though truly Ward yet because the payment of Money may render it dubious Craig holdeth in the said Dieg. l. 3. that it would not infer recognition yet this will not give ground to think that alienation of Lands Taxt-ward would excuse from recognition because Ward is more clear and expressed nominatim in that case in it self for the Casualities thereof being Taxed as the Marriage and Ward-duties Which 〈◊〉 is but a Liquidation or Location of these casualities when they occur and no alteration of the nature of the Fee and therefore in the said pursuit at the instance of the Lady Carnagie contra the Lord Cranburn it was not found relevant to exclude the recognition that the Ward was Taxed 17. It is also clear that alienation whether by Infeftment holden of or from the Vassal not exceeding the half of the Fee inferreth not recognition so much being indulged to the vassals for his conveniency or necessity but if together or by parcels or by Annualrent the major part be alienat not only that which then was in the vassals person falls under recognition But as Craig holdeth in the forecited place Dieg. 3. l. 3. even the whole Fee So that parcels alienat validly but without the Superiours consent before become void and return But though the vassal grant Infeftments exceeding the half of the fee yet if some of them were extinct before others were granted so that there was at no time rights standing together exceeding the half of the see recognition is not incurred February 23. 1681. Iohn Hay contra Creditors of Muirie But Deeds done by Predecessors and their Heirs or Authors and their Successors were in that case conjoyned Upon the same ground an Infeftment of the see in Liferent would not infer recognition because it exceeds not the half of the value Yea recognition was found not incurred by granting an Infeftment in Warrandice for Warrandice is but a hazard in case of Eviction not equivalent to the half of the worth of the Lands granted in warrandice unless the right of the principal Lands were manifeftly defective Feb. 21. 1623. Cathcart contra
yet common to Mankind 7 Grass and Fruits on High-wayes are publick not common 8 In Possession what is facti what is juris 9 Possession described 10 Possession natural and civil 11 Possession of Moveables 12 Possession of the Ground 13 Possession by Limits and Bounds 14 Possession by Occupation and by lifting the Profits 15 Symbolical Possession 16 Possession by Reservation 17 Definition of Possession 18 Requisits to begin Possession 19 Requisits to retain Possession 20 How Possession is troubled interrupted or lost 21 Kinds of Possession 22 Lawful Possession gives Right to continue it against all illegal and 〈◊〉 Acts contrary thereto 23 Bonae fidei possessor facit fructus consumptos suos 24 This not extended to unlawful Possessors 25 Possessor decennalis triennalis non tenetur docere de titulo 26 Quinqutnnial Possession of forefaulted Persons 27 Possession to what Right ascriveable 28 The nature of Property 29 Property by Possession of things common 30 Appropriation by Industry 31 First Property of the Ground was of Houses and Wails 32 Next of Fields and Countreys 33 Quae nullius sunt 34 Appropriation by Accession of Birth and Fruits 35 Appropriation by 〈◊〉 36 Appropriation by Specification 37 Appropriation by necessary Conjunction 38 De tiguo injuncto 39 Inaedificata solo cedunt 40 Things sown and planted haw far-they follow the Ground 41 Posseision of Moveables presumes property 42 Reprisals 43 Enemies Goods taken in War 44 Goods of Neuters assisting Enemies become Prise TITLE XIII Infeftments of Property 1 THe original of Fees 2 Feudal Jurisdiction especially of the King in Parliament 3 Feudal Jurisdiction of Superiours 4 〈◊〉 5 Requisits of proper Fees 6 Kinds of improper Fees 7 Dominium directum essential to all Fees 8 Dominium 〈◊〉 9 Fidelity 〈◊〉 necessary 10 Feudal Contracts 11 Udal Rights 12 Infeftment what it signifies 13 How Writ is necesiary for Infeftments 14 What kinds of Writs are necessary for Infeftments 15 The 〈◊〉 of formal Charters 16 When Instruments of Sealin became necessary 17 The Tenor of formal Seasins 18 The essentials necessary in Seasins 19 Seasins must have Warrands and Adminicles and what these are 20 Registration of Seasins 21 Registration of Ressignations ad remanentiam 22 Registration of the Allowance of Apprisings and Adjudications Inhibitions and Hornings 23 The Attest of the Nottar and two Witnesses necessary in Seasins 24 Extracts of Seasins not probative 25 Transumpts of Seasins 26 Bounding Infeftments 27 Base Infeftments how far effectual without Possession 28 Infeftments by Confirmation 29 Infeftments upon Apprising or Adjudication 30 The effect of Apprisings or Adjudications with a Charge 31 Infeftments Ward 32 Feus of Ward-lands how far valid 33 Infeftments Blench 34 Infeftments Feu 35 The annexed Property of the Crown can only be set Feu after Dissolution in Parliament 36 Feus of the annexed property set with diminution of the retour'd Duty are null 37 Feus of Kirk-Lands 38 Infeftment in Burgage 39 Infeftment in Mortification 40 Manses and Gleebs 41 Conjunct Infeftments 42 Infeftments to Heirs substitute 43 Infeftments Simple and Tailzied 44 Union 45 Erection 46 Warrandice 47 Tacit Conditions implyed in Ward-Lands 48 Tacit Conditions in Warrandice and Relief 49 Tacit Conditions in Infeftments of Offices 50 Tacit Conditions in Excambion 51 Tacit Conditions in Feus 52 Liferents reserved in Infeftments of Property 53 Exceptions in Infeftments how far effectual 54 Faculties reserved in Infeftments 55 Burthens of Sums in Infeftments how far effectual 56 The effect of impossible or unlawful Conditions in Infeftments 57 Conditions inconsistent are null 58 Clause de non alienando in Tailzies 59 Clauses restrictive and irritant in Tailzies 60 Regalia not exprest are not carried by Infeftment 61 Regalia are carried in Barony though not exprest 62 Jurisdiction and Courts 63 Juriidiction of Baron Courts how far restricted 64 Issues of Baron Courts belong to themselves 65 Infeftments of Constabulary 66 Fortalices how far extended 67 Forrestries 68 Hunting of Deer inter regalia 69 Salmon-fishing 70 Cruves 71 Milns 72 Priviledge of Brewing 73 Part and Pertinent 74 Wood and Coal 75 Houses and Biggings and Park Dykes 76 Fowling Hunting and Fishing 77 Cunningars 78 Dovecotes 79 Free Ish and Entry 80 Herezelds 81 Steel-bow Goods 82 The effect of infeftments in possessorio 83 The effect of Infeftments in petitorio 84 Inhibitions and their effects against Infeftments TITLE XIV Superiority where of its Casualities Non-Entry Relief Compositions for Entries Ward Marriage and Liferent-Escheat 1 THe Superior's dominium directum 2 How Property is established in the King 3 Superiors may exerce all Acts of Property except against their Vassals 4 How the Property coming in the person of the Superior is established 5 Superiors cannot interpose betwixt them and their Vassals 6 How far Superiors need to instruct their Title 7 Superiors have personal Action against Intrometters with the Rent of the Land for their reddendo 8 They have also real Action for the same by poynding of the Ground 9 Jurisdiction of Superiors 10 Superiority carrieth to Heirs and singular Successors all bygone Casualities not separat by Gifts or Decreets 11 Superiors of Kirk-Lands need not instruct a Consent to the Surrender 12 Superiors must receive Apprisers or Adjudgers or pay the Debt salvo jure suo 13 He must receive the King's Donatar upon presentation gratis 14 He must receive his Subvassal whom his immediat Vassal resuseth to enter 15 How far Superiors may extend Gifts of their own Ward against their Vassals 16 Superiors need not accept Resignation or Confirmation and if they do it is salvo jure suo 17 Superiority falling to more persons the eldest Heir or greatest Interest only receives the Vassals 18 Non entry falls when Infeftment is not renewed by every Vassals Heir or singular Successor or upon Resignation 19 Non-entry falls by Reduction or Nullity of Infeftments or Retours 20 Burgage falls not in Non-entry as to the Burgh or particular Persons 21 The effect of the general Declarator of Non-entry 22 The effect of Non-entry after Citation in the general Declarator 23 Exceptions against Non-entry as to the Feu-duty or retoured Maill. 24 Exceptions against Non-entry as to the full Rent 25 Whether Non-entry after Ward requires Declarator 26 The original of Relief 27 The Custom of England and France as to Relief 28 The quantity of Relief with us 29 Whether Relief be due during Non-entry 30 Whether Relief is due when the Heir is entered whether the Fee be burdened with Conjunct-fee or Liferent 31 Relief stops not the Heir's Seasin 32 Compositions for the Entry of Apprisers of Adjudgers 33 The original of Ward 34 The effect of Ward as to the Heir's person 35 The effect of Ward as to the Fee 36 The Restrictions of Ward 37 The Value of the Marriage of Heirs of Ward-Vassals 38 The true Interest of Superiors in the Marriage of their Vassals 39 The single Value of Marriage not penal but favourable 40 Double Value penal
get entry the delivery of a Copy to any of the Family is sufficient without Knocks and must be so express'd 6 The Dayes requisit for the Charge beyond the Water of Dee 7 The Denounciation must he against the Party and at the Mercat Cross of the Jurisdiction where he dwells 8 The Denounciations must bear three Oyesses or the equivalent 9 The Execution must bear three blasts of the Horn. 10 The Execution must be stamped 11 The Horning must be registrat and how 12 Denounciation after satisfaction hath no effect 13 The effect of general Letters of Horning 14 The Order and Effect of Relaxation from the Horn. 15 The Single-Escheat and extent thereof 16 How far the Denounced's Debts or Deeds affect his escheat Goods 17 Gifts of Escheat and preference thereof 18 Gifts of Escheat not expressing the particular Horning whereon they proceed 19 Gifts of Escheat though bearing Goods to be acquired extend but to those acquired within a year after the Gift 20 Eicheats within Regality 21 In what Cases Gifts of Escheat are held simular 22 Who must be called in the general Declarator 23 The Titles and Tenors of general Declarators 24 Exceptions against general Declarators 25 Special Declarators of Escheat 26 Leferent-Escheat 27 Confiscation of Treasures Waith or Shipwrack-Goods 28 Forefaulture 29 Several kinds of Treason by Statute 30 Forefaulture confiscats without the burthen of the Debcs or Infeftments not confirmed by the King 31 How far Feus are effectual against Forefaulture 32 How far Tacks of forefault Lands are effectual 33 Forefaulture by a rescinded Act was burthened with the Debts and Deeds of the Rebel 34 Forefaulture when and how it may proceed in absence 35 How far the Person of the Rebel gives Right to the Fisk. 36 The effect of Forefaulture of apparent Heirs 37 In what Cases Forefaulture dishabilitats 38 How far the Forefaulture of apparent Heirs may be extended 39 Explanation of the Act of Parliament 1594. cap. 202. importing burthening of Forfaultures with the Debts and Deeds of the Rebel 40 Forefaulture is not reducible upon any Nullity but only by way of grace 41 How far Forefaulture takes effect without Declarator 42 What Children are lawful and what Bastards 43 Declarator of Bastardy 44 The effect of Bastardy as to Succession 45 Legitimation and effects thereof 46 How the Debts and Deeds of the Bastard affect his Estate 47 Ultimus haeyes and the difference thereof from Bastardy TITLE XXVI Succession 1 WHether in equity there be a Rule in Succession 2 That Rule is the express will or presumed will of the Defunct 3 The first Degree of Succession by the presumed will of Defuncts 4 Whether in equity there be Right of Representation 5 Failing Descendents Ascendents succeed in equity 6 Failing both Brothers and Sisters succeed 7 Failing those the nearest agnat succeeds 8 The Succession of cognats 9 The Jewish Succession whereby all the Sons succeed and exclude the Daughters and the eldest Son hath a double Portion 10 Fathers could not prejudge the primogeniture of their eldest Sons 11 By the Jewish Succession failing Descendents the 〈◊〉 passeth to Brethren and these failing to Father's Brethren and failing these to the nearest Kiufman 12 Whether in the Jewish Succession there be Right of Representation 13 Why no Females but Daughters succeed among the Jews 14 Why Parents succeed not amongst the Jews 15 Succession amongst the Romans was first by Testament 16 If there was no Heir institute by Testament the ancient Roman Law called all the Children of the Family unjorisfamiliat male and female not excepting adopted Children to succeed 17 These failing the nearest agnats but no Parents thereby succeed 18 The Roman Succession by the praetorian Law 19 Their Succession by Justinian's Novel Constitution 20 In Feudal Succession the first Rule is the express will of the Party by the Investiture 21 The next Rule is the conjectured Will according to the nature of the Fee 22 Primogeniture now established by common custom in Feudal Rights 23 Succession in Scotland is wholly different in Moveables and Immoveabies 24 The several Degrees of Succession in Moveables 25 Succession in heritable Rights 26 The difference betwixt the two Successions 27 The priviledge of Heirs not to be prejudged by their Predecessors Deeds on Death-bed 28 What is estimat Death-bed 29 Against what Rights Death-bed is extended 30 Death-bed annuls no Deeds for Causes onerous 31 Dispositions in Testaments are as on Death-bed 32 Annus deliberandi 33 Kinds of Heirs in Scotland 34 No place for Adopted or Cognats in Succession with us 35 Parents succeed to their Children and exclude the Parents Collaterals or those representing the Collaterals TITLE XXVII Heirs 1 APparent Heirs may pursue Exhibition ad deliberandum 2 They may desend their Predecessors Rights and Possessions being called or compearing for their Interest and their Executors have Right to the Rents of those years they were apparent Heirs 3 The Aliment of Heirs from the Donatars and Liferenters 4 Heirs not entered have the benefit of Clauses which by nature import they should not be actual Heirs 5 Heirs have Interest in all Rights granted to their Predecessors though not mentioning Heirs which are not exclusive of Heirs by their Tenor and Nature 6 Heirs have the benefit of all Rights heritable by Destination or having a future tract of Time after the Defunct's Death 7 Heirs have Right to Moveable Heirship or Obligements for Sums wherein Executors are excluded 8 Heirs of Line are Heirs generally their interest 9 Heirship Moveables 10 Heirs of Conquest their Interest 11 Heirs Portioners their Interest 12 Heirs Male of Tailzie and Provision their interest 13 All Heirs are lyable passivè for the Defunct's Debt but not in the same way 14 Heirs portioners how far lyable 15 The effects of different Provisions or Obligations by Defuncts in favour of divers Heirs-portioners 16 Heirs not being Portioners not substitute in Bonds are lyable in solidum 17 The Order by which Heirs are lyable passivè and may be discuss'd 18 Heirs of Tailzie represent not the Defunct in Obligations contrary to the Terms of the Tailzie 19 Heirs of Marriage may quarrel their Predecessors Deeds being meerly gratuitous in their prejudice but not such as are onerous or rational Deeds 20 Heirs having the benefit of Discussing may propone the Exception That all Parties having Interest are not called without instructing the Right whereto they may succeed 21 The Exception of the order of Discussing is not sustained without condescending on the Heritage whereunto the anterior Heir may succeed and what Discussing is 22 The order and effect of a general Charge to enter Heir 23 The Order and Effect of a special Charge to enter Heir 24 Renounciallon to be Heir its Order and Effect 25 The Entry of Heirs general and effects thereof 26 The Entry of Heirs upon Precepts of clare constat 27 The Entry of Heirs by Hesp and Staple within Burgh 28 Entry of Heirs by Brieves out of the
been made thereon the time of the poinding neither when keeped on the Ground for the Masters Rent by his Servants seing they exprest not that cause nor craved not security therefore from the Poynder February 1. 1628. Laird of Halkertoun contra Kadie and Grieves But if it had been expresly for the Rents resting it would not infer Deforcement if such were truely resting Neither did resistance of poynding of Plough-Goods in Labouring time where there were other Goods sufficient infer Deforcement February last 1561. Abbot of Kilwinning contra Tennants stopping of poynding by the Master of the Groundor Landlord of an House for that years Rent infered not Deforcement December 7. 1630. Dick contra Lands or that he hindred entry unless there were special Warrant in the Letters to make open Doors 30. Contravention as it signifies any Act done against Lawborrows so it implys the Obligation of the Contraveener and the personal Right which the user of the Lawborrows hath thereby and likewise the Action by which it is pursued For the uptaking of all it must be considered what Lawborrows are which the word it self insinuats to be Caution found to do nothing but by order of Law for a Burrow or Burgh in our ancient Language is a Cautioner and Lawborrows is Caution to keep the Law the reason hereof is the safety and security of the people who in equity have no more then the Reparation of the Damnage they sustain through Delinquences or illegal Acts But to prevent such and terrifie evil doers a greater penalty then Reparation is appointed according to the Quality and Estate of the Injurer Par. 1593. cap. 166. The half of the Penalty is applyed to the Injured and the other half is Publick Par. 1581. cap. 117. By the Narrative of which Statute it is clear that before Lawborrows were granted only for safety against bodily harm in the persons of the Complainers yet for the reason therein expressed the same was extended that the Complainers their Wives Bairns 〈◊〉 and Servants shall be harmless and skaithless in their Bodies Lands Tacks Possessions Goods and Gear and no ways molested or troubled therein by the persons complained on nor no others of their causing sending hounding out ressetting command assistance and ratihabition whom they may stop or let directly or indirectly otherways then by order of Law or Justice By the same Statute it is also evident that Lawborrows are granted upon the supplication of parties fearing harm who without citing the other party but making Faith upon their Complaint have Letters of Horning summarly to Charge the party complained on to find Caution ut supra and if Caution be found the Action of Contravention doth proceed upon and conform to the Act of Caution but if obedience be not given the Complainer may proceed to Denunciation or Caption but the Contravention will proceed though there be no Caution found but only a Charge upon the Letters without Denunciation unless the Charge be suspended as uses to be done when the penalty charged for is exorbitant and not conform to the act of Parliament January 8. 1628. John Semple contra Cunninghame Contravention may proceed upon any Delinquence according to the Tenor of the Act of Caution or Letters of Lawborrows which though very comprehensive yet is not extended to Acts done without Order of Law being matters of inconsiderable moment as the Tilling up of some Furrows in a March the same being offered to be laid down and the Damnage to be repaired Nic. hic Nicolson contra Hay Neither is it sustained upon any illegal deed when the matter of Right was dubious as in matters of Molestation before the Cognition or before that the Marches be clear Spots contravention Laird of Balcaskie contra Florence Strang. Neither upon a deed done by a colourable Title though afterward reduced as entering in Possession by a null Decreet Hope hic George Moorhead contra Laird of Barskub Neither upon Pasturing upon Bounds contraverted or where there was no violence nor unlawfulness in Pasturage upon clear Marches July 14. 1626. Laird of Grange contra Lesly Neither upon a deed of Spuilzie against the pursuers Tennant not complaining though the Lawborrows bears Men-tennants and Servants to be harmless which was esteemed stilus curiae January 28. 1632. Grant contra Grant and February 9. 1633. Lindsay contra Dennistoun Neither was it sustained upon Deeds done by the Defenders Tennants without alledging Command or Ratihabition unless the Deeds be manifest or known to their Masters as in conveening dayly and cutting anothers Woods July 9. 1611. Vauns contra Laird of Balnagown Neither upon Deeds done by Servants without Warrand unless they be menial Servants Hope bic John Galbraith contra William Anderson Yet Contravention was sustained upon hurt done to the Pursuers servant though he was then Rebel being afterwards relaxed Hope Horning Bruce of Clackmannan contra Bruce It was also sustained upon attempts of injury though there was no hurt as a stroke on the Cloathes and one offer to strike with a Whinger December 21. 1609. Greenyards contra Clackmannan And also upon a violent troubling the Pursuer without Order of Law though without Damnage Spots hic Laird of Balcaskie contra Florence Strang. It is also sustained upon a Delinquence though there be another Action competent therefore as for Molestation November 29. 1609. Dundass contra Cuming of Ironside Or for violent Possession after Warning Hope de actionibus Cuthbert Cunninghame contra But if the other ordinar Action was insisted in and Decreet obtained Contravention also cannot be pursued though the other were offered to be renounced Hope contro Johnstoun contra Sir John Charters Contravention was elided by granting a Factory after the Deeds Lybelled to do the like reserving only Damnage and Interest February 19. 1633. Dennistoun contra Lindsay Contravention on several Deeds sustained separatim toties quoties And against many Contraveeners Contraveening in one Act but in such cases the Lords will modifie and lesten the Penalty within the Rate of the Act of Parliament Novemb. 29. 〈◊〉 Dundass contra Cuming of Ironside Nic. contro Sir John Scot contra Barns Contravention is not found pursuable before any inferiour Judge otherways the Decreet thereof will be null by exception July 6. 1611. Kennedy Taylzeor contra Kennedy of Garriehorn Yet it was sustained where the matter was small and the parties poor March 12. 1622. Blair contra Marshel In Contraventions the Kings Advocat must concur for the Kings Interest but he cannot insist alone as when the private party hath discharged the Deeds even after the intenting of the cause Hope entro Forrest contra Malcolme Turnbul TITLE X. Obligations Conventional by Promise Paction and Contract 1. The Original of Conventional Obligations 2. The Acts of the Will Desire Resolution and Ingagement and their Effects 3. Pollicitation or Offer and its Effects 4. Promise 5. Contracts in favours of third parties valid 6. Pactions and how Words are Obligatory 7. Naked Pactions 8.
favourable but the adjection of a penalty or estimation makes not the Obligation alternative But if any of the Members of the alternative become not intire the Debitor connot offer that Member January 18. 1675. Collector of the King and Lords Taxation contra Inglis of Straitoun The manner also of performance admitts not that the Debitor may perform by parts that which he is oblieged to by on Obligation if it be not that which cannot be performed all at once as the performance of some Acts requiring divers seasons but otherways it must be done without intermission for neither can Money or Grain be delivered at one instant but that is understood to be performed together which is without intermission yet the Civil Law favours the Debitor so far that the Creditor cannot refuse to accept a part of the Money due TITLE XI Liberation from Obligations 1. Obligations cease by contrary consent by Discharge Declaration Renunciation or per pactum de non pentendo 2. Three subsequent Discharges Liberat from preceedings 3. Payment made bona fide 4. Consignation 5. Acceptilation 6. Compensation 7. Retention 8. Innovation 9. Confusion HAVING thus run thorow the constitution and effects of Conventional Obligations It is requisite in the next place to consider their destitution and how they cease which we have exprest in the general term of Liberation comprehending not only payment but all the ways by which Obligations or Bonds are dissolved or loosed and Debitors Liberat We are not here to speak of the Objections competent against Obligations from their nullities for such were never truly Obligations neither of the common exceptions against them and other Rights as Prescription Litiscontestation res judicata Circumvention Extortion c. of which in their proper places But only of the proper ways of taking away Obligations and these are either by contrair consent or by performance or the equivalent thereof 1. First As consent constituteth so contrary consent destituteth any Obligation whether it be by Declaration Renunciation Discharge or per pactum de non petendo which may be extended not only to Conventional but to Natural Obligations as to any duty omitted or transgressed which is past though not to the discharge of the Obligation it self as to the future for love to God or our Neighbour and most of the Duties betwixt Husbands and Wives Parents and Children cannot be Discharged as to the future neither can future Fraud or Force be effectually Discharged for such cadunt in turpem causam If the Write be special and express there can be no question when it concerns a personal Right and is given by the party having power to Discharge and therefore a Discharge of a clause in a Bond constituting an Annualrent whereupon Infeftment followed for a sum lent by a Father and taken to his Son in Fee and bearing with power to the Father during his life to Dispone was found valid and that it required not Registration as a Discharge of Reversion January 6. 1681. Mary Bruce contra Patrick Hepburn But a Discharge of an Annuity belonging to an office by infeftment containing a renunciation of that annuity was not found Relevant against an Appryzer December 9. 1679. Lord Hattoun contra the Town of Dundee Neither did a Discharge of a sum payable to a man and his Wife and the Bairns of the Marriage subscribed only by the Husband exclude the Wife from her Liferent Right to that sum January 22. 1680. Isobel Caddel contra John Raith Neither was a Discharge to a Cautioner upon payment found competent to the principal Debitor unless the Cautioner concur for the Principal may be distressed by the Cautioner using the name of the Creditor as his Cedent July 13. 1675. Margaret Scrimzour contra the Earl of Southesk A Discharge to one or more Debitors Viz. Con-tutors found not to liberat the rest except in so far as satisfaction was made or as the other Con-tutors would be excluded from relief by the party Discharged December 19. 1669. Seatoun contra Seatoun But payment made by one party whose Lands were affected by Inhibition did Liberat the rest pro tanto though it bore not in satisfaction but to restrict the Inhibition January 5. 1675. Ballantine contra Edgar But Discharges by Masters to Tennents for Rent by their Subscription without Witnesses and not being holograph are sustained in regard of the custom so to Discharge November 7. 1674. John Boyd contra Story And by the same custom receipts and discharges of Merchants and Factors in re mercatoria are sufficient by the parties subscription albeit neither holograph nor with Witches But the main Question is how far general Discharges are to be extended which are of two sorts One where there are particulars Discharged with a general Clause and then the general is not extended to matters of greater importance then the greatest of the particulars February 24. 1636. Lawson contra Ark Inglas The other is where the Discharge is only general without particulars which useth not to be extended to Clauses of Warandice Clauses of Relief or obliegements to Infeft or to purchase real Rights and therefore a Discharge of all Debts Sums of Money Bonds Obligations Clags Claims for whatsoever cause was found not to Discharge a Contract for purchasing an Appryzing of Lands and Disponing the same November 19. 1680. Beatrix Dalgarn contra the Laird of Tolquhon Neither was a Discharge wholly general extended to an Obligation by the party Discharged as Cautioner unless it were proven that the Discharge was granted upon satisfaction of that Debt Hope Bonds Ogilbie contra Napier But it was extended to Contravention though there was a Decreet after the Discharge Hope Contravention Laird of Aitoun contra his Brother Yea a general Discharge in a Decreet Arbitral was found to Liberat the submitters Cautioner Hope Bonds Lady Balmastiner and her Son contra Alexander 〈◊〉 Neither was a general Discharge found to extend to a sum assigned by the Discharger before the Discharge albeit the Assignation was not intimat seing the Discharger was not presumed to know the want of the Intimation unless it were proven that the sum was particularly commoned upon or satisfied at obtaining the general Discharge February 3. 1671. Blair of Bagillo contra Blair of Denhead Neither was a general Discharge extended to sums whereuto the Discharger succeeded after the Discharge February 14. 1633. Halyburtoun contra Huntar 2. Three subsequent Discharges do presume that all preceedings are past from As first The Discharges of three immediat subsequent years Rent June 21. 1610. Nowison contra Hamiltoun This was sustained though the Discharges were only granted by a Chamberlain Hope Clause irritant Laird of Wedderburn contra John Nisbit this was sustained to purge a Clause irritant yea though some of the Discharges were granted by the Father and the rest by the Son as Heir February 17. 1631. Williamson contra the Laird of Bagillo which was extended to by gones though a Bond was
granted after the Liferent Escheat fell in prejudice of the Superiour and Donatar July 3. 1624. Moor contra Hannay and the Earl of Galloway And extended to a Tack or Few of Ward-Lands not Confirmed by the Superiour in prejudice of his Donatar of the Ward March 13. 1627. Laird of Ley contra Blair And extended to the profits of a Procurator-Fiscals place wherein the incumbent served three years without interruption though his Right was reduced thereafter and declared null ab initio February 17. 1624. Thomson contra Law It was also extended to one who having a posterior Right of Reversion first redeemed and possessed thereby as to bygones before the Citation though he had not possest so long as to give him the benefite of a possessory Judgement November 18. 1664. Guthrie contra Laird of Sornbeg It was also sustained against a Minor reducing upon Minority and Lesion yet the possessor by vertue of his Contract was secure as to bygons before Citation here there was a probable cause of contracting for an onerous consideration though not fully equivalent February 16. 1666. Earl of Wintoun contra Countess of Wintoun Upon this Title a Tennent was liberat from removing upon a warning by a Fiar after the death of his Father the Liferenter in respect he set the Tack without mention of his Liferent and was reputed Fiar and therefore the Son was put to a new warning February 16. 1669. Hamiltoun contra Harper Possession bona fide was found to Liberat an Appryzer from being countable to the other Appryzers within year and day July 17. 1675. Bailzie Baird contra Bailzie Johnstoun It was also sustained against the Donatar of forefaulture January 28. 1679. Laird of Blair contra Lady Heslehead It was also sustained upon an Infeftment for relief whereby the rents were to be imputed in satisfaction both of the Principal and Annual February 8. 1676. Margaret Scrimzour contra the Earl of Northesk Yea it was sustained though the possessors Title was forged he being a singular Successor not accessory to or conscious of the forgery even after improbation of his Title was proponed by exception but not sustained but reserved by way of Action in which the Title was found false yet the bona fides was extended to the rents spent till he was put in mala fide by probation of the forgery but he was found lyable in quantum lucratus for getting more price for the Land in question then he payed to his Author therefore December 10. 1677. Dick of Grange contra Sir Laurance Oliphant But no unlawful Possession is valid in this case if it be vitious violent clandestine or momentany But it is not so evident when a possession is accounted momentany sure little time will suffice in Moveables but in Lands more time is required a year or term or less time may suffice This Right is different from the possessory Judgement competent upon Infeftments which require longer time and because it is an effect of Infeftments Tacks or the like we shall speak thereof in that place If the Possession bona fide be by vertue of a colourable Title though perhaps null in it self upon informalities in the Law requisite or upon Inhibition interdiction or want of power in the granter it is effectual Yet when by a common or known Law the Title is void materially in this case the possessor is not esteemed to possess bona fide it being so evident ignorantia juris non excusat As if a Relict should possess Lands or others the Marriage being dissolved by her Husbands death within year and day November 16. 1633. Grant contra Grant Hereby it is evident that possession hath much in it dictinct and several from Fact and therefore it stands in place of a Title in Ejections and Spuilzies 25. By the Canon Law allowed by our Custom possessor decennalis triennalis non tenetur docere de titulo etiam in causa salsi whereupon Prebendars were assoilzied from production in an improbation of their provisions Hope Improb Bishop of Galloway contra the Prebendars of the Chappel-royal But this holds not in Reductions where the Title is supposed but craved to be reduced upon a better Right as when the debate is who hath the right of Patronage Earl of Wigtoun contra Drummellier July 24. 1622. Earl of Wigtoun contra Bishop of Glasgow for in these cases an Ecclesiastical persons Title was to be reduced in consequentiam with the Patrons Title which hath not this priviledge But this possession must be as being holden and repute a part of a Benefice and must be proven by Witnesses and therefore the possession of Lands by tollerance was found probable by Witnesses to elide thirteen years possession thereof by a Minister who pretended to it as a part of his Glibe Ministers of contra Duke of Bucleugh And if the Church-mens Title can be found their possession will be ascribed thereto and regulate thereby And therefore the Bishop of Dumblain as Dean of the Chapel-Royal having long possest ten Chalders of Victual as a part of his Benefice there being found a Mortification of that Victual by the King bearing the King to have had right by Disposition from another and that others right being produced did bear Reversion in the body thereof for seven thousand Merks which being payed to the King when the Bishops were supprest and his grant of Redemption thereupon voluntarly without an Order or Sentence The Church-mens possession more then thirteen years before the Redemption and thirteen years after the Redemption was elided by the reverse Right and Redemption Neither did the Act of Sederunt after the Reformation declaring ten years possession of Kirk Lands before the Reformation and thirty years after to import a right sustain this Church-mans possession That Act being only for Fews granted by Church-men not for rights granted to Church-men July 7. 1676. Bishop of Dumblain contra Francis Kinloch And it was found that thirteen years possession of Viccarage by a Minister did not prefer him to a Tacksman where the Ministers Title was a Decreet of Locality produced and not containing the Teinds in question February 24. 1681 Doctor Lesly contra the Minister of Glenmuck This right in favours of Church-men is by a rule of Chancelary of Rome which hath been continued after Reformation as being convenient that less time and Title should give right to the Church Benefices whose Mortifications may be easilier lost or supprest then other Rights There is also another rule in the Chancelary that triennalis pacificus possessor beneficii est inde securus this rule gives not right to the Church but prefers one Church-man to another if he continue to possess three years without interruption though he could not defend by his Right There is a third Benefite by Possession of Benefices and Stipends by seven years peaceable possession whereby they have the benefit of a possessory Judgement and cannot be called in question but by Reduction or Declarator and
is because it can hardly be determined that the Right of Property is in either the Superiour or Vassal alone so that the other should only have a servitude upon it though some have thought Superiority but a servitude the property being in the Vassal and others have thought the Fee it self to be but a servitude to wit the perpetual use and fruit yet the reconciliation and satisfaction of both hath been well found out in this distinction whereby neithers interest is called a servitude but by the resemblance of the distinction in Law betwixt jura actiones directae and these which for resemblance were reductive thereto and therefore called utiles 8. The Superiors Right is called dominium directum and the Vassals utile and without these the Right cannot consist Secondly As there must be a right in the Superiour and another in the Vassal so the Vassal in his right must necessarly hold of and acknowledge the Superious as having the direct Right in the Fee otherways the two distinct Rights without this subordination will make but two partial Allodial Rights Thirdly There is necessarly implyed in Fees some Rent or return to the Superiour for the Fee which may be either service Money or other Fungible or prayers and supplications as in Fees mortified to the Kirk or other performance or at least the Vassals fidelity to the Superiour implying not only negative that he may not wrong the Superiour but positive that he must reveal to his Superiour any design against his Life or Fame 9. Which fidelity though it be not exprest yet it is necessarly imported in all kinds of Fees and cannot be taken away by any paction to the contrary without destroying the very nature of this Right 10. To come now to the constitution of the Property of Lands in Fee and Heretage the Feudal Contract is of it self alienative as Loan Sale Exchange and the Contracts in Law ealled do ut des and do ut facias Of which two last the Feudal Contract is a kind seing thereby Land or other immoveable is given for giving or doing something therefore as in others so in it the will of the owner must constitute the Right in the Vassal and seing by the Custom of Nations some kind of Possession is necessary to constitute or transfer property the Superiours delivery of Possession to the Vassal or acknowledgement and approbation thereof in the Vassal to be holden by him in Fee were sufficient to constitute and perfect the Fee 11. And therefore in the Udal Right of Lands in Orknay and Zetland whereby without any Infeftment Investiture or other Right or Write they enjoy Lands and Hereditaments it sufficeth them to instruct by Witnesses that they have possest as being holden and repute Heretable possessors of such Lands but the Law and Custom of Scotland having as in all other places necessarly required Write not only for evidence of the Constitution of this Right but as Solemnities for the perfecting and solemnizing thereof without which it becomes not a compleat real Right of the ground except where such Writes have been destroyed or lost in times of trouble and then proving the Tenor of them must be used Or in some cases the Heretor may be cognosced by an Inquest as Heretable possessor But ordinarly Write is requisite which Writes are called an Infeftment or an Investiture 12. Infeftment or infeudatio signifieth the Right constitutive of a Fee as its Etymon indicateth So also Investiture is the same more Metaphorically as we are said to be invested or indued with any right as men are covered with a Garment or Cloak and denuded and divested thereof when it is extinct or transmitted So both Infeftment and Investiture signifie the Writes which are evidents signifying the Act constituting the Fee and these are two the Dispositive Will of the Superiour and his delivery of Possession by himself or his Procurators in his Name 13. Of a long time Infeftment hath required write as a necessar solemnity not only as a mean of probation that the Superiour did truly dispone to the vassal any immoveable in Fee and Heretage and that accordingly the vassal attained Possession Natural Civil or Symbolical for if write were adhibite only for probation other probation might also be admitted not only against the Superiour or his Heirs by their Write or Oath but even against their singular successors or other Competitors by whose oath of knowledge or write the truth of the Infeftment and of these two necessary Acts to constitute a Fee might be proven and albeit the Superiours oath would not prove against a singular successor yet his write anterior to that singular successors Right acknowledging that he had at such a time invested such a person as his vassal and entered him in possession which would prove against his Assigney yet neither of these ways would constitute a Fee and supply a written Infeftment except where the peculiar custom of Fees without write hath been immemorial and therefore sustained as sufficient And albeit it be provided by ancient Statutes that the Heretable Possessors of Lands may be cognosced by inquest yet that was only upon consideration of Calamity and War whereby Writes were destroyed and where no competition was by any pretending a written Infeftment and Possession conform But the question being only betwixt the Superiour and his Vassal who with his Predecessors had been in Immemorial possession as being holden and repute Heretable possessors by performing the deeds proper to Vassals of such Lands and so holden and repute as Heretable Possessors by the Neighbour-hood which I have not heard to take effect but as to the Kings immediat Vassals who claims property in no Lands as Supream Superiour but what is annexed to the Crown or whereof the property is acquired to the King by the Casualities of his Superiority Or by Acquisition from other Proprietars and therefore he doth never exclude the ancient Heretable Possessors though they have losed their Rights by publick calamity wherein not only Adminicles in Write but the testimonies of Witnesses above exception are received whereby if the Right be not proven to be blench or Feu by the Exchequer Rolls which bears all the Kings Property and the Reddendo's thereof or by Eque's made in Exchequer the Fee will be held Ward and according to the probation and verdict of the Inquest Charters will be granted by the King in Exchequer and there scarce can be pretendedany Fee which hath not been already established by write 14. The Write requisite to constitute a Fee must contain the present Dispositive Act of the Superiour by which he Dispons to the Vassal and his Heirs the Fee in whatsoever terms he expresseth it as if he gift grant alienat sell or dispone though the several terms exprest may import a different Title and Warrandice yea albeit no Cause or Title be exprest or implyed but only that the Superiour Dispons or though the Cause or Title insinuat be not true yet
then subjoyns the Tenor and Words of the Charter These Charters of Confirmation whensoever granted are drawn back to the date of the Charter Confirmed which were absolutely null till Confirmation unless there be a medium impedimentum as a prior Infeftment by Confirmation or upon Resignation by the Superiour yea though the Infeftment by Confirmation be after the death of the granter of the Charter to be Confirmed if the Superiour do Confirm it is drawn back and will import the Superiours passing from any Casuality falling by the death of the Author unless these be reserved wherein the neglect of the Kings Officers may not be imputed in his prejudice albeit Craig relates a case betwixt Kirkaldie of Grange and Ker in the contrary l. 2. Dieges 4. and adds this reason that the former Vassal granter of the Charter to be Confirmed dying before Confirmation it might be truely said that he dyed last Vest and Seased as of Fee which the subsequent Confirmation cannot make false yet this being fictione juris these fictions may do much more then this change and there is nothing more frequent then to Confirm very old Charters or Dispositions There is another kind of Charter of Confirmation by the King of Charters granted by his Vassals to their Sub-vassals not to be holden a se of the King but de se of the Disponer The effect of which Confirmation is to secure the acquirer against the forefaulture or Recognition of his Superiour Charters by the King upon Appryzing or Adjudication do either Narrate the Appryzing or Adjudication before the Dispositive Clause Or otherways after the Dispositive Clause by the Clause beginning Quae quidem terrae perprius haereditarie pertinuerunt ad A. B. c. Which Clause is also next to the Dispositive in Charters upon Resignation and doth express the Resignation made either personally by the Vassal or more ordinarly by his Procuratory and then bears the procuratory of Resignation and the date thereof But if it be upon Appryzing or Adjudication it bears that the Lands and others in the Charter were Appryzed or Adjudged from the former Vassal or his Apparent Heir lawfully Charged to enter Heir in special and expresses the date of the Appryzing or Adjudication and the sums therein-contained and bears in the Reddendo the duties and services due and accustomed before the said Appryzing or Adjudication The Kings Charters bears as witnesses several Officers of State and director of the Chanclery The Kings Charters must pass in Exchequer upon a signature signed by the King or by his Thesaurer or Commissioners of the Thesaury and a quorum of the Exchequer which signature is recorded in the Books of Exchequer and then passeth under the Signet and then under the Privy Seal whose Warrand is the Signature and last under the Great Seal Charters by Subjects in most things agree with the Kings Charters but differ in these points that they begin not with their Titles but thus Omnibus hanc Cartam visuris vel audituris and then follows the Superiours Title or Designation And in original Charters the special Cause is Narrated as for Implement of a certain contract Disposition or Obligation in them also the warrandice is more particularly expressed because it is effectual according to its Tenor. In the Charters granted by Subjects the Precepts of Seasine were ordinarly ingrossed and now by the late Act of Parliament 1672. cap. 7th Precepts of Seasine are appointed to be insert in the Kings Charters which before could only pass by a Write under the Quarter Seal or testimony of the Great Seal In all Charters both by King and Subjects the Clause Tenendas useth to be insert expressing the Lands or others by their ordinary Designations and then adding Per omnes 〈◊〉 metas antiquas divisas pro ut jacent in 〈◊〉 latitudine cumdomibus AEdificiis boscis planis moris maresiis viis 〈◊〉 aquis rivolis stagnis pratis pascuis pasturis molendinis multuris eorum sequelis aucupationibus venationibus piscationibus petariis turbariis cuniculis cuniculariis columbis columbariis hortis pomariis fabrilibus brasinis brueriis genestis sylvis nemoribus virgultis lignis lapicidiis lapide calce cum curiis earum exitibus herezeldis 〈◊〉 mulierum merchetis libero 〈◊〉 exitu ac cum omnibus aliis libertatibus commoditatibus proficuis astamentis ac justis suis pertinentiis quibuscunque tam non nominatis quam nominatis tam subtus quam supra terram procul prope ad praedictas terras spectantibus seu spectare valentibus quomodolibet in futurum libere plenarie quiete integre honorifice sine aliquo impedimento revocatione contradictione aut obstaculo qualicunque In the Charters by the King or Subjects there may and useth to be insert a Clause de novo-damus which doth Dispone the Fee as by an original Right in case the Disponers Right should be found defective and to secure against any Title proper to the Superiour either as to the property or any servitude or casuality which Clauses use to be very full and to express all Nullities Title or Interest in the Superiour with supply of all defects and bearing all the particular Casualities with which the Fee might be burdened which are effectual and extended to the full against Subjects But as to such Clauses in the Kings Charters they are fully extended as to all Interest in the King relating to the Property such as Nullities Forefaulture Recognition Purpresture Disclamation But the general words Pro omni jure titulo interesse are not extended against the King to any Casuality of Superiority not reaching but burdening the Property except such only as are particularly exprest and therefore a novo damus in a Bishops Charter from the King Disponing a Patronage pro omni jure was found to give the Bishops Successor right to that Patronage though it was a Laik Patronage without necessity to instruct that the Bishop had any pretence of a Title thereto before but that the novo damus was as effectual as an original Right February 19. 1680. Sir John Scot of Ancrum contra Arch-bishop of Glasgow But a novo damus by the King bearing pro omni jure titulo interesse and expressing Ward found not to exclude the Kings Donator from the Marriage as being a Casuality differing from the Ward which useth to pass by a several Gift 17. day of July 1672. Lord Hatton contra the Earl of Northesk The reason of the different extention of the Clause de novo damus as to the King and Subjects is because Subjects are presumed to take special notice of all Clauses that they insert in their Charters which in dubio are interpret contra proferentem But these Clauses do more easily pass by inadvertence in Exchequer and therefore their Gifts are more regulat by their Acts then by the common Style thereof For though Gifts of Ward comprehend Non-entry ay and while the Entry of the righteous
possession as a base Infeftment by Fathers to their Children was not sustained by the Fathers possession whose Liferent was reserved therein June 26. 1634. Dury contra Bruce But a posterior base Infeftment to the Wife was preferred in this case as being cled with the Husbands possession though common author to both the Son and Wife The like of a base Infeftment granted by a Goodsire to his Oy reserving the Goodsires Liferent July 3. 1624. Earl of Annandale contra Johnstoun And an Infeftment by a Father to his Son was not found cled with possession by the Fathers possession though he had a Factory from the Son but it was not alledged that the Father had granted Discharges expresly relating to the Factory July 10. 1669. Gardner contra Colvil Yet in the competition of two base Infeftments the former being granted to a stranger for relief of Caution and the latter granted to a Son and appearand Heir for relief of his Caution exceeding the value of the Lands the Sons base Infeftment though posterior having first attained possession and being without all suspition of Simulation was preferred And it was not found that Infeftments for relief were in the same case with Warrandice Lands where the possession of the principal Lands is fictione juris a possession of the Warrandice Lands These Infeftments being less subject to fraud or uncertainty then Infeftments for relief which relate to personal debts and oftimes generally to all debts or Cautionries contracted or to be contracted which debts may be retired and keeped up and made use of by the Infeftment for relief June 26. 1677. Mr. John Inglis contra Tennents of Eastbarns Infeftments base to Wives not being upon their Contracts of Marriage or in place thereof are not holden as cled with Possession by the Husbands Possession 28. Infeftments by Confirmation do not only require a Charter from the Disponer bearing the Lands to be holden of the Superiour and Seasine thereupon but require also the Superiours Confirmation till which it is no real Right but null but whensoever the Confirmation is added the Right becomes valid from the date of the Infeftment Confirmed as to the right of property and as to the Superiours Casualities and therefore an Infeftment ase not confirmed was found null by exception though cled with some years possession December 4. 1623. Patton contra Stuart and found null though the Confirmation was past the Privy Seal Hope Confirmation Hunter contra Dalgleish And also found null in an Annualrent holden from the Disponer not Confirmed Hope Confirmation Lord Balmerino contra Coatfield But if there were any mid impediment betwixt the Charter Confirmed and the Confirmation it excludeth the Confirmation and whole right as an Appryzing and Infeftment But Confirmation of a right not bearing to be holden of the Superiour but of the Vastal makes it not a publick Infeftment nor takes it away the Superiours ordinary Casualities as Ward but only Recognition and Forefaulture Hope Confirmation Lady Cathcart contra Vassals of Cathcart November 17. 1627. Laird of Clackmannan contra Balnamoon Hence it is that because Confirmation constitutes Rights holden of the Superiour that the first Confirmation makes the first Right though it confirm a posterior Infeftment from the Vassal as is clearly determined in the case of double Confirmations holden of the King Par. 1578. cap. 66. which is not introduced but declared by that Act and holdeth alike in other Confirmations It doth of times fall to be doubtful whether a Confirmation makes an Infeftment publick or not when Seasine is taken upon a precept of Seasine in a Disposition Which Disposition contains obliegments for Infeftment de se ase by Confirmation But the precept of Seasine relates not specially to either obliegement and Seasine is taken thereupon and is afterward confirmed The question comes whether this be only a Confirmation of a base Infeftment to exclude Forefaulture or Recognition or if it doth make the Infeftment publick it is generally constructed as a publick Infeftment as was found July 5. 1680. Bishop of Aberdeen contra Viscount of Kenmure 29. Infeftments upon Appryzing or Adjudication when formally perfected do require Charters to be granted by the Superiours of the Appryzed Lands or other real Rights the Tenor whereof is already set down in this Title and Precepts and Seasines thereupon which have little peculiar differing from other Infeftments as to their Tenors and Effects but that their reddendo is ordinarly general when the Appryzer or Adjudger cannot prove or instruct the Tenor of his authors Right and therefore do bear such duties and services as were contained in the Authors Rights which the Superiour may be charged to renew and make special so soon as the Authors Rights are produced and if they be not so renewed they are understood as Ward-holdings But for Renovation thereof the Appryzer or Adjudger will get Letters of Horning summarly upon the allowance of the Appryzing or Adjudication which will not be excluded although the Superiour have already granted Infeftments in general terms as aforesaid but he must renew the same according to the special Tenor of the Authors Right produced and that without any new composition yea the Appryzers Heirs upon supplication will obtain Letters of Horning summarly for renewing the same and so will his singular Successors but they must pay a years Rent for their Entry whether their Title be Appryzing or Adjudication against the former Appryzer or Adjudger in wich case he may make use of Letters of Horning upon the allowance of his own Appryzing and though his Title be a voluntary Disposition he will get Letters of Horning as succeeding in the place of the former Appryzer or Adjudger to renew and make special the former Infeftment to his Author upon payment of a years duty But Appryzing and Adjudications being legal Dispositions and conveyances of the Authors Infeftment we shall say no further of them in this place but leave them to the Title twenty four where they are considered amongst Dispositions We shall only add here that before the year 1624. Appryzings were left at the great Seal by warrant from the Lords whence Precepts were issued thereupon against the Superiours to Infeft which if they obeyed not Charters were granted by the King to supply their Vice but since they are retained by the Appryzer and he may have Letters of Horning summarly Charging the Superiours to grant Charters and Precepts of Seasine as is aforesaid 30. This also is singular in Appryzings and Adjudications that a real Right of Fee is constitute thereby by a Charge of Horning against the Superiour without Charter or Seasine For such Appryzings or Adjudications are declared effectual by the Act of Parliament 1661. cap. 62. ordering the payment of debts betwixt Creditor and Debitor For after that Charge no Infeftment upon voluntary Disposition or upon any other Appryzing or Adjudication can be granted by the Superiour prefering any other Vassal to the Appryzer or Adjudger whom he
hath unwarrantably refused to Enter if the Appryzer or Adjudger insist in his Appryzing or Adjudication for Possession but he may forbear to make use of the Appryzing or Adjudication and if hely long out without further diligence he will be presumed to have relinquished his Appryzing or Adjudication and posterior Rights and Diligences will be preferred But if he enter in Possession no posterior Infeftment or Diligence will exclude him although he insist no further but the Charge of Horning and it hath not occurred to be determined how long that Right will subsist without infeftment but it hath been found that the Superiour will not be excluded from the Casualities of Superiority by his former Vassal if he have not been in the fault in refusing to Enter when the Appryzer or Adjudger offered him a Charter with a years Rent of the Land or Annualrent of the sum adjudged or appryzed for this was in the case of Ward February 9. 1669. Black contra David Trinch Neither was a Superiour found to have interest to exclude an Appryzer from Possession till he payed a years Rent but that he might possess during the legal if he insisted not for infeftment which insinuats that after expyring of the legal the Superiour might hinder the appryzer or adjudger to continue in possession till he take Infeftment and pay a years Rent but during the legal the appryzing or adjudication is but as a legal assignation to the Mails and Duties so that the appryzer cannot be forced to take Infeftment till the legal expyre and the Land become irredeemably his own and then he is to pay a years Rent but in this case there was no Charge upon the appryzing December 3. 1672. Mr. Hendry Hay contra Laird of Earlestoun Albeit in the case of Johnstoun contra the Tennants of Auchincorse July 22. 1665. the appryzer having charged the Superiour though he did not then obey yet appearing in the Process of Mails and Duties he offered now to receive the appryzer and therefore the appryzer was excluded till he payed the years rent which being under consideration of the Lords in the posterior case of Mr. Henry Hay they resolved to give the apyryzer his option within the legal to take Infeftment or not so that the Charge doth only hinder others to preveen but doth not exclude the Superiour from any Casuality of the Superiority falling by his former Vassal unless he had been in culpa refusing the appryzer Entry insisting orderly to be Entered which is a great advantage both to debitors and creditors not to have the accession of a years rent till the ancient Rights may be discovered and that it may appear whether the appryzing becometh an absolute Right The main division of Infeftments is in relation to the holding is in Ward Blench Feu Burgage and Mortification 31. An Infeftment Ward hath its denomination from Ward which is the chief Casuality befalling to the Superiour thereby it is the most proper Feudal Right we have and therefore wherever the holding appeareth not or is unclear there Ward-holding is understood it is ordinarly expressed by rendering service used and wont and if the reddendo be not express in name of blensh or Feu Ferm though it bear payment of some Duty yet Ward is inferred as by a Charter bearing sex dinarios nomine cana with a taxed Marriage So also it was inferred by a reddendo bearing a particular Duty payable at Whitsunday and Martimass cum servitiis in curiis nostris alibi debitis consuetis Hope de feudi renovatione Williamson contra Thomson The main importance of a Ward-holding was indefinite service to be performed by the Vassal to his Superiour and especially in War but that being now little in use the main effect of it is the Ward and Marriage of the Vassal of which hereafter 32. Ward Lands according to the nature of proper Feudal Rights might not be alienat by the Vassals granting any subaltern Infeftment thereof otherways not only the subaltern Infeftments were void but the Vassal granter thereof his own Infeftment became void by Recognition yet by Act of Parliament 1457. cap. 72. all Feus to be granted by the King Prelats Barons or Free-holders are allowed and declared not to fall in Ward as being but Heretable assedations as the act bears paying to the Superiour during the Ward the Feu-duty providing the Lands be set to a competent avail without prejudice to the King which is ordinarly interpret to be the retoured duty the same is repeated Par. 1503. cap. 91. and extended not only to subaltern Infeftments Feu but also of annualrents so that it be without diminution of the Rental which in Lands holden of the King by secular men is the retoured mail and in the Kings property and in Kirk-lands is the full rental they should happen to be at the time of the subaltern Infeftments which therefore the Feus may not diminish and the annualrent may not be so great as to exhaust the Land that the rental remain not free This last Act was temporal for that Kings life and therefore the extention as to annualrents ceaseth though the first Act expresseth that the King will ratifie all Feus granted by the Kings immediat Vassals yet the Act bears that the King thereby will give good example to the rest viz. to other Superiours and therefore a Feu of Ward-lands granted by a Vassal holding Ward of a Subject before the Act of Parliament 1606. was found valid though without the Superiours consent June 24. 1668. Stuart of Torrence contra Feuars of Ernock This priviledge was taken away as to all Superiours and their Vassals except the Vassals of the King who only might grant subaltern Infeftments of their Ward lands Par. 1606. cap. 12. whereby all such subaltern Infeftments of their Ward-lands are declared null by exception or reply unless the Superiours consent were obtained and therefore the Superiours consenting in the Disposition by a Vassal to a Sub-vassal was found to exclude the Vassals Ward so far as concerns the Sub-vassal though it was a redeemable Feu July 2. 1672. Earl of Eglintoun contra Laird of Greenock The same was extended to the Vassals of the King and Prince who were thereby also excluded from setting of Feus of Ward-lands to Sub-vassals Par. 1633. cap. 16. but the Vassals of the King and Prince were restored to their former priviledge and the said Act 1633. wholly repealed Parliament 1641. cap. 58. which now is rescinded Par. 1661. cap. 15. Yet the Lands set in Feu during the time of these several Acts now repealed are valid So Ward-lands holden of the King or Prince may not be set in Feu nor of any other Superiours except Bishops and their Chapters for these might set Feus for a Feu-duty equivalent to the retour Par. 1621. cap. 9. But this Act was only temporary for three years and therefore subaltern Infeftments granted by Vassals if of the most part of the Ward-lands infers recognition thereof
in the Superiours hands but if within the half they are not null as to the Vassal but are null as to the Superiour and exclude him from no Casualities of his Superiority as Ward c. But as the half may be sub-sett so any other right less then the value of the half is sustained as an Infeftment of warrandice March 6. 1611. Cathcart contra Campbel The like holds of Infeftments of Liferent but if the Disposition or Infeftment be granted to the Vassals appearand Heir in linea recta it infers not Recognition be-because the Superiour is not prejudged by change of his Vassal but recognition was found incurred by a Disposition and Infeftment to the Vassals Brother though his appearand Heir for the time seing there remained hope of issue in the Disponer and so his Brother was not alioqui successurus Spots recognition Advocat and his Son contra the Earl of Cassils and Collane Feus of Ward-lands granted by the Kings Ward-vassals after the Act of Parliament 1457. and before the Act of Parliament 1633. were found not only to be free from the ward-liferent-escheat or recognition of the Kings Vassals but also that the Sub-vassals Feu did not fall by his Superiour the Kings Vassals forefaulture because the Act of Parliament expresseth a Confirmation of such Feus which therefore needs not be past in Exchequer without which there is no doubt but Ward and Non-entry are excluded And by a Confirmation in Exchequer Forefaulture would be excluded without question even after the Act of Parliament 1633. and therefore the ratification and approbation of Feus by the Act 1457. when it was in vigour must also secure against Forefaulture of the granter of the Feu as was found February 12. 1674. and January 23. 1680. Marquess of Huntly contra Gordoun of Cairnborrow whose Feu being granted after the Act of Parliament 1457. and before the Act 1606. was sustained against a Donatar of his Superiours Forefaulture The like though the Feu was renewed upon Resignation in favorem not being ad remanentiam November 16. 1680. Campbel of Silver-craigs contra Laird of Achinbreck and Earl of Argyle 33. Infeftments blensh are such whose reddendo is a small elusory Rent as being rather an acknowledgement of then prosite to the Superiour and therefore ordinarily it beareth si petatur tantum as a Rose penny Money or the like and these are not counted blensh Rights unless they bear in name of blensh Ferm or if they bear not si petatur or if it be a yearly growth or service it is not due and may not be demanded at any time unless it be demanded within the year at the Term as a Stone of Wax or a Pound of Pepper February 16. 1627. Lord Semple contra Blair Where the like is observed to have been before June 18. 1611. Bishop of St. Andrews contra Galloway The like found where the reddendo bore si petatur tantum June 15. 1611. Bishop of St. Andrews contra Tersons So Blensh Duties of Lands holden of the King or Prince are declared only due if they be asked yearly and no price can be put thereupon by the Exchequer Parliament 1606. cap. 14. Yet seing by Act of Parliament the King is not to be prejudged by neglect of his Officers who ought yearly to call for his Blensh Duties whereof many are considerable therefore the Exchequer continues to exact the Kings Blensh Duties though not demanded within the year There is another part of the Act excluding all Liquidations of Blensh Duties in specie which therefore should be so exacted though not within the year unless the Vassals voluntarly offer a price in these Blensh Ferms there is no ward and marriage befalling to the Superiour in which it differs mainly from ward 34. Infeftments Feu are like to the Emphyteosis in the Civil Law which was a kind of Location having in it a pension as the hyre with a condition of Planting and Pollicy for such were commonly granted of Barren Grounds and therefore it retains still that name also and is accounted and called an Assidation or Location in our Law But because such cannot be Hereditary and perpetual all Rentals and Tacks necessarly requiring an Ish therefore these Feu-holdings partake both of Infeftments as passing by Seasing to Heirs for ever and of Locations as having a Pension or Rent for their reddendo and are allowed to be perpetual for the increase of Planting and Pollicy 35. In what cases Feus are allowed of Ward-lands hath been now shown in other cases they are ordinarly allowed where they are not prohibit so we shall only need to speak of cases wherein they are prohibit and void and that is first In the Patrimony of the Crown which is annexed thereto and cannot be set Feu by the King without consent of Parliament by their Act of Dissolution bearing great seen and reasonable Causes of the Realm by Sentence and Decreet of the whole Parliament But Ratifications which pass of course in Parliament without report from the Articles will not supply the dissolution of the annexed property or validat Infeftments thereof even though the Ratification bear a Dissolution Upon which ground the Earl of Mortouns Right to the Earledome of Orkney was reduced February 25. 1670. Kings Advocat contra Earl of Mortoun Neither can the annexed property be disponed by the King but only in Feu after the Act of Parliament 1597. cap. 234. And all Infeftments Tacks Pensions Gifts Discharges granted before lawful Dissolution in Parliament or after Dissolution yet contrary to any of the conditions of the same are declared null of the Law by Action or Exception as well as to by gones as in time coming Par. 1597. cap. 236. Par. 1455. cap. 41. which is confirmed and extended to Feus not only to be granted of Lands but to Feus granted of the Feu-Ferm-Duties which was a device invented to elude the Law Par. 1597. cap. 239. 36. Secondly Feus of the annexed property after Dissolution may not be set with diminution of the Rental the Feu-duty not being within the new retoured Duty Par 1584. cap. 6. And that it may appear whether the Rental be diminished or not before they pass the Seals they must be presented to the Thesaurer and Comptroller and registrate in his Register and the Signature subscribed by him otherways they are null Par. 1592. cap. 127. And such Feus set without consent of the Comptroller by his subscription Registrat in his Register are again declared null Par. 1593. cap. 171. The Comptrollers Office hath been of a long time adjoyned to and in the same Commission with the Thesaurers Office or Commission of the Thesaury What Lands and others are annexed to the Crown appeareth by the several Acts of Parliament made thereanent consisting mainly of forefaulted Estates and Kirklands after the abolishing of the Popish Clergy which because they were presumed to have been most part mortified by the Kings of Scotland therefore the intent of their granting ceassing by
the abolishing of Popery they return to the Crown as the Narrative of the Act of annexation of the temporality of Benefices Par. 1587. cap. 29. bears and therefore Benefices of Laick Patronage as having proceeded from these Patrons are excepted by the said Act and though after the restitution of Bishops and their Chapters the Act of Annexation in so far as concerned their Lands was rescinded Par. 1606. cap. 6. Yet Bishops being abolished Par. 1640. cap. 6. their Lands were again annexed to the Crown Par. 1649. cap. whereby all Erection of Kirk-lands in temporal Barronies or Lordships by which the King interposeth any person betwixt himself and these who were formerly Vassals of Kirkmen are prohibit and declared null this Act is rescinded in the general Act rescissory 1661. cap. 15. The annexed property after Dissolution may not be granted in ward or blensh except upon Excambion for as good Lands Par. 1597. cap. 234. 37. Feus of Kirk lands by Prelats or other beneficed persons being granted by consent of their Chapters with all requisite Solemnities were esteemed Legal Securities without any particular Confirmation by the King or Pope there being no Statute nor Constitution obliging the Subjects thereto and in case any Confirmation had been requisite the consent of the Prince under his proper Seal and Subscription was sufficient Par. 1593. cap. 187. Yet it was the Custome that the Kings or Popes Authority was interposed to all Feus of Kirk-lands therefore all Feus not Confirmed by the King or Pope before the 8. of March 1558. or being thereafter not Confirmed by the King are declared null by Exception Par. 1584. cap. 7. The Reason hereof was because in March 1558. the Reformation of Religion began to be publickly professed in Scotland and the beneficed persons became hopeless to preserve their rights of their Kirk Lands and therefore endeavoured to dilapidat the same But this was found not to extend to an Infeftment of an Office as the Office of Forrestrie though it had Lands annexed thereto and a threave of Corn out of every Husband Land of the Abbacy seing the Statute mentioned only Feus of Lands And this was but like a Thirlage 20. of Ianuary 1666. Lord Renton contra Feuers of 〈◊〉 It is also declared in the 7. Act Par. 1594. that the old Possessors were to have their Confirmation for payment of the quadruple of their silver rent or the double of their ferm Providing they sought the same within a Year after the publication of that Act otherwayes they were to pay the eight fold of the Silver rent and the triple of the Ferm and the King was thereby obliged to grant Confirmation to the old Possessors upon these terms and being so Confirmed the same could not be questioned upon aleadged Dimunition of the Rental or Conversion in monie or any other cause of Nullity Invalidity or Lesion or by any Law Canon or Statute except Improbation only And it was declared that Confirmations by the King of Posterior Feus should not perjudge the Anterior Feus granted by Prelates and their Convents with their common Seals and Subscriptions at any time being granted with consent of the Kings Predecessors under their Privy Seal though without farder Confirmation by the Kings or Popes Par. 1593. cap. 187. The Reason hereof was because in the time of the Reformation most of the Evidents of Kirk Lands were destroyed And therefore the Ancient Possessors were presumed by their very Possessions to have Right And for clearing who were the Ancient Possessors and what were Kirk Lands it is declared by Act of Sederunt 16. of December 1612. that ten years Possossion before the Reformation or thirty years Possession thereafter but interruption should be sufficient to stand for a Right of Kirk-lands the same being possest as such and Feu dutie being payed to Kirkmen before the Reformation or to the King or others having Right from them after the Reformation therefore it was so decided 5. of July 1626. Laird of Kerse contra Minister of Alva though much stronger probation of being part of a temporal Barronie for longer time was alledged in the contrary Hope Earl of Home contra Earl of Balcleugh Spots Kirkmen Mr. John Hamiltone Minister at Linton contra John Tweedie Secondly Feus granted by Prelats were null Except they were expede by the consent of their Chapters or Convents Par. 1593. cap. 187. Thirdly Feus granted by the beneficed Persons as of themselves they ought to have been without diminution of the Rental seeing the Property thereof was mortified to the Kirk and the incumbents were but as Liferenters Administrators and Tutors it was also expresly declared and statute that any diminution of the Rental or change of Victual for Money or any other Disposition making the Benefice in a worse Estate then at the Kirk-mens entrie should be null Par. 1585. cap. 11. 38. Infeftments in Burgages are these which are granted to the Burghs by the King as the common Lands or other rights of the Incorporation and that for Burgal Service in Watching and Warding within their Burghs c. These can have no Casualities because Incorporations die not and so their Land can never fall in Ward or in Non-entrie These Infeftments in Burgage are held by the Incorporation immediately of the King for Burgal service Watching and Warding within Burgh c. And the particular persons Infeft are the Kings immediate Vassals and the Bailies of the Burgh are the Kings Bailies And to the effect that such Infeftments may be known it is declared that all Seasines of Burgage Lands shall only be given by the Bailzie and common Clerk thereof otherwayes the famine is declared null which seems to have given the rise to the exception in the Act of Parliament anent Registration of Seasins that it should not extend to Seasins within Burgh Par. 1567. cap. 27. 39. Infeftments of mortisied Lands are these which are granted to the Kirk or other Incorporation having no other Reddendo then Prayers and Supplications and the like Such were the Mortifications of the Kirk-lands granted by the King to Kirk-men or granted by other privat men to the Provost and Prebendars of Colledge Kirks founded for Singing Or to Chaplains Preceptors or Alterages in which the Patronage remained in the Mortifiers 40. Of all these Mortifications there remains nothing now except the Benefices of Bishops Deans and Chapters and the Manses and Gleibs of Ministers which are rather Allodial then Feudal having no holding Reddendo or Renovatione Yet are esteemed as holden of the King in Mortification And therefore the Liferent of the Incumbent by being year and day at the Horn falls to the King Manses and Gleibs did belong to Parsons Viccars and other Kirk-men before the Reformation after which they were prohibited to set the same Feu or in long Tack without the Royall assent and the Ministers were ordained to have the principall Manse of the Parson or Viccar or so much thereof as should be found sufficient Whither
alter the succession without a necessary or just consideration and so do exclude deeds fraudulent or meerly gratuitous which might evacuat the effect as to the heirs of the Marriage so that if there were heirs of the Marriage and also heirs of another Marriage the Father could not alter the Succession in favours of the heirs of another Marriage because of the interest of the Wife and the Tocher she-brings But it doth not hinder the Father to give competent portions to the Bairns of another Marriage June 19 1677. Murrays contra Murrays Neither did such a Clause of Conquest during the Marriage exclude a competent Liferent constitute to Wife of a subsequent Marriage albeit there were Bairns of the first Marriage June 16. 1676. Katherine Mitehel contra Children of Thomas Littlujohn Yet where there survived no heirs of the Marriage a provision in a Contract of Marriage that such a sum the future Spouse then had and all they should acquire during the Marriage should be taken to themselves in Conjunct-Fee and to the heirs of the Marriage whilks failzing the one half to the Mans heirs and the other half to the Womans heirs found to constitute the Man Fiar of the whole and that he might provide both the first Stock and all the Conquestro his Children of a posterior Marriage which was found no fraudulent 〈◊〉 meerly gratuitous deed December 1. and 21. 1680. Alexander Anderson contra Androw Bruce 42. Infeftments to more persons subordinat are such as are taken to Parents and after their decease to such Children and other persons named whereby the Parent is understood to be Fiar and not Liferenter and the Children or others to be Heirs substitute albeit both the Father and the Bairns named were Infeft July 23. 1675. Laird of Lambingtoun contra 〈◊〉 of Annistain But where the Band did bear a sum lent by a Father for himself and as Administrator for his Son and that the Money was the Sons and payable to the Father and after his decease to the Son was found to constitute the Son 〈◊〉 and the Father only life-renter February 14. 1667. Campbel contra Constantine 43. The third division of Infeftments is in respect of the succession and they are either simple or Tailzied Simple Infeftments are these which are taken to Heirs whatsomever for by that expression we express the lineal Heirs who according to Law would succeed in any Heretable Right But Tailzied Infeftments are where the Lands are provided to any other then the Heirs of Line as when it is provided to Heirs Male or Heirs Male of the Fiars own Body or to the Heirs of such a Marriage or to the Heirs of Titius whilks failzing to the Heirs of Seius c. Of these Tailzies there are many several ways as the Fiar pleaseth to invent and ordinarily in them all the last Member or Termination is the Heirs whatsomever of the last Branch or Person substitute or the Disponer and when that takes effect by succession the Fee which before was Tailzied becomes simple A Tailzie must necessarly be a part of the Infeftment for no write apart can constitute a Tailzie though Bonds or Contracts of Tailzie as personal or incompleat Rights may force the Contracter or his Heirs to perfect the same They must also be constitute by the Superiour being a part of the Infeftment granted by him either originally in the first Constitution of the Fee or thereafter by Resignation or Confirmation and as a Superiour is not oblieged to alter the Tenor of the first Investiture or to accept a Resignation or grant a Confirmation in any case except where it is provided by Law whereby he is necessitat to receive Appryzers and Adjudgers So neither in that case is he oblieged to constitute a Tailzie but only to receive the Appryzer or the Adjudger their heirs whatsomever unless the Debt and Decreet whereupon the same proceeded be conceived in favours of Heirs of Tailzie in which case the Appryzing or Adjudication and Infeftment thereupon must be conform unless it be otherways by consent of parties Tailzies also being Constitute are broken or changed by consent of the Superiour accepting Resignation in favours of other Heirs whether the resigner resign in favours of himself or his heirs whatsomever or in favours of any other and their heirs But most ordinarly by Appryzings or Adjudications whereby the Superiour is necessitat to receive another Vassal and his heirs though perhaps he be substitute himself as an heir of Tailzie as if it be provided that failzing other heirs there mentioned the Fee return to himself But Infeftments holden of the King have this priviledge that they are not refused either upon Resignation or Confirmation as the Fiar Purchaser pleaseth Yea it is declared by several 〈◊〉 of the Privy Council that the King or his Commissioners ought not to deny his Confirmation upon the reasonable expenses of the party which Ordinances are repeated in the Act of Parliament and though the design thereof gives not occasion to ratifie the same yet they are contained in the Narrative as Motives of that Statute and therefore are not derogat but rather approven Parl. 1578. cap. 66. And though several Kings have revocked Infeftments granted by them from heirs of Line to heirs Male and of Tailzie yet the effect of such Revocations hath never been tryed by Suite or Decision Conjunct-infeftments to Husband and Wife and their heirs are also Tailzied and though if the heirs of that Marriage be a Son and of a first Marriage he may be both heir of Line and heir of the Marriage yet may he enter as heir of the Marriage and if the Defunct had other Lands provided to heirs whatsomever he may renunce to be heir in these Lands to the effect they may be first burdened with his Fathers Debt and he or his Lands provided to the heir of the Marriage can be but burdened in the second place in subsidium of what is wanting by the Executors or Heretage befalling to heirs whatsoever much more are Infeftments Tailzied which are granted to Husband and Wife and to the Bairns of the Marriage whereby Male and Female come in pari passu Bonds taken to Parents and after their decease to such a Child nominatim whereupon Infeftment followed makes a Tailzied Fee but these are rather called heirs of provision and these are most properly called Tailzied Fees where several Branches are specially substitute one failzing another But seing heirs of Tailzie fall under consideration in the transmission of Rights by Succession we shall insist no further thereon in this place but shall proceed to consider the Clauses which are adjected in Infeftments not being of the Substantials or Solemnities thereof and how far such come in as parts of the real Right affecting singular Successors and how far they are only personal affecting alone the heirs of the Superiour or Vassal And last we shall consider the effects of Infeftments themselves As to the first beside the
Solemnities requisite in Infeftments there uses to be many Clauses insert therein all which we cannot follow but shall insist in the most ordinar and and important These are Union Erection Warrandice Reservations Provisions Conditions and Clauses irritant 44. Union is the Conjunction or Incorporation of Lands or Tenements lying discontigue or several kindes unto one Tenement that one Seasine may suffice for them all in which there is sometimes exprest a special place where Seasine should be taken and when that is not Seasine upon any part is sufficient for the whole Lands lying contiguous are naturally Unite and needs no Union so that Seasine taken upon any of them extendeth to the whole But where they ly discontiguous other Tenements being interjected there must be Seasine taken upon every discontiguous Tenement which must be all particularly so exprest in the Instrument of Seasin whereof one will serve for all the Tenements or otherways when they are Tenements of several kinds as Lands Milns Fortalices and Fishing all which are several kinds of Tenements and require several Seasines and pass by several symbols or tokens as Lands by Earth and Stone Milns by the Clap Fortalices by the Entry at the Gates and inclosing the person possest and excluding the granter of the Possession solemnly conform to the Charter or Precept Union can be Constitute originally by no other then the Soveraign Authority conceding the same January 16. 1623. Mr. Hendry Aikin contra Greenlaw Or Confirming the same January 16. 1623. Aikin contra Stuart And therefore Union being Constitute by a Subject not having the same from the King was found null by Exception at the instance of the Possessors though pretending no Right December 16. 1628. Lady Borthwick contra Scot of Goldylands And when there is a place for the Seasine of the Union a Seasine taken elsewhere reacheth none of the Lands lying discontigue March 19. 1636. Lady Dunipace contra Laird of But if the Lands united by the King be Disponed wholly together by the Vassal to others Subalternly Infeft the Union stands valid July 12. 1626. Stuart and Dowglas contra Cranstoun Home repeated Jan. 5. 1627. which for the same reason ought to be extended to Subaltern Infeftments of an annualrent of a Barrony or United Tenement which was found to extend to a Miln and to Lands lying discontigue though not taken in the place designed in the Union Spots Executors Lady Ednem contra Tennents of Ednem 45. Erection is when Lands are not only Unite in one Tenement but are Erected into the dignity of a Barrony which comprehendeth Lordship Earldom c. All which are more noble Titles of a Barrony having the like seudal Effects and whensoever the Tenements are granted as a Barrony Union is comprehended as the lesser Degree though not exprest and therefore one Seasine carryeth the whole Barrony and all Milns and Fortalices thereupon and fishing adjacent thereto Erections can be only granted by the Soveraign Authority and are not Communicable by the Subaltern Infeftments though the Union implyed therein may be Communicat Erection was found to be instructed by the Kings Confirmation of a Charter Designing the Lands a Barrony though it was not a Barrony before but the half of a Barrony wherein the Barron Infeft his Son in Libera Baronia which Infeftment being Confirmed by the King did Constitute it a full Barrony whereby an Infeftment of annualrent taken upon a part of the Land affected the whole November 16. 1630. Laird of Clackmanan contra Alardice Erections of Kirklands in Temporal Barronies or Lordships whereby the Lords of Erection were interjected betwixt the King and the Feuars are prohibite Par. 1592. cap. 119. and Par. 1594. cap. 195. for all these Lands are annexed to the Crown Par. 1587. cap. 29. and Par. 1633. cap. 10. The Reason whereof is evident that such Erections are prejudicial both to the King who loseth his Casualities of the Feuars and to the People who must accept another Superiour in stead of the King and though they had formerly but Subjects to their Superiours yet Church-men were much more easy then secular persons as requiring little service and being ashamed to demand rigorous Rates but any man may obtain the Lands he hath in property holden mediatly of the King which were Kirk-lands Erected in any dignity the King pleaseth to grant There are many exceptions in the Acts of Annexation of the Temporality of Kirk-lands and in the Acts against Erections by which the Kirk-land excepted are validly Erected and all the Erections are so far allowed as to give the Lords of Erection right to the feu-duties or fruits of the property of Kirk-lands feued till they be redeemed by payment of ten per cent and the Infeftments granted to the Vassals medio tempore are valid but the Casualities ought still to belong to the King It hath been sometimes questioned whether the Union and Erection of Lands be dissolved and lost by an Infeftment of a part thereof from the Vassal holden of the Superiour by Resignation or Confirmation Craig l. 2. Dieges 7. is for the affirmative confirmed by the resemblance of a Sheaf of Arrows bound with one Ligament for if one Arrow be pulled out all become louse and so the Union of the whole is dissolved unless the Superiour give the new Infeftment but prejudice of the rest But though such cases frequently occur whereby Infeftments of discontiguous Lands would only be valid as to the contiguous Lands upon which they were taken yet in no competition or other Process hath it been observed by any to be drawn in question or decided so that we have ever rested in the Negative and the consequence from that resemblance is not sufficient But on the contrary he who unites many Discontiguous Lands unites every part of them to every part so that the taking off of one part dissolves only it self the rest remaining unite But Union or Erection doth not change the Jurisdiction of the Lands unite as to the Shires and Bailziries where they naturally ly Vide Tit. Confiscatione § Horning Barronies and United Tenements when they are originally granted ought to express the several Tenements according to their proper Designations and so expresly Unite them But when these are acknowledged to have been Baronies or otherways Unite or are named or defigned as such by these who have power to Unite then the common Name of the United Barony or Tenement is sufficient to carry all that is holden and repute as part and pertinents thereof which was extended to Lands as parts of a common Designation though some particulars were named and the Lands in question had also proper names and were exprest in the ancient Infeftments the right in question being an Appryzing March 23. 1622. Gallowsheils contra Lord Borthwick Union and Erection are as qualities of the real Right and pass unto singular Successors as is before exprest 46. Warrandice is either real when Infeftments is given of one Tenement in security of
what the meaning of the Clause cum piscationibus simply or of fishing in salt Water can Import seing there are common freedoms of every Nation to Fish into the Sea or into Brooks or Rivers for common fishes and therefore needs no special Concession from the King or other Superiour but the use thereof may be first that it may be the Title or foundation of prescription of Salmond-fishing not only in fresh-water but in the Sea at the Water-mouth where they are frequently taken And also that in other fishings if a prescription run of interrupting and hindering others to fish whatsoever sort of fish it will constitute a property thereof which could not consist without this clause or the like as a Title neither could it be comprehended as Annex or Connex of Lands or as a Servitude being a distinct right having so little respect to Land 70. There is a special way of fishing by Cruives or Zaires both in fresh water and salt all such Cruives are absolutely prohibite to be set within Rivers in so far as the Tide flowes as being destructive to the frey of all fishes Parliament 1424. cap. 11. renewed Par. 1477. cap. 73. Par. 1581. cap. 111. And as to other Cruives in fresh water they are also prohibite by the said last Statute except such as are Infeft in Cruives Lynes or Loups within fresh water who are to enjoy the same according to their Rights keeping Saturdays Slop and the due distance betwixt the Hecks the distance of the Hecks by the Act of Parliament 1477. cap. 73. is exprest to be three inches conform to the Statute made by King David but the Act of Parliament 1489. cap. 15. expresseth the distance to be five inches conform to King Davids Act And in both these Statutes besides the distances aforesaids Saturdays Slop is appointed and likewise that the mid-stream by the space of five foot be always free and that no Cruives be made use of in forbidden time of year when Salmond may not be taken which is declared to be from the Feast of the Assumption of the Virgin Mary unto the Feast of Saint Andrews in Winter Parliament 1424. cap. 35. Few debates have occurred concerning Cruives notwithstanding the great notice thereof by so many of our Kings One did lately occur and was fully debated in presentia betwixt the Heretors of the Water of Don and the Town of Aberdene which was mainly decided on January 26. 1665. The case was thus The Town of Aberdene having changed a Cruive-dyke to another place within their own bounds and built the same there again of new whereupon the Heretors who had right to the Salmond-fishing upon the Water of Don above these Cruives raised a Declarator against them wherein after large disputes concerning Saturdays Slop and the mid-stream and the distance of the Hecks and the height of the Cruive-dyke and whether it ought to be built sloping or perpendicular and whether it might be changed to the prejudice of the Heretors The Lords found that the Town of Aberdene might change the Cruive-Dyke keeping it within their own bounds and having no more Dykes but one but found that seing they had a Cruive past memory without interruption which had determined the height and frame thereof they found that the new Dyke behoved to be built in all things conform to the old and with no more detriment to the saids Heretors fishing then was formerly before the water had pooled at the old Dike and so it was not determined how high a Cruive-dyke might be or whether it behoved to be sloping or not where prescription had not determined which is very seldom It was also found that the distance of the Hecks ought to be three inches conform to the Act of King James the third Par. 1477. cap. 73. and not five inches according to the Act of King James the fourth Par. 1489. cap. 15. which mentions five inches which the Lords found to be a mistake in the Transcribing or Printing of the Act of Parliament in respect that both this and the former Act relates to the Statute of King David as the pattern thereof which mentions but three inches and that Hecks of five inches wide will be of no use nor hold in any Salmond The Lords also found that the Saturdays Slop behoved to be observed not only in one Cruive but in all the Cruives of the Dyke and that by pulling up the Hecks of each Cruive by the breadth of an ell to continue from Saturday at six a Clok till Monday at Sunrising and the Lords found that part of the Statute concerning the mid-stream to be indeed distinct from Saturdays Slop but they found that part of the Statute concerning the mid-stream to be in desuetude in all the Cruives of the Kingdom and that it is not repeated by the Act of King James the sixth Par. 1584. cap. 111. and therefore found the same not obligatory notwithstanding that in the late Act of Parliament 1661. there is an Act Ratifying all the old Statutes concerning Cruives which was alledged to revive that point of the mid-stream which the Lords did not respect as a general Law albeit the Confirmation did run in these terms because it past the Parliament without notice as an ordinary Confirmation at the impetration of their pursuers and did not pass the Articles and was not appointed to be Printed as a publick Law 71. Milns are not carried as part and pertinent because they are esteemed as separata tenementa requiring a special Seasine unless the Lands be in Barronia for then Infeftment in the Land carries the Milns thereon yet a Miln being built upon a Liferenters Land after her Infeftment bearing cum molendinis was found to belong to the Relict though Milns was not in the Dispositive Clause Nor was she in Conjunct-fee of a Barrony but she was not found to have right to the astricted Multures of any Lands but her Liferent Lands February 16. 1666. Lady Otter contra Laird of Otter 72. The Priviledge of Brewing being designed for publick use for common Hostlaries the inspection whereof is committed to the Judges ordinary Magistrates of Burghs Sheriffs Bailies and Barrons who are appointed to settle Hostlaries in convenient places and to visite their measures if they be sufficient and the goodness of their Ale Par. 1535. cap. 17. And the saids Magistrates to Burgh or Landward are ordained to see reasonable prices for Meat and Drink in Hostlaries with power to deprive them of their priviledge if they transgress so that a Barrony carries that priviledge though not exprest but Infeftments of other Tenements carry it not unless it be expresly granted by the King immediatly or by progress that is that all the Superiours interveening betwixt and the King have that priviledge July 25. 1626. Stuart contra Brewers but in possessorio the Proprietars Infeftment bearing cum brueriis will be sufficient and presume the progress unless that priviledge be craved to be reduced wherein the
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
old it was otherways and that the Superiour had the Ward with the burden of intertaining the Heir and with the paying of the Annualrents of his Heretable debts and that the Custom of Wards in France is such Yet there is no appearance that the custom hath ever been so with us since the reign of King Malcolm who gave out all his Lands to his Subjects and reserved only to himself for sustaining of the Royal Dignity the Ward and Marriage of his Vassals which at that time were very considerable when most of all the Lands in Scotland were holden by simple Ward but since a great part hath been changed into blensh or Taxed Ward or given out in Burgage and Mortifications or in Feues The Casuality of Ward may be enjoyed immediatly by the Superiour but is more ordinarly gifted to Donatars not only by the King but by other Superiours which Donatars may do whatsoever the Superiour himself might because they Act by his Right and are in effect his Assigneys So that if gifts be granted to more Donatars the first Intimation or Diligence will be preferred Gifts of Ward and Non-entry were accustomed of old to be granted by the Exchequer together bearing not only for bygones but for time coming till the Entry of the 〈◊〉 Heir or Heirs And albeit Gifts of Ward run still in the same Style yet by the Acts and Customs of Exchequer Ward and Non-entry are several Casualities and pass by several Gifts and notwithstanding the foresaid Clause the Gift of Ward reacheth only during the time of the Ward and three terms thereafter if the Lands run in Non-entry but ward was not found to give right to three Terms full Rent here the Donatar was not in Possession during the Ward Novemb. 2. 1680. Laird of Dun contra Viscount of Arbuthnet And albeit the Gift contain relief yet that Casuality as Hope observeth is always demanded by the Exchequer and counted for by the Sheriff being but a small duty of the retoured mail as the gratuity to the Superiour at the Vassals Entry In that same place he saith that under the Gift of a simple Ward is not comprehended Taxed Ward which being Taxed is as a Feu duty and rather as a part of the Kings ordinar Revenue then a Casuality Upon which ground the Earl of Kinghorn as Tutor to the Earl of Errol having gotten a gift of his Ward without mention of Taxt-ward he was necessitat again to take a new Gift for the Taxt-ward and gave a considerable Composition and did not adventure to put the matter to debate before the Lords of Session whether his first Gift would have been extended to Taxt-ward or not 37. The fourth Casuality of Superiority is the interest of Superiours in the Marriage of their Ward-vassals which doth arise from the Nature of the Feudal Contract in proper Fees whereby the Vassal oweth the Superiour faithfulness and Military Service and is thereby in his Clientele which could Import no more then that he should not Contract affinity by Marriage with any that were in enmity with his Superiour for thereby his Fidelity might become suspect which would take place not only in the first Marriage of the Vassal but as to any subsequent Marriage though he had Succession by a former Marriage and might take place in the Marriage of the Vassals eldest Son even in his life and might be considered as an Act of Ingratitude if the enmity betwixt the Superiour and the Family with whom the Vassal was to marry were known to him and might import a breach of his Fidelity if the Superiour did prohibit him to match with that Family which was in open and known enmity to him The Superiour might also have Interest in his Vassals Marriage when he had the custody of his Person as a Tutorial Trust for the good of the Vassal 38. But Time and Custom hath given Superiours a far different interest in the Marriage of their Vassals here and in England of which there is no mention in the common Feudal Customs nor is it in use in other Kingdoms for albeit by the Custom of France female Heirs in the Kings Custody must require the consent of the King or his Procurator yet the not doing so infers not the value of their Marriage as in England and with us it is become a power in the Superiour to exact out of his Vassals Fee the value of a Tocher suitable to the whole means and Estate of the Vassal if he Marry without his consent and the double value being solemnly required to Marry a suitable person without disparagement if he doth not obey but Marry another this Custom was introduced in England in the Reign of King Henry the third It is commonly held to have been introduced in Scotland in the Reign of King Malcolm the second who gave out all his Lands in Scotland in Fee and reserved to himself for the ordinar support of the Royal Dignity the Ward and Marriage of his Vassals whence the marriage was designed as a profit to the Crown and by example was derived to the Subjects who giving their Lands Ward were understood to give the same with the like Priviledge of the value of their Vassals Marriage which doth never take effect till the Vassal be Major for during his Minority his Superiour or his Donatar have the full profites of his Fee over and above the expenses of his Education and mentainance according to the Vassals quality if he have no other Estate which is not Ward the profits whereof may be sufficient to Entertain and Educate him or in so far as these profits come short for no Minor is oblieged to spend his Stock upon his mentainance nor may his Tutors or Curators securely do the same Therefore the true Interest of Superiours in their Vassals Marriage should now be the Tocher suitable to the Vassals Estate Marrying after his Predecessours death if he had not been Married before for the value of the Marriage being due but once and not for every Marriage if the first Marriage fall not after the Defunct Vassals death it should not be demanded nor any account called for of the profite of the Marriage falling before he could be Vassal though it hath been claimed where the Vassal was Widow at his Predecessors death having no Children of the former Marriage but it came not to be determined by the Session though it was demanded by the Commissioners of the Thesaury from Sir Robert Barcley of Pearstoun And albeit the Vassal never marry yet if he be solemnly required by Instrument to Marry a suitable Person without disparagement if he live to his majority though he never Marry his Fee will be lyable to the value of his Marriage albeit he willingly ly out uninfeft not by the Superiours fault but his own for though Creditors have a remeid by a Charge to enter Heir within fourty dayes with certification that all execution shall pass as if the debitor were Entered yet there
of their Estate which ostentimes is disponed nomine dotis but only such a sum for them all as would have been modified for the Marriage of one man as was found in the case of the Heirs of Fairly and Thorniedikes and so was found June 14. 1673. Mr. George Gibson contra Janet Ramsay 43. But the Marriage of Heirs is debitum fundi and the Tennents Goods may be Poinded therefore for their Terms mail or otherways the Ground-right and Property may be Appryzed both being done after the Ward is ended which in men is at the age of twenty one compleat and in Women at the age of fourteen compleat This Appryzing or Adjudication will be drawn back to the time that the marriage was due and preferred to any legal diligence since that time as all Appryzings super debito fundi are December 17. 1673. Patrick Hadden contra John Moor. But it doth not affect the appearand Heir personally not being in Possession nor is the Tocher he got after his Predecessors death accounted as a part of his Estate being marriageable before that time but only the Estate he had when he married or was required to marry January 5. 1681. Laird of Dun contra Viscount of Arbuthnet 44. The value of the marriage is jus indivisibile and belongs not to every Superiour of whom the Vassal holds Ward-lands but to the most ancient Superiour 45. The King by his Royal Prerogative hath the Marriage of the Ward-vassal whensoever he becomes immediat Superiour if before the marriage fell due though the Lands holden of the King were Taxed to a small sum for the marriage July 19. 1672. Earl of Argile contra Mcleod And though the Vassal hold some Lands of the King simple Ward and others Taxed Ward the full value is due but the Taxed value is deduced as a part of it February 24. 1675. Kings Advocat contra Laird of Innernytie Yea a marriage was found due by a Vassal in the principality albeit he held Lands immediatly of the King Taxed Ward in respect of the non-existence of a Prince during which the King acts not as Administrator or Curator hareditatis jacentis of the Prince but proprio jure as Soveraign Prince and Stewart of Scotland Jan. 1680. Sir William Purves contra the Laird of Lus. 46. A marriage was found due by the Heir of an Appryzer who died Infeft albeit within the Legal unless the Appryzing were proven to be satisfied in the Defunct Vassals time July 13. 1680. Kings Advocat contra Zeaman of Dryburgh To come now to the exceptions exclusive of the value of marriage it was not found relevant that the Vassal died in the War by the Act of Parliament 1641. seing there was a pacification after that Act and it was not renewed thereafter July 9. 1672. Lord Hattoun contra Earl of Northesk Neither because the Vassal died in the Kings Service seing the Acts to that purpose were only temporary January 20. 1681. Captain Paterson contra Tweedie of Whitehaugh The next exception is the consent of the Superiour which was not inferred by the Superiours being present at the marriage as was found in the case of the Earl of Argile contra M`naughtoun Nor by receiving a Vassal upon Appryzing Neither by Entering the Vassals Heir though without reservation these being Acts to which the Superiour might be compelled by Charges of Horning upon Appryzings or on Precepts out of the Chanclery upon retours even though these were not actually used but that the Superiour gave Precept of clare constat yea his subscriving witness in the Vassals Contract of marriage after gifting of the same was not sustained Feb. 25. 1662. 〈◊〉 contra Keiths So that it seems no less then a consent as Superiour will exclude the marriage The most exceptions are upon the informalities of the Instrument of requisition But the most ordinary and material exception is disparagement which doth not consist in equality of Estate or Tocher but in the inequality of Blood wherein if a Zeaman be offered to a Burgess or a Burgess to a Barron it is commonly interpret disparagement but a Barron to any Superiour Dignity of a Subject imports no disparagement Or if there be great disparity in age or that the party offered hath any considerable defect as the want of a Member or have any loathsom or perpetual disease which are all the grounds of disparagement mentioned by Craig buthe thinks not Claudication to infer disparagement and it is like as to the single value the disparagement behoved to be very gross but as to the double value any just ground of aversion seems to be be sufficient as deformity even hardness of Favour or any vulgar reproach of Inchastity Insobriety or other Vice It will also be a temporal exception if requisition be made before the Vassal be mariageable which is the age of fourteen compleat in men and twelve compleat in women which may become an absolute exclusion if the party so required die unmarried and though the party marry to another it will but infer the single value The value of marriage is due to the Superiour if the Heir was not married at his Predecessors death whether minor or major marrying without consent of the Superiour or his Donatar or that being or becoming major and required they marry not at all 48. The last common Casuality of Superiours is the Liferent-escheat of the Vassal when the Vassal is denunced Rebel for disobedience of the Law which because it is intimate by three blasts of an Horn is called Horning if he continue so unrestored or unrelaxed year and day his Liferent is Escheat or foresaulted unto his several Superiours of whom he held his Fees this may seem a penalty for disobedience to Law and is so as to Fees holden of the King yet if it had no other ground the Liferent could not befall to the Superiour but to the King whose Command was disobeyed as Forefaulture and single Escheat do but the original of it is that Rebellion is like Capitis diminutio or Civitatis amissio amongst the Romans whereby such person cannot stand in Judgement and they are civiliter mortui and thereby their Fees become void and return to their Superiours and so is declared Parl. 1535. cap. 31. 49. Liferent-escheat carries the profit of all Fees and Liferents whether constitute by Conjunct-fee Infeftments Terce or Liferent-tack during the life of the Rebel having remained year and day at the Horn though thereafter he be relaxed during his natural life even though he be not infeft and entered as Heir the time of his denunciation July 3. 1624. Moor contra Hannay and the Earl of Galloway Yea though there be no Infeftment if by Contract or Disposition there be any heretable Right or Life-rent provided even though there were no Infeftment required as a Terce by paction without service or kenning Hope Horning Maxwel and Gordoun contra Lochinvar So Life-rent Tacks of Lands or Teinds fall under escheat without prejudice to these
Bruce contra James Bruce This annualrent was not for security of a Stock The like was found of a Liferent Annualrent June 18. 1663. Margaret Fleming contra James Gillis 14. Annualrents as to bygones are moveable and so arrestable and belong to Executors December 15. 1630. Ogilvie contra Ogilvie Yet it will be more competent and suitable to pursue it personally against intrometters with the Rents or Postessors then by a real Action of poinding the ground Annualrents are supprest by Wodset of the Land or other more noble Right in the person of the Annualrenter unless that Right were evicted 15. An Infeftment of Annualrent redeemable was found extinct by a Renunciation registrat in the Register of Reversions and that against a singular Successor though there was no resignation of the Annualrent January 7. 1680. John Mcclellan contra Mushet An annualrent was also found extinct by the annualrenters intrometting with the Rents of the Lands out of which the Annualrent was payable equivalent to the principal Sum for security whereof the annualrent was constitute which intromission was sound probable by witnesses though it was silver-rent Feb. 4. 1671. Wishart contra Elizabeth Arthur And therefore singnlar Successors succeeding in annualrents either by voluntary Disposition or by Apprising or Adjudication cannot be secure by inspection of Registers as they may be for Lands but they run the hazard of satisfaction of the principal Sum for which the Annualrent is granted wherewith it falls in consequence For no provident man will buy an annualrent given for security of a principal Sum but either upon necessity for satisfying a prior debt or upon great advantage in both which cases he should take his hazard Scire debet cum quo contrahit as all Purchasers of personal Rights must do Pensions resemble Annualrents or the seuda ex camera or ex cavena mentioned by the Feudists for thereby a yearly Rent is constitute to be payed out of the Constituents Lands generally or particularly Yet these Pensions not having Infeftment have but the nature of Assignations and so are not valid against singular Successors 16. Except only Ecclesiastick Pensions constitute by Prelates which are valid against their Successors in Office but not unless they be cloathed with Possession or Decreets conform in the Constituents life Par. 1592. cap. 137. And so a Pension granted by a Bishop with power to assign was found valid to the Assigney after the first Pensioners death against the succeeding Bishop and to be no dilapidation July 21. 1625. Minister of Kirklistoun contra Patrick Whitelaw yea though the Pension bore a power to assign etiam in articulo mortis December 17. 1628. Chalmers contra Craigievar But in this case the Pensioner granting Assignation reserving his own Life-rent or to take effect after his death whereby both might at once have interest therein the Assignation was found null by exception though having Decreet conform and thirty years possession The like Hope Assignation Abernethie contra Lady Drumlanerk But now by the Act of Par. 1606. cap. 3. Archbishops and Bishops are disabled to grant Pensions to affect their Benefices further then themselves have right to the Benefice but do not prejudge their Successors in Office Yet Pensions granted by beneficed persons are not only due during their life but out of their annat after their death February 28. 1628. Bairns of the Bishop of Galloway contra Andrew Couper 17. Pensions granted by secular persons though they contain Assignations to the duties of the Lands specially and have Decreet conform were found ineffectual against singular Successors in the Land July 9. 1629. Urquhart contra the Earl of Caithness December 11. 1662. Andrew Clappertoun contra Laird of Ednem neither against the Lady Tercer of the Constituent March 27. 1634. Countess of Dumfermling contra Earl of Dumsermling A Decreet conform being obtained against the granter of a Pension his Tenants and Chamberlains is effectual against subsequent Chamberlains without new Decreet or Transference yet must be transferred against the Constituents Heir and his Chamberlain though it would be valid being an Ecclesiastick Pension against his Successor December 7. 1630. Earl of Carrict contra Duke of Lennox Spots hic Alexander Weyms contra Chamberlain of the Duke of Lennox A Pension bearing for love and special service done and to be done was found effectual though the Pensioner removed and did not that service his removal being necessary by transportation March 25. 1629. Doctor Strang contra Lord Couper The like of a Pension granted to an Advocat for services done and to be done which was found valid during his life though he left Pleading December 3. 1662. Mr. John Alexander contra Mr. Roderick Mcleod The like of a Pension for service done and to be done though the service was not done when not required nor was it excluded by the Pensioners pursuing Processes at his own instance against the Constituent upon a probable ground though the Constituent was assoiled June 26. 1678. Mr. William Weir Advocat contra the Earl of Callendar 18. Pensions granted by the King are declared not arrestable in the Thesaurers hands by Act of Sederunt June 11. 1613. The reason thereof must be because such are ordinarly alimentary and alwayes for the Kings special service which would be impeded by hindering payment of the Pension TITLE XVI LIFERENTS Where of Conjunctfees Terces and Liferents by the Courtesie of Scotland 1. Servitudes personal by the Roman Law 2. Servitudes personal by our Custom 3. Clauses of Conquest of Liferent or fee of Lands acquired during marriages how far extended 4. All Liferents must be salva rei substantia 5. Liferenters are burdened with aliment of Heirs 6. Liferents without Infeftment are not effectual against singular successors 7. The effect of Assignations to Liferents 8. Liferents are not prejudged by Tacks or other deeds of the Fiar being posterior 9. What Terms do belong to Liferenters 10. Conjunctsees 11. Liferenters by Conjunctsee have all the Casualities of Superiority 12. Terce 13. Services of Terces 14. Kenning to Terces 15. The effect of Terces 16. The extent of Terces 17. Exceptions against Terces 18. Burdens of Terces 19. Liferents by the courtesie of Scotland 20. Publick burdens FROM the Feudal Rights of Property we proceed to Servitudes burdening the 〈◊〉 these are either personal or real Personal Servitudes are whereby the property of one is subservient to the person of another Real Servitude is whereby a Tenement is subservient to another Tenement and to persons But as and while they have Right to the Tenement Dominant as Thirleage Pasturage Ways Passages c. and the like Servitudes personal for term of Life are therefore called Liferents Servitudes for an indefinite time are such which either may or uses to be Constitute for a longer or shorter time such are Pensions Ecclesiastick Rentals and Tacks which though they be in their nature but personal Rights Yet by Statute or Custom they have the effect of real Rights of which
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
teind any other intrometteth therewith The former act is like Ejection and this is like Intrusion especially if the Teind-master have used Inhibition by publick Letters published at the Paroch-Church where the Teinds lye as an intimation to all parties having interest to forbear medling with the Teinds otherwayes then by order of Law which may be execute by any person as Sheriff in that part January 27. 1666. Earl of Eglintoun contra Laird of Cunninghamhead This Inhibition is the competent legal way to take off tacite relocation when Teinds have been set in Tack and the Tack expired and when they are in use of payment of certain duty and hath then the same effect that Warning hath in relation to Tennants of Lands and being once duly used it interrupts tacite relocation or use of payment not only for the years wherein it is used but for all other subsequent years March 18. 1628. Lord Blantyre contra Parochioners of Bothwel But the Titular may not by force draw the Teinds after Inhibition but must pursue therefore where there was any pretence of title else it is a Spuilzie in him January 27. 1665. Laird of Bairfoord and Beanstoun contra Lord Kingstoun Upon Process Spuilzie was sustained against the Heretor receiving a joint duty for Stock and Teind March 16. 1627. John Inglis contra Gilbert Kirkwood But it is not effectual to infer Spuilzie against Tennants continuing to pay their Masters a joint duty for Stock and Teind as they were in use before though the Inhibition was particularly intimat to the tennents seing they knew not how to distinguish the proportion of Stock and Teind having still payed a joint duty promiscuously for both December 12. 1627. Arbuthnet contra tennants of Fairnieflat But the priviledge of tennants paying to their Masters for stock and teind jointly was not extended to a Merchant buying a whole Cropt together who was found lyable for the teind though he payed before any diligence June 24. 1662. Mr. Alexander Verner contra George Allan In like manner Merchants buying the Herring where they were taken in the Isles were found lyable for the teind by immemorial possession so to uplift the teind-fish from the Merchants who bought whole boat-fulls of the Herring green December 13. 1664. Bishop of the Isles contra the Merchants of Edinburgh But as Warning so Inhibition of Teinds is taken off by accepting the old duty thereafter or of the ordinary taxation accustomed to be payed for the tack-duty Hope teinds Lord Garleis contra tennants of Whitehorn or by a small part of the old tack-duty ibidem Mr. Andrew Balfour contra Lord Balmerino John Glendinning contra tennants of Partoun 24. Rentalled teind-bolls is when the teinds have been liquidate and settled for so many Bolls yearly by Rental or old use of payment which presumeth a Rental By this means the beneficed persons gained an advantage of the possessors and therefore by the Kings Decreet Arbitral such teinds which are separat and severally set or known from the Stock had a diverse and dearer valuation and therefore rentalled teind-bolls were found due by use of payment immediately preceeding the debate though exceeding the worth of the teind till the teind in kind were offered and intimation made that the party would not continue the use of payment of rentalled Bolls March 22. 1626. Lennox of Branshogle contra tennants of Balfroon Teind-bolls were found due according to the old Rental though a lesser quantity was received by a Minister for several years Here the Bishop to whose Bishoprick the Teinds of that Paroch were annexed opposed the alteration of the old rentalled Bolls whereof a part only was allocat to and received by the Minister July 3. 1630. Mr. George Summer contra Stewart of Balgillo The like where there was a Decreet formerly for the Teind-bolls but prejudice to offer the Teind in kinde in time coming Feb. 20. 1633. Colledge of Glasgow contra Mr. James Stewart 25. The interest of Bishops in their Benefices is much alike with Ministers as to their entry which is regulat by their Consecration or Translation which if before Whitsonday gives them the benesit of that year and if after Whitsonday it gives them the half During their incumbence they have not only the Fruits and Rents of the Benefice but the power to set Tacks for nineteen years with consent of their Chapters Vide § 17. and to receive Vassals and to constitute Commissars all which are effectual after their death or removal They have also the Quots of Testaments confirmed by all their Commissars during their life or within the time of their Ann after their death but they have no Quots of Testaments not then confirmed although the persons died in their life or during their Ann because the Quot is due for the Confirmation as was found July 6. 1676. Bishop of Edinburgh contra Captain Wishart and for the same reason they have not the Compositions or Duplications of Heirs Apprisers or Adjudgers whom they do not actually receive in their life which will not belong to Executours or fall within their Ann but to the next Intrant who only can receive these Vassals 26. The Interest of Ministers in the Teinds may be considered either in their entry during their incumbency or after their removal In all which the Ministers interest is of two kindes for either he hath the Benefice Parsonage or Viccarage or hath only a Stipend modified thereof for these Benefices did ordinarly belong to the incumbents of particular Paroches and sollowed the Office of serving the Cure there and therefore when these Benefices were not erected in Temporal Baronies and Lordships or otherwayes so affected by Titles Tacks or new Erections that the Ministers thereby could not have a competency they betook themselves to the Benefice and had the same Right and Priviledges as to them as beneficed persons formerly had and might set Tacks thereof in the same way and with the same restriction as is before declared But more frequently the Ministers had modified Stipends which were appointed by the King and Parliament to be modified out of the Teinds whatever the Title or Interest of any other person were therein which they could not reach if they took them to the Benefice it self as they might have done by the Act of Par. 1581. cap. 102. Ordaining That all Benefices of Cure under Prelacies should be provided only in favours of able Ministers 27. The Interest of Ministers was according to the nature of the Benefices whereunto they were to have right or out of which their Stipends were to be modified for all Kirks were either Patrimonial or Patronat and by clearing Patronage it will easily appear what Kirks are Patrimonial For this distinction is taken from that of persons in the Civil Law in these who are ingenui or fully free and libertini or become free but with some acknowledgements and services to the Authors of their freedom who were therefore called their Patrons So there
stood the like relation betwixt Patrons and Kirks patronat as betwixt Patrons and Libertines the ground whereof was an eminent good deed done by the Patron or his Predecessor to that Kirk especially these acknowledged in Law Patronum faciunt Dos AEdificatio fundus Signifying the building of the Church or giving of the Stipend or of the Ground necessary for the Church Church-yard Manse or Gleib were the grounds for constituting the Patronage which were sufficiently instructed by custom of the Kirks acknowledging such a Patron It was lately contraverted who should be patron of a second Minister whose Stipend was constitute not out of the Teinds but by Contribution and ingagement of a Town for the greatest part and the Heretors of the Landwart paroch for the rest whether the patronage and power to present that second Minister should belong to the patron of the Kirk having the unquestionable power of presenting the first Minister or the Contributers in which competition the patron of the Kirk was preferred because the contributers had never been in possession of presenting nor had reserved the patronage nor power of presenting in the erection of the second Minister which was only by an Act of the Bishop and presbytry bearing the shares contributed for a second Minister but neither Reservation nor protestation by them concerning the patronage or power of presenting the second Minister nor was any thing of custom or possession to show the meaning of the parties November 18. 1680. Town of Haddingtoun contra the Earl of Haddingtoun This case will not prejudge Erections of second Ministers in most of other Towns in the Kingdom where the Erection doth bear reservation of the patronage But for clearing of the derived Right from the first patron especially to singular successors the patronage was ordinarly conveyed by Infeftments carrying expresly Advocation Donation and right of patronage of such Kirks Such Kirks then as acknowledged no patron are fully free and these are provided not by presentation but the ordinar conveyeth pleno jure whereby the Incumbent hath right to the Benefice and full Fruites But in Mensal Kirks the Incumbent hath but a Stipend and these belong to the proper patrimony of Prelats who have right to the Fruits thereof as a part of their own Benefice and therefore are called patrimonial or mensal Patronage is also either Laick or Ecclesiastick Laick is that which belongs to secular persons Ecclesiastick that which belongs to Church-men as when a Bishop hath the right of presentation to a Kirk not in his own Diocess there he presents but another must confer as Ordinar and so he is but Ecclesiastick patron 28. Kirks patronat required for the entry of Ministers a presentation of the patron presenting a person to the Church and Benefice to be tryed by Church-men having that power and giving him the right of the Benefice or Stipend being found qualified and Collation of the Office and Institution therein by Church-men upon tryal without which the Incumbent could have no right yet where the Bishop had the power of Collation and Institution and to confer pleno jure a Gift from the Bishop conferring and admitting was found sufficient without a distinct Presentation and Collation July 4. 1627. Minister of Sklate contra parochioners But in Kirks not patronat Institution and Collation was sufficient And of late the Act of Ordination or Admission of Ministers by presbytries served for all But in Benefices without cure as prebendries or Chaplanries presentation is sufficient without Collation and Institution March 14. 1622. Scot contra Penman 29. Ministers being thus Entred have Right to their Benefices or Stipends during their incumbency which they need not instruct by Write but it is sufficient to prove by Witnesses that the Minister or his predecessors have been in possession of that which is contraverted as a part of the Benefice or Stipend of that Kirk and that is commonly holden and repute to be a part thereof for there being no competent way to preserve the Rights and Evidents of the Kirk amongst successors in Office as there is of other Rights amongst other Successors The Canon Law attributeth much more to possession then the Civil for thereby possessor decennalis or triennalis nontenetur docere detitulo Which was not only extended to instruct that the thing possessed belonged to the Benefice but that the incumbent had sufficient right and therefore liberated prebendars from production of their provisions in the case of improbation Hope improbation Bishop of Galloway and Dean of the Chapel-Royal contra the prebendars This presumption would not be elided by any extrinsick Right Yea it will liberate from preduction of any written Right in Reduction and Improbation where there is no Right extent But if a Right be found by the oaths of Church-men or others to be extent in their hands the same will be presumed to be the Right by which they posses and it may be improven by a positive probation but not by a presumptive probation by way of certification concluding it false because the possessors declined to produce it or to abide by it when the Right is produced any exception may be proponed upon any thing contained therein and therefore an Annualrent of ten Chalders of Victual mortified by the King to the Chapel-royal was excluded by a Redemption thereof granted by the King voluntarly upon payment when the Bishops were supprest in respect the mortification boresuch a Right mortified which had therein a Reversion and therefore after Redemption thirteen years possession could not relieve the Right being Redeemed Neither could the Act of Restitution of Bishops restoring them to the Rights and possession they had before 1637. seing that could not hinder another party ro redeem July 11. 1676. Bishop of Dumblain contra Francis Kinloch A Ministers Stipend as to the use of payment and quantity was found probable by witnesses without write in possessorio as was lalely found Ministers Relict contra Earl of Caithness As to the time sufficient to give a possessory Judgement in Benefices or Stipends upon possession without Evidents in write but being holden and repute as a part of the Benefice The Canon Law Regula Cancellariae 33. determines it to three years peaceable possession which is rather as to the Incumbents Right that after three years possession he cannot be questioned during his Life I find not our Decisions so clear in it but it cannot exceed seven years possession which gives a possessory Judgement in Infeftment of property c. it was so found November 25. 1665. James Petrie contra John Mitchelson The like about that same time Mr. Alexander Ferguson contra Lievtennant Collonel Alexander Agnew Ministers also during their Incumbencie may set Tacks according to the Rules for setting of Tacks by Beneficed persons before exprest which are valide and effectual though the Incumbent be deprived or transported par 1592. cap. 115. 30. Ministers Stipend are ordinarly allocat out of the Teinds of particular Lands and
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
the Superiour by which the Vassal can be accessory to no attrocious Deed against the Life and Blood of the Superiour but against any Infamy may befal him or any great detriment in his Estate and so will reach to Deeds of hurt or disgrace to his Wife or Children by Adultery Fornication or attrocious Violence upon their persons or attempts thereunto and may also extend to the revealing of the Superiours secrets or not Defending him against his Enemies or such as attack him or deserting of him in that case and in case of a necessary flight by overpouring in not crying for help and relief and in lawful War in not concurring with him or deserting him while with any probability of prevailing he stood in fight if the Vassal were then near him but it will not import his concourse active in private quarrels by force of Arms which are not warrantable 33. In all cases the ignorance of the Vassal not being affected or his weakness will excuse these Delinquencies and whatever he acteth in self-defence or upon provocation of the attrocious injury of the Superiour or by publick Authority or in the service of his Prince or anterior Superiour in Ward-holding Or unless the attrocious Deeds be past from by the Superiour by owning his Vassal after the knowledge thereof or by a considerable times forbearance to quarrel the same especially when in the mean time either the Superiour or Vassal dies for though death obliterats Crimes as to the punishment yet the righ arising to the Superiour in the Fee from the Delinquence as a resolutive condition is not excluded by the Vassals Death if the Superiour were ignorant of the Fact or not in capacity to vindicat the same through publick Calamity or his Pupilarity or absence but by the mutual friendship and strict Union betwixt Superiour and Vassal small evidences will import the passing by former Delinquencies especially when not questioned during the life of both parties There are multitudes of specialities proposed by Craig as Delinquencies resolving Fees not only in relation to the Superiour his Person and Family but also of invading his House befieging the same or entering it by force or invading his Property which is the ground of Purprysion acknowledged by our Custom or by denying or refusing to show the Superiour the Marches of the Fee or denying any part of it to be holden of him or not showing him his Holding and Investiture being solemnly called to that purpose which take no place with us for our ordinary custom for Superiours as well as others is to pursue Improbations of their Vassals Rights wherein the Certifications is not the loss of the Fee but the presumptive falsity of the Writes or the denying to do justice to Superiours but also in relation to the Fee if he waste or deterioat it Yea in relation to the Vassals own Person as if he fall in Incest or if he kill his Brother or commit any Paracide or if he contract friendship with the Enemies of his Superiour And generally whatever may make him unfit or unworthy to attend his Superiou or to be in his Court but none of these are implyed in the Fidelity of any Vassal There be special grounds of resolution or extinction of Fees by the particular Nature or Tenor thereof as Feues become extinct ob non solutum canonem and other Fees are extinct by resolutive Clauses as to both which we have spoken Title 13. § Craig doth hold that by the delinquence of Vassals Conquest or feuda nova become extinct and return to the Superiour but Heretage or feuda vetera do but become extinct as to the delinquent Vassals and his Descendents but is not returned to the Superiour but divolved to the next Collateral of the delinquent Vassal descending from the first Vassal who would have succeeded if the delinquent Vassals had died without issue and who must enter Heir to the delinquent Vassals predecessor but in this the interest of the Superiour is too far restricted for we have no custom nor tenor to enter any person heir to a Defunct while a nearer heir is existent whatsoever his delinquence be except Paricide He doth also move this question That if the Vassal have committed a Feudal delict against the Superiour and a publick crime inferring forefaulture whether the Fee would fall to the King or to the Superiour or if the first sentence of forefaulture or recognition would prevail but does not determine it Yet the first deliquences sufficient to extinguish the Fee if insisted in must give the preference for the sentence of forfaulture or recognition is but declaratory and hath effect not from the sentence but from the deed inferring it There is no difference whether the delinquence inferring recognition was before the Vassal was actually entered or after but it is more questionable whether recognition would be incurred by the deeds of the appearand Heir in his predecessors life which could have no effect as to Collaterals who are not alioqui successuri seing they may be excluded by a descendent which in men is alwayes in hope And if the heir apparent die before his predecessor it can have no effect to exclude either his Collaterals or Descendents and it is more probable that though the heir apparent should survive he would not be excluded seing feudal delinquences are now so little extended 34. It hath been much and long debated and is not yet decided whether Recognition can be incurred for ay attrocious deeds dne by sub-vassals whereby the Superiour might claim the right of the sub-vassals Fee to fall to him by Recognition Or Whether Recognition can only be incurred by the deeds of the immediat Vassal The case in question was where a sub-vassal rose in rebellion against the King whereby his Fee as all his other Rights were confiscate to the King by forefaulture which could but confiscate them as they were in his person with the burden of all real Rights of Liferent Annualrent or other subaltern Infeftments of the forefaulted person But if the forefaulture of the sub-vassal did also comprehend Recognition the sub-vassals Fee would fall to the King and belong to his Donatar without any real Right or Burden contracted by the forefaulted person except such as were confirmed by the King either by a special Confirmation or by that general consent of the King inviting all his Subject to set their Ward-lands feu by the Act of Parliament 1457. cap. 72. which would preserve such Feus being constitute before the Act of Par. 1633. rescinding that Act as to the Vassals of the King and Prince as was found Feb. 12. 1674. Marquess of Huntley contra Gordoun of Cairnburrow November 16. 1681. Campbel of Silvercraigs contra Laird of Auchinbreck and the Earl of Argyle And therefore if Recognition were implyed in forefaulture in that case it behoved to infer a general rule that Recognition might be incurred by all attrocious deeds against gratitude and fidelity omitted not only by the
immediat Vassal but by all subaltern Vassals and would not only be competent to the King upon deeds of treason committed against him by his sub-vassals but by all deeds of attrocity done against another Superiour by his sub-vassals as if his sub-vassal should kill wound or betray his Superiour So that the question behoved to return whether there were any feudal Contract or Obligation of fidelity betwixt the Superiour and his Sub-vassals for if that were then Vassals might fall in Recognition by such deeds not only against their immediat Superiours but against all their mediat Superiours though never so many For though the case in question be most odious and unfavourable being rebellion yet it hath its proper punishment introduced by Law and Statute whereby the rebel loseth Life Land and Goods to the King to whom all his Subjects owes fidelity as Subjects though all do not owe the feudal Fidelity as Vassals yet if Recognition take place as to the King it must likewise fall to all other Superiours whatever way the Land be held Ward Feu Blensh or Mortification if they have not a confirmation or consent of the Superiour anterior to the deeds inferring Recognition We shall not therefore anticipat the publick determination of the question if custom hath determined it what will take place for all feudal Rights are local but there hath not yet appeared any case by which a Donatar by his Gift and Presentation being infeft in the Fee of the Kings sub-vassal forefault has excluded these who had real Rights from the forefaulted person before the treasonable fact though much hath been disputed upon the Act of Par. 9. cap. 2. concerning the quinquennial possession of forfaulted persons especially from the last clause thereof bearing that no person presented by the King to feu Lands forefaulted nor any Vassal of any Feuer forefaulted shall be compelled to produce their Acquittances of their Feu-mail or Annualrents of their forefaulted Lands of any year preceeding the forefaulture which doth clearly acknowledge that when the Feuers right is forefaulted his Sub-vassals right is not forefauted yet it was alledged that would not end the controversie by the Act 72. Par. 1457. because these rights of the Sub-vassals of the forefaulted Feuer might have been confirmed by the King specially or generally by the foresaid Act 1457. But the general Confirmation from that Act can have no effect because the the sub-vassals whose Rights are preserved by the Act are not Feues granted by Ward-holders but are subaltern Infeftments granted by forefaulted Feuers And without question the King hath given no consent to any to grant Feues but to Ward-holders only for though the Law hinders them to grant sub-feues or Annualrents yet there being no consent or confirmation by the King thereto Therefore if the King his immediat Vassal be forefaulted all the ancient Feues granted by him of the Lands holden Ward will stand valid as being consented to by the King by the foresaid Statute But the Feues granted by him of Lands holden Blensh or Feu will fall in consequence with his own Feu or Blensh and cannot defend against forefaulture more then Annualrents or lucrative Tacks granted by him which Law doth allow and yet fall with his right unless consented to or confirmed by the Superiour TITLE XXII Prescription 1. Prescription distinguished and described 2. Usucapion 3. The several times required to Usucapion or Prescription by the Roman Law 4. Requisites to Prescription 5. Bona fides requisite to Prescription 6. Whether he who doubteth of his authors Right be in bona or mala fide 7. Evidences of mala fides 8. The Title requisite to Prescription 9. The motives inductive of Prescription 10. Exception where Prescription took no place by the Civil Law 11. The common rule of Prescription with us 12. The beginning of Prescription of personal Rights with the extensions thereof 13. Prescription of Moveables 14. Prescription is reckoned de momento in momentum per tempus continuum 15. Prescription of Heretable Rights 16. Prescription is not extended against the right of Superiority 17. Prescription runs not for Tennents against their Masters 18. Prescription runs not against Minors but there is no exceptions of Mortifications to pious uses 19. In our long Prescription bona Fides is not required 20. The Titles requisite in Prescriptions of Heretable Rights 21. This long Prescription secures Wodsets Infeftments for Security Teinds and long Tacks 22. How far Teinds can prescribe 23. This Prescription extends to Patronage and Offices 24. And to Thirleage and all Servitudes 25. This Prescription excludes all Action and Ground of Reduction and Declarator if the Essentials of the Title appear 26. The several wayes of Interruption of Prescription 27. The way of Interruption by King CHARLES the first as to special rights of the Crown by Letters of Publication 28. The annual prescription of the priviledge of appearand Heirs intra annum deliberandi 29. The biennial prescription of the preference of diligences of the Creditors of Defuncts to the diligences of the Creditors of the Heir 30. Triennial prescription of Spuilzie Ejection Intrusion and succeeding in the vice Merchants-counts House-mails and Removings 31. Quadrennial prescription of the priviledge to reduce deeds of Minors intra quadrennium utile 32. Quinquennial prescription of Arrestments Ministers Stipends Multures Rents of Tennents removed and legal reversion of special Adjudications 33. Septennial prescription of old Apprisings and Summonds for Interruption 34. Decennial prescription of late Apprisings or general Adjudications 35. Prescription of twenty years of Holograph Bonds Missives and Subscriptions in Count-books without Witnesses 36. No prescription runs in Minority except Removings House-mails and Merchants-counts 1. PRESCRIPTION is the common extinction and abolishing of all Rights and therefore is reserved here to the last place the name and nature whereof we have from the Civil Law wherein Prescription is sometimes largely taken for any exception but hath been appropriat to the most common exception in all cases whereby all Actions and Causes are excluded by course of time and so Prescription had no further effect then to maintain the possessor in possession by exception but not to recover possession being lost and could not constitute the right of Property 2. In this Prescription did chiefly differ from Usucapion by the ancient Roman Law that Usucapion did constitute Property and therefore is defined by Modestinus l. 3. ff de Usucapione Adjectio vel acquisitio dominii per continuationem possessionis temporis lege definiti To which description the name doth agree for usu-capere est capere ex usu aut possessione to take or acquire by use or possession But every possession was not sufficient unless it were a possession as Proprietar or for the possessors own use only So detention of any thing in the name and for the use of another and for the possessor only in security as a Pledge or Wodset cannot Constitute property 3. As to the time appointed for Usucapion
the possessor or his predecessor November 27. 1677. Graunt of Ballindalloch contra Graunt of Balvey Whereupon it was alledged that a Tennent possessing by Tack from his Master could not prescrive against him which was not respected in this case nor in that of the Countess of Murray contra Mr. Robert Weyms Feb. 20. 1675. The like June 4. 1675. Colledge of Aberdeen contra Earl of Northesk But all annual prestations preceeding fourty years prescrive though constantly payed for thirty nine years every year being a several obliegement though in one write and prescrives severally January 19. 1669. Earl of Athol contra Laird of Strowan It holds also in Annualrents July 22. 1671. and Feb. 7. 1672. Blair of Balleid contra Blair of Denhead But it cannot be extended to prescrive against a Superiour for not payment of the reddendo because a right of Property cannot consist without Superiority unless there be a Right taken from another Superiour 25. Prescription doth not only exclude the preference of other better Rights which if insisted upon within prescription would have been preferred as anterior and thereby the posterior right a non habente potestatem But all ground of Reduction by the King or other Superiours or Authors is excluded So that the neglect of the Kings Officers cannot be obtruded by the Act of Parliament declaring that their neglects shall not prejudge the King neither any nullity in the titles of prescription except it be in the essentials thereof So prescription cannot sustain a perpetual Tack without Ish which is essential thereto nor a Seasine without a Symbol generally or particularly or not given upon the ground of the Land But all requisites in Rights introduced by Custom or Statute and not essential thereto are cut off by Prescription 26. The main Exception or Reply against Prescription is Interruption not only by the discontinuing the possession of the whole but also of a part which was found sufficient to interrupt the Prescription as to the whole as an Infeftment of Thirlage and possssion of Corns growing upon the Lands was found sufficient to exclude the prescription of the Multures of invecta illata June 29. 1635. Laird of 〈◊〉 contra Home of Foord So likewayes payment of Annualrents within fourty years interrupts prescription of Bonds and that not only as to the party paying but payment made by the principal Debitor was found to interrupt prescription as to the Cautioner who never payed nor was pursued during the space of fourty years December 18. 1667. Sir Thomas Nicolson of Carnock contra Laird of Philorth December 18. 1667. Gairns contra Arthur And an Annualrent constitute out of two Tenements was found unprescrived as to both by uplifting the Annualrent out of either though that the one was now fourty years in the hands of a fingular Successor June 22. 1671. Lord Balmirrano contra Hamiltoun of Little-prestoun Prescription is ordinarly interrupted and excluded by the dependence of any action whereupon the right might have been taken away or impeded Hope Patronage Laird of Glenurchie contra Alexander Campbel Idem Tacks and Tennents Carnousie contra Keith even though there was only the first Summons without continuation or second Summons February 13. 1665. James Butter contra Gray yea though the pursuer past from the Summons pro loco tempore Hope Removing Sir Robert Douglas contra Lord Herreis or by a Transferrence though reducible because not proceeding upon the right Title seing the right Title was also in the pursuers person July 26. 1637. Laird of Lawers contra Dumbar The like though the pursute might have been excluded for want of solemnity in re antiqua where the custom was not clear November 25. 1665. White contra Horn. Yea an Annualrent was found interrupted by a poinding of the ground though therein the Heretor was not called June 15. 1666. Sir Robert Sinclair contra Laird of Howstoun Prescription was also found validly interrupted by a Charge of Horning upon the Bond in question albeit proceeding only upon summar Registration by the Clause in the Bond and by no Citation July 21. 1629. David Moris contra Johnstoun But Warning whereupon nothing followed was not found a sufficient interruption of an old Tack-duty Hope possession Mr. Robert Bruce contra Captain Andrew Bruce Idem March contra Keir Neither was it found sufficient to interrupt prescription in the first part of a mutual Contract that action was used upon the second which saved the second from prescription seing the party concerned in the first neither used action or charge thereupon nor founded exception upon it when pursued by the oaher party November 27. 1630. Lauder contra Colmill Interruption was also sustained upon a Citation at the instance of a party not then entered Heir being entered thereafter within the years of Prescription The like upon a Summons of Reduction upon Minority though it was not filled up within the fourty years being insinuat in the Title of the Summons that Minors have interest to reduce deeds to their lesion July 14. 1669. Earl Marishal contra Leith of Whitehaugh But Interruption was not sustained from the Citation in a Summons of Reduction ex capite Inhibitionis but from filling up of the reason February 11. 1681. Kennuay contra Crawford And it was sustained upon Citation upon the second Summons being only a day before the year was compleat albeit the first Summons should be found null and though the Citation was at the Mercat-cross upon a priviledged Warrand purchased upon pretence that non fuit tutus accessus past of course among the common Bills and the reason of the priviledge was neither true nor instructed and though the execution bore not a Copy left at the Cross the party adding that and abiding thereby as truly done be the executor of the Summons July 6 1671. John Mackbra contra Lord Mcdonald Interruption was also sustained upon a Citation in a Reduction in Anno 1630. 〈◊〉 the Execution bore not the name of the pursuer or defender but the parties within mentioned And were not written upon the back of the Summonds but upon a louse Shedul and the Citation was in the last of the thirteen years excepted from prescription against a party of great quality against whom many interruptions were like then to have been used The user of the Interruption Deponing that he received the same from his Father or amongst his Evidents and knew not that they were the Executions of other Summonds Feb. 11. 1677. Laird of Rewallan contra Lawson of Cairnmuire But Interruption was not sustained upon summar Registration without Citation or Charge January 12. 1672. James Johnstoun contra Lord Balheaven And Interruption by warning and Citation thereupon was not found effectual in a Competition betwixt two parties both being then in acquirenda possessione by prescription and neither having a sufficient Right Constitute before unless the party warned and cited had discontinued his pessession for a year at least January 1680. Brown of Hunthil contra
Town of Kilcudbright Prescription as to the King was found sufficiently interrupted by the Kings Letters published at the Cross of the head Burgh of the Shire where the Lands in question lye without Citation or Charge March 30. 1630. Earl of Monteith contra 27. There was an Act of Sederunt of the penult of March 1630. upon a Letter from the King to the Lords of Session bearing that in respect by the Act of Prescription 1617. All Heretable Rights cled with fourty years Possession are declared irreducible unless they had been quarrelled within the space of fourty years 〈◊〉 that Act and libertie granted to intent Actions within he space of thirteen years after the date of the said Act to interrupt Prescriptions albeit there had been no interruption sor fourtie years before the said Act And His Majestie resolving to use Interruption within the space of thirteen years of Deeds done to the prejudice of the Crown for preservation of His Majesties Right and Actions competent to Him and His Successors for that effect seing a multitude that may be concerned therein cannot commodiouslie be summoned personallie or at their dwelling-places within the saids thirteen years which were to expire in June 1630. And it being necessar that some solemn Act should be done to testifie the Kings will and resolution to prosecute Actions in His own time which could not be more properly and conveniently done nor by inserting and publishing as follows Therefore His Majesty appointed His Declaration for prosecuting His Rights to be insert in the Books of Sederunt and Letters of publication thereupon directed to be published at the Mercat Cross of Edinburgh and other places needful And desired the Lords to declare the 〈◊〉 to have the force of a Legal and lawful Interruption which the Lords enacted to be done accordingly as to the particulars therein-contained and 〈◊〉 Letters of publication at the Mercat Cross of Edinburgh and other mercat Crosses of the Kingdom where the Lands and Baronies lye or where the persons interressed therein reside and at the said Mercat Cross of Edinburgh and Peer of Leith for these without the Kingdom Which Act of Sederunt was ratified Par. 1633. cap. 12. Which Letter and Acts. extend to His Majesties Annexed and Non-annexed Property whereof the Ferms Duties and Feu-ferms were counted for in Exchequer since the Moneth of August 1455. and to the Principality and to the Erection of Benefice Spirituality or Temporality Patronage of Kirks pertaining to His Majesty and His Predecessours Regalities and Heretable Offices any of the saids particulars being unlawfully Disponed against the Laws and Acts of Parliament and likewise against changing of Ward in Blensh or Taxt-ward granted by the King or His Predecessors in their Minority and not ratified by any 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
poynder as was formerly found relevant Hope arrestment Doctor Kinloch contra Halyburtoun Iames White contra Robert Blackater Ian. 20. 1672. Iohn Bell contra Fleming and Watson It is also a relevant Exception that the ground of the arrestment or the sum arrested was Heretable before the Act of Par. 1664. Or since that Infeftment hath passed upon either unlessit be made moveable and therefore arrestment being laid on upon sums consigned for a redemtion was not found effectual till Declarator of redemption pass which only makes the sums moveable and during the dependance of the redemption these sums cannot be arrested as belonging to the user of the Order because they come in place of the Lands redeemed and can belong only to the Wodsetter or Appryzer or any having right from them to the Lands Wodset but after Redemption the sum consigned may be arrested and made forthcoming for payment of the Wodsetters debt Spots Arrestment Hepburn contra Hay It is also a competent exception that the thing arrested is a proper Aliment Expresly Constitute and not exceeding the measure of Aliment Novem. 19. 1622. Thomas Donaldson contra Kirkaldie and Barclay And the Fee of a Servant was not found arrestable in so far as it was necessary for the service he was in but only for the superplus more then was necessary for his Aliment in such a service July 9. 1668. Heugh Begg contra Robert Davidson Preceptor of Heriots Hospital The like holds in the Kings Pensions and Fees of His publick Ministers Lords of Session and others which are not arrestable in the Thesaurers hands by Act of Sederunt 1613. and was so found in the case of Sir Robert Murray Justice Clerk a part of whose Sallary was arrested Feb. 8. 1662. 38. When pursuits are for making arrested Goods forthcoming which are not liquid the party in whose hands arrestment was made will not be decerned for making forthcoming a liquid sum for the price But if he offer the Goods ipsa corpora the Decreet will contain a Warrand to the Magistrates of the place to rope the Goods arrested that the price thereof may be delivered to the arrester Novem. 12. 1680. Stevinson contra Sir John Paul Appryzing and Adjudication of Heretable sums whereupon Infeftment hath not followed being little in use though competent since the Act of Parliament 1644. We shall say no more of it in this place but as we have considered these several ways of Transmission of Personal Rights severally we shall now consider them joyntly as they fall in competition for preference amongst themselves and each with others 39. In these Competitions it must be considered that arrestment doth constitute no Right in the Arrester but is only a legal Prohibition to alter the condition of the thing arrested and to pay or deliver the same to the Arresters debitor but that it may remain in his hand for satisfaction of the debt arrested for And it is only general arresting all sums of Money or Goods in the hands of the party in whose hands it is laid on due or belonging to the arresters debitor for satisfying of the debt whereupon the arrestment proceeded and therefore cannot be of more effect then a denunciation of Lands to be appryzed or a Citation on a summonds of Adjudication and therefore doth Constitute or Transfer no Right but is a legal diligence rendering the subject matter arrested litigious so that the party in whose hands the arrestment is made cannot alter any sums or debts belonging to that debitor in prejudice of the debt arrested for until the Arrestment be loused and Caution found for the debt or Decreet absolvitor or declarator be obtained excluding the arrestment And if he do any thing in the contrary it infers breach of Arrestment confiscating his Moveables and he is lyable as if the sums or goods remained in his hand pro possessore habetur qui dolo desiit possidere And though the Arrestment have no intimation to the Arresters debitor or any of his Creditors yet if any of them recover the sums or goods arrested by the Collusion or neglect of the party in whose hands arrestment is made he will still remain lyable and if he have not acted bona fide he will incur the breach of arrestment as if by Collusion and gratification he or his procurator whose deed will be presumed his oppose the arrester and procure delay to compear and depone and acknowledge the debt or he holden as confest to another arrester neither will he be liberat by offering his oath that he gave no such Warrand for the imploying a Procurator is a sufficient Warrand for all the common course of Process and requires no special mandat Yea if he pay or deliver to any other arrester or even be poynded upon a Decreet at his instance he will not be liberate seing he ought to have raised a Process of multiple poinding calling the debitor and all the arresters or assigneys to dispute their several rights that once payment to the party found to have best right might liberate him yet if he have payed he does thereby without a direct assignation come in the place of the party to whom he hath payed and if he can show that parties right is preferable to the arrester insisting he will be heard thereupon And unless it be found that he proceeded warrantably not only will he be decerned to make forthcoming though it infer double payment but he to whom he payed unwarrantably will be compelled to restore and satisfie the arrester the subject having been litigious by his arrestment before the other party recovered the same albeit he have recovered payment bona fide without any fault in him but by the litigiousness of the subject For payment made bonafide with a preferable Right relieveth only the payer who was or might have been compelled to pay being conscious of no other Right For it is not relevant for the party obtaining payment bona fide nor will that ground of Law secure him qui suum recipit licet a non debitore non tenetur restituere which holds only in voluntary payments a non debitore and where the subject is not litigious Upon the same ground albeit the party in whose hands arrestment is made collude not but do equally passive or equally oppose the Competitors Yet if the debitor collude and propone Defences against some of the Competitors and not equally against all and thereby procure delay and Terms to prove if he succumb though another pursuing in a several Process before the same or different Judge obtain Decreet and payment thereupon yet he will be necessitate to refound if he had not a preferable Right 41. If the party in whose hands arrestment was made appear and offer to depone if the pursuer suffer him to depone generally that the time of the arrestment he had neither Goods nor Sums belonging to the Debitor in his hands the arrester will not ex intervallo obtain him to be more
which are not like to be verified within a year of the first adjudication the Lords adjudge and reserve these defences contra executionem by Suspension In which terms will be granted because of the reservation but there is this advantage that how long soever the Suspension be of expeding the first decreet being within the year brings the adjudger in pari passu TITLE XXV Confiscation Where of single Escheat Liferent-Escheat Shipwrack Waith-goods Treasure Forefaulture Bastardy and Last-heir 1. The Tenor of Letters of Horning 2. The executions of Horning must bear the party Charged personally or at his dwelling-house designed 3. The Execution at the dwelling-house must bear six knocks at the most patent Gate because the Messenger could get no Entry 4. The knocks must be audible that these within may hear 5 If the Messenger get entry the delivery of a Copy to any of the Family is sufficient without knocks and must be so exprest 6 The days requisite for the Charge beyond the Water of Dee 7. The denunciation must be against the party and at the Mercat Cross of the Jurisdiction where he dwells 8. The denunciations must bear three Oyesses or the equivalent 9. The execution must bear three blasts of the Horn. 10. The execution must be stamped 11. The Horning must be Registrate and how 12. Denunciation after satisfaction hath no effect 13. The effect of general Letters of Horning 14. The order and effect of Relaxation from the Horn. 15. The single Escheat and extent thereof 16. How far the denunceds debts or deeds affect his Escheat-goods 17. Gists of Escheat and preference thereof 18. Gifts of Escheat not expressing the particular Horning whereon they proceed 19. Gifts of escheat though bearing goods to be acquired extend but to these acquired within a year after the gift 20. Escheats within Regality 21. In what cases gifts ofescheat are held simulat 22. Who must be called in the general declarator 23. The Titles and Tenors of general declarators 24. Exceptions against general declarators 25. Special declarators of escheat 26. Liferent-escheat 27. Confiscation of Treasures Waith or Shipwrack-goods 28. Forefaulture 29. Several kinds of Treason by Statute 30. Forefaulture Confiscats without the burden of the debts or infeftments not confirmed by the King 31. How far fews are effectual against Forefaulture 32. How far Tacks of forefault Lands are effectual 33. Forefaulture by arescinded Act was burdened with the debts and deeds of the Rebel 34. Forefaulture when and how it may proceed in absence 35. How far the person of the Rebel gives Right to the Fisk. 36 The effect offorefaulture of appearand heirs 37. In what cases forefaulture dishabilitats 38 How far the forefaulture of appearand heirs may be extended 39 Explanation of the Act of Parliament 1594. cap. 202. importing burdening of forfaultures with the debts and deeds of the Rebel 40 Forefaulture is reducible upon any nullity but only by way of grace 41 How far forefaulture takes effect without declarator 42 What Children are lawful and what bastards 43 Declarator of Bastardy 44 The effects of Bastardy as to Succession 45 Legitimation and effects thereof 46 How the debts and deeds of the Bastard affect his Estate 47 Ultimus haeres and the difference thereof from Bastardy THE Conveyance and Transmission of all kinds of Rights from private parties to the Fisk are here comprehended under one common Term and Title of Confiscation It is not proper in this place to treat of the Fisk or priviledges thereof or upon the several Causes upon which Confiscation followeth these being publick Rights but we shall only consider the several kinds of Rights or things that befal to the Fisk from private parties and how they return to private parties again by Gifts and Processes thereupon and this is either in reference to Moveables Liferents or the Property and Stock of Heretable Rights and others Moveables fall to the Fisk either wholly and intire and that is chiefly by Denunciation and Rebellion or by some special Statute the penalty whereof is Confiscation of Moveables such are breach of Arrestment or Deforcement wherein though the private party injured have an interest yet in effect the whole is Confiscat and a part belongs to that party by vertue of the Statute thereanent whereby they are constitute Donatars Or otherways some particular Moveables befalleth to the Fisk either by Custome as Waith-goods Ship-wrack c. or by Statute Liferents befal to the Fisk by the Denunciation of the Owner and remaining unrelaxed year and day or by such Statutes whose penalty is the loss of the Liferent The Stock or Property of Heretable Rights fall to the Fisk by forefaulture or becoming caduciary the Confiscation of the whole Moveables is called the single-escheat and of the Liferent is called the Liferent-escheat We shall only speak of the Single-escheat of Moveables by Denunciation having spoken of breach of Arrestment and Deforcement Title Reparation Secondly Of Liferent-escheat Thirdly Of Escheat of particular Goods as Shipwrack c. Fourthly of Forefaulture And lastly of things Caduciary especially by Bastardy and last Heir and of Gifts and Processes thereupon Escheat though it be a common Term signifying any Confiscation yet it is restricted to Moveables and Liferents and most properly to Moveables so that when it is simply exprest it is ordinarly taken for single-escheat or Escheat of Moveables but before we descend thereto it is fit to consider of the ordinary Cause thereof and of Liferent-escheat viz Horning Horning proceedeth thus by Letters Executorial giving warrand to Messengers at Arms to charge any partie in the Kings name to obey what is contained in the Letters under the pain of Rebellion And if he obey not within the dayes of the charge giving power to Denounce him Rebel by publick Proclamation at the Mercat Crosse of the Head Bargh of the Shire Stewartry Bailliarie of Royalty or Regalitie within the which the Denunced dwells and that by publickreading of the Letters of Horning and giving three blasts of a Horn for the clear manifestation and notice thereof from whence it is called Horning And because of the Certification the partie Denunced is called Rebel by a term too rough such Persons not being in Hostilitie against the King nor being publick enemies but only Denunced upon Causes Civill which they lye under frequently not through contempt but inability to satisfie The English do more properly call this Execution Out-lawerie whereby the partie becumes Out-law and hath not a person to stand in Judgement Active or Passive And if such should be called by us the Denunced it were smoother and more suitable then the odious term of Rebell Seeing Horning is the ground both of single Escheat and Liferent Escheat It would be fit to go through the several Requisites thereof in order and the nullities arrysing thereupon First the Letters of Horning must be Signet And therefore though the Bill was past and the matter small and the parties Indigent a Horning not
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
his Council in any matter to be inquired before them Par. 1564. cap. 129. Purchasers of benifices at the Court of Rome are ordained to be denunced as Traitors to the King Par. 1471. cap. 43. Par. 1488. cap. 4. Par. 1540. cap. 119. So forgers of the Kings Coin and home-bringers thereof incurr the lose of Life Lands and Goods Par. 1563. cap. 70. Saying of Mass resetting of Jesuits Seminarie Priests and traffiquing Papists And these themselves are lyable to Treason Par. 1592. cap. 120. Par. 1607. cap. 1. Raising of Fire wilfully or burning of Houses or corns whither folk be therein or not is declared Treason Par. 1592. cap. 146. Landed men committing or resetting Ryot or Robbery incurr the pain of Treason Par. 1587. cap. 50. And generally Resetters Maintainers and Assisters of declared Traitors commit Treason Par. 1592. cap. 144. Accuser of others of Treason if the accused be acquit commit Treason Par. 1587. cap. 47. 30. Forefaulture confiscateth the forfaulted persons whole Estate without any access to his Creditors Yea without consideration of Dispositions Infeftments or other Real Rights granted by the Forfaulted Person since or before the committing of the Cryme of Treason for which he was forfaulted which fall and became null by Exception Hope Forfaultur Viscount of Rochester contra Teuents of Callavrock July 14. 1610. Campbel contra Lifnories Spots Conjunctfie Crawfoord contra Laird of Murdiestoun unless these rights have been confirmed by the King as Superiour or Consented to by him It only remains dubius whether Feu Infeftments granted by Forefault Persons before committing of the Cryme be also annulted by the 〈◊〉 And the Act of Parliament anent Feus Par. 155. cap. 72. Should not only defend them against Recognition and the Casualities of Superioritie but even against Forfaultur it self it being therein declared that the King will Ratifie the saids Feus The like is to be understood of other Superiors So that though de facto they be not confirmed Yet the Declaration and Obleigment of the Statute standeth as a Confirmation thereof or at least as an Obleigment upon all Superiors against which they nor their Donators cannot come This is to be understood while 〈◊〉 are allowed by Law vide Title Infefints 34. Sect. It was so decyded February 12. 1674. Marques of Huntlie contra Gordon Cairnlorrow November 16. 1680. Campbel of Silver craigs contra Land of Auchinbreck and the Earl of Argyl not only because the Act of Payliament 1587. Imports a Confirmation of Feus granted thereafter but also because Forefaulture is by Penal Statute and not by the Feudal Right like unto Liferent escheat which returneth the Fie to the Superiours but with the burdens put thereupon by the Vassal whether Feu blensh Ward or by Annualrent or Tack And therefore when any Person is Forefault that is not the Kings immediate Ward Vassal his Estate both Propertie and Superiority falls to the King but with the burden of all Real Rights constitute by the Vassal Yet Forefaultur of the Kings immediat Ward Vassal proceedeth upon Crimes inferring Recognition And therefore returns his Ward Lands to the King as they came from the King free of all burden So that the Act of Parliament 1457. Which unquestionably secures against Ward and Recognition must also secure Feus against the Forefaultur of the Vassal granter of the Feus but will not secure any other Subalterne Right without the Superiours consent as a Blensh Infeftment Jan. 13. 1677. Marques of Huntlie contra Laird of Grant 32. Tacks also being Necessary and Profitable are not excluded by Forfaultur Maitland December 14. 1570. Home of Manderstoun contra Tenents of Oldhamstock Leslie of Wachtcun contra The like as to Tacks for a competent Dutie but not in Tacks for grassams January 28. 1674. General Dalziel contra Tenents of Caldwall 33. But by the Act of Par. 1644. Forfaultur was declared to be without prejudice to all Persons not accessary to the Cryme of the Superiour of the Rights of Property of any Lands Wodset or others holden by them of the Forefault Person or of the payment of their Just Debts or relief of their Cautionries our of the Forfaulted Estates which is now rescinded by the general Act rescissary Par. 1661. cap. 15. 34. Forefaultur could not be pronunced in absence of the Forefault Person by the Justice Gerneral but only by the Parliament So that no Certification of the Justice could reach Lands but only Moveables So July 8. 1662. William Yeaman contra Mr. Patrick Oliphant Neither could it extend to Heritable Bands November 31. 1671. Anthonie Hag contra Moscrop and Rutherfoord But now the Justices may proceed to Forefault absents in case of open Rebellion and rysing in Arms Par. 1669. cap. 11. 35. Because of the defficulty the King or his Donatar might have in knowing the Rights of Foresaulted Persons by Labouring the same with their own Goods setting the same to Tenents and up-lifting the Mails and Duties as their Heritage and so being reput Heritable Possessors for the space of five years immediately preceeding the process of Forefalture the lands so labored or possessed pertain to the King and his Donatar though they can produce no Heritable Right or Title thereof in the Forefault Person For tryal whereof Commssion may be granted under the testimonial of the great Seal to such persons as shal be thought fit by the advice of the Secret Council to take cognition by an Inquest what Lands were brooked by the Forefault person as Heritable possessor thereof so commonly reput and esteemed by the said five years space with power to call before them all parties pretending interest which being retured to the Chancelarie ad perpetuam Remanentiam shall be a sufficient Right Par. 1584. cap. 2. This right was sustained to a Donatar though nearest of Kin to the Forefault Person and presumeable to have his Right July 11. 1623. Maxwel contra Westeraw But here the Donatar was made to depone that he had just reason to affirm that the Rights were wanting Hope possession inter eosdem This right was not elided though it was offered to be proven that the forefault Persons Right was reduced in foro contradictorio upon Recognition before his Forefaulture Feb. 20. 1611. Hairstons contra Ramebel So the said 5. years possession being repute Heritable possessor infers presumptionem juris de Jure of the forefaulted persons Right which admits no contrary probation As to the forefaulted persons Right if the Quinquennial Peaceable and Lawful Possession be proven But the probation thereof by Inquest will not exclude a contrary probation by Reduction of the possession of others within the 5. years And if the possession be not Lawful and Peaceable but interrupted or Vitious the Statute takes no place for by possession Lawful peaceable possession of the forefaulted Persons must be understood And if any person have moved Action within the 5. years for taking away the Rebels right and possession they will be heard after the forefaulture as
before Yea Citation before the 5. years and Inhibition in the 5. years with a subsequent Security was found sufficient to take off the benifite of this Act July 23. 1666. Earl of Southesk contra Marques of Huntlie This priviledge is not competent by Exception or Reply offering to prove 5. years possession but by a reture upon a Commission served by an Inquest July 13. 1666. Sr. Henrie Hoom contra Sr. Alexander Hoom. In this Statute it is also provided that where there were Tacks or possessions of Lands or Teinds possessed by the forefault Person in respect that the rights thereof might also be abstracted that the King and his Donatar should continue in that same possession for sive years without any accompt for the profits thereof and longer if a Right be instructed of the forefault person And if a Fewer be forefault the Land is not lyable for the Feu dutie preceeding the Forefaulture because the discharges thereof might have been abstracted Possession for feuer then 5. years by the Forefaulted person was found sufficient to continue for 5 years though no Tack was instructed Jannuary 24. 1667. Sr. Henrie Hoom contra Sr. Alexander Hoom. 36. It is also declared in this Statute that the Forefaultur of the appearand Heir carries therewith the right of the Lands to which he might succeed though he were never entred Heir nor Infeft whereof Craig mentions a case Lib. 2. Dieg. 8. That the Daughters of the Laird of Laisindrum were excluded from their Succession to their Goodsir because their Father was forefault though he was never received nor infeft in these Lands 37. Craig in the forecited place moveth but determineth not this question whether the Forefaulture inserreth a Corruption of the Blood of all the Descendents of the Forefault Persons whereby till they be restored they are incapable of any Succession though descending to them by the Maternal Lyne This Corruption of the Blood is frequently in Fngland where persons are specially attainted and convict of Treason And sometimes with us it is called dishabilitation and is a part of the Doom or Sentence that the Successors of the Person convict shall be incapable of Lands Estate Honour or Office Yea then Fame and Memorie is sometimes condemned and their Surname abolished as was done in the Forefalture of the Earl of Gourie But it is not consonant to our Customs that Forefaulture in other cases should infer this Corruption of Blood First because of the Multiplication of cases to which Forefaulture is now extended as to Thest on 〈◊〉 men and false Coyn. 2. If none of the Descendents of 〈◊〉 persons were Capable of Succession to any person that could not be by reason of any speciality in the matter of Succession but of something in their person by reason of the Forefaulture excluding them thence which would not only take place in Heritage but in Moveables Yea the Oye or farther Off-spring of the Forefaulted person could not succeed to their ownimmediat Parents which would inferr that they could be capable of no Goods or Means but the same would be instantly Confiscat 3. Though Forefaultures in Scotland have been very frequent the off-pring of such have ordinarily acquired Lands and Goods and their Children Succeeded them therein without obtaining Restitution of their Blood So that this Corruption of the Blood is rather to be thought a Speciality in some Attrocious Treasons by the tenor of the Doom of Forefaulture then a general consequence thereof 38. But whereas it hath been said that the appearand Heir being Forefaulted the King hath right to the Heritage to which he might succeed It may be Questioned whether that my be extended to the appearand Heir if he be Forefaulted during his Predicessors Life Or if it be only in the case that the Heir apparent is forefaulted after the death of his Predecessor Where de presenti he may be Heir there is no doubt if the person forefaulted should be fugitive and survive his Predecessor But the Heritage accresing to him wherein he might de presenti infeft would fall under forefaulture though he were not actually infeft And it seems no less clear that being forefaulted if he should die before his Predecessor that his brother or Collaterals might succeed to their Father or any other to whom the forefaulted person if he had survived them would have succeeded It is more doubtfull whether his descendents could if any were for these would Exclude the Collateralls And there seems no reason to exclude them from their Grandfathers Heritage not being dishabilitat And seing I have not found it extended further I conceive it more favourable that the Heir appearand dieing before his Predecessor should not hinder his Descendents to succeed to that predecessor But unless the forefaulture did incapacitat the Predecessor to dispose upon his own estate the forefaulture in that case would be improfitable Yet seing we have no complaints of exhaeredatione in Scotland But that Parents may freely dispose of their Estates at their pleasure it would be hard to bind up the Parent more in Relation to the Fisk then tohis own Child unless fraud to prevent the effect of the forefaulture without a rationall cause do appear 39. For the further Security of the King and his Denatar it is provyded Par. 1594. cap. 202. That no Letter of Pension Factory Band or Assignation granted by any forefault person shall be valid unless it be confirmed by the King or authorized by Decreet of an ordinary Judge obtained before citation in the Process of Forefaulture which seems to insinuate that Creditors should be satisfied out of the forefault Estate but it will reach no further then the Moveables fallen by forefaultnre which seems to be affected in the same way as falling by Single-escheat the full Dominion in both being the Kings but with the burden of admitting the diligence of Lawful Creditors before Declarator but I have not observed this practiced in moveables of forefault persons The reason of this Statute appeareth by the Act immediately preceeding whereby a former Act of Parliament in favours of the Vassal of forefault persons is resoinded and appointed to be delet out of the Books of Parliament which rescinded Act though it be not Extant but delet as aforesaid hath affected forefault Estates with the debts of the forefault person and with the subaltern Infeftments granted by forefault persons not confirmed And therefore such Rights being Constitute by a Law then standing could not be derogat by a subsequent Law And therefore it was 〈◊〉 to Caution by the foresaid Act 202. That Simulat or antedated Rights might not affect Estates Forefaulted before the said rescissory Act. 40. Sentence of Forefaulture being pronunced is declared Irreducible upon any nullitie in the process upon which it proceeded till the 〈◊〉 be remitted by the King or the partie tryed and acquite thereof But restitution shall only be granted by way of Grace to the parties forefaulted or their Posteritie Par. 1584.
equally and there is no Right of Representation in moveables The first Degree is Children Male or Female with whom Grand-children come not in by Right of Representation in place of their Defunct Parents So Children have an interest in their Fathers Moveables viz. their Bairns part wherein their Father cannot prejudge them and their interest as nearest of Kin Whereby they succeed to the deads part in so far as intestat next unto Children are Grand-children or any Descendents of the nearest degree Next unto these are Brethren and Sisters wherein Brethren and Sisters German or by both Bloods exclude these by one Blood Next unto Brethren and Sisters are there Descendents in the nearest degree without Representation And last are the nearest degree of Agnats Male and Female joyntly without Representation If there be no Descendents or Agnats in the case of Bastards who can have none or others who happen de facto to have no Children or Agnats their goods become caduciary and are Confiscat to the King as last Heir or by reason of Bastardry of which before Title Confiscation In the Succession of Moveables the same Goods or Debts are not in all cases accompted Moveable since the Act of Parliament 1641. cap. 32. Whereby Bands bearing Annualrent which before in all respects were Heritable by the Destination of the Annualrent Which being perfected by Infeftment is an Immoveable and Heritable Right are declared to fall under Executrie and so to be Moveable And yet by the said Statute the Relict and Fisk are Excluded The Reason exprest in the Statute is because the Obliegment upon the Debitor to pay Annualrent is for the Profit of the Creditor and not a Destination of Infeftment of Annualrent in Favours of the Heir to exclude the Bairns And therefore such Clauses make not such Sums Heritable as to the Bairns and nearest of Kin unlesse they bear an Obliegment to Infeft the Creditor in Land or Annualrent In which case they are properly Heritable and belong only to the Heir but if not the same belongs to the Bairns and nearest of Kin Excludendo Fiscum Relictam Whereby there 〈◊〉 a Different Division of Moveable Sums falling under Executrie One of such as were Moveable before the said Act which if there be a Wife and Children are divided in three Whereof the Bairns is a third part and the Deads part a third Another in the Testament of Bands bearing Annualrent which if their be Bairns is Devisible in two parts whereof the one half is the Bairns part and the other half the Deads part and the Relict hath no part being Excluded So that in case of Escheat such Sums are not Moveable nor fall not under Escheat Yet if such Debts become Simply Moveable by a Requisition or Charge or by the Death of the Debitor or Creditor before the Term of Payment of Annualrent Or otherways they remain in the Ancient Condition And the Statute doth not Exclude the Fisk and Relict But where a Charge could not be given through the Debitor or Creditors Death and there was no Requisition provided and Decreet for Payment was not found to make the samine Meveable as it would have been if the Band had been Heritable by a Clause of Infeftment And that because by a Posterior Band of Corroboration for the same Sum Executors were Excluded which no Charge nor Requisition doth alter but it is still presumed that the Debitor would re-imploy the Sum in the same way to his Heirs Excluding Executors And therefore a Process and Decreet for payment was not found to make it Moveable though these would make it Moveable as well as a Requisition or Charge if it had been Heritable by a Clause of Infeftment July 12. 1676. Crystie contra Crystie It is also consequent from the said Statute 1. That such Bands bearing Clauses of Annualrent may be Exhausted by the Debts due by the Defunct bearing Clause of Annualrent 2. It is Consequent that the Executor will get no Relief against the Heir of Debts bearing Clause of Annualrent without Clause of Infeftment in so far as there are such Debts in the Executry but the Heir will have relief thereof against the Executor 3. It followeth that Debts bearing Clause of Annualrent and no Clause of Infeftment will not Exhaust the Relicts part Because as she is Excluded from any Share of such Debts due to her Husband So she must be free of any such Debts due by him as was found December 23. 1668. Magaret Mckenzie contra Robertsons 25. Succession in Immoveable and Heritables Rights proceed wholly in a different manner For Succession in Moveables is more near to the Course of Natural Succession and to the Civil Law of the Romans especially their Ancient and Midle Law but the Sccession in Heritable Rights aggreeth more to the Recent Feudal Customs of most Nations whereby Primogeniture is established for the Honour and Preservation of Noble Families and in them for the good and safetie of their Kings and Countryes 26. Succession in Immoveables and Heritables do mainly differ First that in Moveables the expresse will of the Defunct by his Testament and Legacies and Donations in Contemplation of Death have the first place but in Heritable Rights they have no place at all Yea no Personal Contract or Obliegment of the Fiar can have any effect in prejudice of his Heir to take from him any part of the Heritage directly or indirectly by Legal Pursuits thereupon if the foresaid Personal Right or Contract was done in lecto aegretudinis upon the Fiars Death-bed And though the same Disposition or Contract were made in the Fiars Health or Liege pouste it doth not alter the Succession unless it be in the investiture though as being of it self or having in it virtuallie a Personal Obligation it may by Process compell the Fiar or his Heir to denude themselves and to obtain new Infeftments conform thereto as if by Contract any partie may be provided to be the Contracters Heir in whole or in part his provision doth not make that partie Heir in any Right whereupon Infeftment hath followed which only properly are Heritable Rights Neither can that partie be served Heir of provision to the Contracter thereupon yet the Contracter may be compelled to take his Right accordingly to himself And these Heirs of Provision which if he have not done his other Heirs may be compelled to enter and to denude themselves in favours of that partie provided to be Heir conform to the Contract but Dispositions Obligations or Contracts of any Heritable Right on Death-bed are null and reduceable in so far as may prejudge the Heir 27. The priviledge of Heirs not being prejudged by their Predicessors Deeds done on Death-bed is as most of our Laws by Ancient Custom time out of mind and not by statute or written Law for though the Books called Regiam Majestatem treat thereof yet these are no part of our Law but have been compylled by some Stranger who hath not fully known our
Rutherfoord This Presumption doth withstand a far stranger opposite probation of Health when the Defunct went not abroad as was found in the said ease Robertson contra Fleeming That it was not Relevant to eleid Death-bed that the Defunct was in Strength and Ability to have come to Kirk and Marcat nor that the Defunct put on his Cloaths daily and that any Disease he had was but Lent and not Impedimentum rebus agendis as was found in the said case Schaw contra Gray Neither that the Defunct lived a year and a half after the Deed in question and was only hindered to come abroad by a Palsie which troubled his walking and made him not come abroad albeit he did all his Affairs within Doors as formerly July 1. 1637. Cranston Riddell contra Richardson And albeit there be remembered a case of a Disposition made be David Graham Merchant in Edinburgh for a Pious use to the 〈◊〉 that his having on his Cloath the Contriving and Writing the whole Disposition himself was sufficient to eleid Death-bed and to instruct Health yet the Circumstances of that case are not fully known not being observed by any of the Lords and the Decision hath ever been decryed since But in the case of the creditors of the Lord Balmerino against the Lady Couper for reducing of the Disposition of his Estate to her which was Decyded June 25. 1671. It was not found Relevant to instruct Liege poustie that after the Disposition my Lord made Bargains and Counts seemed to be Merry and Laughed keeped on his Cloaths kept the Table came from his Chamber to the Hall Whisled to himself and Danced Albeit no particular Disease but only Sickness was proven And in the foresaid case Clelland contra Clelland Health was not found proven albeit soundness of Judgement and Memory was proven And that the Defunct did not only all his own affairs but Trysted for others and that he lived two years and a half after the Disposition and was in like condition as he had been seven year before so that it seems that if the contracting of Sickness be proven no contrary probation of any Acts within doors will be sufficient to eleid the Reason of Death-bed By all with decisions the second Point proposed is sufficiently cleared As to the third Point proposed whether Sickness being proven once Contracted the Countinance thereof till Death must be proven It is commonly held that if it be proven Sickness was contracted and that Death followed probatis extremis presumuntur media And Sickness once being proven is presumed to continue otherways it were scarce possible by a positive Probation to instruct the Continuance of the Sickness till Death and this is only Presumptio juris Laying the Burden of probation upon the Party that alledges Convalescence The fourth Point for proving Liege poustie either that there was no Disease or by Convalescence if there had been a Desease by going freely to Kirk and Mercat unsupported is the ordinar and unquestionable defence against Death-bed upon which Law and Custom hath pitched as the most publick and sure evidence of Health andConvalescence So that albeit the going to Kirk and Mercat were but of design to Validat theDeed yet if the attempt be perfectly made out it would be sufficient and much more will be allowed when the going abroad is Principally to hear Sermon or for Devotion or about affairs to the Mercat In which case taking the Party by the Hand or helping him at a ragged Ground would not inferr Supportation there being no design of Cautiousness in the Partie but useing his ordinar way as if a Gentlewoman accustomed to by led be the hand should go so led to the Kirk or Mercat By reiterated Acts it might be sufficient for inferring Health or Convalescence but if it did appear to be upon design she behoved to forbear the prerogatives of herQuality and go freely alone without being led or if an old man infirm by age or any defect in his Legs or Feet not arising from inward Sickness should be helped in difficult places in reiterated Acts in going to Kirk and Mercat without design And as to that qualification whether it be sufficient to go the Kirk or Mercat Place or at the Congregation orGathering at the Mercat I have not observed it perticularly debated or decided but that Parties when they went to the Kirk ordinarly went to the Prayers and certainly it is the most secure way that the going be to the Congregation or Meeting at the Mercat otherwayes pick't out witnesses may be Chosen to wait upon the Party to the Kirk or Mercat-place which in many cases will be very private and will not expose the Party to publick View The fifth point concerning Supportation is the ordinary reply against going abroad and as hath been said it is ever to be considered whether the Act appear to be of design or not and that if the Acts be reiterat and of course nothing that was ordinar for the Defunct in taking of help when he was in unquestionable Health will import Supportation and therefore in the case Pargilleis contra Pargilleis decided Febr. 26. 1669. It having been proven that the Defunct was a very old Man and that after the Disposition quarelled he had severall times come to Calder and done Affaires there And that he went up from the Merca-place in the Mercat time to the place of Calder being a Steep way borrowed Money from the Lord Torphichen told and received the same which was found sufficient Albeit he was helped up Stairs and down Stairs and was helped to his Horse and from his Horse and his Man led his Bridle and that he had a Staffe in his hand But when the going to Kirk and Mercat is upon design the least defect in the exact Performance will render it Inefectuall and so in the case of the Disposition made by the Lord Couper it having been evident that it was of design to Validat the Disposition that the next day after the Disposition my Lord went to the Mercat at Couper the laying hisHand upon Thomas Ogilbies Hand who walked by him and that only at someimes and in Ragged places where he was accustomed to take any walking by him by the Hand before Yet seeing he put nature to the outmost reach to manifest Health by that Act and could not fully perform it it was not found Sufficient but he was found to be Supported and in the case Clellands contra Clelland of Faskin the Defunct finding that his Disposition was quarrelld and stopped at the Exchequer As being done in Lecto Immediatly after he caused make a Chair with a Fixed 〈◊〉 to bear his Feet in which he was carried with Men till he came within two pair or thereby to the Kirk and thence he walked to the Kirk but there was no Congregation And returned back to the Chair and so was carried Home and the Witnesses that were about him being examined whether he Walked freely or with
Married Persons whether Male or Female do succeed So that Daughters of that Marriage will exclude Sons of another Marriage or Heirs of the Bodie of the Members of the Tailzie whereby there Collateralls or Ascendants are excluded And in proper Tailzies there are always divers Lines and Persons Male and Female substitute as Members of the Tailzie as when Infeftment beareth Lands to be granted to the Fiar and to the Heirs of his Body or to the Heirs Male of his Body or to his Heirs of such a Marriage which Failling to such an other Person Named and to the Heirs of his Body or to the Heirs Male of his Body c. And so to a Third or Fourth which all Failling to the first Fiar and his Heirs whatsomever or to return to the Superior or to any other Person and to their Heirs whatsomever And where such Persons and Lines are not Substitute it is not properly called a Tailzie but if it be simply to Heirs Male it is so specially Denominate all other Heirs which are not Heirs of Line or Heirs whatsomever retain the Name of Heirs of Provision the Chief whereof are Heirs of a Marriage which Failling the Husbands or Wifes Heirs whatsomever in which there is but one Blood or Line and not divers Persons and different Lines Substitute in these Tailzies the Person Nominat may Succeed and be served Heir of Tailzie though otherwise Incapable of Succession as Bastards as hath been shown in the former Title But the Persons Nominate are never the Immediat and fast Heirs in Lands but always the Fiars Heirs of his Body which Failling the Persons Nominate for if the Heritage should be granted for example to John and after his Decease to William and his Heirs John would be thereby Naked Liferenter and William Fiar who could not be served as Heir to John But if it were Granted to John and the Heirs of his Body which failing to William These failing William would be served Heir of Tailzie to John But this holds not in Bands or Securityes for Sums of Money for Parents do srequently take thier Bands and Infeftments for Security thereof to themselves they being on Life and after their Decease to such Children Nominat yet the Parents are Fiars and the Children are but Heirs Substitute So then all Succession with Us is either of Heirs of Line Male Tailzie or Provision Heirs of Line are also called Heirs General so also are Heirs Male and of Conquest and these may be served Heirs by a generall Service But other Heirs of Tailzie or Provision by Investiture cannot be served Heirs but by a Speciall Service serving them to such Particulars whereunto they Succeed by Infeftment or Provision Heirs of Line are also Called Heirs whatsomever because they are absolute without Limitation and in all cases where Heirs whatsomever is not specially altered by the Infeftment rights follow the Lineall Succession as among Heirs Male the same course taketh Preference except that Female Heirs are excluded as that first Descendents then Brothers c. do Succeed and Amongst Heirs of Marriages the Eldest Son doth exclude the rest and so in the Members of Tailzies We shall not need here to debate the Lawfulness or Expediency of constituting Heirs Male or of Tailzie or of Provision having now cleared that the first Ground and Rule in Equity is the Will of the Propriatar though he be Personally Oblieged to provide Competently for his own especially those of his Family And therefore though severall of our KINGS in their generall Revocations have Revocked Tailzies it can inferr no more but a Scruple in them and a Preserving of their Power against the course of Prescription But doth not infringe such Rights being Lawful in themselves The Expediency of Tailzies is the same with Primo geniture to preserve the memory and Dignitie of Families But as Primo-geniture for that end excludeth Females of nearest Degree Heirs Male excludeth them Simply and Heirs of Tailzie have had their Rise from Dissatisfaction with some of the Fiars Race or preference of them otherwayes then by the Propinquity of Blood Some have also Tailzied their Lands so as by Infeftments to Introduce a Primo-geniture among Familyes as the Law hath done among Males as if the Land were granted to the Fiar and the Heirs Male of his Bodie which Failling to the Eldest Heir Female of the Bodie without division and their Heirs carrying the Arms and Name of the Family The intent of these Heirs of Provision is also to preserve the Unity and memorie of the Family To come now to the Heirs of Line the Law hath ordred them thus first the Eldest lawfull Son and his Descendents in order by Right of Primo-geneture excludeth all other Descendents Male or Female Failling Sons the Daughters and their Descendents do all succeed Equally except in Rights Indivisible which fall to the Eldest Failling Desendents the next Degree is of the next immediat Brother German and his Descendents and among Middle Brethern the immediat Elder Brother succeedeth in Conquest whereunto the Defunct did not nor could not succeed as Heir but in all others the immediate Younger Brother succeedeth and therefore is called the Heir of Line and the other the Heir of Conquest If the Fiar be a Woman her Brother German excludeth Sisters German and of her Brothers the immediate Elder Brother succeedeth inConquest and the immediat Younger in heritage Failing Brothers German Sisters German and their Descendents exclude both Brethren and Sisters by the Fathers side only June ult 1629. Mr. Robert Cuningham contra Multray Failling Brothers or Sisters German Brothers by the Fathers side succeed to the Defunct whether Male or Female the immediat Elder in Conquest and the immediat Younger in Heritage Failing all Brothers and Sisters the Father or other Masculine Ascendent of his Line succeed to the Defunct whether Male or Female and exclude the Brothers or Sisters of that Ascendent as a Grand-grandfather excludes his Brethren Fathers Brethren to the Defunct Failling Ascendents the Fathers Brothers and Fathers Sisters and their Descendents succeed in all points as Brothers and Sisters the double Blood excluding the single Blood and the immediat Elder Brother succeeding in Conquest and the immediat Younger in heritage and all Failling the Grandfather and Failling him his Brothers and Sisters the same way And so upward till there can be any Propinquity of Blood proven which all Failling the King taketh place as Last Heir 34. In this Line of Succession observe First that there is no place for Adopted Children or their Issue but only for the Naturall Issue of the Vassal Which cannot be changed by a Voluntar Act of Adoption without consent of the Superior in the Investiture neither is Adoption in use with us in any case 2. These Naturall Heirs must also be Lawfull whereby Bastards are excluded who are such appeareth by the former Title 3. There is no place for Cognats as to the Mother Grandmother or other Feminine
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