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
Lords of Erection have presented which was largely debated in November 1677. concerning the Patronage of the Kirk of Allan whereunto the Laird of Watertoun had presented as deriving Right to an erection prior to the Act of Annexation and having desired from the Council Letters to Charge the Bishop to grant Collation upon the foresaid Act of Parliament ordaining Bishops to try and Collate upon the Patrons presentation the matter was remitted by the Privy Council to the Lords of Session in respect that the Officers of State did claim right to that patronage as belonging to the King whereupon the Lords did at first sist any further progress in admitting either the person presented by the King or by Watertoun till the matter were discussed but after hearing the Cause at length in their presence Wattertoun having alledged that his Author had an erection bearing the Patronage of this Kirk per expressum and that such Patronages were not annexed to the Crown because they were not comprehended in the Abbots Rights such Kirks not being then Patronat but Patrimonial and that the King in his Decrect Arbitral had determined nothing anent Patronages but that the Lords of erection had always enjoyed the same and that the Lords of erection retaining the right of the Teinds the patronage belong to them as consequent to the Teinds out of which the provisions for the Kirk is payable and it being answered for the King that though the Abbots had not the formal Right of presentation because the Kirks were not then patronat yet they had the right of Nomination or substitution of the Viccars who served in these Kirks in place of whom are now the Stipendiary Ministers these new patronages arise form the Dissolution of these Abbacies into distinct parochs must belong to the King and the power of nomination or presentation of these Stipendiars was comprehended in and annexed with these Benefices to the Crown by the first Act of Annexation but especially by the Annexations 1633. whereby upon the surrender of the Lords of erection of all their Rights and specially of their Patronages the King by his Decreet Arbitral had decerned to them only ten years purchase for the Feu-duty and nine years purchase for the Teind they could pretend to no more and so to no right of Patronage Likeas the King in the Interruption made by the 12 Act of Parliament 1633. did expressly declare that he will insist in his general Revocation as to the particulars enumerat in the Act of Interruption whereof patronage is one In this debate the Lords being desirous that the matter might be determined upon the clearest grounds and to know if prescription had cleared the matter and either party having alledged possession the Lords before answer Ordained either party to adduce all the evidence they could whether the King or Wattertoun and his authors had been in possession how long and what way TITLE XIX TACKS Where of Rentals tacite Relocation and Removing 1. The nature of Tacks 2. How Tacks become as real Right effectual against singular Successors 3. Who may grant Tacks 4. How Tacks may be set 5. The tenor of Tacks 6. The effect of obliegements to set tacks 7. Tacks become real Rights by possession 8. Tacks in Wodests after Redemption become valid 9. The extent and effects of Tacks 10. Tacks-men in possession need not dispute the setters right disputing as Heretable proprietar 11. The effect of Tacks whereof the Tack duty is payable to Creditors 12. Tacks are good active Titles for Mails and Duties 13. The effect of Tacks set to Husband and Wife 14. Kinds of Tacks 15. Rentals 16. The effect of Assignations or Sub-tacks of Rentals or other Tacks 17. The effect of Sub-tacks as to Tutors and Donatars 18. The effect of Rentals in Court Books or Rental Books only 19. The endurance of Rentals 20. The effect of Grassoums 21. How far Rentals become void by Alegnation Assignation or Subtack 22. Defect of Sub-tacks 23. Tacite Relocation 24. How Tacks fall in escheat 25. Tacks sleep during Ward and Non-entry of the setter and are valid against his LiferentEsheat 26. Tacks are Strictissimi juris and extend not to Heirs or voluntary Assignays or Sub-tacks or Removing but when exprest except Tacks for Liferent or equivalent 27. Tacks without Ish are null 28. How far Tacks to endure till a sum be payed are valid 29. Tacks are null without a Tack Duty 30. Tacks are valid though not expressing the Entry 31. Tennents must labour and not waste or open the ground for any Minerals 32. Tacks become void by two years not payment of the Tack-Duty 33. Or for not finding Caution to pay the Tack-duty bygome and in time to come 34. Or by the Tennents Renounciation 35. By contrary consent of both parties 36. By deeds contrary to the Tack 37. Or by removing 38. Summar Removing without warning in what cases 39. The old way of Removing Tennents 40. Warning of Tennents to Remove 41. The active Title in Removeings 42. Exceptions against Removings not instantly Verified are not receiveable till Caution be found for the Violent profites 43. Defences against Removing and replys thereto 44. Violent profites 45. Succeeding in the Vice of Tennents Removed 1. ATACk of it self is no more then a personal Contract of Location whereby Land or any other thing having profite or fruit is set to the Tacks-man for enjoying the fruit or profite thereof for a hyre which is called the Tack-duty which therefore did only obliege the Setter and his Heirs to make it effectual to the Tacks-man but did not introduce any real Right affecting the thing set and carried therewith to singular Successours 2. But so soon as the thing set ceassed to be the setters the Tacks could not reach it Thus it was with us tillthe Statute Par. 1449. cap. 18. whereby purchasers and singular Successors were disenabled to brake the Tacks set to the Tennents By this Statute Tacks become as real Rights affecting the ground And because they cannot come the length to be esteemed as Rights of Property they are ranked here amongst Servitudes personal for as Liferent-rights are real Rights putting a Servitude upon Hereditaments to the person of the Liferenter during life whereof a Liferent-tack is a kind so other Tacks do subject the thing set to the Tacks-man for a time and affect the same though it pass to singular Successors albeit the Statute only expresseth that buyers shall not break Tacks and is in favours of the poor Labourers of the ground for whose security it was chiefly intended yet it is extended against all singular Successors whether by Sale Exchange Appryzing Adjudication or any other way as the Statute beares in whose hands soever the Lands come and also in favours of all Tacks-men whether they be labourers of the ground or not whereby Tacks are now become the most ordinary and important Rights and if the great favour of this Statute made them not in other thingsto be strictly
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
been made thereon the time of the poinding neither when keeped on the Ground for the Masters Rent by his Servants seing they exprest not that cause nor craved not security therefore from the Poynder February 1. 1628. Laird of Halkertoun contra Kadie and Grieves But if it had been expresly for the Rents resting it would not infer Deforcement if such were truely resting Neither did resistance of poynding of Plough-Goods in Labouring time where there were other Goods sufficient infer Deforcement February last 1561. Abbot of Kilwinning contra Tennants stopping of poynding by the Master of the Groundor Landlord of an House for that years Rent infered not Deforcement December 7. 1630. Dick contra Lands or that he hindred entry unless there were special Warrant in the Letters to make open Doors 30. Contravention as it signifies any Act done against Lawborrows so it implys the Obligation of the Contraveener and the personal Right which the user of the Lawborrows hath thereby and likewise the Action by which it is pursued For the uptaking of all it must be considered what Lawborrows are which the word it self insinuats to be Caution found to do nothing but by order of Law for a Burrow or Burgh in our ancient Language is a Cautioner and Lawborrows is Caution to keep the Law the reason hereof is the safety and security of the people who in equity have no more then the Reparation of the Damnage they sustain through Delinquences or illegal Acts But to prevent such and terrifie evil doers a greater penalty then Reparation is appointed according to the Quality and Estate of the Injurer Par. 1593. cap. 166. The half of the Penalty is applyed to the Injured and the other half is Publick Par. 1581. cap. 117. By the Narrative of which Statute it is clear that before Lawborrows were granted only for safety against bodily harm in the persons of the Complainers yet for the reason therein expressed the same was extended that the Complainers their Wives Bairns 〈◊〉 and Servants shall be harmless and skaithless in their Bodies Lands Tacks Possessions Goods and Gear and no ways molested or troubled therein by the persons complained on nor no others of their causing sending hounding out ressetting command assistance and ratihabition whom they may stop or let directly or indirectly otherways then by order of Law or Justice By the same Statute it is also evident that Lawborrows are granted upon the supplication of parties fearing harm who without citing the other party but making Faith upon their Complaint have Letters of Horning summarly to Charge the party complained on to find Caution ut supra and if Caution be found the Action of Contravention doth proceed upon and conform to the Act of Caution but if obedience be not given the Complainer may proceed to Denunciation or Caption but the Contravention will proceed though there be no Caution found but only a Charge upon the Letters without Denunciation unless the Charge be suspended as uses to be done when the penalty charged for is exorbitant and not conform to the act of Parliament January 8. 1628. John Semple contra Cunninghame Contravention may proceed upon any Delinquence according to the Tenor of the Act of Caution or Letters of Lawborrows which though very comprehensive yet is not extended to Acts done without Order of Law being matters of inconsiderable moment as the Tilling up of some Furrows in a March the same being offered to be laid down and the Damnage to be repaired Nic. hic Nicolson contra Hay Neither is it sustained upon any illegal deed when the matter of Right was dubious as in matters of Molestation before the Cognition or before that the Marches be clear Spots contravention Laird of Balcaskie contra Florence Strang. Neither upon a deed done by a colourable Title though afterward reduced as entering in Possession by a null Decreet Hope hic George Moorhead contra Laird of Barskub Neither upon Pasturing upon Bounds contraverted or where there was no violence nor unlawfulness in Pasturage upon clear Marches July 14. 1626. Laird of Grange contra Lesly Neither upon a deed of Spuilzie against the pursuers Tennant not complaining though the Lawborrows bears Men-tennants and Servants to be harmless which was esteemed stilus curiae January 28. 1632. Grant contra Grant and February 9. 1633. Lindsay contra Dennistoun Neither was it sustained upon Deeds done by the Defenders Tennants without alledging Command or Ratihabition unless the Deeds be manifest or known to their Masters as in conveening dayly and cutting anothers Woods July 9. 1611. Vauns contra Laird of Balnagown Neither upon Deeds done by Servants without Warrand unless they be menial Servants Hope bic John Galbraith contra William Anderson Yet Contravention was sustained upon hurt done to the Pursuers servant though he was then Rebel being afterwards relaxed Hope Horning Bruce of Clackmannan contra Bruce It was also sustained upon attempts of injury though there was no hurt as a stroke on the Cloathes and one offer to strike with a Whinger December 21. 1609. Greenyards contra Clackmannan And also upon a violent troubling the Pursuer without Order of Law though without Damnage Spots hic Laird of Balcaskie contra Florence Strang. It is also sustained upon a Delinquence though there be another Action competent therefore as for Molestation November 29. 1609. Dundass contra Cuming of Ironside Or for violent Possession after Warning Hope de actionibus Cuthbert Cunninghame contra But if the other ordinar Action was insisted in and Decreet obtained Contravention also cannot be pursued though the other were offered to be renounced Hope contro Johnstoun contra Sir John Charters Contravention was elided by granting a Factory after the Deeds Lybelled to do the like reserving only Damnage and Interest February 19. 1633. Dennistoun contra Lindsay Contravention on several Deeds sustained separatim toties quoties And against many Contraveeners Contraveening in one Act but in such cases the Lords will modifie and lesten the Penalty within the Rate of the Act of Parliament Novemb. 29. 〈◊〉 Dundass contra Cuming of Ironside Nic. contro Sir John Scot contra Barns Contravention is not found pursuable before any inferiour Judge otherways the Decreet thereof will be null by exception July 6. 1611. Kennedy Taylzeor contra Kennedy of Garriehorn Yet it was sustained where the matter was small and the parties poor March 12. 1622. Blair contra Marshel In Contraventions the Kings Advocat must concur for the Kings Interest but he cannot insist alone as when the private party hath discharged the Deeds even after the intenting of the cause Hope entro Forrest contra Malcolme Turnbul TITLE X. Obligations Conventional by Promise Paction and Contract 1. The Original of Conventional Obligations 2. The Acts of the Will Desire Resolution and Ingagement and their Effects 3. Pollicitation or Offer and its Effects 4. Promise 5. Contracts in favours of third parties valid 6. Pactions and how Words are Obligatory 7. Naked Pactions 8.
enervat their Testimonies if they were made to swear at Sea the Privateer and Company having Swords and Pistols in their hands because to evite the insamy of Perjury they might adhere in their judicial Re-examination to their Testimonies taken at Sea upon oath albeit not true or if by force or just fear they did so depone before the Admiral Deput February 25. 1668. the owners of the Ship called the Castle of Riga contra Captain Seatoun The like was found where a great part of the Company were Hollanders June 30. 1668. Peterson contra Captain Anderson And in the case betwixt Captain Allan and Bartholomew Parkman decided July 9. 1668. the Ship was found Prize for having a number of Hollanders Sailers viz. three the Company being nine and for having a small parcel of Tar as counterband aboard and having aboard the product of counterband taken in the immediat return of that Voyage upon all which grounds joyntly the Ship was declared Prize But in this War there hath no Ship been declared Prize upon account of the Companies being Hollanders neither because the Master was a Hollander if he were not also a part owner albeit two of the Company were Hollanders July 24. 1673. Captain Bennet contra the owners of the Pearl But the Master being a Hollander was found a sufficient ground of suspition and seazure but not of Confiscation the property being proven to pertain to free men and therefore probation was allowed to either party July 16. 1673. Captain Lyle contra the Master of the Ship called the Leopard The hyring of the enemies people is no assistance to them in the War but rather a weakening of them so that if these of the enemies Country be only aboard as Servants to Newters and not upon their own account either as Traders or Passengers there hath been no inquiry in the last War as to their Residence neither hath any thing as to that point been mentioned in the last Proclamation of War or in His Majesties Instructions to the Admiralities of His Kingdoms and though the Law might have reached Ships Navigat by Hollanders residing in Holland and not changing the Domicile yet in favour and prudence that ground hath not been sustained it being more the Kings Interest to allow his enemies to withdraw from their Countrey then to force them to serve only there Counterband is not only a cause of Confiscation when taken going towards enemies Ports but also when the Ship is taken in her return from the enemies Port in that same Voyage for then the Delinquence is compleat whereas it had not taken effect before the Ship attained the Port and yet might be justly seazed before the full effect because the seazure of the Ship in her Voyage is the impediment that the effect is not attained and therefore the common custom of Nations hath allowed such seazures for otherways it were impossible to hinder Newters to carry Counterband-goods to enemies for carrying on the War neither will the pretence of altering their resolution to sail to or disload in a free Port be a sufficient Defence unless the Ship were actually stearing another course but if a Ship should be pursued to be searched for counterband in her passage to an enemies Port and should be waited for till her return and taken as she came from that Port there could be far less pretence to excuse that Delinquence and therefore it was one of the grounds of Confiscation of Parkmans Ship taken by Captain Allan that she was taken in the return of the same Voyage in which she carryed counterband to the enemies Ports July 9. 1668. And though in that case the reason was lybelled that the Ship was taken having in her the product of counterband having the same effect with counterband it self quia surrogatum sapit naturam surrogati yet without that in the foresaid case of Captain Lyle it was found sufficient that the Ship was taken in the return of that same Voyage in which she carryed counterband without mention of the product thereof July 16. 1673. in which case it was found necessar that the Ship belonged to the same owners that had carryed in the counterband so that though the Ship had been light without any Loading she would have been Prize unless she had been a Swedish Ship and so secured by the Swedish Treaty Confiscating only counterband when it is actually taken It is a most convenient moderation of the Law of Nations that the Delinquence of carrying counterband is followed no further then the immediat return of that Voyage otherways it would be the foundation of marring Trade by perpetual quarrels upon pretence of counterband carryed in to enemies in former Voyages In these Wars there has been no occasion to determine whether it be a cause of Confiscation if a Ship be taken in return of that Voyage wherein she was Loaded with enemies goods The Dutch by their Declaration did prohibit all Friends and Allies not only to carry counterband-goods to any Port in the Kings Dominions but to be found therewith upon his Coasts or diverting from the Voyage they might make with counterband towards the Kings Ports holding that for a sufficient probation of their intending these Ports which is like they would not take off by Documents aboard expressing their own Ports or the Ports of Newters it being so easie to procure false and colourable Documents yet that was never sustained as a relevant ground of Adjudication with us By what hath been said the confiscation of the Ships and Goods of Allies and Newters upon account of counterband and the assistance given to enemies thereby hath been cleared the other chief ground of confiscation of the Ships and goods of Newters is by their concurse with enemies in carrying on their Trade and therefore in all the Treaties the formula of Passes doth require that it be attested upon oath that the ship and Loading belongs to the Subjects of that Ally and no part thereof to the Kings enemies and likewise the particular kinds and quantities of the Cargo and the owners thereof and of the Ship must be exprest Some are of opinion that an unfree Ship Confiscats the Loading as accessory thereto but that unfree Loading or a part thereof doth not Confiscat the Ship which is but a groundless subtilty the reason of this Confiscation being the partaking with enemies in carrying on of their Trade it taketh place alike in the Ship and Loading or any part thereof but it being a Delinquence it hath still the exception of the bona fides and ignorance of these who partake in that Conjunction of Trade but though the Society or partnership was entered into before the War it was not found to liberat seing there was time and opportunity to dissolve it after July 17. 1673. Master of the Golden Falcon contra Captain Buchannan That a part of the Ship belonging to an enemy doth confiscat the whole Ship and Loading hath been of times decided even in
it was sufficient with Possession until the Solemnity of Instruments of Seasine was introduced and is still sufficient when Seasine is rightly adhibit for we follow not that subtility of annulling Deeds because they are sine causa but do esteem them as gratuitous Donations and therefore Narratives expressing the cause of the Disposition are never inquired in because though there were no cause the Disposition is good And albeit neither tenendas reddendo or the modus acquirendi be exprest yet if the property was the Disponers and he do but express the Disposition to be in Fee and Heretage it is valid for the reddendo is understood to be services accustomed in Ward-holdings and there will be carryed though not exprest all the parts and pertinents of the Fee And therefore any Disposition de presenti in Fee is valid as to that part of the Infeftment although the Disposition contained an obliegement to grant Charters yet the not granting there of doth not prejudge And if Charters be granted relative to prior obliegements yet the Charter is good without necessity to prove these Nor will it be sustained for the Superiour or any competitor that if the prior Obligation Disposition or Contract were produced it would be found conditional or have Clauses in favours of the Superiour or that Competitor whether generally or particularly alledged But if these were lost the Charter is sufficient and no more is understood to be in the real Right then what is contained in the Charter yea though the Charter bear according to the provisions and conditions contained in such a Contract Disposition or Bond which may import that the Superiour by granting the Charter without these hath not past from them and therefore he may insist upon them as personal obliegements and the Vassal will be oblieged to produce the same ad modum probationis by Exhibition as an incident diligence whereupon he must Depone whether he has them or had them since the Citation or did at any time fraudfully put them away But if without Fraud they be lost the Charter is sufficient and in no case doth require the production of any former ground Precepts of clare constat are also sufficient seing they contain a Precept to Infeft such a person as Vassal which implys the Dispositive Will of the Superiour and therefore is valid in place of a Charter from its date albeit it 〈◊〉 no effect against singular Successors as to that Vassals Predecessors Rights which must be instructed by the Rights themselves and not by the Superiours acknowledgement And for the same reason other Precepts of Seasine not relating to particular Charters or Seasines but either simple or bearing secundam cartam 〈◊〉 are sufficient although these Charters be never granted But there will be only understood a proper Ward-holding gratuitous without 〈◊〉 extending only to the Heirs of the Vassals Body but not reaching to 〈◊〉 or Ascendents unless the precept express or insinuat an onerous Title 〈◊〉 Vendition Excambion c. But since Write became to be an essential solemnity of Fees the Superiours 〈◊〉 Dispositive Act must be in Write but his preterit Declaratory Act acknowledging such a person and his Predecessors to be Vassals and have the Fee 〈◊〉 his obliegement to grant the Fee though never so express which relates but to a Disposition de futuro will not supply a Charter though clede with 〈◊〉 Possession or having Seasine by Instrument bearing to be propriis 〈◊〉 though by these the Superiour may be compelled to grant Charters 〈◊〉 and compleat bearing expresly all the ordinar Clauses in such Rights Yet 〈◊〉 〈◊〉 cases Adminiculation of a Seasine will suffice as in the Liferents of 〈◊〉 being proportional or in very ancient Rights or where in Competition no better Right is shown Much less is it necessary to have formal and ample Charters in the best style upon Parchment in Latine sealed and subscribed albeit Vassals are oblieged to accept no other and the Nottars drawers of such Charters may be deposed and censured yet the Right will not be annulled or postponed to posterior more formal and solemn Rights for want of these formalities 15. The formal Tenor of Charters is different according to the several kinds on Infeftments whereof some are original Infeftments by which the Fee was first constitute and therefore are most plain and simple containing the dispositive Clauss relating or insinuating the Title or original of the Right if it be an original Charter from the King it begins with His Royal Title Carolus Dei Gratia c. And bears the consent of the Thesaurer and Commissioners for the Thesaury and bears a Narrative of the Motives inducing the King to grant the same and if it be Ward or Blench in Burgage or Mortification it bears Damus concedimus in perpetuum confirmamus But if it be a Feu Charter it bears Arendamus locamus in emfeuteosin dimittimus in perpetuum confirmamus And then follows the Clause Tenendas and the Clause Reddendo which if it be Ward bears Servitia debita If Blench the particular Blench Duty nomine Albae firmae If Feu the particular feu duty and sometimes the duplication thereof and the marriage of the Heir If Burgage it bears Servitia Burgalia If in Mortification it bears Preces supplicationes And ordinarly Warrandices which though very ample hath no effect for if the Right prove invalid there is no Action against the King who doth always Dispone plenissimo jure but periculo petentis especially when he Dispones as Supream Superiour by the Right of His Crown But if he dispone for a price or cause onerous as for sums of Money or by Excambion Lands acquired by him being no part of the Revenue of the Crown or annexed property in these utitur jure privato and his warrandice may have effect as to his privat Patrimony and not as to the Patrimony of the Crown Charters granted by the King of Fees by progress are either upon Resignation or by Confirmation or upon Apprizing or Adjudication which differ from original Charters in their several specialities as Chartersupon Resignation after the Dispositive Clause bear the conveyance that the Lands or others were resigned in the hands of His Majesty or His Commissioners by a Procuratory of Resignation a-part or in a Disposition or Contract expressing its date in favours of the Acquirer his Heirs or Assigneys whereupon Resignation being made in the Resigners Life the Charter will be granted to him or to his Heirs served generally or to his assigneys having right by Assignation to the Procuratory of Resignation Charters of Confirmation do deduce the Right to be confirmed which if it be a Charter a se bearing to be holden from the Disponer of the King and expressing the Tenendas reddendo The Kings Charter doth in the like style generally relate the Charter to be confirmed and then Ratifies Confirms and approves the same in all the Heads and Articles therein and
then subjoyns the Tenor and Words of the Charter These Charters of Confirmation whensoever granted are drawn back to the date of the Charter Confirmed which were absolutely null till Confirmation unless there be a medium impedimentum as a prior Infeftment by Confirmation or upon Resignation by the Superiour yea though the Infeftment by Confirmation be after the death of the granter of the Charter to be Confirmed if the Superiour do Confirm it is drawn back and will import the Superiours passing from any Casuality falling by the death of the Author unless these be reserved wherein the neglect of the Kings Officers may not be imputed in his prejudice albeit Craig relates a case betwixt Kirkaldie of Grange and Ker in the contrary l. 2. Dieges 4. and adds this reason that the former Vassal granter of the Charter to be Confirmed dying before Confirmation it might be truely said that he dyed last Vest and Seased as of Fee which the subsequent Confirmation cannot make false yet this being fictione juris these fictions 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
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
Customs rule ordinarly according to the Feudal-books The doubt remaineth which may be cleared thus First Though in some cases alienation be extended to Location yet it is not so by the common feudal Customs Secondly If the Subfeu-dation be a real Feu-ferm whereby the Feu-duty is considerable and competent to intertain the Vassal such Sub-feudation is thereby accounted only Lacation Nor doth it infer recognition being in effect no more then a perpetual Location whereby the Antinomy in the Feudal Law is sufficiently reconciled that such Sub-feudations are not alienations But if the Sub-feudation be Ward Blensh or in Mortification or though it be under the name of Emphyteosis yet for an elusory or an inconsiderable and unproportionable Feu-duty which by no estimation can be correspodent to the profite of the Fee but within the half of the true worth in these cases the Sub-feudation is alienation inferreth recognition 14. As to our own Customs in this point they do agree to the common Feudal Customs as to Subaltern Infeftments Blensh Ward or in mortification or Elusory or unprofitable Feus But as to Feues by which the major part of the profite of the Ward or Fee is not taken away though such cases have not occurred to be contraverted they seem not to infer recognition for if the major part be not alienate Subaltern Infeudations though Blensh or in Mortification infer not recognition when these rights are disjunctim of parts of the Fee There appears no reason that the Subfeudation of the whole with a Feu-duty equivalent to the half of the true Rent whereby in effect the half is not alienate seing the dominium directum of the whole and the profite of the half is retained should infer recognition especially now when generally Fees are granted for Causes Onerous 15. And by the Statute allowing Feues Par. 1457. cap. 72. It is provided that the Feu be set to a competent avail which by the said Statute is cleared to be without diminution of the Rental and which is commonly interpret the retoure duty because it was the publick valuation and rate at that time And by the said statute such Feues are confirmed and declared not to be prejudged by the Ward without mention of the hazard of recognition as not being consequent upon such Feues But this Statute being abrogate as to the Leiges Par. 18. Ja. 6. cap. 12. All Sub-feues of Ward-lands holden of Subjects without the Superiours consent are declared null and void But there is no mention of recognition to be incurred thereby And Feues are only prohibited as being in prejudice of the Over-lords who are not prejudged if the major part be not alienate seing all Subaltern Infeftments not exceeding the half are allowed by Law And albeit the Narrative of the Act respect Feues preceeding it yet the Statutory part is only as to Feues granted thereafter And the like prohibition is appointed for the King and Princes Vassals Par. 1633. cap. 16. The effect of this Act as to the Vassals of the King and Prince was suspended till the next meeting of Parliament and the Vassals exempted therefrom in the interim Par. 1640. cap. 36. And the said Act was wholly repealed Par. 1641. cap. 58. And so remained until all these Parliaments were Rescinded seing the private rights of parties acquired thereby by the general Act Rescissory Par. 1661. cap. 15. But it hath been found that alienations during these Acts now rescinded and during the usurpation when Wards were discharged did infer recognition seing the Vassal did not seek Confirmation after the Kings return December 15. 1669. Maitland of Pittrichy contra Gordoun of Gight The like was found in the recognition at the instance of Sir George Kinard contra the Vassals of the Lord Gray The like though the base Infeftment inferring recognitien was in Anno 1643. when there was a Statute then standing allowing such Infeftments seing after rescinding that Statute no application was made to the King for Confirmation January 7. 1676. Cockburn of Riselaw conira Cockburn of Chouslie But recognition was excluded where the Vassal required the Superiour to confirm the subaltern right debito tempore or did purge the same by procuring resignations ad remanentiam to himself from the Sub-vassals February 12. 1674. Viscount of Kilsyth contra Hamiltoun of Bardowie But recognition was not found against a Pupil upon his Tutors taking Infeftment for him during the Usurpation July 15. 1669. Jack contra Jack Whereby it is clear that Feues have no effect against the Superiour as to the Ward Non-entry more then Tacks 16. Whether the alienation be by Infeftment holden from or of the Vassal there is no recognition with us except in Ward-holdings yea if the holding be dubious and soa probable ground of error of the Vassal as being a payment of Money in the Reddendo with Service used and wont which though truly Ward yet because the payment of Money may render it dubious Craig holdeth in the said Dieg. l. 3. that it would not infer recognition yet this will not give ground to think that alienation of Lands Taxt-ward would excuse from recognition because Ward is more clear and expressed nominatim in that case in it self for the Casualities thereof being Taxed as the Marriage and Ward-duties Which 〈◊〉 is but a Liquidation or Location of these casualities when they occur and no alteration of the nature of the Fee and therefore in the said pursuit at the instance of the Lady Carnagie contra the Lord Cranburn it was not found relevant to exclude the recognition that the Ward was Taxed 17. It is also clear that alienation whether by Infeftment holden of or from the Vassal not exceeding the half of the Fee inferreth not recognition so much being indulged to the vassals for his conveniency or necessity but if together or by parcels or by Annualrent the major part be alienat not only that which then was in the vassals person falls under recognition But as Craig holdeth in the forecited place Dieg. 3. l. 3. even the whole Fee So that parcels alienat validly but without the Superiours consent before become void and return But though the vassal grant Infeftments exceeding the half of the fee yet if some of them were extinct before others were granted so that there was at no time rights standing together exceeding the half of the see recognition is not incurred February 23. 1681. Iohn Hay contra Creditors of Muirie But Deeds done by Predecessors and their Heirs or Authors and their Successors were in that case conjoyned Upon the same ground an Infeftment of the see in Liferent would not infer recognition because it exceeds not the half of the value Yea recognition was found not incurred by granting an Infeftment in Warrandice for Warrandice is but a hazard in case of Eviction not equivalent to the half of the worth of the Lands granted in warrandice unless the right of the principal Lands were manifeftly defective Feb. 21. 1623. Cathcart contra
it did so much appear that the Parliament of purpose had omitted it yet in the said case Greirson contra Closburn upon the 21. of July 1636. they did forbear to intimate their Decision and desired the parties to agree And no Composition was found due by an Adjudger having Charged before the late Act of Parliament December 23. 1669. whereby like Compositions are appointed for Adjudication as for appryzing July 10. 1671. Scot of Thirlestain contra Lord Drumlanrig In which case it was found that the Superiour might refuse to enter the Adjudger if he payed his debt but that he was to have nothing for Composition if he did so in the same way as in appryzing by the old Act of Par. 1469. cap. 36. by which that option is given to the Superiour 49. Craig observeth that it was doubtful in his time whether there were a Legal Reversion competent to any renuncing and afterward returning to Redeem Adjudications or Appryzings wherein he favoureth the affirmative but the said Statute Par. 1621. cap. 7. determineth the case and granteth a legal Reversion in favours of these who have posterior Adjudications within the space of seven years or ten years since the Act of Par. 1661 betwixt Debitor and Creditor which is also competent to any Renuncing in their Minority and being restored against the said Renunciation but it is not competent to any other Heir renuncing yet if the Heir though Major find that he hath prejudged himself by renuncing a profitable Heritage he may grant a Bond and thereupon cause within the legal adjudge and redeem the former Adjudications which though to his own behove will be effectual there being so much equity and favour upon his part being willing to satisfie the whole debts 50. It is clear by the said Statute the Lands or Heretage of a Defunct may be Adjudged the heirs renuncing not only for satisfaction of the Defuncts debt but of the heirs own proper debt 51. Adjudications are taken off and extinguished in the same manner as appryzings are by intrometting with the Mails and Duties of the Lands adjudged as is clear from the said Statute And though cases be not so frequent in Adjudications as in appryzings to clear the other ways of their extinction Yet the reason being the same in both there is no doubt but the determination will also be the same 52. The other manner of Adjudications is for making effectual Dispositions or obliegements to Infeft whereupon when the acquirer hath used all diligence competent in Law against the disponer to fulfil the same by obtaining Decreets and Horning Registrat thereupon either against the Disponer or his Heir Law being there defective and cannot make the Disposition or Obliegement effectual the Lords have allowed Adjudications of the Lands disponed whether in Fee or Liferent July 19. 1611. Lord Johnstoun contra Lord Carmichael Spots hic contra Bruce of Airth And thereupon the Superiour will be discerned to receive the Adjudger as was found in the case of an Obliegement to Infeft a Woman in Liferent holden of the Superiour wherein she having used Horning the Superiour was decerned to receive her July 10. 1628. Harris and Cunningham contra Lindsay Feb. 24. 1675. Marion Hamiltoun contra Mr William Chiefly The like in the case of an Heretable Disposition whereupon the acquirer having obtained Decreeet against the disponers heir for Infefting him and used Horning thereupon The Director of the Chancelary was decerned to Infeft the acquirer Decemb 16 1657 Ross contra Laird of May. This manner of Adjudication is extended no further then to the thing disponed and hath no Reversion It requires no Charge to enter heir or renunciation but the adjudger must instruct his Authors right June 24. 1669. Mr. Dowgal contra Glenurchie These Adjudications do not come in pari passu with other Adjudications within the year nor any other with them July 16. 1675. Campbel of Riddoch contra Stuart of Ardvorlick Decemb. 2. 1676. Lady Frazer contra Creditors of the Lord Frazer and Lady Marr. 53. By the late Act of Pavliament anent adjudications there are introduced two new forms of Adjudications the one special of Lands effeirand to the sum and a fifth part more in case the debitor produce his Rights and put the adjudger in his Possession of his particular Lands adjudged But if he do not adjudications are to proceed as appryzings did generally of all the debitors Lands or real rights periculo petentis redeemable within ten years These Adjudications are come in place of appryzings especially the general adjudications which are declared to be in the same condition in all points as appryzings were by the Act of Par. 1661. cap. 62. Except as to the lengthening of a Reversion from seven to ten years So that what hath been said of Appryzings will have the same effect as to general Adjudications but special Adjudications being equitable and favourable will not meet with such strictness This Statute hath taken away the greatest Reproach upon our Law which for every debt indefinitely appryzed every Estate great or smal which had no excuse but that the debitor might redeem in seven years But all debitors being necessitat to appryze within a year or to have no more then the legal Reversion paying the whole debts the power of Redemption came to be of little effect few being able to pay all their debt in one day But now if any debitor complain that his whole Estate is adjudged and no proportion keeped betwixt the debt and his Estate it is altogether his own fault seing he might offer a proportional part and liberat all the rest of his Estate which part is Redeemable also in five years And though a fifth part be added it is no more then the ordinary penalty being an 100. Pounds for a 1000 Merks and 50. Merks for the Sheriff-fee makes 200. Merks being the fifth part of a 1000. Merks and which was sustained in the most favourable cases of Appryzings from the beginning and the Reversion was for seven years Adjudications being executive Decreet the Lords allow them the greatest dispatch and to prevent Collusion whereby some debitors might be postponed by debate and probation till the year pass which would excludethem Therefore the Lords do not suffer Co-creditors to stop Adjudications that they might see for their entress and put the pursuer to abide the course of the Roll unless they produce an Entress upon which the Ordinar will hear them immediatly without going to the Roll Jan. 22. 1681. Earl of Dundonald contra Dunlop and his Creditors Neither is the Superiour suffered to propone defences Jan. 13. 1675. Kinloch of Gourdie contra Mr. James Blair and James Strachan Yea the Lords sustained the establishment of the debt in the same Lybel with the Adjudication July 26. 1676. Alexander Boyd contra Boyd of Pinkill But if the debitor himself appear the Cause goes to the Roll and if there be prior adjudgers defences proponed against the debt or adjudication
which are not like to be verified within a year of the first adjudication the Lords adjudge and reserve these defences contra executionem by Suspension In which terms will be granted because of the reservation but there is this advantage that how long soever the Suspension be of expeding the first decreet being within the year brings the adjudger in pari passu TITLE XXV Confiscation Where of single Escheat Liferent-Escheat Shipwrack Waith-goods Treasure Forefaulture Bastardy and Last-heir 1. The Tenor of Letters of Horning 2. The executions of Horning must bear the party Charged personally or at his dwelling-house designed 3. The Execution at the dwelling-house must bear six knocks at the most patent Gate because the Messenger could get no Entry 4. The knocks must be audible that these within may hear 5 If the Messenger get entry the delivery of a Copy to any of the Family is sufficient without knocks and must be so exprest 6 The days requisite for the Charge beyond the Water of Dee 7. The denunciation must be against the party and at the Mercat Cross of the Jurisdiction where he dwells 8. The denunciations must bear three Oyesses or the equivalent 9. The execution must bear three blasts of the Horn. 10. The execution must be stamped 11. The Horning must be Registrate and how 12. Denunciation after satisfaction hath no effect 13. The effect of general Letters of Horning 14. The order and effect of Relaxation from the Horn. 15. The single Escheat and extent thereof 16. How far the denunceds debts or deeds affect his Escheat-goods 17. Gists of Escheat and preference thereof 18. Gifts of Escheat not expressing the particular Horning whereon they proceed 19. Gifts of escheat though bearing goods to be acquired extend but to these acquired within a year after the gift 20. Escheats within Regality 21. In what cases gifts ofescheat are held simulat 22. Who must be called in the general declarator 23. The Titles and Tenors of general declarators 24. Exceptions against general declarators 25. Special declarators of escheat 26. Liferent-escheat 27. Confiscation of Treasures Waith or Shipwrack-goods 28. Forefaulture 29. Several kinds of Treason by Statute 30. Forefaulture Confiscats without the burden of the debts or infeftments not confirmed by the King 31. How far fews are effectual against Forefaulture 32. How far Tacks of forefault Lands are effectual 33. Forefaulture by arescinded Act was burdened with the debts and deeds of the Rebel 34. Forefaulture when and how it may proceed in absence 35. How far the person of the Rebel gives Right to the Fisk. 36 The effect offorefaulture of appearand heirs 37. In what cases forefaulture dishabilitats 38 How far the forefaulture of appearand heirs may be extended 39 Explanation of the Act of Parliament 1594. cap. 202. importing burdening of forfaultures with the debts and deeds of the Rebel 40 Forefaulture is reducible upon any nullity but only by way of grace 41 How far forefaulture takes effect without declarator 42 What Children are lawful and what bastards 43 Declarator of Bastardy 44 The effects of Bastardy as to Succession 45 Legitimation and effects thereof 46 How the debts and deeds of the Bastard affect his Estate 47 Ultimus haeres and the difference thereof from Bastardy THE Conveyance and Transmission of all kinds of Rights from private parties to the Fisk are here comprehended under one common Term and Title of Confiscation It is not proper in this place to treat of the Fisk or priviledges thereof or upon the several Causes upon which Confiscation followeth these being publick Rights but we shall only consider the several kinds of Rights or things that befal to the Fisk from private parties and how they return to private parties again by Gifts and Processes thereupon and this is either in reference to Moveables Liferents or the Property and Stock of Heretable Rights and others Moveables fall to the Fisk either wholly and intire and that is chiefly by Denunciation and Rebellion or by some special Statute the penalty whereof is Confiscation of Moveables such are breach of Arrestment or Deforcement wherein though the private party injured have an interest yet in effect the whole is Confiscat and a part belongs to that party by vertue of the Statute thereanent whereby they are constitute Donatars Or otherways some particular Moveables befalleth to the Fisk either by Custome as Waith-goods Ship-wrack c. or by Statute Liferents befal to the Fisk by the Denunciation of the Owner and remaining unrelaxed year and day or by such Statutes whose penalty is the loss of the Liferent The Stock or Property of Heretable Rights fall to the Fisk by forefaulture or becoming caduciary the Confiscation of the whole Moveables is called the single-escheat and of the Liferent is called the Liferent-escheat We shall only speak of the Single-escheat of Moveables by Denunciation having spoken of breach of Arrestment and Deforcement Title Reparation Secondly Of Liferent-escheat Thirdly Of Escheat of particular Goods as Shipwrack c. Fourthly of Forefaulture And lastly of things Caduciary especially by Bastardy and last Heir and of Gifts and Processes thereupon Escheat though it be a common Term signifying any Confiscation yet it is restricted to Moveables and Liferents and most properly to Moveables so that when it is simply exprest it is ordinarly taken for single-escheat or Escheat of Moveables but before we descend thereto it is fit to consider of the ordinary Cause thereof and of Liferent-escheat viz Horning Horning proceedeth thus by Letters Executorial giving warrand to Messengers at Arms to charge any partie in the Kings name to obey what is contained in the Letters under the pain of Rebellion And if he obey not within the dayes of the charge giving power to Denounce him Rebel by publick Proclamation at the Mercat Crosse of the Head Bargh of the Shire Stewartry Bailliarie of Royalty or Regalitie within the which the Denunced dwells and that by publickreading of the Letters of Horning and giving three blasts of a Horn for the clear manifestation and notice thereof from whence it is called Horning And because of the Certification the partie Denunced is called Rebel by a term too rough such Persons not being in Hostilitie against the King nor being publick enemies but only Denunced upon Causes Civill which they lye under frequently not through contempt but inability to satisfie The English do more properly call this Execution Out-lawerie whereby the partie becumes Out-law and hath not a person to stand in Judgement Active or Passive And if such should be called by us the Denunced it were smoother and more suitable then the odious term of Rebell Seeing Horning is the ground both of single Escheat and Liferent Escheat It would be fit to go through the several Requisites thereof in order and the nullities arrysing thereupon First the Letters of Horning must be Signet And therefore though the Bill was past and the matter small and the parties Indigent a Horning not
they be done before year and day expire being after the Rebellion And so Arrestments or Assignations even though before Rebellion have no effect after year and day is run because these being but Personal and Liferent-escheat a reall Right flowing from the Superiority whereby the Vassal is denuded of the Liferent Therefore the effect of these Personal rights ceaseth But all reall rights flowing from the Vassal before the Rebellion as Fews Annualrents Tacks Appryzings and Adjudications whereupon there was a Charge are effectual and not excluded by Liferent-escheat though these are excluded by Ward which is a Casuality following the nature of Fewdal Rights Whereas Liferent-escheat ariseth not from the Nature of Fies but is introduced by Law or Custom and therefore the Fie falls in the hands of the Superior as it was in the hands of the Vassal with all the Real burdens he had fixed upon it Neither does Posterior voluntary Infeftments though for debts prior to the Rebellion and granted before Declarator exclude the Liferent-escheat Jannuary 18. 1611. Samuel Ord contra the Laird of Craigkeith The like where the Infeftment was granted after Rebellion but within year and day January 23. 1627. James Wallace contra Thomas Porteous Where there is an exception insinuat unless there had been an prior obliegment before the Rebellion to grant thelnfeftment as if in that case though in cursu Rebellionis it would be sufficient to exclude the Liferent The like was found that Infeftments upon a voluntary Disposition made in cursu Rebellionis within the year and for a debt due before Rebellion excluded not the Liferent-escheat March 19. 1628. Mr James Rae contra Buckie Hope Horning Laird of Frendraught contra Meldrum Gordon of 〈◊〉 contra Gordon of Haddo But Infeftments in cursu Rebellionis upon special obliegments to grant the same before Denuneiation are valid vide Tit. 14. § 53. As to Legal Diligences of Creditors whither Appryzing and Infeftment thereupon being after Rebellion will exclude the Liferent-escheat was declared the last Title in the second effect of Appryzings the sum whereof is that they are thus far preferablé to voluntary Dispositions That being done in Cursu Rebellionis for a debt before Rebellion There being Infeftment or Charge in cursu Rebellionis they exclude the Liferent Secondly Single-escheats require general and special Declarator Liferent-escheats require but one Declarator for all wherein the Title is the Horning the Gift and the Superiors Seasine without farder instructing the Superiors Right and without Continuation July 2. 1622. Carmichael contra Lermont March 6. 1624. Dowglas contra Eastnesbit June 23. 1625. Viscount of Stormont contra And there is no necessity to instruct the Lands holden of that Superior by the Defender The reason is because that is presumed unless the Defender disclame or that the Superior be a Singlar Successor never acknowledged by the Vassal or his Predecessors 27. Shipwrack and Wath Goods or Treasures in the ground whose owner appeareth not are Confiscat as Caduciarie whereby the owners are presumed to Relinquish or loose the same And so a jure sup cadunt and the things become nullius and yet belong not to the first Possessor as things relinquished do by the Common Law but do belong to the King by his Royal Prerogative or to others having Right from him We have spoken of these before in the Title Real Rights And shall only add this that by that just and Noble Statute Par. 1429. cap. 124. It is declared that where Ships break in this Countrey the Ship and Goods shall be escheat to the King if they belong to such Countries as use the like Law anent Ship-wrack in there own Land otherwayes they shall have the same favour as they keep to Ships of this Land broken with them It is also declared amongst the Statutes of King Alexander the Second cap. 25. That if any Living Man or Beast as Dog Cat c. come quick out of the Vessel the same shall not be accounted Ship-wrack but shall be preserved to the Owner claming and instructing his Right within year and day Or otherwayes it shall belong to the King So was it found where an ox escaped alive out of the Ship and the Admirals Decreet finding the same Escheatable as Shipwrack was Suspended Simpliciter December 12. 1622. Hamilton contra Cochran In which case nothing was alleiged but this old Statute the genuine meaning whereof seems only to be where any person came to Land the Ship and Goods should not be confiscat as Wrack but the posterior Act Par. 1429. cap. 124. Repeats not that provision but regulats the matter according to the custom of other Nations to do to them as they do to us without any other Limitation And therefore where some Persons came to Land the Ship being broken the same with the Goods dispersed were Confiscat If Confiscation in the like case should be proven to be the Law or Custom of that place to which the Ship belonged January 20. 1674. Jacobson contra Earl of Crawfoord 28. Forefaulture is the great Confiscation comprehending all other Penal Confiscations It is extended to the taking away of Life Lands and Goods Par. 1424. cap. 3. For it is the Penaltie of the highest Crime to wit Treason which at first and by its native Signification it expresseth Crymes against the Life of any partie under Trust So the Slaughter of any person under Trust Credit or power of the Slayer is declared Treason Par. 1587. cap. 51. 29. Thence it is also called Treachery and the Committers thereof Traitors And because of that Trust betwixt the King and all the Leiges as their Superiour and Soveraign The chief point of Treason is against the Kings Person as appeareth by the Act last Cited These also who without cause wilfully raise a fray in the Kings Host commit Treason Par. 1455. cap. 54. Upon the same ground because of the Trust betwixt the Superiour and his Vassal such Crimes against the Superiour is also called Treason and thereby the committer Looseth for ever all Lands and Heritage he held of that Sùperiour quoniam Atachiamenta cap. 19. But this Treason infers not a Simple Forfaulture but only is a ground of Recognition But as now the Terms are take Treason and Forefalture of Life Lands and Goods are adequat and wherever the one is exprest in any Act of Parliament the other is understood for the Stryking or Slaying of any person within the Parliament House during the time of Parliament within the Kings Inner-Chamber Cabinet or Chamber of Peace the King being within his Palace or within the Inner-tolbooth the time of Session sitting or within the Privy Council-House the time of the Council sitting or in his Majesties Presence any where is declared Treason Par. 1593. cap. 173. Impugning the Dignity or Authority of the three Estates of Parliament or procuring any Innovation or Diminution of there Power is prohibit under pain of Treason Par. 1584. cap. 139. And also declyning the King and