Ferms or to other Services but those are fixed to and follow those Ferms and they are conveyed therewith such are the English villains but in Scotland there is no such thing 12. There was formerly a kind of Bondage called Man-rent whereby free persons became the men or Followers of these who were their Patrons and Defenders and these were rather in clientele than in Bondage but it is utterly abolished both by Act of Parliament 1457. cap. 78. and by Custome 13. From Servitude arise Manumission and the Right of Patronage Manumission is the dimission of Servants and the making of them Libertines whereby they become Free but with remaining thankfulness reverence and obsequiousness and some other Duties and Offices to their former Masters then become their Patrons and if in these they failed they forefaulted their new acquired Liberty and returned to their former condition of Servitude 14. In these therefore stood the Right of Patronage and from this condition of Libertines arose that distinction of men into these who were always free who were called ingenui and in these who were bound who were called servi and in these of a middle condition who having been Slaves became Free and so were neither fully free but had some duties lying upon them to their Patrons neither were fully bound as Servants 15. The Servants which now retain that name are judged free persons and have at most but hired their labour and work to their Masters for a time which is a Contract betwixt them of which afterward 16. The Customs of this Nation have little peculiar in relation to Liberty directly but the injuries done against the same especially constraint fall under the consideration of Delinquencies and are so punished The Romans had express Laws de libero homine exhibendo and de privatis carceribus inhibendis the English have their Action of false Imprisonment determining with much exactness in what cases Imprisonment is lawful and in what not and how remeidable It is also provided in the Judicial Law against stealers of men but amongst us as these Crimes are very rare so if unlawful Restraint or unjust Imprisonment should fall out it remains among Delinquencies to be punished according to the Circumstances and Attrocity and according to Equity and thence also a civil Action for damnage and interest ariseth TITLE III. Of Obligations 1. Personal Rights and Obligations described 2. Kinds of Obligations 3. Obediential Obligitions described 4. Divided 5. Enumerat 6. Obligations Natural and Civil 7. Obligations Principal and Accessory 8. Obligations pure conditional and to a day RIGHTS Personal or Obligations being in Nature and Time for the most part anterior to and inductive of Rights 〈◊〉 of Dominion and Property do therefore come under consideration next unto Liberty 1. The same Right as it is in the Creditor it is called a Personal Right but as it is in the Debitor it is called an Obligation Debt or Duty which is retained as the more proper name Inst. de Obligationibus in principio Obligation is a Legal Tye by which we may be necessitate or constrained to pay or perform something this Tye lyeth upon the Debitor and the power of making use of it in the Creditor is the personal Right it self which is a power given by the Law to exact from persons that which they are due 2. Obligations by the Romans are distinguished in four kinds in Obligations ex contractu vel quasi ex contractu maleficiovel quasi ex malificio which distinction insinuats no reason of the cause or rise of these distinct Obligations which is requisite in a good distinct division and therefore they may be more appositly divided according to the Principle or Original from whence they flow in Obligations Obediential and by Ingagement or Natural and Conventional or by the will of God and by the will of man 3. Obediential Obligations are these which are put upon men by the will of God not by their own wills and so are Natural as introduced by the Law Nature before any addition made thereto by Ingagement are 〈◊〉 which we are bound to perform solely by our obedience to God as Conventional Obligations are such as we are bound by and through our own will Ingagement or Consent 4. Obediential Obligations are either by the will of God immediatly or by the mediation of some fact of ours such are Obligations by Delinquence whereby we become bound to reparation and satisfaction to the party injured and are lyable in punishment to God which may be exacted by these who have his Warrand for that effect of these Obediential Obligations there be some which tye us to God alone whereby there is no right constitute in man to exact the same as his own due or any Warrand or Command given him by God to exact them on his behalf and some though they constitute not a right in man yet man is commanded and warranted to vindicate them as the Crimes of Witchcraft Blasphemy Beastiality and the like for which there is an express Command to inflict punishment though there be no injury done therein to man of which there could be any reparation for the Command Thou shalt not suffer a Witch to live takes place though the Witch have committed no Malifice against the Life or Goods of man But these Obligations being among the publick Rights belongs to the Magistrate on whom is devolved that Authority to vindicate for God as his Vicegerent We shall not here insist on them nor on these other Obligations whereby no right of execution is constitute in man for vindication quae solum Deum habent ultorem being only now about the private Rights of men such are the Love and Fear we owe to God and dependence on and confidence in him 5. We shall therefore insist only on the Obediential Obligations that are betwixt Husband and Wife Parents and Children Tutors and Pupils Curators and Minors and the Obligations of Restitution and Remuneration and the Obligations of Reparation of Delinquence and damnage and then we shall proceed to Conventional Obligations 〈◊〉 There is another distinction in the Law of Obligations viz. Natural and Civil Natural Obligations are these which have a tye by the Law of Nature and do raise a Right in the person to whom they relate but the Civil Law or Customs and Constitutions of men do not second them with legal remedies or executions but they remain only as bonds upon the good will and honesty of these who are thereby bound First There be many Natural Obligations which have no civil effect either because they obliege to inward duties of the mind which Law doth not consider as Cicero saith Philosophum spectant quae mente tenentur juridicum quae manu tenentur Or Secondly Because though they obliege to outward performances yet the manner and measure is left to the discretion and arbitriment of the oblieged as before hath been showen though that in matters of expediency or utility there be an
in which cases we are bound to restore to the owner though thereby we lose what we gave except in some cases wherein Positive Law secures the buyer and leaves the owner to seek the seller This Restitution takes place notwithstanding any obliegement in the contrair and we have an excellent species in Law l. bona fide 31. ff § 1. depositi a Robber depositat with Seius that which he spoiled or robbed from Mevius to which is Seius oblieged to restore if he look only upon his ingagement truely to the Robber but if upon the whole matter certainly to Mevius for the Precept of Law is to render every thing to the owner and therefore no promise or ingagement can here prevail against the natural obligation of Restitution because that being natural and indispensible the Ingagement whether ignorantly or willingly made to Restore that which the Ingager knows to be anothers is a Delinquence inferring punishment for ingadging but no obliegement to perform so also he who ignorantly takes in custody or pledge that which is his own though thereby he promise to Restore it yet his obligation being by errour in the substance of the Contract makes it void and he may retain or recover it as his own 5. Fourthly things recovered from Thieves Robbers or Pirats are lyable to this obligation of Restitution wherein these things may be lawfully detained for the expenses and labour in recovery especially if the labour was undertaken of purpose to recover such things and if it was but by accident the recoverer projecting some other thing the satisfaction is due as a remuneration of the trouble and pains which it might have cost the owner in the recovery which with the expenses following thereon being saved to him he ought to recompense the profit accressing to him to the Authour thereof The doubt remaineth greater whether what Enemies having Possest being recovered by a Nation or Party ought not to be Restored to their proper owners of that Nation who bore the equal expense of the War and who being any way ingaged in that Quarrel cannot but acknowledge the War of their Enemies to be unjust and therefore as to these things I think that Equity would require Restitution upon satisfaction and gratification of the favour received which ought to take place unless by the peculiar Customs of Nations it hath been otherways agreed which may alter or derogat from this Common Law and therefore David recovering back his Wife and his Spoill from his Enemies delivered every man his own vid. Tit. 12. Rights real § 43. 7. Fifthly The duty of Restitution extendeth to these things quae cadunt in non causam which coming warrantably to our hands and without any paction of Restitution yet if the cause cease by which they become ours there superveeneth the Obligation of Restitution of them whence are the condictions in Law ob non causam and causa data causa non secuta which have this natural ground and of which there are innumerable instances as all things that become in the possession of either party in Contemplation of Marriage the Marriage which is the cause failing to be accomplished the interest of either party ceaseth and either must Restore 8. But there is not the same ground for things given for an unjust cause ob turpem causam in which the will of the owner and his purpose to transfer the property is effectual though his motive was not good but Positive Law doth sometimes obviat the inconveniency by such Donations and makes them void and either to Return or become Caduciary and Escheat As for these things which are attained by force or fear they have their original from Delinquence and comes not under this Consideration 9. Sixthly Restitution extendeth to indebite soluta when any party through errour delivereth or payeth that which he supposeth due or belongeth to an other if thereafter it appear that it was not due to that other he who received it is oblieged to restore and yet not by Paction or Contract therefore the Law calleth this promutuum vel quasi mutuum having in it the same Natural Obligation which mutuum or Loan hath by voluntar ingagement but here Positive Law for utility and quietness sake excepteth transactions which are properly such and which are of two sorts the one Extrajudicial when in any matter doubtful and debateable either party to shun their hazard and trouble of a Legal Decision is willing to transact and agree so as thereby they may quite or abate part of what they claim as their Right and so they renounce all future question upon any appearing of Right either Judicially or Extra-judicially and therefore what either quitteth to other of their Rights is due for the same cause and hath in it either expresly or implicitely that that Transaction shall not be Ransacted upon any thing that shall accidentally appear thereafter Fraud only as the common exception in all Humane Actions being excepted and therefore such things though they appear not to be the havers are not to be Restored The other Transaction is Judicial by Litiscontestation when any cause in difference is put upon the Oath of the party or other Probation and particular diets for that effect assigned wherein if either party fail he loseth what is put thereupon by his implicit consent and when the right of any thing is referred to the havers Oath and he sweareth it to be his own though thereafter it may be made palpably appear not to be so yet it will not be Restored because of the owners reference implying that condition that he shall stand to the Oath without questioning right or wrong because an Oath is an end of all Controversie though the swearer may be punished as a wilful perjurer And thus most of things that become ours by Sentences and Decreets of Judges are not lyable to Restitution upon any subsequent Question There is this exception against indebite solutum that it cannot be repeated when the Creditor gets that which is due to him though not due by that party who payed the same l. 2. C. de condictione indebiti l. 44. ff eodem which was not found when the payment was made to an Executor Creditor pursuing upon his Confirmation and before Sentence obtaining payment from the Debitors Heir who was decerned to refound upon a Discharge of the Debt granted to the Defunct Debitor whereby it appeared the Debt was not truely due but twice payed January 10. 1673. Sir James Ramsay contra Robertsons 10. Under Restitution do fall not only the things of others but their Natural Birth and Fruits extant not consumed bona fide which are accounted as parts of the things being accessory thereto and belonging to the same owner but industrial and artificial profits in so far as such as arise from the havers industry and not from the thing fall not under Restitution if separate 11. In all these the Obligation of Restitution is formally founded upon the having of things
Accounts it was a sufficient instruction of an Article of the Charge a Bond due to the Defunct produced by the Pupil Nor was the Tutor liberat upon alledging he knew not of it but it was presumed to have been in the Charter Chist unless the Tutor could instruct that he had made search of the Charter Chist and neither found this Bond nor any Inventar relating thereto but the Tutor was found lyable though the Sum was lost by the Debitors becoming Insolvent during the Tutory June 24. 1680. William Cleiland contra Laird of Lamingtoun Neither did a Tutor get any further allowance for his Pupils Maintainance then the Annualrent of his Stock though he expended more November 17. 1680. William Sandelands contra Patrick Tailziefer 28. The Reciprocal Duty of Pupils to Tutors after their Tutory is ended is to restore and make up to them whatsoever they wared out profitably or is so wanting to them by that Office wherein the Expences of obtaining the Tutory it self will be a part Nic. de tut Charters contra Mcmillan But Tutory being a Free Gratuitous Office the Pupils are not lyable to their Tutors for any Allowance Sallary or Satisfaction for their Pains but only for their Expences Nic. de tut Tutors of Bucleuch contra Earl of Bucleuch 29. Curatory hath such a resemblance with Tutory that though the constitution of Curators be not of the Law of Nature which leaveth all persons of Discretion free but of Positive Law whereby a way is provided for the Levity and Facility of Minors yet to shun repetition it will be most proper here to annex that Office and the Obligations therefrom arising betwixt Curators and Minors and in these we shall touch the difference betwixt Tutors and Curatours supposing the rest as common to both which is chiefly in these points 30. First In the Election and Constitution of Curatours which is done by way of Process at the Instance of the Minor before any Judge ordinary whatsomever whereby he citeth two or three of his nearest Kinsmen on both sides upon nine days warning to hear Curatours chosen Parliament 1555. cap. 35. and all others having interest generally at the Mercat Cross to hear and sec Curatours decerned to him and it is in his option whom to choose as it is in their option also to accept or refuse he may also make any number a quorum or adject auy condition he thinks fit in their Election and the parties compearing must accept and make Faith de fideli administratione and find Caution Yet where some of the Curators Elected made not Faith but all finding Caution the Curatory was found valid Hope Curators Paterson contra Wishart their Acceptation must be by Subscribing the Act of Curatory specially if the Election be in an Inferiour Court for want whereof an Act of Curatory before the Bailiffs was found null Hope Curatory Sibbald contra Hay and Lindsay Curatours also may be chosen by Procuratours without the Minors presence so that the Procuratorie expresse the Curatours Names Hope Curatours Marquess of Hamiltoun contra his Curatours yea being done in England according to the Custome there it is sufficient to Authorize the Minors Here Hope tut Posso contra Nasmith Though the Minor may choose Curatours when he pleaseth yet may he not choose Rebels unrelaxed if it be objected and verified at the Election by his Friends July 4. 1629. Corbet of Arbel contra 31. Curatours are of two kinds ad lites and ad negotia the former are appointed for Authorizing Judicially in Process the other are mainly for Extrajudicial Affairs Curatours ad lites are so far necessary that they must be given by the Judge ordinar before whom any Action is pursued for Authorizing of the Minors either Passive or Active and they will be given upon the desire of the other party Their Office seems to reach no further than to Faithfulness and Diligence in the Processes whereunto they are Elected There are sometimes Curatours named to Pupils to supply the defect of their Tutors as if their Tutour be concerned or be absent or uncapable to Act for a time These though for a distinction from Tutors they be called Curatours yet their Office pro tempore is of the same nature with Tutors 32. Curatours ad Negotia are free and in the Minors option in so far that a Son being Minor and choosing Curators without the Fathers consent but with consent of his Mothers Father the Curators were preferred to the Father as lawful Administratour but here the Father was known to be a weak Person and to have Controversies with his Son Nic. de tut Laird of Barganie contra his Son And Curatours must be freely chosen that though the Minors Father named his Tutor expresly to continue till the Pupils Majority their Office was found not to hinder the Minors to choose Curatours or to disown his Tutors after his Pupilarity February 6. 1633. Harper contra Hamiltoun Minors having chosen no Curators are in the same condition for extrajudicial Acts allone as if they had Curatours in either case the deeds are revocable and reduceable upon enorm Laesion 33. But if once they choose Curators all deeds done by them without consent of their Curatours are eo ipso null by exception without necessity to 〈◊〉 Lesion December 9. 1632. Maxwel contra Earl of Nithisdail and that so exactly that the Minority was counted de momento in momentum though the Minor wanted only twelve houres of twenty one years June 26. 1624. Drummond contra Laird of Cunningham-head and this extended to a Judicial Act whereby the Minor Acted himself Cautioner Hope de Minoribus Paterson contra Wishart and extended also to a Minors service without consent of Curatours and that by exception without instructing Lesion Spots de mino Simpson contra Laird of Balgane and to a Tack taken by the Minor without consent of Curatours Hope de Minoribus Seaton contra Laird of Caskiben and extended to deeds done by Minors in their Fathers Family without their Fathers consent and so it was found that a Minors Bond Subscribed Cautioner with and for his Father was null and that his Father as lawful Administratour could not Authorize him to be Cautioner for himself here the Minor was a Student at Law but intertained by his Father and not forisfamiltat December 7. 1666. Sir George 〈◊〉 contra Fairholme December 25. 1667. inter eosdem yet the deed was sustained being a Bond of borrowed Money the Creditor proving by Witnesses that the Sum was converted for the Minors use profitably December 21. 1629. Gordoun contra Earl of Galloway this is according to that 〈◊〉 ground of Equity nemo debet ex alieno damno lucrari hence follows Minor tenetur in quantum locupletior factus but though there was some onerous Cause of Minors deeds yet unless it were liquid as delivery of Money it is not receiveable by way of exception or reply but only is reserved to the Creditor to pursue as Accords and
competent to a Cautioner who in a new Bond of Corroboration had ingaged for the Debt with the Principal and that against the Cautioners in the first Bond though he had no Assignation to the Clause of Relief granted to the first Cautioners Spots Cautioners Lubra contra david Vauns The same must hold in Con-tutors Co-curators and wherever more Debitors are lyable in solidum for the same Debt or deed TITLE IX Reparation where of Delinquences and Damnage thence arising 1. The Obligation of Reparation of Damnages by Delinquence a Natural Obligation 2. Delinquence infers the Obligation of Punishment and Reparation of the Injured 3. Damnage Described 4. Kinds of Delinquence 5. Concurrers in Delinquence how lyable 6. Special kinds of Delinquences by our Customes 7. Assythment 8. Extertion vi majori metus causa 9. Circumvention by Fraud dolo malo 10. The Edict de dolo malo 11. Circumvention rarely inferred by witnesses 12. Simulation 13. Collusion 14. The effect of Fraud as to the party Contracting 15. Deeds done in fraudem Creditorum contrair the Act of Parliament 1621. anent Bankrupts 16. The Nature of Spuilzie 17. The Title of Possession 18. Oath in litem in Spulzies 19. Spuilzie eleided by any colourable Title Warrand or bona sides 20. Spulzie eleided by voluntar Delivery 21. By lawful Poynding 22. Replyes against Poynding 23. Spuilzie eleided by Restitution within twenty four hours 24. Prescription of Spuilzies 25. Intrusion and Ejection described and distinguisbed 26. Ejection propper to the Natural Possessour 27. Exceptions against Ejections 28. Mollestation 29. Breach of Arrestment and Deforcement 30. Contravention AMONGST Obligations Obediential we have placed these which are by Delinquence because they arise without any Convention Consent or Contract either particularly or by vertue of any Positive Law and therefore they must needs have their Original from the Authority and Will of God and of our Obedience due thereto for though they do proceed from our Fact and from our Will whence that Fact is voluntarly committed yet it is not from our Contracting Will and therefore these Obligations do not receive their measure or extent by our will 1. That Obligations of Delinquence are introduced by the Law of Nature the Suffrage of all Men and all Nations will evince who do every where acknowledge the Reparation of Damnages and Punishment of Crimes and Injuries as having by Nature a clear Evidence and sharp Sense thereof and thereupon can without Reluctancy concur with the Magistrate in the Punishment of Citizens and of Enemies by the sword But it may be doubted how the Law of Nature which is perpetual and had place chiefly in Innocency can prescribe any thing in relation to Delinquency or Malifice which was not to be found in that condition This will be easily cleared if it be considered that though Man was made in the state of Innocency yet had he a natural Instability for which God did warn and arm him and though the Principal and direct Law of Nature did teach Man to love his Neighbour as himself yet he could not but by consequence know though he had stood in Innocency as do the Angels that any who acted against that Royal Law of Love by doing evil to his Neighbour and taking away from him that which is his ought to Repair him and to be lyable to Divine Justice which is that Certification which God put upon his Natural Law as he did more expresly upon the forbidden Fruit morte morieris 2. An Obligation of Delinquence is then that whereunto Injury or Malifice doth obliege as the meritorious cause thereof as the Will of God thereupon is the efficient cause and it is twofold either that which relateth to God or that which relateth to Man the former is the Obligation of Punishment Pain or Penalty for unto God there can properly no Reparation be made by the Creature whose duty and service is due to him so that to him the Creature is oblieged to underly the Punishment In reference to Man is the Obligation of Reparing his Damnage putting him in as good condition as he was in before the Injury and this only is Mans part for himself for the inflicting of Punishment is for God in so far as it is Authorized or allowed by him but it is not for or from Man of himself Revenge is mine and I will repay saith the Lord For as hath been said before an Obligation in the Debitor hath a correspondent power of exaction in the Creditor which is the personal Right So in Delinquence the power of exaction of Reparation of his Damnage is Mans for himself but the power of exacting Punishment is in God and as for him or 〈◊〉 it is 〈◊〉 to Man it is but a Ministerial Power and not Dispensible at 〈◊〉 pleasure and hath an Obligation whereby Man 〈◊〉 bound to God for doing his duty therein Though Positive Law and 〈◊〉 of 〈◊〉 and in some things the Positive Law of God it self may 〈◊〉 a 〈◊〉 and imploy it for the proper use of the Injured yet it is not a proper punishment that hath its force by Paction or Positive Law and nor by the Law of Nature The Obligation to Punishment arising from 〈◊〉 and Mans Power and duty to inflict the same is a publick Right which though naturally did concern every man yet it is now with Divine approbation for most part devolved upon Publick Authority which is said Rom. 13. 〈◊〉 3 4. To be a terrour to evil doers and not to bear the sword in vain for be 〈◊〉 the Minister of God a Revenger to execute wrath upon him that 〈◊〉 〈◊〉 by which it is clear that the Magistrate as he Executeth Revenge doth 〈◊〉 not of or for himself nor for or from the people as their proper Right or power of exaction but therein as he is the Minister of God he doth 〈◊〉 for and from God even though his Authority and Commission were not immediatly from God but from Man yet he stands in the place of these Men to God to Execute that Revenge which they themselves are naturally oblieged unto But how far Mans Natural Duties or the Magistrats in the Punishment of Crimes reacheth the Lines of the Law of Nature are become dark in many Points It is manifest and agreed by all that though in all Damnages done to man there are also Punishments which may be inflicted by God yet where the matter is chiefly Mans Interest and so Repairable to him none will think that it is a duty in all of these cases to inflict vengeance on such neither doth any own a Power and necessity to inflict Punishments for Mans Spiritual Delinquence standing in his Mind and Affection as for want of Love and Confidence Hope c. In somethings also the power of Punishment is no less evident even when there can be no Reparation to man as in that general Precept of equal Crimes and Punishments Life for Life Eye for Eye Tooth for Tooth c. But
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.
the witnesses insert make a strong probation To return to Seasines propriis manibus by Husbands to Wives without warrand or adminicle in write they are not generally probative except in such cases as have been now exprest Hope Seasine Bell and Morison contra Thomson Laird of Coldingknows contra Dam Helen Hereis 20. But for the further securing of Infeftments and Land-rights that excellent Statute which before was attempted was at last perfected Par. 1617. cap. 16. whereby all Seasines Reversions Regresses Bonds or Writes for making of Reversions and Regresses Assignations thereto and Discharges thereof Renunciations of Wodsets and grants of redemption not being Registrat in a peculiar Register appointed for that end or in case of Consigning Renunciations and grants of redemption in Process within 60 dayes next after the Decreet ordaining the same to be given up to the parties having right thereto or at least within 60 dayes after Seasing taken of the Lands or Rights to which the reversions relate It is declared that the saids Seasines and other Writes shall make no faith in Judgement by Action or Exception in prejudice of a third Party who had acquired a perfect and lawful right to the saids Lands and Heritage without prejudice to make use of these rights against the granter and his Heirs But there are excepted Reversions contained in the body of the Infeftment and all Seasines Reversions c. Of Tenements within Burgh 21. And to make Land-rights yet more secure because the former Act did not require Registration of Instruments of Resignation in the Superiors hands adremanentiam whereby purchasers were not secure but that the Lands acquired by them might have been resigned or renounced to the Superior whereby their Authors Fie became Extinct without necessity of new Infeftment being consolidat with the Superiority whereby the Superiors Infeftment carryed both Superiority and Property Therefore Instruments of resignation not being Registrat are declared null yet with exception of Tenements holding Burgage And therefore a Seasine within Burgh was sustained though not found in the Towns books June 30. 1668. Mr. Robert Burnet contra Swan February 11. 1681. Francis Irwing contra Corsan Upon Consideration of this Case the Lords by act of Sederunt ordained the Burrows to take sufficient Caution oftheir Town Clerks present and to come to insert in their books all Seasines given by them of the Tenements within Burgh and all reversions or Bonds for granting reversions assignations thereto and discharges thereof renunciations and grants of redemption and that within 60. dayes after the giving of Seasine or presenting to them of the reversions or others foresaids and that under the pain of the damnage of any Party acquiring bona fide for onerous Causes by such Latent rights though prior declaring that they will hold all such Seasines reversions c. to be given hereafter and not insert in the Towns books in manner foresaid to be Latent and Fraudulent keeped up of design to insnare lawful purchasers But there is now an Act of Parliament requiring the inserting of Seasines within Burgh in the Town-Clerks Books in the same manner and under the same certifications as is required to the Registration of Seasines without Burgh 22. And for the further security of Land-rights because Apprysing or Adjudication with a Charge of Horning thereupon against the Superior maketh for some time a real right Therefore an abbreviat of Apprysings contained in the allowance thereof written on the back of the same and signed by two of the Lords was ordained to be Registrat in a particular Register for that purpose within 60. dayes after the date of the Apprysing with certification that any other Apprysing though posterior in date yet first allowed and registrat shall be preferred Parliament 1661. cap. 31. which is extended to Adjudications Parliament 1672. cap. 19. But this relates only to the new form of Adjudications then introduced in place of Apprysing But for the old Adjudications upon there nunciations of Heirs or implement of Dispositions neither Statute nor Custom have yet cleared whether these will be effectual against singular Successors from their Dates or from the Charge against the Superior or only from the Seasines thereupon which as all other Seasines must be registrat And if the Lords do sustain these from the Charge it will make a defect in the security of Land-rights till it be supplied by act of Parliament And for further security of Land-rights because they might be reduced upon Inhibition or Interdictions Therefore these if not registrat are also null And in respect Horning continuing unrelaxed year and day after the denunciation the Superior hath the Fee during the life of the Vassal denunced therefore horning if not registrat is also null and the act of Prescription excludes all prior rights preceeding 40. years unless they have obtained Possession or done digence therefore by interruptions which must be repeated every five years or else they are null and must also be execute by a Messenger so that where before a Citation made interruption which continued for forty years which might much insecure Purchasers they can now last but five years in which short time the noise thereof may readily reach purchasers so that if purchasers get a progress of Infeftment for fourty years he may by the Registers know it there be any real Right that can affect the Fee within that time and hath no more to enquire but as to interruptions within five years which if the Lords appoint to pass only upon Bills it may be found at the Signet So that upon the whole matter no Nation hath so much security of irredeemable Land-rights as we have It is true redeemable rights are not so secure because they may be evacuat by order of redemption which proceed by Instruments of premonition and Consignation which require no registration and therefore purchasers of Appryzings or Adjudications during the legal reversion are in hazard of any order of Redemption or Summonds for Count and Reckoning and likewise these who purchase Wodsets or Infeftments of property or annualrent for security of sums run the hazard of satisfaction and payment of these sums by intromission or otherways wherein there is little inconveniency for no man should purchase a redeemable right without consent of the reverser but upon his hazard or if there be any reversion reservation or real burden in his authors right sibi imputet it is his fault and negligence if he did not see it and secure himself against it The Question may occur here if the Keper of the Register of Seasines do according to the Custom mark the Seasine Registrat and attest the same by his subscription and yet by negligence or fraud shall not insert it in the Register whether in that case a purchaser bona fide for causes onerous though Infeft thereafter will be excluded by that prior Infeftment marked by the Clerk not recorded though nothing hath been observed in this case If Seasines marked Registrat
another or personal when the Superiour obliegeth himself to warrand the Infeftment as to the warrandice by Disposition and Resignation it is unquestionably personal and cometh not within the Infeftment but though it be granted by the Superiour in the Infeftment yet it is but a personal obligation no ways co-hering nor carried with the real Right and therefore the singular Successor of the Superiour or Author is not oblieged in the Warrandice neither doth the Disposition or Infeftment from the Vassal carry to his singular Successor the right of the Warrandice unless it be assigned specially or generally in the Assignation of the Rights and Evidents Warrandice is a common obliegement both in Infeftments and other Rights and it is sometimes exprest and then it is regulat according to the Tenor of it whether it be absolute Warrandice or from fact and deed or from future or voluntary fact and deed But oftimes when Warrandice is not exprest it is implyed as Rights are to be warranted which are granted for an Equivalent Cause onerous But in that Case where the Disposition was only of all right the Disponer had the Clause inferred not absolute Warrandice but only from the Disponers future voluntary Deed Hope Warrandice Lord Sinclar contra Creighton Absolute Warrandice is also implyed where the Disposition or Infeftment bears Vendidit because that imports an equivalent Price Spotss Warrandice John Stewart contra Fivie But not so if it were exprest under the terms of Alienation which is common to both gratuitous and onerous Dispositions Warrandice from the future fact and deed of the Disponer and his Heirs is implyed in pure Donations Hope Warrandice Veatch contra Dauling Mr. Partrick Schaw contra Sir James Durham and was extended to a Legacy rei alienae scienter legatae June 16. 1664. Murray contra the Executors of Rutherfoord But ought not to be extended to future necessar deeds preceeding the gratuitous Disposition which the Disponer is or may be compelled to fulfil neither upon any anterior deed because he who disponeth freely is presumed but to dispone such right as he hath but posterior deeds are fraudulent It is Craig's opinion in the forecited place that though Warrandice from fact and deed be exprest that it doth not extend to prior deeds And that in any Case if the Cause of the Disposition be for service done for gratitude or merit that Warrandice is implyed much more if for future Service or for a feu Duty or Rent Yet if beside these there be not an Anterior Cause in Money or Value such Dispositions cannot be accounted onerous for former merit or gratitude infer no civil Obligation and so no burden which could receive Legal compulsion And as to annual Prestation in Services Feu-duties or Tack-duties if they bear no Money received or equivalent Value they are presumed to be gratuitous in favours of the receiver who may reject or renounce them when he pleaseth if they be not by mutual Contract And when they are evicted the Vassal is free of these Duties and hath no loss and therefore they ought to import no more Warrandice but from future voluntary fact and deed But whatever Warrandice be exprest must be accordingly observed But Craig's opinion being that naked Pactions were not effectual with us and that a Charter was but a naked Paction so Warrandice in an Innominat Contract such as a Fee could be but a naked Paction importing no further then what would arise from the nature of the Right But our constant Custome allowing all Pactions and Promises to be effectual doth both make Charters without Seasine effectual against the granter and likewise Warrandice and all other Clauses-therein yea the paction that nothing should be demanded in case of Eviction is for the same Cause effectual that the Money payed for the Right evicted cannot be recovered Yet Craig doth there report a Decision of the Lords betwixt Samuel Cockburn and Sandielands of Calder that a Charter without Seasine and not delivered in the Granters Life but recovered out of the Charter-chest of Torphichen was found effectual to make the Granters Heir perfite the same with Seasine but it did not remain in the hands of the Granter and thereby it appears that the Lords did not then look upon Charters as naked Pactions The Effect of Warrandice is the upmaking of what is warranted in so far as it is evicted and the ordinar procedure in it is when any Sute is moved whereon Eviction may follow Intimation is made to the Warrand of the Plea that he may defend And if Eviction follow and distress thereby Declarator of distress and action of Warrandice for relief is competent Also it is effectual for decerning the Warrand to free the thing warranted of that which will undoubtedly infer a distress though it hath not actually done it In this case Execution was superceeded for a time that therein the ground of the distress might be purged July 1. 1624. Laird of Frendraught contra Balvenie The like upon a Production of a Seasine of the Lands warranted granted by the warrands Author before the Right and Inhibition though there was no distress Nicol. de evictione Fisher contra Fleeming The like July 17. 1666. Alexander Burnet contra Johnstoun February 17. 1672. Smith of Braco contra Ross of Balnagoun Warrandice had also effect upon production of a Decreet of removing against the Buyer and Seller Nicol. de evictione Johnstoun contra Johnstoun Yea Warrandice will take effect where there is an unquestionable ground of distress though the Fiar transacted voluntarly to prevent the distress Intimation of a Plea is sufficient without an Instrument it being proven by the Warrands Oath that the copy of the Citation was delivered to him as an Intimation Nicol. de evictione Lyme contra Dunlop But though no Intimation be made yet the Warrandice taketh effect unless the Warrand had a relevant defence and could instruct the same Nicol. de evictione Boyd contra Stark But in that case the Warrandice hath no effect ibidem Cairncorss contra Murray Glendinning contra Gordon Warrandice hath no further effect then what the Party warranted trulie payed for the Right whereby he was or might be distrest though less then the value of the Right warranted July 1. 1634. Robert Glendinning contra Barnbarroch The like upon repayment of the sum given out and the Annulrent thereof Hope Warrandice Laird of Craicklaw contra Lord Herris January 26. 1669. Boil of Kelburn contra Mr. John Wilkie February 28. 1672. Earl of Argyl contra Laird of Aitoun This will not hold in Warrandice of Lands as to which Lands of equal value or the whole worth of what is evicted as it is the time of the Eviction is inferred because the Buyer had the Lands with the hazard of becoming better or worse or the rising or falling of Rates and therefore is not oblieged to take the Price he gave Neither is Warrandice a full security being but a personal Obliegment and many times the Price
and Infeft the other being equally and Immediately Heir to her Father in these Teinds and mediatly Heir to her Father by being Heir to her Brother who was Heir to his Father being Infeft in the Lands by precept of Clare Constat without Service June 10. 1673. Christian White contra Janet White 16. Other heirs not being Heirs-portioners are lyable for the Defuncts Debt in solidum except heirs substitute in Bands who are only lyable quoad valorem in the sums in these Bonds July 3. 1666. Fleeming contra Fleeming 17. Heirs are not conveenable at the Creditors option as in the case of heirs and Executors but they have the benefit of an order of discussing Thus first Debts and Obliegments relating to any particular Lands or Rights and no other do in the first place affect the heirs who may succeed in these Lands or Rights before the heir general So an Obliegment oblieging the Defuncts heir of Line or Tailzie so soon as he should come to his Estate was found to affect the heir of Tailzie who came to that Estate without discussing the heir of Line Hope de Haeredibus Lyon contra Sir Robert Scot. Nicol. de haereditariis actionibus inter eosdem So an Obliegment oblieging a Debitor and his heirs Male succeeding in such an Estate and not all other heirs was found to burden the heir Male before the heir of Line or Executors July 22. 1662. Margaret Anderson contra Andersons So likewise an Obliegment to infeft a Party in an Annualrent out of Lands designed was found to affect the heir of Provision in these Lands without discussing the heir of Line Nicol ibid. Edmonstoun contra Edmonstoun This was also the opinion of the Lords though there was no decision in it February 19. 1611. Laird of Blair contra Fairlie And in these Cases the heir of Tailzie or Provision will have no Relief against the heir of Line or other nearer heirs of Blood who otherwise and also Executors must be discuss'd before heirs of Provision or Tailzie General Obliegments not relating to particular Lands do first affect the heirs of Line who are heirs general 2. The heirs of Conquest July 21. 1630. Fairlie contra Fairlie 3. Heirs Male must be discuss'd before heirs of Tailzie or Provision not being so near of Blood Hope de haered Dunbar contra Hay of Murkill the like must follow as to heirs of Marriages who are also heirs of Blood and must be discuss'd before other heirs of Provision or Tailzie who therefore are only lyable in the last place the rest being discuss'd unless they become oblieged to relieve the heir of Line November 22. 1665. Lawrence Scot contra Boswel of Auchinleck 18. But an heir of Tailzie was not found to represent the Defunct in Obligations contrary to the terms of the Tailzie as to which heirs of Tailzie are as Creditors and Strangers as when the security of a Sum was by way of Tailzie payable to the Creditor and the heirs of his Body which failing to a Person named his heirs and Assigneys whatsoever the Creditor being oblieged to do no Deed hurtful to the Tailzie and the Debitor oblieged not to pay without the consent of the Person named that Person was found to have Interest to obtain Declarator that the sum was unwarrantably payed by the Debitor without his consent or order of Law by consigning it to be imployed in the same terms and therefore the Debitor was ordained to make up the Security again as at first reserving to Creditors how far they could affect this Sum for the first Fiars Debt or whether the terms of the Tailzie would exclude the Fiars Debts or Deeds for his necessary use or only unnecessary and voluntary Deeds Feb. 3 1674 Drummond contra Drummond And in like manner a Father having granted two Bonds of Provision to his two Daughters payable to them and the heirs of their Body which failing to return to the Father and his heirs the one of them having died without heirs of her Body but having assigned her Bond to her Sister the Assignation was found ineffectual as being done on design to disappoint the Tailzie made by the Father of the return of the Provision in case the Daughters had no Heirs of their Bodies and so was done without any onerous Cause or just Consideration January 31. 1679. Jean Drummond contra Drummond of Rickertoun 19. And likewise heirs of Marriage are heirs of Provision and partly Creditors and therefore may quarrel Deeds fraudulent or meerly gratuitous done by the Defunct whom they represent in prejudice of their Provisions as was found in the forementioned Case of Isobel Baron observed by Craig who being heir of a Marriage to whom all Lands conquest during the Marriage were provided the Father having disponed a Tenement acquired during that Marriage to his eldest Son by another Marriage yet that heir of the Marriage did recover the same from that Son albeit the heir of the Marriage did represent her Father and yet not simply but according to the provision by the Contract of Marriage which being an onerous Contract uberrimae fidei the Father Contracter can do no Deed contrary thereto but upon an onerous Cause or just Consideration and therefore if he sell any thing falling within such Provisions the heir of Provision cannot quarrel that Stranger but is oblieged to fulfil to him but might quarrel the same if it were meerly gratuitous much more might heirs of a Marriage quarrel Deeds prejudicial to their Provision in favours of the Children of other Marriages without which the great trust of these Contracts would be eluded whereupon Parties rely and make Matches and give Tochers and therefore take Provisions to the heirs of the Marriage either of definite Sums or of all or a part that the Contracters have or shall acquire during the Marriage by which the whole Estates of Citizens are ordinarily conveyed or otherwise Contracts of Marriage bear particular Lands or Sums to be provided to the heirs or Bairns of the Marriage and also the conquest during the Marriage which clause of Conquest will reach only to what the Father had more at his Death then the time of the Contract and is ordinary both in the Contracts of Citizens and others which therefore should not be elusory but effectual according to the true meaning of the Parties which is not to bind up the Father that he cannot do Deeds for Causes onerous or rational Considerations but that he can do no other Deeds meerly gratuitous and arbitrary in prejudice of such Provisions for though by such Provisions when fulfilled he himself must become Fiar and so may dispone yet he is also Debitor and so cannot effectually dispone against the import and meaning of the Provision And therefore a Father by his Contract of Marriage having provided certain Tenements to himself and his future Spouse in Conjunct-fee and to the Bairns of the Marriage c. and the Wife having restricted her self to the half of the