the Neices name seing he filled it not up till the granters Sicknesse July 22. 1678. Birnies contra Polmais and Brouns But Death-bed was not found to hinder the recalling of a Disposition made by a Grand-father to his Oye and delivered to a third Party in Leige poustie if it should appear that the delivery was not Simply to the behove of the Oye whereby it became Irrevocable but Conditionally that the Disponer might recal it for eviden ce whereof it was proven by that third Parties Oath That the Defunct on Death-bed called for it and he delivered it and that the Defunct on Death-bed delivered two Blanks for dividing the Right in the first Disposition which he delivered with his said first Disposition to a Nottar And ordered the filling up of the one half to the Heir the other half to a second Son but for further clearing the Partie to whom the first Disposition was first delivered was appointed to be examined what the Defunct exprest when he delivered the first Disposition to him Decem. 9. 1676. Janet Ker contra Ninian Ker. But thereafter the third Partie not being found to be examined The Lords found that there being nothing proven exprest at the delivery The recalling and the re-delivery did import that the delivery was not Simple to the behove of the Oye making it Irrevocable But that it was Conditional to be delivered to the Oye if the Disponer did not recall it and that his recalling of it for a special effect to divide the same betwixt his Heir and the second Son was effectual both against his Oye to whom he first Disponed and as effectual against his Heir as to the one half albeit the Revocation was onDeath-bed Seing thereby the Heir had no prejudice but benefit being formerly Excluded by the Disposition to the Oye delivered in Liege Poustie January 25. 1677. inter eosdem 30. But onlyFree deeds onDeath-bed are thusReduceable for if there were an equivalent Cause Onerous which was truly Imploy'd upon the Defunct or might affect the Heir it is not to the Heirs Prejudice and so not Reduceable thus the Reason of Death-bed was eleided because the Band quareled was offered to be proven for Furnishing truly Delivered to the Defunct July 13. 1632. Pollock contra Fairholme The like of a Discharge granted by a Bastard after he was Infected of the Plague against the Donatar of the Bastardry November 23. 1609. Marr contra Auchinleck In all these Witnesses are Sustained to prove the Cause Onerous in the write And likewise a Band granted on Death-bed being proven for a Cause Onerous in part viz. Droggs and Service to the Defunct on his Death-bed was sustained pro tanto and Reduced for the rest January 7. 1624. Schaw contra Gray But a Liferent granted to a Wife on Death-bed and a Liferent-Tack of Teinds of the Lands Liferented were not reduced Hope Teinds Lady Dunlap contra Laird Dunlap The reason whereof is observed to have been because the Husband before Sickness was bound to Infeft his Wife in Lands or Anualrent equivalent Nicol. de haereditarijs actionibus inter eosdem 31. AsDeeds on Death-bed prejudge not the Heir So deeds in Testaments though done in Leige Poustie have no more Effect then on Death-bed And it is not habilis modus by Testament to dispone any Heritable Right December 14. 1664. Colvin contra Colvin Death-bed is not competent by Exception but by Reduction January 11. 1666. Grizell Seatown contra Dundas But in Declaratorie or Petitory Actions as Recognition it is receivable by Exception July 20. 1669. Barcley contra Barcley Or in a Reduction it is competent by Exception or Reply February 3. 1672. Barbara Hoom contra Bryson A third difference is that Successors in Moveables or Executors are not lyable Passive for the Defuncts Debts in Solidum but Heirs are Though they farr exceed the Value of the Inheritance without the benefit of an Inventar And though Craigs Opinion is that Heirs may Renounce even after their Entry if the Heritage appear overburdened The course of Decision since his time hath cleared the Contrary 32. Because Heirs entring cannot Renounce there is Annus deliberandi allowed to them by Law in which they may abstain from entering and Immixing themselves with the Heritage and then they are not conveenable for the Defuncts debt upon charges to enter Heir or otherwise but if they enter or meddle sooner they are lyable This Annus deliberandi is ordinarily accounted a year from the Defuncts Death which was so accounted though during a great part thereof the Heir remained unborn February 7. 1610. Knows contra Menzies But the Contrary was found thereafter that the year was accounted from the Birth of the Posthumus Heir that the benefit of Deliberation might be profitable to his Tutor in his Name Spots Heirs Livingstown contra Fullertown If the Day of Compearance be after the Charge to enter Heir and after the year it will be Susrained June 27. 1667. Dewar contra Paterson In which case it was found that even Actions Real as Reductions 〈◊〉 c. which require no Charge to enter Heir are not Competent within the year of Deliberation because in these the Heir cannot Defend without the Hazard of behaving as Heir 33. Succession in Heritable Rights in Scotland are either by the will of the Fiar or by Law Provistone Hominis or Legis Heirs by the 〈◊〉 of Law are called Heirs of Line as befalling by the Line of Succession appointed and known in Law all other Heirs do Cross or Cut that Line and therefore are called Heirs of Tailzie from the French word 〈◊〉 to Cut whence Craig conceiveth this Tailzied Succession hath been first denominat amongst the French and Normands and thence being brought into England by the Normand Conquest both in Custom and Name hath been Derived to Us Yet it is liker to have come to us Immediatly from France with which we keeped greater Intercourse then with England of Old And our Tailzies at least to Heirs Male are Ancienter than the English which begun but from the Famous Law called the Second Statute of Westminster in the Reign of Edward the First of that Name of the Normand Line Heirs of Tailzie are also called Heirs of Provision which terms are Equiparat both comprehending all Heirs which are not according to the Line or Course of Law and among others Heirs Male and Heirs of Marriage Yet our Stile doth ordinarily distinguish them so that where there is no alteration from the Lineall Heirs Male and where there are severall Substitutions of certain Persons or Lines failling others by the tenor of the Infeftment they are Specially called Heirs of Tailzie but when there is an Alteration of the Lineal Succession yet not Simply to Heirs Male nor to divers Members of Tailzie they retain the common Name of Heirs of Provision as is most ordinar by Contracts of Marriage providing Lands to the Heirs of the Marriage whereby the Heirs Lawfully Procreat betwixt the
was found to have no Aliment from his Mothers Life-rent who brought 8000. Merks of Tocher and had but 10. Chalders of Victual in Life-rent July 21. 1626. Laird of Ramorny contra Law The like where the Heir was not Minor but designed himself Preacher and so having a calling Feb. 11. 1636. Sibbald contra Wallace Here the Relict was Infeft in no Land but had an Annualrent of 400. Merks out of Land and the Heir was not Minor Whereas the Lords thought the Act of Parliament was not in favours of Majors who ought to do for themselves but all must be considered complexly in this Decision Some Heirs by their Quality not being bound to follow Callings but the Life-rent was a mean Annualrent no more then an Aliment to the Relict the Pursuer Major and having a calling And certainly where the Life-rent is but an Aliment the appearand Heir must rather want then the Person provided for a cause onerous Though the Act mention only Ward Lands yet it was extended to a Minor having no Ward Lands against a Life-renter of all his Fstate being Houses and Annualrent of Money Feb. 22. 1631. Fiinnie contra Oliphant In this case it was not found sufficient that the Life-renter offered to maintain the Minor her own Child upon her own charges she being married to a second Husband But the Tutor obtained modisication with consideration of the moveable Heirship on the contrary where the Mother was not married her offer of Intertainment was received July 14. 〈◊〉 Alexander Noble and his Tutors contra his Mother Neither was the modifi cation excluded because there were free Lands at the Defuncft Death seing they were appryzed thereafter for the Defuncts debt Hope de haered White contra Caldwall The like the debt being great and the Annualrent thereof equivalent to the rent of the Lands not Liferented Feb. 13. 1662. Antonia Broun contra her Mother But Aliment was not found due by a Father Life-renter to his Son on this Act but only super Jure Naturae July 21. 1636. Laird of Rumorney contra Law Nor by a Grand-father to his Oye who had disponed his Estate to his Son reserving his Life-rent of a part the rest unsold by his Son being Life-rented by his Wife July 7. 1629. Hamilton contra his Goodsir But where the Heirs Mother brought a great Tougher and the Grand-father fell to a plentiful Estate by his Brother the Heir was found to have Aliment of his Goodsir though he disponed the Land to the Heirs Father burdened with his Mothers Life-rent June 27. 1662. Heir of Gairn contra Laird of Gairn This behoved not to be from the Statute but ex debito naturali Aliment was found due by a Liferenter to her daughter the appearand Heir though she renounced to be Heir July 16. 1667. Hamilton contra Symonton But where a Father disponed to his Son a part of his Estate reserving his Life-rent and another to his Son and his Wife in Conjunctfie after his Sons Death his appearand Heir got no part of his Aliment from his Goodsir but only from his Mother Feb. 26. 1675. Sr. John Whitfoord contra Laird of Lamington Aliment was found due to the Heir by an Asigney to a Gift of Ward without necessity to prove that he intromitted with the Ward Lands unlesse he had been Legally excluded which was Modified by the Lords And it was not found sufficient to intertain him in the Assignyes Family but nothing was Modified for that time that the Minors Mother Alimented him gratis Feb. 19. 1679. Sibbald of Cair contra Sr. Alexander Ealconer 4. Heirs also not entered have the benifite of such obliegments or provisions conceived in Favours of Heirs which by their Nature or Meaning require to be fulfilled before the Heirs entry As when a Party was obleiged to imploy a Sum upon Land and to procure himself and his Umquhil Spouse Infeft therein in Life-rent and the Heirs Procreat betwixt them in Fee the Bairn of the Marriage who would fall Heir was thereby found to have Right to crave his Father to imploy the Money accordingly though he never was nor actually could be Heir his Father being alive December 16. 1628. Laird of Collington contra Granton In this case the Lords inclined so to decide but decided not But that day Durie observes a like case decided July 7. 1632. Young contra Young The like was decided Feb. 13. 1677. Alexander Frazer contra John Frazer In which case a Father by his Contract of Marriage being obleiged to imploy a certain Sum upon security to Him and his Wife in Conjunct-fee and to the Heirs of the Marriage and likewise to take all Conquest during the Marriage the one half to the Wife in Life-rent and the other to the Heir of the Marriage in Fee after the Wifes Death Process was sustained at the instance of the apparent Heir of the Marriage against his Father who was decerned to imploy the special Sum to himself and after his decease to the Heir apparent of the Marriage albeit therby the Father would remain Fiar and might dispone or burden the Sum so imployed for reasonable Considerations but not by Deeds meerly gratuitous to evacuat the obleigment And if he did Deeds prejudicial he would be obleiged to purge the same or re-imploy 〈◊〉 But it was not so found as to the Conquest before the Marriage which might be altered during his Life for that only could be accounted Conquest that he had more at his Death then at his Marriage And so Heirs of a Marriage in an obleigment in case a Wife deceased without surviving Heirs of the Marriage these were Interpret Bairns of the Marriage who survived their Mother but died before their Father and so could never be served Heir to him January 26. 1630. Turnbul contra Colinshlie The like where a Father was obleiged to Infeft himself and his Spouse in Conjunct-fee and the Heirs procreat betwixt them c. The apparent Heir was found to have interest to pursue the Father for fulfilling thereof and of the obleigment adjoyned not to dispone in their prejudice Hope de haeredibus Hamilton contra Silvertonhil Tacks set to Heirs require no service but being Notour to be the Person who might be served Heir they have right without service June 9. 1675. Hoom contra Johnston of Oldwells 5. As to the benifit of Heirs they have Right not only to Obleigments conceived in favours of the Defunct and his Heirs But though there be no mention of Heirs unlesse by the nature of the obleigment there be a speciallity appropriating the same to the Person of the Defunct only as in Commissions Trusts c. So Heirs were found to have the benifit of a promise made to their Predicessors for disponing of Lands to him acquired for his use though it mentioned not Heirs Feb. 22. 1610. Heir of Jean 〈◊〉 contra Livingston The like of a Reversion not mentioning Heirs which was thought to be omitted by neglect seing it bore not
The question is also moved here whether the thing Depositat may be detained for the necessary and profitable expenses wared upon it though Law and most Interpreters fovour the Negative upon the same ground that compensation is excluded but the Affirmative is preferred because as the contrary action is competent for the Melioration so much more the exception being a part of the same Contract and therefore the Lord Balmerino having by his own Missive and Back bond acknowledged that the Estate of Jedburgh was Disponed to him in trust to the behove of the Earl of Somerseat all the expense on the Land or for Somerseat in contemplation of the trust was found competent against Bedford who had adjudged Somerseat's Right And in all cases in the Law where Action is competent Exception is also competent and so with us if instantly verified Amongst the Romans there was an Edict of the Pretors in deposito to this effect that Depositars should be oblieged to restore or make up the single value But in things Depositat through the present occasion of Tumult Fire falling of Houses or Ship-wrack in the case of not due Restitution for the double l. 1. ff depositi wherein there is much utility to secure persons Depositating of necessity in these deplorable cases but it hath not been allowed by our Customs as yet 56. It may be questioned if any thing be Depositate to more Depositars whether they are lyable in solidum So that the Deponent may crave Restitution or Reparation from every one for the whole value or for his share only The Civil Law is clear for the Affirmative that all are lyable in solidum l. 1. § 43. eodem and upon good reason because it is fidelity in preserving one Individual thing that is undertaken which therefore de natura rei must obliege every person to the whole seing he is not oblieged to restore a part of the thing Depositat but the thing it self yet if the Depositars be all solvendo they are free paying their part the thing depositat being Money l. 22. si duo haeredes ff depositi but in this case there were not more depositars but more Heirs of a Depositar And in this Depositars and Con-tutors differ that the diligence of these even as to their Con-tutors being greater then of the other this being consequent to the nature of Depositation will no doubt be followed by us In deposito in the Law the Deponent hath beneficium juramenti in litem or to prove the particulars or quantities wanting and their value secundum praetium affectionis because of the exuberance of Trust in this Contract l. 1 § 26. ff depos but not the Depositar in the contrary action l. 5. eodem where the reason is added because there is no breach of Faith nor Trust but Damnage and Reparation in question The Depositar also detaining being condemned becomes infamous l. 1. ff de his qui infamia notantur Hence it is from this Trust that if a Chest or other continent sealed be Depositat action is competent for all that was therein shown or not l. 1. § 41. eodem and therefore in such cases the Deponents Oath in litem must be taken or else this Interest perisheth which is suitable to our Custome before mentoned in the case of Inn-keepers and there is good reason and equity pro pretio affectionis but I have not observed it questioned or decided This being a Contract of greatest Trust Restitution is to be made cum omni causa as Fruits and Birth and Annualrent post moram l. 2. C. depositi but Annualrent with us is not due sine pacto but may be made good by modification of expense by the Lords There is a frequent case of Depositation of Writes before delivery thereof which therefore suspende their effect until the Terms of the Depositation appear which is unquestionable by the Oath of the Party receiver of the Write both that the Write was not delivered but depositat and also upon what terms 57. Pledge either signifies the thing impignorat or the Contract of impignoration in the same way as Pignus in the Law is taken and it is a kind of Mandat whereby the Debitor for his Creditors security gives him the pawn or thing impignorat to detain or keep it for his own security or in case of not payment of the Debt to sell the Pledge and pay himself out of the price and restore the rest or the Pledge it self upon payment of the Debt all which is of the nature of a Mandat and it hath not only Custody in it but the power to Dispone in the case of not payment but if the profite of the Pledge be alloted for the profite of the Debt which is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 it is a mixt Contract having in it a Mandat and the exchange of the Usufruct or use of the Pledge for the use of the Debt 58. This Contract hath this special in it that it is not meerly to the behove of the Constituent as ordinarly Mandats are but it is to the behove of the Hypothecar for his security and so ends not with the death of either party nor is Revockable as other Mandats but passeth to Heirs and Assignays and therefore requireth greater diligence then Mandats viz. such diligence as prudent men use in their Affairs but obliegeth not for the lightest fault l. 23. ff de reg juris This is also singular in Wodsets or Impignorations that thereby there is constitute a real Right in the Pledge which no Deed nor Alienation of the Constituent can alter or infringe which is not so in Mandats or things Depositat neither in Location whereby there is only a Personal Right and if the property of the thing be Alienat from the Constituent the Personal Right hath no effect as to the thing about which it is Constitute but there is here a real Right of which hereafter among other real Rights 59. We shall not insist in the manner of the sale of Pledges prescribed by the Roman Law and the Intimations or Denunciations requisite to be made to the Debitor that being wholly changed by our Customes for in Wodsets of Lands the Wodsetter hath a Disposition of the Property but with a Reservation or Paction to sell back again to the Debitor upon payment of the Debt and so the Wodsetter cannot by vertue of the Impignoration sell the Lands and pay himself but all he can do is to affect the Wodset Lands by legal diligence as an other Creditor and if any other prevent him in diligence they acquire the Right of Reversion and no posterior diligence of his can take it away or capacitate him to acquire the full property of the Pledge or to alienate it simply to another The like is in the Impignoration of Moveables which cannot be thereby sold but the Creditor may affect them by his Legal Diligence by Poynding thereof 60. In Impignoration either of Heretable or Moveable Rights the
before showen intrusion is where the entry is made in possession without violenc but without warrand or consent as ejection is by violence But these contrary acts though unwarrantable yet they take away the possession that is detained by the mind 20. Possession then is lost by a contrary Possession and it is interrupted by contrary acts and attempts of possession which if they do not attain the effect to expulse it it is called also a troubled or disquieted possession for nothing can be possessed in solidum by more then one either simply or in relation to the same right as there cannot be more Proprietars then one of the same kind though one be superior and another Vassal so more Liferenters cannot possess in solidum and therefore the entry to possess that which is already possessed must expulse the prior or else introduce a partial and common possession yet it is not the contrary attempts or every act that expelleth a prior possession but if the same be violent the prior possessor hath the benefit of possessory Judgements and may lawfully use violence to continue possession which afterwards he may not for recovery thereof when it is lost though unwarrantably or violently Thus Possession is transferred from one to another But Possession is simply lost when it is forsaken and relinquished it is not easie to be known when Possession is detained by the mind and when relinquished wherein there is a general Rule that dereliction is not presumed except it appear by evident declaratory Acts or Circumstances as when it is thrown away in any publick place where it cannot but be taken up or when another is suffered to possess without contradiction or when possessory Acts have been long abstained from all which conjectures are in arbitrio judicis 21. From what hath been said the ordinary distinctions of Possession may be easily understood as being either natural or civil continued quiet and peaceable or interrupted and disturbed lawful or unlawful Under which distinction are comprehended possessio bonae fidei which may be called innocent Possession and malae fidei or fraudulent and Possession publick and clandestine and long possession momentany or precarious 22. To come to the Right implyed in Possession it is mainly in two points First in the right to continue it against all illegal contrary acts Secondly The right of Appropriation of the Fruits consumed bona fide both these are introduced by positive Law for utilities sake For by equity any man might at any time recover the possession of that which is his own by force and all the Fruits thereof whether extant or consumed But civil Society and Magistracy being erected it is the main foundation of the peace and preservation thereof that possession may not be recovered by violence but by order of Law and therefore there is no more allowed to private force then to continue possession against contrary violent and clandestine Acts immediatly after acting of the former or notice of the latter But a violent clandestine and unlawful possession may not be troubled though there be an evident right much less may Possession be entered where there is a Right in a party himself or his predecessor to whom he is Heir in that thing for as they are accounted as one person in Law so their Possession is accounted as one Possession Like unto this is the Right of appearand Heirs to possess their predecessors Rents though they be not Infeft which will not only exoner the possessors but if the appearand Heir die uninfeft his nearest of kin will have right to the Rents resting from his predecessors death to his own death and these will be subject to hi own proper Debts albeit they will not affect the Land it self but the next appearand Heir must enter to the Defunct last Infeft and his Person and Estate will only be lyable for the Debts of the Defunct to whom he entered 23. The other Possessory Right is that which was allowed in the Civil Law bonae fidei possessor facit fructus consumptos suos l. certum 22. Cod. de rei vindicatione the reason whereof is because they who enjoy that which they think their own do consume the Fruits thereof without expectation of repetition or account else they are presumed to reserve them or imploy them profitably for Restitution and if it were otherways there could be no quiet nor security to mens minds who could call nothing securely their own if the event of a dubious Right might make them restore what they had consumed bona fide and as it is in the favours of the innocent possessor so it is in hatred of the negligence of the other party not pursuing his Right 24. This Right is only competent to possessors bonae fidei who do truely think that which they possess to be their own and know not the right of any other but private knowledge upon information without legal diligence or other solemnity allowed in Law at least the private knowledge be certain is not regarded nor doth constitute the knower in mala fide March 14. 1626. Nisbit contra Williamson But a Mother was not found to enjoy this benefit in prejudice of her Children there being several presumptions of her knowledge of their right November 20. 1662. Children of Wolmet contra Lady Wolmet and Dankeith her Husband In some cases a Citation and Production of any other evidently preferable Right is sufficient when the possessor hath no probable Title but where he hath a doubtful Title mala fides is only induced by Litiscontestation or Sentence as in Reductions whether the defender is lyable for the bygone profites from Citation Litiscontestation or Decreet is in the arbitriment of the Judge July 11. 1627. Pitmedden and the Lord Elphingstoun contra Smith The like in a Tack reduced upon a failzie Hope Reduction Seatoun contra Seatoun The like June 2. 1610. Mr. Robert Hunter contra Lord Sanquhar The like as to a Decreet of Removing reduced and the violent profits found due only after Litiscontestation in the reduction January 24. 1611. Jousie contra Mortimer And found only to take effect after Sentence in Reduction of an Appryzing because the half of the of the sum was payed Hope poinding James Lamb contra Smeatoun Hepburn And though the Possessors Right was but a Tack which fell in consequence with the setters 〈◊〉 reduced in Parliament yet the Tacks-mans Possession bona fide was sustained though he needed not to be called to the Decreet of Parliament seing that on that Decreet there was nothing done to make him know it or put him in mala fide July 19. 1664. Elizabeth Dowglas and Longformacus her Spouse contra Laird of Wedderburn Upon this ground an adjudger was preferred to the bygone duties uplifted by him to a prior Appryzer who charged the Superiour to Infeft him before the Adjudication December 1. 1632. Laird of Kilkerran contra Ferguson This was extended to the profits uplifted by Infeftment upon a Disposition though
Tacit conditions in Feus 52. Liferents reserved in Infeftments of Propertie 53. Exceptions in Infeftments how far effectual 54. Faculties reserved in Infeftments 55. Burdens of sums in Infeftments how far effectual 56. The effect of impossible or unlawful conditions in Infeftments 57. Conditions inconsistent are null 58. Clause de non alienando in Tailzies 59. Clauses restrictive and irritant in Tailzies 60. Regalia not exprest are not carried by Infeftment 61. Regalia are carried in Barony though not exprest 62. Jurisdiction and Courts 63. Jurisdiction of Baron Courts how far restricted 64. Issues of Baron Courts belong to themselves 65. Infeftments of Constabulary 66. Fortalices how far extended 67. Forrestries 68. Hunting of Deer inter regalia 69. Salmond-fishing 70. Cruives 71. Milns 72. Priviledge of Brewing 73. Part and pertinent 74. Wood and Coal 75. Houses and Biggings and Park Dykes 76. Fowling Hunting and Fishing 77. Cunningars 78. Dovecotts 79. Free Ish and Entry 80. Herezelds 81. Steelbow-goods 82. The effect of Infeftments in possessorio 83. The effect of Infeftments in petitorio 84. Inhibitions and their effects against Infeftments THE Roman Empyre in Italy being long opprest and at length supprest by the Inundation of the Longobards and other barbarous Nations who seated themselves there and divided these beautiful Courtreys amongst their Captains and they sub-divided the same to their Souldiers for their Military service and as they were the authors of this new Right so they did term it by a new and barbarous name Feudum which the Germans call Fiff and we with the English call a Fee concerning which there was no common written Law but the several Provinces had their diverse Customes as they thought most suitable to the nature of this Right and their own utility These Books annexed to the Civil Law called Libri Feudorum though they have great respect amongst Lawers yet they are but the observations of privat persons and so not a written publick Law By the Irruption which happened in the sixth Century the Civil Law was sopit for five hundred years it was revived in the eleventh Century and did take in with it the Feudal Customes which have been propagat through the most civil Nations in the World not only for strengthning them towards War but because Soveraigns had thereby a new interest over their Subjects and Inferiors thereby becoming their Feudatars and Vassals owing always to them fidelity and oftest following as their Clients and Assecles acknowledging them as their Lords Superiours and Paramount in their Lands and Heretages which are all derived mediatly or immediatly from the Soveraign authority as the common and supream Superiour of all the Subjects who have any more then the right of unfixed Moveables 2. And thereby also ariseth the Feudal Jurisdiction whereby not only the Soveraign power but all Superiours do by the advice and assistance of their Vassals who are called Peers of their Court order and determine all things not only relating to themselves and their Vassals but to all others who are locally within their Territories both in Civils and Criminals in so far as they derive Jurisdiction Civil or Criminal from the Soveraign power immediatly or mediatly no Nation is more exact in this then Scotland wherein the King as Supream Superiour ruleth by His Vassals assembled in Parliament in which at first all were personally present who held Lands immediatly of Him as Barons great and small Free-holders and Prelats for Church-lands the free Burghs were also represented in Parliament by their Commissioners as holding their Burgage Lands and their Freedoms and Priviledges of Burghs as Feudaters of the King so that there was not one foot of ground in Scotland whose Lord was not present in Parliament But when Fees holden of the King became sub-divided or multiplied two or more Commissioners were admitted in Parliament in name of the meaner Barons and Free-holders all were accompted great Barons who held an hundred merk Land or above of the King and the rest meaner Barons Par. 1503. cap. 78. So also other Superiours have their Courts consisting of their Vassals who are oblieged to answer suit thereto who as a Jury gave Doom and Judgement of old when all matters proceeded by Jury or Inquest as it was also in the Kings Court by Sheriffs Bailzies c. of which the shadow or formality yet remaineth of having a Doomster as a member of Court to pronounce sentence though Inquests be in most things laid aside through custom 3. The very right of Superiority carryes this right of Jurisdiction over the Vassals unless by their Infeftments or Prescription they be exempted Our Learned Countrey-man Mr. Thomas Craig Advocat hath largely and learnedly handled the Feudal Rights of this and other Nations in his Book de Feudis and therefore we shall only follow closely what since his time by Statute or Custom hath been cleared or altered in Feudal Rights which is very much for he having written in the year 1600. there are since many Statutes and variety of cases which did occur and were determined by the Lords and have been de recenti observed as they were done by the most eminent of the Lords and Lawers as by Haddingtoun who was President of the Session and by President Spotswood and by Dury who continued in the Session from the year 1620. until his death in the year 1642. And though these Decisions have been intermitted since that time till the Kings return the loss is not great these times being troublesome and great alterations of the Lords but the Decisions of the Lords have been constantly observed since the Kings return by which most of the Feudal Questions are determined and these things which Craig could but conjecture from the Nature of the Feudal Rights the Customs of neighbouring Nations and the opinion of Feudists are now commonly known and come to a fixed Custom neither doth he observe any Decisions particularly by the time further then his own time in which our Feudal Customs could little be determined seing the Lords of Session were mutable and ambulatory till the year 1540. in which King James the fifth did perfect the establishment of the Session in a Colledge of Justice who at first could not be so knowing and fixed in their forms and customs and therefore it cannot be thought strange if the Feudal Customes as they are now settled do much differ from what Craig did observe he hath indeed very well observed the origine and nature of Feudal Rights and the Customs of Italy where they began and of France and England whence they were derived to us and therefore we say little as to these And so much only of the Rights themselves as must necessarly be introductory to our fixed Customs in which we shall follow that same Method as most accommodat to the matter which we observed in the former Title of real Rights But there being in Feudal Rights nothing of that original Community which is therein being only a promiscuous property
the Lands that the value and worth thereof might the more clearly appear where after discussing of the Appryzers Claim the hability of the persons of Inquest and Witnesses so much Land was appryzed and adjudged as was worth the sum the years Rent to the Superiour and expenses of Infeftments and if the Lands were burdened with any former annualrents whereby a proportion of Land could not be appryzed free of burden there was appryzed an annualrent forth of the Lands effeirand to the sums and expenses foresaid and redeemable in the same manner which was sustained by the meaning and intent of the Statute though by the words of it appryzing of Lands was only mentioned it was ever extended to all Heretable Rights thus it continued till the Lords of Session upon exceptions against the Sheriff upon his interest relation or enimity or upon the lying of Lands in diverse Jurisdictions for preventing of expenses by many appryzings where the Lands in one Jurisdiction sufficed not did grant Letters of appryzing under the signet direct not to the ordinar Sheriffs but to sherifts in that part which being frequent did come to run in course to Messengers as sheriffs in that part c. And thereby the appryzer in respect the Letters had a blank for inserting the Messengers name did choise the Messenger who did denunce all Lands and other Heretable Rights which the appryzer pretended to belong to his debitor And in respect the Letters bore dispensation of the place did apprize at Edinhurgh all that the appryzer clamed in satisfaction of the debt without knowledge or consideration of the value of the Lands or others appryzed or proportion to the sums appryzed for and thereupon was Infeft in the whole and payed to the superiour a composition for a years Rent of the whole which was a considerable accession to the Debitors debt and behoved to be payed by him and by the saids appryzings the appryzer might and oftentimes did enter in possession of the whole Lands without being countable for the rents thereof of what quantity soever By this abuse the intent of that excellent statute for appryzings was enervat and the same turned in a meer Formality until the Par. 1621. cap. 6. which began to correct that exorbitant abuse and declared appryzers countable for their intromissions in so far as exceeded their Annualrents to be imputed in their principal sums pro tanto and that they being thereby satisfied of their sums principal and annual composition to the superiour and expenses of appryzing and infeftments that thereby the appryzing should expyre ipso facto and it is also declared that if the Lands appryzed be not worth of free rent effeirand to the annualrent of the said sums that before redemption he shall be satisfied of the superplus By which Act it is declared that Minors may redeem Lands appryzed from them at any time within their age of twenty five years compleat yet so that after the first seven year the appryzer shall have the benefit of the whole Mails and Duties till he be redeemed which hath always been extended to Lands appryzed from persons being Major if a Minor succeed during the Legal and if a person being Major succeed to him who was Minor he hath the benefit of Reversion of seven year in so far as was not run in the Minors life and if less remain then a year at the Minors death the Major hath a full year to redeem after the Minors death and by the Act 1669. of the abrogat Parliament 1641. appryzers were declared countable for the rents of appryzed Lands intrometted with by them during all the time of the Legal whether competent to Minors or others And because of another great abuse by the debording of Appryzings from the first institution that the first appryzer appryzing the whole Estate the other Creditors had no more but the Legal Reversion which did ordinarly expyre the subsequent Creditors not being able to raise money to redeem the anterior appryzer whereby the first appryzer carried the whole Estate and excluded all the rest and being ashamed to take so great a Legal advantage and sometimes not daring to make use of it did ordinarly compone with the debitor his appearand heir or some confident to their behove whereby the debitors heir recovered his whole Estate by satisfying one Creditor and excluding all the rest therefore the Par. 1661. by their Act 62. anent debitor and creditor declared that all appryzings deduced since the first of January 1652. or to be deduced in time coming within a year after the first appryzing which became effectual by infeftment or Charge should come in pari passu as if one appryzing had been led for all the sums and thereby the legal was extended to ten year and it is declared that whensoever the appearand heir or any to his behove shall acquire right to any expyred appryzing that the same shall be redeemed from them within the space of ten year after their acquiry by posterior appryzers upon payment of what they truly payed in so far as shall not be satisfied by their intromission But neither did this statute cure the abuse of appryzings and therefore the Act of Par. of the 6. of septem 1672. upon consideration of debording of appryzings from the first design and of the great inconveniencies arising thereby for the bringing in of all appryzers within year and day did give way to break the credit and ruine the interest of the most considerable Heretors in the Kingdom that creditors being thereby invited under the hazard of being excluded to appryze within a year and thereby one wilful malicious or necessitous Creditor apprizing all the rest followed and intirely brook their credit unless they would pay all their debt in one day therefore the Parliament did in place of Appryzings ordain adjudications to proceed before the Lords of Session for adjudging the Lands and other Heretable Rights of debitors effeirand to the sums appryzed for and a fifth part more in place of the penaltiies and sheriff-fee and allowed Witnesses for either party for clearing of the Rental and rate of the Lands in the several places where they ly and appointed the adjudger to have present Possession of the Lands adjudged not being accountable for his intromission during the Legal redeemable only within five year whereby the Creditor had easie accress for his satisfaction without all hazard or account which had been the ground of many tedious Processes of Count and Reckoning for the Intromission of former Appryzers and wherein the Adjudgers is to have the Consent of his debitor both as to Right and Possession and delivery of the Evidents and it is declared that if the debitor do not instruct and deliver a good Right and consent as said is that the creditor might adjudge all the debitors Estate in the same manner and to the same effect as is appointed by the Act of Par. 1661. between debitor and creditor We shall not here speak of
heir of Conquest and the other retaineth the common name of the heir of Line Conquest is feudum novum whereunto the Defunct did not succeed as heir to any Person or whereunto the Defunct could not succeed as heir for if that were disponed to him by the Defunct whereunto he would have succeeded it were but Preceptio haereditatis and so remained to be repute as heritage to descend to the Younger and not to ascend to the Elder as Craig observeth lib. 2. dieg 15. Such heritages are rare and befall only by Tailzie or Provision amongst midle Brethren Because the eldest by primogeniture excludeth the rest from being heirs of Line but it may befall in case of the heirs of Lyne when the nearest Successor is the Fathers or Grand-fathers Brothers or their Issue there being Elder and Younger Brothers but Conquest is frequent because not only that which is acquired properly by the means and industry of the Defunct But that which is by Gift of the Defuncts Parents or any other or whatsoever the Defunct could not succeed to is Conquest Yet if the heir of Conquest succeed that which was Conquest becomes heritage and descends As if there were four Brothers and the third acquiring Lands Died without Issue the second would be his heir therein who if he Died also Infeft the Lands would fall downward to the Youngest Brother and not upward to the Eldest Brother The custom of England is contrary for thereby the eldest Brother succeedeth to all his Brothers failling the Issue But with us the Immediat elder or younger doth always succeed though of different Marriages none of them being Brothersgerman And therefore in the case proposed by Craig lib. 2. 〈◊〉 15. In fine of a Brother by a second Marriage dying without Issue and having three Brothers of a former Marriage no doubt the youngest would succeed according to the Opinion of Oliphant and King there related Albeit that Craigs opinion be that the eldest would succeed It was so decyded contrary Craigs opinion July 20. 1664. Laird of Clerkington contra Stewart Heirs of Conquest succeed not only to Lands Conquest by their immediat Predicessors but in other heritable Rights passing by Infeftments as Annualrent or such as are heritable by distination and which are accomplished by Infeftment as Despositions of Lands or Annualrents Appryzings or Adjudications c. The like where an Annualrent was first Disponed and a Clause of Requisition and Reversion subjoyned July 7. 1675. Robertson contra Lord Halkertoun and in Reversions Hope de Successionibus heirs of Pitcairne But in this case it is not cleared whether the Lands given in Wodset were heritage or conquest but it seems if the Lands had been heritage as they were Wodset the Reversion would also belong to the heir of Lyne as the Lands whereto it was accessory would Yea heirs of Conquest succeed in heritable Bands bearing Clause of Annualrent As was found amongst the heirs of Doctor Craig But the heirs of Lyne and not the heirs of Conquest succeed in Tacks acquired by the Defunct Hope Succession Earl of Dumbars heirs June 23. 1663. Ferguson contra Ferguson The heirs of Lyne do also succeed in Pensions or any other Right not requiring Infeftment as in these which having a tract of time after the Defuncts Death do thereby exclude Executors and do belong to the heir of Lyne and not of Conquest though they be acquired The heir of Lyne and not the heir of Conquest falleth to be Tutor or nearest Agnat to the Pupil to whom the heir of Lyne might Succeed The heir of Lyne hath right to the heirship Moveable and not the heir of Conquest 11. Heirs-portioners are amongst Heirs of Line for when more Women or their Issue succeed failing Males of that degree it is by the course of Law that they succeed and because they succeeed not in solidum but in equal Portions they are called Heirs-portioners and though they succeed equally yet Rights indivisible fall to the eldest alone without any thing in Lieu thereof to the rest As first Dignity of Lord Earl c. 2. The principal Manse being Tower Fortalice c. which doeth not extend to houses in Burghs nor to ordinary Country-houses the former being divisible the latter falls under division as pertinents of the Land whereupon they stand and are not as separata jura or distinct Rights 3. Superiorities are accounted indivisible and befal only to the eldest Daughter and her Issue and thereby all the Casualities of the Superiority either preceeding or following the Defuncts death as Ward Relief Marriage of the Vassals Heirs Nonentry Liferent Escheat c. The reason is because the Vassals condition ought not to be worsted and made subject to many Superiors by such Successions Craig lib. 2. dieg 14. excepteth the Superiority of Feu Lands the Feu Duties whereof are divisible amongst all the Heirs-portioners yet the former reason of the indivisibility of the Superiority in respect of the Vassals Interest reacheth Feu Superiorities as well as others and it is hardly conceivable how Superiorities should belong to the eldest and yet the Feu Duties divide to the rest seing the Superiority as being Dominium directum is the only Title for poynding the Ground or pursuing the Possessors or Intrometters with the fruits thereof It seems for the reason adduced the Superiority and therewith the Feu Duty befalleth to the eldest yet so because the Feu Dutie is constant and liquid and is not like the other Casualities of Superiority which are illiquid and accidental therefore the other Heirs-portioners ought to have Compensation for their parts of the Feu Duty in or off other proper Lands Or if there were moe Superiorities of Feu Lands so that some of the Superiorities might befal one Heir and others to other Heirs no particular Superiority being divided or the Vassal made Vassal to many Superiors I conceive it would be allowed or otherways the eldest Co-heir would be dicerned to infeft the rest in Annualrents out of the Fee correspondent to their share of the Feu Duty A Vassals Heir though the Defunct had taken Infeftment of more Heirs-portioners was not found oblieged to take Infeftment of some of them severally but either of all jointly or the eldest July 30. 1678. Lady Luss contra Inglis How far Heirs-portioners succeed passive and are lyable for the Defuncts Debt shall forthwith appear 12. Heirs Male and of Tailzie and Provision succeed not by Law but by the tenor of the Infeftment or Provision and therefore have that benefit and no more which is so provided to them or which is accessory thereto whereby any Right or Security of Lands or others befalling to these Heirs which is thereafter acquired by their Predecessors though the same be acquired to him and his Heirs whatsover yet the same will befall with the principal Right to which it is accessory to the Heir Male or of Tailzie or Provision As if a Proprietar Infeft himself or his Heirs
it was free to the Heir as well to renounce when he pleased as to enter when he pleased July 10. 1631. Blair contra Broun but it is like the posterior Creditor hath been negligent otherwise that prae natura diligentia of pursuing and renouncing within the Year would have been accounted collusive and fraudulent and so would not prejudge the other Creditor doing diligence in the ordinary way General charges to enter Heir do evanish as incompleat diligences if the Party charged die before Litiscontestation or Sentence and though the fourty days be expired before the death of the Party charged yet the Charge useth not to be transferred or made use of against any subsequent Heir apparant but it is not consequent that if the Charger die before Litiscontestation or Sentence that the same should also become void because the Charger doth not necessitate the Party charged to enter or renounce in favours of the Chargers heirs but of himself And it was found that an Assigny might insist upon a Charge at the Cedents instance after the Cedents death though nothing followed thereupon during his life June 18. 1631. Prior of Archattan concra Captain of Clanronnald 23. A special Charge to enter Heir differeth from the general Charge in this That the general Charge is in lieu of the general Service for thereby the Creditor reacheth the Person of the apparant heir of his Debitor and his Estate or Goods established in his person unless he renounce and so the general Charge is the ground of Process and Decreet for Payment But thereby the Creditor cannot reach the Lands and Annualrents which are not as yet established in the Person of the apparant heir he not being specially served thereto or infeft therein And therefore that the Creditor may reach these he must use a special Charge which supplieth the special Service and Eutry This special Charge though it proceedeth upon Supplication without Citation yet it must be upon production of a Decreet at the Creditors instance not only cognitiònis causâ but for performance And it is competent in two Cases First upon the proper Debt of the Party to be charged For if the Debitor be unentered to some of his Predecessors and so their Rights not established in his Person in that Case the Creditor must charge his own Debitor specially to enter heir in the Rights competent to him by that Predecessor with certification if he enter not the Creditor shall have such Process and Execution against that Land and heretage to which he might enter as if he were actually entered therein whereupon Apprising doth proceed In this Case there is no necessity of an antecedent general Charge which only is used to the effect that the Debt may be established in the Person of the Debitors apparant heir passivè by a Decreet upon the general Charge The other Case is when the Debt is not the proper Debt of the Party charged but of some Predecessor to whom he may be heir in which Case the Debt must first be 〈◊〉 against him passive and then followeth the special Charge In this Case the special Charge cannot be till after Year and day because it presupposeth not only the Summons but also the Sentence upon the general Charge both which must be after Year and Day When the Debt is the proper Debt of the Party charged if the special Charge may not be at any time even within Year and Day or if it must be after the annus deliberandi This makes for the Negative That it needs not abide the Year of Deliberation because the intent of the Deliberation is not so much whether the Party charged will be heir as whether he will personally subject himself to the ground of that Charge For albeit he renounce not it will not make him lyable to any of the Defuncts Debts except it be by his fraud and collusion with one Creditor in prejudice of another And therefore seing he cannot deliberate whether he will be subject to his own Debt he ought not to have the benefite ofYear and Day before the special Charge be effectual Yet before the late Act preferring the diligence of the Defuncts Creditors to the heirs proper Creditors there was no reason to allow special Charges for the apparant heirs own Debt but more summar Execution than other Charges so to prefer the apparent heirs proper Creditors to be Heir The Act of Parliament which is the ground of the Charge to enter Heir and is only the rise of the special Charge insinuates an Exception if the heir be major But the custom of the Lords hath introduced the general Charge to constitute the Debt and allows both Charges against minors There is no necessity either of a general or special Charge as to real Actions which may proceed against apparant heirs as poynding of the Ground January 2. 1667. Oliphant contra Hamilton Neither in Declarators or Reductions 24. The remedy against both Charges to be heir is a Renounciation to be heir whereby the Renouncers Person and his proper Estate will not be lyable for his Predecessors Debt but only his Predecessors heretage This Renounciation useth to be offered by way of Exception in the Process upon the general Charge and if the Defender be not absent it is not ordinarily admitted by Suspension except in favour of Minors who though being apparant heirs they take a day to Renounce and fail therein yet they will be restored against the same by Suspension without Reduction January 25. 1628. Kennedy contra Mackdougal Spots Minors Nisbet contra Nisbet But if the Minority were controverse and not instantly verefied it must be by Reduction Spots Minors Mr. Thomas Craig Advocat contra Cockburn Renounciation to be Heir was admitted rebus integris though the Decreet and Charge were six years before July 20. 1626. Harvie contra Baron Yea it was admitted though there was an Adjudication and the Decreet supsended which was declared to stand and the apparant heirs Person and proper Estate were only freed Spots Restitution in integrim John Oliphant contra Mr. William Blackburn A Renounciation to be heir was not admitted with this quality Excepting to the Renouncer certain Lands whereinto he was appointed to be infeft by his Fathers Contract of Marriage and whereupon Inhibition was used before contracting of the Chargers Debt to the effect he might enter heir to those Lands January 23. 1627. Lady Ogilvy contra Lord Ogilvy But in the like Case Hope Inhibition Donald Thorntoun contra Bailzie June 15. 1615. and the like November 30. 1620. Adamson contra Hamiltoun the apparant heir was suffered to renounce to be heir to his Goodsire except as to those Lands which his Goodsire had disponed to his Father in his Contract of Marriage whereupon Inhibition was used which the Lords found a singular Title consistent with a Renounciation of the heretage ex titulo universali The Exception upon Renounciation to be heir is elided If the Defuncts Estate be burthened with the heirs