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
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
restored and Curators are not simplie liable for all their Pupils Means which may be lost without their fault neither to do diligence in all cases but where diligence might be profitable as hath been said of Tutors Curatours being Elected by Authority of a Judge cannot be liberate by the Minors consent Neither did a Decreet against a Minor on his consent liberate Curatours from their Office July 21. 1664. Scot of Broad-meadows contra Scot of Thirlestoun 37. Curatours are appointed in the Law not only for that ordinary Levitie and Weakness incident to Minority which therefore runs only to twentie one years compleat at which time by our Custome Minoritie endeth but also in case of known or conspicuous Levitie though after Majoritie such were the Curatours of Prodigals to whom as to Furious Persons Curatours were Constitute their nearest Agnats instead of this our Custome hath Interdictions whereby Persons acknowledgeing their own Weakness and Levitie and readiness to hurt themselves do therefore bind themselves that they shall not Act without the consent of these Persons Interdictors therein mentioned who thereby become as Curatours though they be not oblieged for Intromission or Omission but only to consent with the Persons Interdicted and for their Fraud and fault in consenting 38. Interdictions are most fitly made Judiciallie upon Cognition of the Cause by which after trial that the Person craving to be Interdicted acknowledging his own lavishness and prodigality Interdictors are appointed by the Judge competent and that either at the Instance of the Partie himself or of his Friends Yea the Lords ex proprio motu did Interdict a Person who was evidently Lavish and had thrice made opposite Rights of the same Subject and that Incidenter in an other Process where his Levitie did so appear February 17. 1681. William Robertson contra Gray of Shivis That this is the genuine Way of Interdictions is clear by the Narrative of the Act of Parliament 1581. cap. 118. And therefore an Interdiction was Reduced only because it was done sine causa cognita Hope Interdictions John Robertson contra 〈…〉 but there has not been a just ground for the Interdiction alledged and instructed 39. The more ordinar way of Interdictions is of consent whereby the person Interdicted acknowledging his own Lavishness doth by a Write under his hand Interdict himself and this is Reduceable if the Narrative was not true but the person Interdicted was prudent and provident December 20. 1622. Campbel contra Laird of Glenurchy And December 4. 1623. Geichan contra Hay and Davidson The like thought by the Lords but came not to a Decision February 12. 1633. Forbes contra Forbes Interdictions use also to be in the way of Obligation not to contract Debts or Dispone Lands without consent of such Persons and Inhibition Registrate thereupon which was sustained though not in the ordinar stile of Interdiction the person oblieged being known unsufficient to mannage his own Affairs through Levity or Prodigality November 10. 1676. Stuart contra Hay of Gourdie But a Bond bearing that a Man should not Sell or Dispone without consent of his Wife on the Narrative of his Facilitie whereon Inhibition was used found not to be valide as an Interdiction as inconsistent binding a Man to the Direction of his Wife but that it was only valide to secure the Wifes own Interest by an Aliment according to her Quality as an Inhibition February 27. 1663. Laird of Miltoun contra Lady Miltoun 40. Interdictions must be Published at the Mercat Cross of the Head Burgh of the Shire where the party dwells and within fourty days after Publication the same with the Executions thereof must be Registrate by the Sheriff Clerk of that Shire in the Register of Interdictions and Inhibitions within the Shire the Interdiction must be also Registrate in the Register of Inhibitions of any other Shire where the Lands of the Interdicted Person lie otherwise if it be not Published it is absolutely null and hath no effect to Lands or Heretable Rights in any other Shire unless it be also Registrate there Parliament 1581. cap. 118. Yet it needs not be intimat to the party interdicted Decemb. 11. 1622. Hendry Seatoun contra Mr. Alexander Elleis 41. The Effect of Interdictions by Custome is retrenched only to the Preservation of Heretable Rights and doth not extend to Moveables or personal Execution against the Person Interdicted so that he may Dispone his Moveables or upon any Personal Bond granted by him his Moveables may be Poinded Arrested and made forthcoming and his Person Incarcerate though the stile of Interdiction doth expreslie Prohibite Alienation of Moveables July 11. 1634. Bruce contra Forbes June 20. 1671. Thomas Crawford contra James Haliburtoun He may thereupon be also Denunced though thereby the Liferent fall in prejudice of the Heretage December 7. and February 8. 1610. Hay of Bruntfield contra his Father and Sisters And December 21. 1610. Lady Broksmouth contra Relict of Gilbert Wauchop But it hath Effect in favours of the Heir of the Interdicted Person that neither his Heritage can be Affected upon any obligation granted by his Predecessors after interdiction neither any Personal Execution by Caption and Horning against him as would have been against his Predecessor but such Bonds will take effect against the Heir as medling with the Heirship Moveables or other Moveables of the Defunct the reason wherefore Moveables are excepted both from Inhibitions and Interdictions is because they are of less moment and the Traffick of them must be current and free and therefore these remeids being but by Positive Law and not by Natural Equity by which the Ingagement or Disposition of any Person having the use of Reason is Effectual though Lavish Positive Law Prohibiteth and voideth such only as to Heretage as being of the greatest Importance in which even a Tack to a kindly Tennant set without consent of the Interdictours was found null Hope Interdict Douglass contra Cranstoun But Interdiction can only extend to Lands lying within the Jurisdiction where it was Published and Registrate but to no other Lands or Moveables February 11. 1662. David Ramsay of Torbain contra Mcclellan Interdictions do not make void all posterior obligations but only such where there is Lesion and therefore where there is a just and onerous Cause the obligation or deed is good though without consent of the Interdictours July 29. 1624. Laird of Collingtoun contra Hall November 10. 1676. Stuart contra Hay of Gourdy 42. The remeid by Interdictions is only by Reduction and not by Exception or Suspension March 17. 1630. John Sempel contra Doby January 22. 1631. Hardy contra Mccalla Yet Interdiction is sustained by way of reply seing the pursuer thereby doth only delay himself February 18. 1662. Robert Lockart contra William Kennedy It is a competent ground of Reduction at the instance of the Interdicted Person his Assignays or Heirs and it is also competent at the Instance of the Interdictours without consent of
Law for such till the Edict of the Pretor quod metus causa gestum erat ratum non habebo l. 1. ff quod metus causa but by that Edict and the Custome of this and other Nations such Deeds and Obligations as are by force and fear are made utterly void though in equity the effect almost would be the same for seing the Delinquence done by Extortion oblieges to Reparation if any should be pursued upon an extorted Obligation he would have the exception of Compensation upon the obliegement of Reparation and so might also by Action obtain such Obligation or other Right to be anulled This Edict was not Competent upon every force or fear but first it behoved to be unlawful l. 3. § 1. ff quod metus causa Secondly Such as might befal a constant man as of Life l. 6 7 8 9. ff l. 9. C. eodem or torment of the Body l. 4. C. eodem or of bondage l. 8. § 1. ff eodem or the loss of Estate l. 9. ff quod metus causa or infamy or disgrace l. 8. § 2. ff eodem or of bonds and prison l. 22. ff eodem but only unlawful and private and not publick Imprisonment l. 3. § 1. ff eodem it was not Competent upon reverential fear l. 8. ff l. 6. C. eodem nor upon fear contracted upon power and dignity d. l. 6. nor of threats l. 9. C. eodem except they were from powerful persons l. 23. § 1. quod metus causa The effect of the Edict was being pursued within a year unless Reparation was made before Sentence the Party was condemned in the quadruple and the penalty was triple and applyed to the Injured and after the year simple Reparation l. 14. § 1. ff eodem Our Customs go much along with the course of the Civil Law in this but so as not bound thereby respecting most when the true Reciprocal Cause of the Obligation or Deed is Force or Fear not being vain or foolish Fear And it is competent ordinarily by way of Action or sometimes by exception Spots Exceptions Tennants of Cockburns-path contra the Earl of Home it was eleided by a Judicial Ratification of the Deed upon Oath July 4. 1642. Agnes Graham contra Anthony Balvaird Extortion is more easily sustained in deeds of weaker persons and therefore Extortion was found relevant to reduce a Disposition by a facile weak person who was apprehended by the purchaser upon a Caption of a third party and detained by his Servants and Officers and not by Messengers and keeped latent in obscure Houses and carried from Place to Place in the Night till he subscribed a Disposition of his whole Estate for a cause not near the third of its value albeit there was produced a cancelled minute to the same effect with the Disposition in question wherein the two Actors of the Force were Witnesses insert but the Disponers name nor no part of it was to be seen but a lacerat place as if it had been cancelled without any anterior adminicle to astruct the truth of it January 10. 1677. Sir Archibald Stuart of Castlemilk contra Sir John Whitefoord and the Duke of Hamiltoun Extortion falls most to be contraverted in deeds done by Wives and therefore when the deed is extreamly to their prejudice and to the behove of their Husbands it is presumed as done ex reverentia maritali Thus a Wifes Discharge of her whole Contract was found null without alledging any Compulsion January 9. 1623. Marshel contra Marshel But ordinarily Marital reverence is not sufficient though the Husband were vir foerox and was thereafter Divorced Hope Husband and Wife Hepburn contra Nasmith In the case of Wives Dispositions or consent to their Husbands Disposition it was found relevant to reduce the same that the Wife at the time of the subscribing before the Witnesses declared that she was compelled providing that a third party a stranger to the Husbands fault were restored Nicol. de his quae vi Lady Cockpen contra Laird of Conheath It was also found relevant to reduce a Wifes consent to her Husbands Disposition because before he had beaten menaced and extruded her for not consenting But in this case it being alledged that the Wife appeared well content at the subscription Witnesses were examined hinc inde ex officio for tryal of the truth June 27. 1632. Cassie contra Fleming But where a Husband was proven to be vir foerox and that he did threaten his Wife to do the deed in question and that she appeared to the Witnesses unwilling the time of the subscription it was found relevant June 24. 1664. Woodhead contra Barbara Nairn But a Wife subscribing her Husbands Testament containing provisions prejudicial to her Contract of Marriage was not reponed as having done it ex reverentia maritali at her Husbands desire who was moribundus he having lien long sick and she having married within a year thereafter and the deed done to her only Daughter January 24. 1674. Marjory Murray and Michael Jaffray contra Isobel Murray Upon the like ground Extortion will be the more easily presumed and sustained in the deeds of the persons who are weak and infirm of Judgement or Courage then of these who are Knowing and Confident and more easily in Deeds and Obligations gratuitous and free then in such as are for an Onerous Cause which will not easily be anulled unless manifest Lesion do appear or that the compulsion be very evident Yet the Resignation of the Earldome of Mortoun in the hands of King James the fifth was reduced because the Resigner was then imprisoned by the King without any visible cause and was discharged the same day he made the Resignation Sinclar April 12. 1543. Earl of Mortoun contra the Queen Metus was sustained to reduce a Bond granted by a party because he was taken by Caption being sick January 22. 1667. Mr. John Mair contra Stuart of Shambelly It was also sustained to reduce a Bond granted by two Sons for freeing their Father who was taken by a Caption though the Charge was suspended he being carryed to the hills and Menaced on his Life though the Sons got abatement and so there appeared a Transaction December 8. 1671. Mcnish contra Spalding and Farquherson 9. Circumvention signifieth the Act of Fraud whereby a person is induced to a Deed or Obligation by deceit it is called dolus malus and it must needs be the cause of the Obligation or Deed and so not be known to the party induced before it can have any legal effect for he who knoweth the snare cannot be said to be insnared but to insnare himself and though deceit were used yet where it was not deceit that was the cause of the Obligation or Deed but the parties proper motion inclination or an equivalent cause Onerous it infers not Circumvention so neither doth error nor mistake though it be the cause of the Obligation or Deed and be very prejudicial to the erring party and though if it
by their Warrand or Commission to seaze upon the Goods of all persons under the Dominion of such Princes or people who have refused to make just reparation for the wrongs and damages done by any of their Subjects which the Law of Nations doth justly and necessarly allow for the common good of mankind for if private persons be injured by these who are not under one common authority with them by Piracy Pillage or otherways oftimes they cannot know the injurer and all force being stated in publick Authority they cannot make use thereof to redress or revenge themselves and therefore they can only make application to the Soveraign Authority of that society of people whereof they are members and represent and instruct the injury and damage sustained by them by the Subjects of other Princes or States and thereupon desire that a redress may be demanded which is ordinarly done by Ambassadours or other Ministers of State and if redress be not so obtained the Soveraign authority of the persons injured may and ought to give Commissions for seazing upon the goods of any of the people of that Society whereof the injurers are members till just satisfaction and reparation be obtained and though there be that singularity in it that the goods of these who did not the injury are taken to satisfie the same yet therin there is not only necessity but moral justice allowed and approven by the Custom of all Nations by their common consent for without this Societies could not be preserved and therefore the publick association of people implyeth this in it that the Society is lyable for reparation of the injuries and damages of any of their Society when reparation is refused Reprysals ought to be limited to a just satisfaction and therefore what is thereby seazed ought to be adjndged in Courts of Admirality wherein it ought to be proven that the goods seazed belonged to persons of that Society of which the injurer is a member and to be valued according to the rate they are worth where they are brought in and to be adjudged in satisfaction to the injured of their damage and interest in whole or in part So that the excress should be forthco ming to the owner thereof and so soon as satisfaction is obtained the reprysals ought to ceass Neither doth the use-making of reprysals in this just order and measure import the breach of Treaties or common Peace or infer publick War though they may become the occasion thereof 43. But where the injury is publick and attrocious the Law of Nations hath necessarly and justly allowed publick War not only to reach the moveables of publick enemies but their Territories Jurisdictions and Estates wherein the proportion of satisfaction cannot be so measured nor is it so considered as in reprysals That which accreweth to privat persons in War is only the giving of quarter or getting of spoil in so far as the same is allowed or permitted by the Commanders in chief warranted by publick Authority as is ordinar to the Souldiers upon defates of their enemies to seaze upon and appropriat such moveables as are upon their enemies persons or in their baggage And sometimes for the encouraging of Souldiers besieging and for the obstinacy of the besieged the plunder of places gained by force is for some time permitted and ceasseth so soon as countermanded In other cases what belongs to enemies is confiscated for publick use and Souldiers ought to be contented with their wages 44. The main privat interest in publick War is that which accreweth by Commissions granted by the Admiral for seazing and appropriating of the Ships and Goods of publick enemies and of these who become partakers of the War and who carry not themselves as friends or newters to the Princes or States ingaged in the War For by our Custom albeit such Ships and Goods be confiscat as publick belonging to the King or States yet private persons who undertake these Commissions have the expenses and profit of these seazures paying a fifteenth part thereof to the King and a tenth part to the Admiral There have been many questions as to the Rights and Interests of Allies and Newters very fully and accuratly debated and decided in the Session upon occasion of the late Wars betwixt the King and the States of the United Provinces which because they are of great use for clearing the important points that occur in these controversies and for vindicating of the publick justice of the Kingdom we shall in the clearest and shortest method we can give account of what hath been determined in all the Pryzes which came before the Lords of Session in these Wars The Lord Admiral of Scotland is the Judge ordinar and the sole Judge in the first instance of all Prizes taken at Sea but in the second instance the Lords of Session who are the supream Judges in all civil Causes in Scotland which are not determined by or depending before the Parliament or their Commissioners do upon complaint of iniquity committed by the Admiral before final sentence Advocat such Causes wherein they find probable ground of iniquity alledged and instructed or in the second instance after sentence do grant Letters of suspension or reduction of the Admirals Decreets whereupon all intricat and difficile questions in matters of Pryzes come to be debated and determined by the Lords there is no question when the Goods and Ships seazed on belong to enemies but only when they do belong or are pretended to belong to Allies or Newters The Lords upon complaint of iniquity committed by the Admiral it being alledged that the Lords were not Judges in the matters of Pryzes in the first instance yet they found both by the amplitude of the power of their Jurisdiction and by the custom in former times that it was competent to the Lords to Advocat Causes from the Admiral upon iniquity albeit the process cannot begin before them in the first instance for as they are the Kings ordinar Council all matters not belonging to the Jurisdiction of another Court belongeth to them and therefore they may and oft have Advocat Causes from the Justice General and other Judges in Criminal Causes albeit the Lords cannot decide these Causes as being only Judges in Causes Civil yet they may Advocat the same that in case the reasons of Advocation be relevant and proven they may remit the Cause to the proper and competent Judge if the reason of Advocation be upon incompetency or to other unsuspect Judges if the reason be upon the suspicion of the Judge as being concerned in the Cause or nearly related to the parties or having enmity against any of them and therefore the Lords in the Advocation raised by the owners of the Ship called the Bounder against Captain Gilleis it being alledged that the Admiral had committed iniquity in granting a conjunct probation for proving the property of the Ship and loadning the Lords found this no relevant ground of Advocation of the Cause it being
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
of Tailzie named was found to give interest to that person as heir of Tailzie to declare that the sum was unwarrantably uplifted or payed without his consent or order of Law by consigning it to be imployed in the same terms and that though he was heir of Tailzie to the uplifter that he was not oblieged to fulfil his deed or warrand his Discharge being contrair to the terms of the Tailzie as to which terms he was Creditor reserving always to lawful Creditors how far they could affect the sum for the Fiars Debt February 3. 1674. Drummond contra Drummond And a Clause in a Bond whereby a Woman oblieged her self to resign Lands in favours of her self and the heirs of her Body whilks failing to the heirs of her Father and oblieging her self to do nothing contrary to that succession whereupon Inhibition was used before her Marriage was found effectual against her and her Husband whom she Married thereafter and Disponed the Lands to him and his heirs asbeing a voluntary deed without an equivalent cause onerous albeit the Fathers heirs behoved to be the Womans heir of Tailzie January 28. 1668. Alexander Binnie contra Margaret Binnie Yet these restricting Clauses without irritancy though conceived as Provisions or Conditions if they be not in the Investiture albeit they be in prior Obligations Dispositions or Contracts there is no pretence thence to affect the Fee as a real burden and even though they be contained in the Investiture seing Clauses irritant uses to be added thereto they are understood to be but personal Obliegements whereupon no diligence having followed they cannot be effectual against singular Successors whether by Legal or Voluntary Dispositions And as to such restrictions with Clauses irritant we shall add no more thereunto then what hath been said Property being thus Constitute by Infeftment it is to be considered what are the particulars it comprehends and implys though not exprest wherein this is a general Rule that Lands being Disponed with part and pertinent all is carried thereby that falls under the Denomination of the Lands Disponed a caelo ad centrum and all that in the time of the Disposition was accustomed to follow it not only as servitudes but even discontiguous parcels of Land which were not known as distincta tenementa or parts of any other Tenement except what the Law reserves or the express provision of the Superiour 60. The Law reserves all these things which are called regalia or Jura publica which the Law appropriateth to Princes and States and exempeth from privat use unless the same be expresly granted and Disponed by the King and if the Superiour be a Subject if he have any of these Regalia from the King they remain with his Superiority unless he expresly Dispone them to his Vassal the Superiour may have them from the King either expresly in any Tenement holden of the King or tacitly when Lands are erected by the King to him in a Barrony or any higher Dignity whereby many of these regalia are comprehended Barronia being nomen Universitatis yet that will not comprehend First Mines and Minerals of Gold or Silver or Lead of that fineness that three half-pennies of Silver may be fined out of the pound of Lead which Mines are declared to belong to the King wherever they can be found Par. 1424. cap. 12. But Mines of Iron Copper and Lead of less fineness belong to the Proprietar and are not accounted with us Regalia though in some other Countreys they be Secondly Neither do Treasures found in the Ground belong to the Kings Vassals though their Lands be erected in Barronies unless they were exprest A Treasure is Money hid in the Ground the owner whereof is not known Thirdly Though all Proprietars have the priviledge of Fowling within their own Ground yet Swans are peculiarly reserved to the King and therefore the priviledge to kill Swans is not carryed under the name of Barrony unless they were particularly exprest Fourthly Confiscat Goods are not carried even under the name of Barrony unless they be exprest 61. Yet there are other regalia which are carried under the name of Barrony though not exprest as Jurisdictions and Courts Fortalices Salmond Fishing Forrests and Hunting of Deer and Ports with their pettie Customs established by the Kings grant or long Possession for repairing and upholding these Ports which therein differ from Creiks or Stations which are natural but Ports are builded artificially and need reparation 62. Jurisdiction and Courts are comprehended in Barrony in so far as concerns Civil Jurisdiction and Blood-wits or lesser Crimes but will not reach to Capital Punishment unless the same be exprest as it uses to be when the Priviledge of Pit and Gallows are exprest or Out-sang and In-sang Thief which seems to extend to the punishing of no more Crimes but Theft and these who have only In-sang Theft can only punish Thieves taken in the Fact Though Courts be exprest they will extend to nothing Criminal no not to Blood-wits unless these be exprest but only to Civil Debates requisite for the Propriatar as to determine differences amongst his Tenents Neighbourhead Multars and smaller Matters or to constitute a Baily who may judge betwixt the Propriatar and his Tenents as to his Rents Duties and Services and also may determine differences amongst his Tenents But all Jurisdiction is Cumulative with and not Exclusive of the Superiors Jurisdiction so that there is place of Prevention The first Atatcher if he proceed is preferred and if the Superior and Vassall atatch together the Superior is preferred 63. The Courts of Vassals though they be Barrons and have the Priviledge of Capital Punishment are not of the same Extent and Importance as the Sentence of the Judges ordinary of the Kingdom such as Sheriffs Stewarts Bailiffs of Royaltie Regality and Burghs For first The extent of their Jurisdiction is not so ample Secondly The Jurisdiction of all Barrons and Free holders was of old subordinat to the Sheriffs and other Judges ordinary within whose Jurisdiction the Lands lay Par. 1503. cap. 95. And then there was place for falsing of Doom or appeal to the Sheriff-court who was to warn the Parties upon fifteen days and make the Suiters of the Sheriffdom Ward thereupon Whereby it appears that the Free-holders of the King who owed Suit to the Sheriff-court at least an Inquest of them were to concur with the Sheriff in discussing the appeal from the Baron or Free-holder But now these Appeals or falsing of Dooms from any Court to another have been antiquated and wholly in desuetude since the Introduction of Advocati ons which is a far more excellent remeed for thereby Causes are not stopped at the choice or humor of parties But the reasons of Advocation are specially considered by the Lords whether they be relevant and have such Instructions as can be expected before discussing and the Subjects are further secured by the late Act of Parliament that poinding cannot proceed without a charge
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
as Appryzings Adjudications Feu-ferms conform to the several Acts of Parliament But even such being Constitute after the 〈◊〉 whereby recognition is incurred albeit bona fide for onerous Causes before any Diligence or Declarator of recognition yet they fall in consequence with their Authors right February 8. 1610. Earl of Balcleugh contra Scot. Recognition excludeth all Tacks set by the vassal without the Superiour consent whither prior or posteriour unless such as are set for the utility and profite of all parties interressed having no advantage therein as before hath been showen in the matter of Ward and Non-entry for though Tacks be Established by Acts of Parliament against purchasers yet not against Superiours 26. Recognition doth also exclude servitudes upon the Fee by the Vassals consent without the Superiours as Thirlage c. yet this will not reach Servitudes introduced by long custom or possession and strengthened by Prescription wherein the consent of all parties having interest is presumed that they can never come in the contrary for though it was most proper to the Vassal to look to his Fee yet the Superiour doubtless might have interrupted which would have been sufficient for his own interest And Prescription being introduced to secure Property and put an end to Pleyes will not be infringed but upon evident ground 27. Seing Recognition is exclusive of all interests depending upon the Vassal therefore all parties having interest may compear and defend Hope de actionibus in factum Laird of Lugtoun contra Laird of Lethendie But there is no necessity to call any save the Vassal seing all other Rights fall in consequentiam as was found in Subaltern-rights in the said case Earl of Balcleugh contra Scot. Though Recognition be ordinarly by way of Action declaring the Deed upon which it is incurred yet a Donatar of recognition being Infeft thereupon was found to have sufficient interest to pursue succeeding in the vice in respect of a prior Decreet of Removing upon the Donatars Infeftment upon the gift of recognition without any preceeding Declarator March 22. 1623. Laird of Hunthil contra Rutherfoord 28. In Declarators of recognition the Superiours gift is sufficient Title without instructing the Superiours Right unless he be disclaimed or the Vassals be singular Successors But the Kings gift is absolutely sufficient and there will be terms assigned for proving the alienation of the major part and incident diligences against all havers for production of their Infeftments ad modum probationis Feb. 17. 1671. William Gordoun contra Sir Alexander Mcculloch And whereas gifts of recognitions bear the particular Deeds inferring the vacancy and return of the Fee in the Kings hands because general gifts are not allowable The extracts of Seasines were sustained in initio litis to instruct these Deeds but Warrand was granted to the defenders to improve the Seasines or Warrands thereof and thereby to call for the Principals February 26. 1681. David Edie contra Thores and Dun. And Diligence by Horning was granted to the Defenders of the improbation for producing the Seasines and Warrands February 23. 1681. John Hay contra Creditors of Murie And Declarator was sustained upon production of the gift though the Donatar was not infeft and though the Heir whose right was in question was minor and though his Authors bound in Warrandice were not called for the Priviledge of the minority hath no effect as to the Superiour and the Defender ought to intimat the plea to his Author January 28. 1681. Laird of Dun contra Scot. 19. Disclamation is when the vassal denyeth his Superiour to be his Superiour which is Diametrically opposite to that acknowledgement which is necessarly implyed in the matter of all Fees as there is in it the greatest ingratitude and therefore Disclamation as being much more favourable upon the part of the Superiour and odious upon the part of the vassal then recognition is not restricted to proper Fees by Ward-holdings but taketh place in all Fees and that not only when the vassal disclaimeth the Superiour as to the whole or greater part but if he disclaim him to be Superiour in any part of the Fee he looseth the whole Disclamation taketh no place if it proceed thorow ignorance of the vassal upon any probable ground which may several ways occur First as to the whole Fee when the case is not betwixt the first Superiour and the first vassal but betwixt their Successours as if the vassal should deny a person to be his Superiours Heir in that Superiority through any doubtfulness of his being lawful Heir or of his being that Heir to whom the Superiority is provided as being to Heirs-mail or of Tailzie But much more when the Superiour is singular Successor to the first Superiour in all which there be frequent and probable grounds of doubt and mistake Secondly The same ground of doubt may be when the question is about some part of the Fee and this much more that there may be many grounds of doubt whether that which is in question be a part of the Fee or not as when the Fiar hath several Conterminous Tenements holden of divers Superiours if he affirm any parcel not to be a part and pertinent holden of the Superiour acclaiming but of the other in that case the vassals not acknowledging the Superiour will not be accounted Disclamation and therefore though ordinarly it be held that a Superiour pursuing his vassal for any Duty or Casuality needs not instruct that he is Superiour or that the Defender is his vassal but that it proves it self unless he Disclaim as was found Hope Superiour viscount of Stormont contra Andrew Grant Yet that must be understood when the case is clear and when he is directly Disclaimed he may choose either to make use of the Disclamation or instruct his Title and so proceed March 26. 1628. John Stuart contra Laird of Wedderburn The main question is whether Disclamation can be otherways then judicially 〈◊〉 answers the case as to extrajudicial words that these are not ordinarly noticed in most cases as extrajudicial Confessions and the like but as to extrajudicial deeds of the Vassal as if he should take Infeftment from any other then his Superiour it would be as real Disclamation as any verbal one judicially could be but under the same Limitation if it were done of knowledge and of contempt of the Superiour and therefore in a dubious and contraverse right or in any case if the right were taken with provision of double Infeftment and thereby the granter not accepted simply as Superiour but only in the interim it would not infer Disclamation 30. Purpresture or Purprysion is the vassals going without his bounds and incroaching upon the Property of his Superiour for purpryses signifie the precincts and Marches the ground of it is from the fidelity and gratitude the vassal oweth to the Superiour and therefore should not invade his Inheritance but this is not extended to incroachment upon the Superiours Commonty as Craig
unexpyred not only as to his own Estate but as to the Cautioners Estate February 10. 1675. Lady Torwoed-head contra Florence Gardner 39. But the appryzer hath it in his option whether he will enter in Possession of the Mails and Duties or will uplift more thereof then his annualrent yet if a posteriour appryzer insist for Possession the first must either Possess do diligence and be countable or suffer him to possess February 11. 1636. Colqhoun contra Laird of Balvie But if the appryzer possess he must do diligence for the rent of that Land he possest and be countable not only for what he intrometted with but for what he might have intrometted with and if the Lands were Tennent-stead at his entry he must count accordingly at that rate though thereafter given over and waste if he neither set nor laboured them himself nor intimat to the debitor so to do Feb. 9. 1639. Brownhill contra Cawder The like found that the appryzer was countable according to the Rental allowing all defalcations Jan. 4. 1662. James Seaton contra Antony Roswal But where the appryzer entered in possession of the Lands waste he was not found countable according as he set them thereafter for the first year of his proper Labourage seing by the Season without his fault he lost thereby Decem. 23. 1629. John Dickson contra Young But an appryzer was found countable for the Rental of all the Tennents of a small Tenement lying contigue having taken Decreet against all the Tennents and yet refusing to count for some particular Rooms without showing any hinderance to uplift from these which other appryzers calling to account could not know that he had forborn these but nothing was determined as to the common debitors own labourage Jan. 14. 1681. Schaw of Grimmat contra John Mure Writer Yet where the appryzer was disturbed in his Possession by the debitor Via facti or via juris he was not found countable by a Rental but what he recovered till he attained to peaceable Possession Jan. 20. 1681. Burnet contra Burnet of Barns 40. The Act of Par. 1661. cap. 62. hath lengthened the legal of appryzings and hath brought in all who appryze within a year of the first effectual appryzing pari passu By this Act these these alterations are introduced as to appryzings First Whereas before the first appryzer being infeft or doing diligence had only access to the whole appryzed Lands till he were satisfied Now the Lords are impowered to limit the Possession during the legal as they shall see cause the appryzer getting his annualrent or security therefore and therefore an appryzer pursuing for removing and Mails and Duties his pursuit was only sustained for so much of the appryzed Land as she should choose the rent whereof would be equivalent to eight per cent of the sums appryzed for he being countable for the superplus more then his annualrent and publick burdens the defenders House and Mains being always excepted seing there was sufficient of other Rents June 27. 1672. Nicolson contra Sir William Murray But the power granted to the Lords to restrict appryzers is only personal and peculiar to the debitor and not to the posterior appryzers July 28. 1671. Murray contra Earl of Southesk and others Secondly All appryzings led since the first of January 1652. before the first effectual Compryzing obtaining Infeftment or charging the Superiour to receive or within a year after the same or to be led thereafter upon any persosonal debts come in pari passu as if they all had been contained in one compryzing the other appryzers paying to the first effectual Compryzer the expenses of his compryzing and Infeftment thereupon but the year is not to counted from the Infeftment or Charge by which the appryzing becomes effectual but from the date of the Decreet of appryzing July 4. 1671. Laird of Balfour contra Mr. William Dowglas But this extends not to appryzings or annualrents or other debita fundi and accordingly it was decided by the Lords that those other appryzers behoved to pay the whole composition to the Superiour Feb. 5. 1663. Robert Graham contra John Ross. Yet these appryzings that were prior to the Act were not found to come in pari passu from the dates of the appryzings albeit the Act bear that they should come in as if they were in one appryzing but only from the date of the Act of Parliament And as to what the first appryzer had possessed bona fide before the act of his intromission exceeded his annualrent the same should be imputed to the expenses of the compryzings and composition and in payment of the sums appryzed for pro tanto Jan. 7. 1665. Graham of Blaitwood contra Browns But an appryzing led before January 1652. though Infeftment or Charge were used thereon after Jan. 1652. was found to exclude all appryzers after Jan. 1652. whose Infeftment or Charge were posterior to the Infeftment or Charge upon the appryzing led before Jan. 1652. and that the said posterior appryzing did not come in pari passu with that led before Jan. 1652. Because the Act of Parliament relates nothing to appryzings deduced before Jan. 1652. Decemb. 12. 1666. Sir Henry Home contra Creditors of Kello And albeit the first effectual appryzing was satisfied and so extinct yet it did stand valid as to the second appryzing within year and day but a third appryzing was not found thereby to come in pari passu with the second appryzing as being within year and day thereof as if the second appryzing became the first appryzer Decemb. 13. 1672. Street contra Earl of Northesk and James Deans Feb. 20. 1679. Tennents of Mortoun contra Earl of Queensberry And where the first appryzer 〈◊〉 but a part of the Lands appryzed the second appryzer not Infeft was preferred to the third appryzer Infeft as to the remanent Rents because the second appryzer needed no Infeftment but the Infeftment upon the first appryzing was sufficient for all the appryzings led within the year of the first Decemb. 22. 1664. Doctor Ramsay and William Hay contra Alexander Seatoun There is also an exception from this Clause by another Act of Parliament 1661. cap. 21. Session 3. that second apprysers shall not be prejudged if they did acquire right to a former apprysing redeemed and satisfied by them for their own security before the said Act albeit led since Jan. 1652. which first comprysing shall remain in the same case as apprysings were formerly it was so decided without necessity to alledge that Right was taken to the first apprysing to shun the expyring of the legal or any other necessary cause Decemb. 9. 1664. Veatch of Dawick contra Alexander Williamson Thirdly The extent of the legal is altered from seven years to ten years so that where the legal was not 〈◊〉 the time of the act three years were allowed to redeem them from Whitsonday 1661. which terminated at Whitsonday 1664. Whereanent it being questioned whether intromission
himself and the heirs of the first Marriage and thereafter resigned and Infeft himself and the heirs Male of the second Marriage which failling his nearest heirs whatsomever these heirs Male the second Marriage failled And therefore not the Daughter of the first Marriage only but she and the Daughters of a third Marriage Succeeded by the second Infeftment as his heirs whatsomever substitute to be his heirs of the second Marriage Craig hath the Case but otherways observed lib. 2. dieg 14. Where a person had provided his Lands to the heirs of three several Marriages of each whereof there survived a Daughter The question was which of the Daughters should succeed Whether the first as having the first Provision or the last having the last Provision The parties were three Sisters Aikmans In which the Lords admitted all the three Sisters as heirs Portioners and so confounded the Provisions being all equal and about the same thing which must be the Reason and not that which is there rendered Because the Defunct notwithstanding of these Provisions in Favours of heirs might have Disponed effectual to a Stranger And so likewise to his own Children of another Marriage For that Reason would have excluded the Daughters of the first Marriage and preferred the Daughter of the last Marriage And as hath been shown Tailzies of Provisions upon an anticedent onerous obligation Such as is Marriage hinder the Fiar to dispone or provide the same to his heirs of Lyne representing him simplie and must fulfil his Obliegment Albeit his Disposition to Strangers not so representing him will be effectual And therefore Craig in that same place observeth in the case of Isobel Barron who being heir to her Father of his first Marriage by which it was provided that the heirs of the Marriage should Succeed to all Lands conquest during the Marriage And thereafter having a Son of the second Marriage who was his Fathers heir of Lyne to whom his Father Disponed or provided a Tenement acquired during the first Marriage Yet the said Isobel as heir of that Marriage recovered that Tenement from her Brother as heir of Lyne But the main difficultie remaineth when the obliegment in favours of the heirs portioners are un-equal for when they are equal whether they become extinct by confusion or not it is alike But if they be so extinct when they are un-equal there will not be an equal suffering or abatement but the greatest obliegment will be extinct as well as the least Neither can such obligations be wholly extinct by confusion but only pro rata So that if there be three heirs Portioners for example the obliegment granted to every one of them can only be extinct for a thirdpart because they are but heirs in a third part and as to two third parts each two of them are debitors to the third And if the obligation exceed the value of the heritage such of them as find themselves losers if they enter heirs may abstain and renounce and they or their Assigneys may pursue any of the rest that shal enter for fulfilling of the Defuncts obliegments but if they be considerat when all the obligations joyntly exceed the value of the Estate they will all Renounce and Assigne there obliegments and their Assigneys will be preferred according to their dilignece without consideration of the priority or posteriority of the obliegments but if they happen to enter or when their provisions are not Personal to themselves nominatim but as they are heirs of Provision and therefore necessarily require that they must be heirs before they can obtain their Provisions then the obliegments or Provisions of each Portioner are extinct as to their own proportion but they have like Action against the others heirs portioners for there proportion as other Creditors have the point will be clear by example if three Sisters were provided by the Father to un-equal Portions The first to 15000. Merks the second to 12000. Merks the third to 6000. Merks and the Defuncts whole Estate had only been worth 18000. Merks All of them entering the case would be thus The eldest would succeed to 6000. Merks of the heritage for her part and the second would be lyable to her for 5000. Merks as the third of the her provision to whom she would also be lyable for 4000. Merks as the third of the seconds Provision which being compensed the second would be lyable to the first in an 1000. Merks dc claro In like manner the first would be lyable to the third in 2000. Merks and the third would be lyable to the first in 5000. Merks which being ballanced the third would be debitor de claro to the first in 3000. Merks So the Interest of the first would be 6000. Merks as her own portion and one out of the Second and Three out of the Thirds Portion being in all a 10000. The second falleth 6000. as her share out of which she is lyable in 1000. Merks to the eldest and the youngest is due to her de claro 2000. Merks whereby her interest will be 7000. Merks the youngest Portion will be 6000. Merks out of which she is due to the eldest 3000. Merks and to the second 2000. So there will remain only free to her 1000. Merks This may clear the case as to liquid Sums and as to Dispositions or Provisions of Lands or other obliegments in facto These or the Interest or Value will be the same way effectual amongst the Heirs Portioners as if they had been made to Strangers Except where the same Disposition or Provision is made to divers of them For then either being equally oblieged to others as representing the Defunct the same become void and in-effectual protanto As was found in the case of the Sisters Aikmans But since the Act of Parliament 1621. against fraudulent Dispositions the first Disposition or Provision constituting that Party Creditor may give ground to Reduce a posterior Disposition of the same thing to another of the Heirs Portioners as being without a Cause onerous after contractiong of the first debt but that will not hold in Bands for Sums of Money all which will have their effect as is before said Neither will it hold when the Provision of Lands provideth the Party provided to be Heir for thereby the party cannot Quarrel that Predecessors Deed Otherwayes the first Obliegment or Disposition to any of the Heirs Portioners nominatim may Reduce any posterior Disposition to others of the Heirs Portioners Two Daughters being served both Heirs Portioners to their Father in some Teinds but one of them Succeeding to her Brother who was Infeft as Heir to his Father in Lands excluding the other Sister who was not Sister German to her Brother by both Bloods and both being pursued for their Fathers Debt they were not found lyable equally but proportionally according to the Interest they Succeeded to the one being only immediat Heir to her Father in a Right of Tiends wherein her Brother was not served
would succeed at the time of the Disposition and so may seem to be immediat apparant Heir pro tempore for so a Disposition by one Brother to another or to a Brother's Son the Disponer for the time having no Children will not inferre this Title November 22. 1662. Lawrence Scot contra David Beswell of Auchinleck Nephew to umwhile Auchinleck December 22. 1674. Heirs of Seatoun of Blair contra Sir Alexander Seatoun The like though the Disponer was an old man the time of the Disposition and had little hope of Issue December 17. 1632. Lady Spenserfield contra Laird of Kilbrachmont The reason is because the Brother or Brother's Son is not alioqui successurus by the course of Law while the Brother's Children are in spe and therefore such are never called apparant Heirs neither is the presumption in them that the Defunct would in prejudice of his Creditors adventure simply to dispone to such while he had hope of Issue but all this holds in Oyes And it was so decided January 29. 1639. Lady Smeatoun contra Richardson of Smeatoun where an Infeftment was granted by the Good fire to the Oye reserving his Son 's Liferent And in the like Case the Father who was but Liferenter and his Oye Feer by the Grandfather's Disposition was found lucrative Successor February 23. 1637. Lightoun contra Laird of Kinaber But this Decision was stopped to be further heard 6. But here occurreth the Question If the Disposition be anterior to the Debt contracted but the Infeftment posterior to the said Debt quid juris The ground of Doubt is that though the Defender had a prior Disposition yet by the Infeftment only he was Successor seing Lands pass not by Dispositions but by Infeftments and therefore he was clearly Successor post contractum debitum and also ex causa lucrativa 2. If this were not the meaning the intent of the Law would be frustrate for it were easy to make Dispositions and to keep them up and in the mean time to contract Debts when the Creditors could not know the Debitor's condition and so contracted bonafide This Case was not decided but the like Case was formerly decided negativè that the Infeftment though posterior to the Debt did not inferre this Title being upon a Disposition anterior to the Debt February 23. 1637. Lightoun contra Laird of Kinaber The like was found where there was an Obligement in a Contract of Marriage to dispone Lands prior to the Debt contracted albeit both the Disposition and Infeftment were posterior to the Debt and did not bear expressly in implement of the Contract which was presumed seing no other Cause was showen July 27. 1678. Thomas Ferguson contra Lindsay of Wauchope For answer to the contrary Reasons the first is upon misapplication of the words post contractum debitum which are not to be referred to Successor thus successor post contractum debitum ex causa lucrativa but successor ex titulo lucrativo qui titulus est post contractum debitum So that if the lucrative Title be not after the Debt this Title takes no place As to the other reason the same inconveniency will be of Dispositions to Strangers which being keeped up Creditors may contract bona fide And yet Inhibition before Infeftment will not be effectual unless it preceed the Infeftment and the Disposition which will also be effectual against the apparant Heir But if there be fraud in keeping up such Dispositions which will be easilier presumed in the person of the apparant Heir than a Stranger it will be sufficient upon the common reason of fraud to reduce the Infeftment though the general passive Title be not inferred The like was found where there was an Obligement in a Contract of Marriage to dispone Lands prior to the Debt contracted albeit both the Disposition and Infeftment were posterior to the Debt and did not bear expressly in implement of the Contract which was presumed seing no other Cause was showen July 23. 1678. Thomas Ferguson contra Lindsay of Wauchope And lucrative Successor was not found inferred by the Infeftment of a Father to his apparant Heir after the Debt contracted seing there was an anterior Obligement in the apparant Heir's Contract of Marriage to grant the Infeftment and Inhibition thereupon Nicol. de haereditariis actionibus March 31. 1626. Ker contra Sterling 7. This Title can take no place first where the Party to whom the Right is granted is not alioqui successurus in that same Right because it cannot be praeceptio haereditatis where there can be no haereditas And so a Disposition to an heir of Tailzie of Lands not provided to that heir of Tailzie cannot inferre this Title though it may be reducible as without a Cause onerous Neither will a Disposition of tailzied Lands to an heir of line inferr this Title For in that case it cannot be praeceptio haereditatis albeit the Disposition will be reducible as without a Cause onerous But there is more reason that Rights acquired originally by Predecessors in name of their apparant heirs cannot infer this Title because the Predecessor himself never being Feer in that Right the apparant heir could not be his Heir therein Neither can such Rights be reducible by the Act of Parliament 1621. because the falling thereof will not make the Fee return to thePredecessor who never had it but the same can only be reached by a Declarator That it was acquired by that Predecessor's means after the Debt contracted and therefore ought to be affectable as if it were in the person of the Debitor or his heir which hath frequently been found relevant TITLE XXX Executorie Where of Testaments Codicills Legacies Relict's part Bairns part Dead 's part Confirmations and Office of Executorie 1. The Romans carfeulnesse to preserve the freedom of Testing 2. The ancient form of Testing amongst the Romans 3. The modern form of Roman solemn Testaments 4. Their nuncupative Testaments 5. Their military Testaments 6. Requisits for Roman Testaments 7. How far Sons in familia could Test. 8. Persons who could not Test. 9. Persons who could not be institute or substitute 10. Restriction of the freedom of Testing in favour of Children 11. The Legittimes ofChildren 12. The Falcidian portion 13. The difference of the Legittime and Falcidian 14. The Trebellianica 15. Fidiecomissa 16. Codicills 17. Institution of Heirs 18. Substitution 19. Substitutions vulgar and pupillar 20. Legacies 21. Legacies are void if the Legatar die before the Testator or if the Testament be void unless there be therein a codicillar Clause 22. The Kinds and Effects of conditional Legacies or Fideicommissa 23. Special Legacies 24. Conditions adjected to Legacies in Fideicommissa 25. The Inventary 26. Collation 27. Jus accrescendi 28. The Power of Testing with us may be restricted by Contract or Portion 29. It is restricted to Moveables and extends to no heritable Right 30. Wherein the Office of Executors consists 31. The nearest Agnats are Successors in Moveables to the