that no hurt followed and that he was willing to make it up February 14. 1665. Town of Edinburgh contra Sir William Thomson But an Office of a Sheriff Clerk was not found extinct by his being at the Horn for a Debt or being sometimes out of the Countrey having power of Deputation February 6. 1666. Arch-Bishop of Glasgow contra Commissar Clerk of Dumsreis The Office of a Commissar doth also import as a necessary condition that the Commissar be qualified to discharge the Office in his own person though he have Deputs seing he must answer for and over-rule his Deputs February 14. 1666. Arch. Bishop of Glasgow contra Commissar of Glasgow Where it was also found that by the Commissars instructions they must reside in the place of the Commissariot under the pain of Deprivation notwithstanding the common Custome in the contrary which only excuseth from bygone Faults 45. Trust is also amongst Mandats or Commissions though it may be referred to Depositation seing the Right is in custody of the person intrusted Mandatars in the Law could not obliege the Mandator or directly acquire to him but they could only obliege themselves and acquire to themselves and thereafter transmit to the Mandators and that because in most Contracts thereby the person Contracter behoved immediatly to Act and no person interposed which our Customes regardeth not and therefore Mandatars may act in their own names In which case the Right whether real or personal standeth in their person as he who by Commission acquireth Lands or Goods in his own name the real Right thereof is in his Person and there lies an Obligation upon him if he was Commissionat to transmit them to his Constituent but he may also Acquire Transact or Contract in name of the Constituent In which case the real Rights stands immediatly in the Person of the Mandator and the Obligation constitutes him Creditor and there is no Obligation betwixt the Mandatar and the third Party Nor is the Mandatar oblieged to instruct that he had Commission but that is upon his hazard who acted with him unless the contrary be proven by his Oath or Write and therefore a Servant though by a Ticket he acknowledged he had taken off such Furniture for his Masters use was not found oblieged to pay or to instruct his Warrand especially after his Masters death but the Warrand was presumed as known to the Merchand November 17. 1665. Howison contra Cockburn Trust in the Right of Lands Sums or Goods to the behove of another doth frequently occur and because Fraud is ordinarly in it it is not only probable by Write or Oath of the Trustié but Witnesses are examined ex officio to find out the Truth February 22. 1665. Viscount of Kingstoun conira Collonel Fullertoun February 6. 1669. Rule contra Rule February 24. 1669. Earl of Annandale contra Young June 19. 1669. Scot contra Langtoun And Trust was found probable by presumptions only January 12. 1666. Executors of William Stevinson contra James Crawford January 22. 1673. Janet Watson contra Mr. 〈◊〉 Bruce But it was not found proven by a Declaration upon Death-bed in prejudice of the Heir November 26. 1674. William 〈◊〉 contra Stirling of Airdoch But a person intrusted in a Disposition of Lands having componed for the Intrusters Debts was found to have no Interest to burden the Intruster with more then what he truely payed out November 15. 1667. James Maxwel contra Adam Maxwel Neither was a person intrusted for payment of the Intrusters Creditors found to have power to prefer them to the more timeous Diligence of others by Inhibition or Apprizing though only done against the Intruster July 24. 1669. Crawford contra Anderson And a person receiving Money to buy Goods for another but having bought and received them in his own name without mention of the Truster the property thereof was found to be in the person intrusted and his Creditors Arresting were preferred January 24. 〈◊〉 〈◊〉 contra Robertson and Fleming Yet Trust in Sums or Personal Rights after the death of the Person intrusted was found not necessary to be Confirmed as in bonis 〈◊〉 of the Intrusted Person but that the Trust might be proven against the Debitor and the nearest of Kin of the Person Intrusted June 9. 1669. William Streit contra Home of Bruntfield But Trust in an Infeftment of Annualrent found not to make the Person Intrusted lyable for omission but only for Intromission December 18. 1666. Charles Cass contra Mr. John Wat. The like in an Assignation in Trust which was not found to infer an obliegment to do Diligence if the Assignay was not required either to do diligence or denude But he having transferred without Warrand was found lyable for the sum albeit he offered to procure a Reposition July 18. 1672. Janet Watson contra Mr. Walter Bruce And an Assignay in Trust that the sum might be included in his Appryzing giving Back-Bond to be comptable in case of payment having disponed the Appryzing without reservation was found lyable for so much of the sum intrusted as might have been recovered January 5. 1575. Earl of Northesk contra Laird of Pitarro Trust was inferred by a Grand-Fathers delivering of a Disposition conceived in favours of his Grand-Child the Disponer at the delivery having not exprest the terms of the Trust or his design and having recalled and received back the Disposition and Disponed the half of the Lands therein to another it was thence found that the Disposition was not absolute and irrevockable but was intrusted to that third Party to be recalled if the Disponer pleased or otherways to be delivered to the Oye January 25. 1677. Janet Ker contra Niman Ker. When Trust is referred to parties Oath whether such a Right standing in their person be in Trust to the behove of another they use commonly to Depone that it is to their own behove which being found dubious and fallacious what the meaning of such words were special Interrogators are allowed to expiscat the truth And parties use to Reexamined thereupon as whether the Deponents meaning by these words that the Right was to his own behove and not to anothers was only that he gave no Promise or Back-Bond to apply the Right or Benefite thereof in whole or in part to another Or whether the true meaning of the design was that the other put him upon acquiring that Right being a Gift of Non-entry of Lands bought by that other so that the whole benefite should not be applyed to the acquirer himself for it was not presumable that he would put another upon taking Gift of Non-entry of the Lands himself had bought to be made use of to the full extent which being so acknowledged the Gift was found so far to the behove of the buyer that the seller by the warrandice should pay no more for the Non-entry then the acquirer of the Non-entry gave truly for it seing the buyer had communed with the Superior and brought the Non-entry to
his Council in any matter to be inquired before them Par. 1564. cap. 129. Purchasers of benifices at the Court of Rome are ordained to be denunced as Traitors to the King Par. 1471. cap. 43. Par. 1488. cap. 4. Par. 1540. cap. 119. So forgers of the Kings Coin and home-bringers thereof incurr the lose of Life Lands and Goods Par. 1563. cap. 70. Saying of Mass resetting of Jesuits Seminarie Priests and traffiquing Papists And these themselves are lyable to Treason Par. 1592. cap. 120. Par. 1607. cap. 1. Raising of Fire wilfully or burning of Houses or corns whither folk be therein or not is declared Treason Par. 1592. cap. 146. Landed men committing or resetting Ryot or Robbery incurr the pain of Treason Par. 1587. cap. 50. And generally Resetters Maintainers and Assisters of declared Traitors commit Treason Par. 1592. cap. 144. Accuser of others of Treason if the accused be acquit commit Treason Par. 1587. cap. 47. 30. Forefaulture confiscateth the forfaulted persons whole Estate without any access to his Creditors Yea without consideration of Dispositions Infeftments or other Real Rights granted by the Forfaulted Person since or before the committing of the Cryme of Treason for which he was forfaulted which fall and became null by Exception Hope Forfaultur Viscount of Rochester contra Teuents of Callavrock July 14. 1610. Campbel contra Lifnories Spots Conjunctfie Crawfoord contra Laird of Murdiestoun unless these rights have been confirmed by the King as Superiour or Consented to by him It only remains dubius whether Feu Infeftments granted by Forefault Persons before committing of the Cryme be also annulted by the 〈◊〉 And the Act of Parliament anent Feus Par. 155. cap. 72. Should not only defend them against Recognition and the Casualities of Superioritie but even against Forfaultur it self it being therein declared that the King will Ratifie the saids Feus The like is to be understood of other Superiors So that though de facto they be not confirmed Yet the Declaration and Obleigment of the Statute standeth as a Confirmation thereof or at least as an Obleigment upon all Superiors against which they nor their Donators cannot come This is to be understood while 〈◊〉 are allowed by Law vide Title Infefints 34. Sect. It was so decyded February 12. 1674. Marques of Huntlie contra Gordon Cairnlorrow November 16. 1680. Campbel of Silver craigs contra Land of Auchinbreck and the Earl of Argyl not only because the Act of Payliament 1587. Imports a Confirmation of Feus granted thereafter but also because Forefaulture is by Penal Statute and not by the Feudal Right like unto Liferent escheat which returneth the Fie to the Superiours but with the burdens put thereupon by the Vassal whether Feu blensh Ward or by Annualrent or Tack And therefore when any Person is Forefault that is not the Kings immediate Ward Vassal his Estate both Propertie and Superiority falls to the King but with the burden of all Real Rights constitute by the Vassal Yet Forefaultur of the Kings immediat Ward Vassal proceedeth upon Crimes inferring Recognition And therefore returns his Ward Lands to the King as they came from the King free of all burden So that the Act of Parliament 1457. Which unquestionably secures against Ward and Recognition must also secure Feus against the Forefaultur of the Vassal granter of the Feus but will not secure any other Subalterne Right without the Superiours consent as a Blensh Infeftment Jan. 13. 1677. Marques of Huntlie contra Laird of Grant 32. Tacks also being Necessary and Profitable are not excluded by Forfaultur Maitland December 14. 1570. Home of Manderstoun contra Tenents of Oldhamstock Leslie of Wachtcun contra The like as to Tacks for a competent Dutie but not in Tacks for grassams January 28. 1674. General Dalziel contra Tenents of Caldwall 33. But by the Act of Par. 1644. Forfaultur was declared to be without prejudice to all Persons not accessary to the Cryme of the Superiour of the Rights of Property of any Lands Wodset or others holden by them of the Forefault Person or of the payment of their Just Debts or relief of their Cautionries our of the Forfaulted Estates which is now rescinded by the general Act rescissary Par. 1661. cap. 15. 34. Forefaultur could not be pronunced in absence of the Forefault Person by the Justice Gerneral but only by the Parliament So that no Certification of the Justice could reach Lands but only Moveables So July 8. 1662. William Yeaman contra Mr. Patrick Oliphant Neither could it extend to Heritable Bands November 31. 1671. Anthonie Hag contra Moscrop and Rutherfoord But now the Justices may proceed to Forefault absents in case of open Rebellion and rysing in Arms Par. 1669. cap. 11. 35. Because of the defficulty the King or his Donatar might have in knowing the Rights of Foresaulted Persons by Labouring the same with their own Goods setting the same to Tenents and up-lifting the Mails and Duties as their Heritage and so being reput Heritable Possessors for the space of five years immediately preceeding the process of Forefalture the lands so labored or possessed pertain to the King and his Donatar though they can produce no Heritable Right or Title thereof in the Forefault Person For tryal whereof Commssion may be granted under the testimonial of the great Seal to such persons as shal be thought fit by the advice of the Secret Council to take cognition by an Inquest what Lands were brooked by the Forefault person as Heritable possessor thereof so commonly reput and esteemed by the said five years space with power to call before them all parties pretending interest which being retured to the Chancelarie ad perpetuam Remanentiam shall be a sufficient Right Par. 1584. cap. 2. This right was sustained to a Donatar though nearest of Kin to the Forefault Person and presumeable to have his Right July 11. 1623. Maxwel contra Westeraw But here the Donatar was made to depone that he had just reason to affirm that the Rights were wanting Hope possession inter eosdem This right was not elided though it was offered to be proven that the forefault Persons Right was reduced in foro contradictorio upon Recognition before his Forefaulture Feb. 20. 1611. Hairstons contra Ramebel So the said 5. years possession being repute Heritable possessor infers presumptionem juris de Jure of the forefaulted persons Right which admits no contrary probation As to the forefaulted persons Right if the Quinquennial Peaceable and Lawful Possession be proven But the probation thereof by Inquest will not exclude a contrary probation by Reduction of the possession of others within the 5. years And if the possession be not Lawful and Peaceable but interrupted or Vitious the Statute takes no place for by possession Lawful peaceable possession of the forefaulted Persons must be understood And if any person have moved Action within the 5. years for taking away the Rebels right and possession they will be heard after the forefaulture as
28. 1632. Laird of Ludquharn contra Laird of Haddo this is presumed prasumptione juris so that the Narrative bearing another clause is not respected and therefore a Tutor acquiring a Discharge or Assignation of an Annualrent due by the Pupil to his Mother the same was found to accress to the Pupil though it bore love and favour and for the Tutors pains and discharging the Office March 15. 1629. White contra Dowglas Hope Tutors Duer contra Duer Neither hath the Tutor ordinarily Action against the Pupil till his Office end and then he may pursue as a stranger Hope de Minoribus Nasmith contra Nasmith likewise he may Apprize the Pupils Lands for his own debt the Pupil having other Tutors Hope de haeredibus White contra Calderwood So a Tutrix nominat sine qua non was admitted to pursue a Registration of her Contract of Marriage against her Pupil there being more Tutors nominat and she having renounced her Office though she had acted by subscribing deeds not hurtful to the Pupil July 30. 1625. Lady Stanyhill contra her Son 18. Tutors may only do necessar deeds for their Pupils either such as the Pupil is oblieged to do as payment of his debts which the Tutor may do willingly without compulsion of Law or otherwise deeds necessar for mannaging of his Estate and setting of his Lands or labouring the same uplifting his Rents and Annualrents uplifting the Sums that are not secured carrying on any Work which was left to the Pupil which cannot otherwise be disposed of but Tutors cannot sell the Lands or Heretable Rights of their Minors without an interveening Decreet of a Judge Tit. ff de rebus eorum qui sub tutela c. And any such Alienation is null without the Cognition aforesaid which must be by calling the Creditors of the Pupil and his nearest Friends to hear and see it found that there is a necessity to sell the whole or a part of his Heretable Rights and that the rate thereof may be determined in which it must appear that the Pupils debt cannot otherways be satisfied The Law allows the like in the case of the Pupils Aliment which cannot be afforded otherways Alienations so made are not easily reduceable or the Pupil or Minor restored against the same if the true cause hath been known to the Judge but not so if that hath been latent either dolo or lata culpa l. 11. Cod. de praed minor non alien And therefore a Tutors Assignation of his Sons and Pupils Mails and Duties for the Tutors own debt was found null by exception even at the Pupils Tennants Instance Spots Assignation Lands contra Lands yet a Tutors ratification of a reduceable Decreet given against his Minor was found valide though voluntar being in re antiqua Spots Tutors Earl of Kinghorn contra George Strang. 19. Tutors and Pro-tutors are lyable for Annualrents of their Pupils Moneys which they are oblieged to make profitable in so far as they are either liquid Sums that they had in specie or which the Tutors took up which was made up of their Pupils Moveables or Rents of Lands after a Term in Money Rent and a year in Victual from the Term of payment in so far as it is not imployed for their own use or profitably for paying of their Debts or Annualrents Alimenting them or other uses necessar according to the ancient Law of the Romans which oblieged the Tutor after he had the Money two Moneths in his hands but the Novel Constitutions Novel 72. cap. 6. de administrat pecun pupilli c. it is left to the Arbitriment of the Tutor either to keep the Pupils Money by him or to imploy it for profite but it is not so by our Custome Annualrent is due even after the Office is extinct by Marriage the Tutrix having continued her intromission though there were other Tutors July 17. 1630. Vallange contra Kincaid but not for Annual of the Pupils Annualrent though the Tutor received the same and they were great July 18. 1629. Nasmith contra Nasmith But it was lately found that a Tutor by his Office and Diligence was oblieged to lift and imploy the Pupils Annualrents of sums in secure hands once in his Tutory and so pay Annual for the Annualrents of his Pupils Sums omitted to be uplifted by him but only from the expiring of the Tutory January 27. 1665. Mr. William Kintor Advocat contra John Boid So a Tutor was found lyable for the Annualrent of his Pupils Annualrent within a year after his acceptance but not for the current Annualrent during the Tutory he leaving the same imployed for Annualrent at the Ishe thereof February 27. 1673. Isobel Dowglas contra John Gray A Tutors Heir being Minor found not lyable but only for Annual after the intenting of the Cause the pursuer being silent twenty five years February 22. 1634. Davidson contra Jack Neither was the Heir found lyable for Annualrent where the Father died during his Tutory Hope de haered Graham contra Crichtoun January 21. 1665. Kintor contra Boyd 20. Tutors are lyable for their Minors and must be conveened with them by their Creditors for their interest and are also decerned with them for their interest upon which Decreets personal execution is competent against Tutors for any deed prestable by them by their Office for example he may be compelled to receive a Vassal whom the Pupils Predecessour was oblieged to receive or grant a Tack of Lands or a Charter or Seasing where there hath been a Disposition before but in Decreets for payment of liquid Sums Execution cannot be made against the Means of Tutors unless they be specially decerned to make forth-coming so much of the Pupils Means as they have in their hands for satisfying of the Debt in whole or in part which though it be oft done by a second Process yet may be a distinct member of the first or by way of special Charge in the discussing of a Suspension raised by the Tutor against Creditors on that or other grounds But the Tutors oath was not sustained to prove against the Pupil an agreement made by the Defunct though there were concurrent probabilities and testificates December 11. 1664. Eleis contra Eleis yet the Tutors Oath was sustained against the Pupil as to the Tutors intromission in name of the Pupil that being factum proprium oblieging also himself and yet he was not holden as confest as being a party but was compelled to Depone by Caption June 27. 1665. Mr. Walter Cant contra James Loch 21. The last duty of Tutors is to make an accompt and to restore and refound wherein they will be lyable to accompt and satisfie for the Pupils whole Means and Estate not only for their Intromission but for their Omission and for such diligence as they use in their own Affairs which seems sufficient in Tutors Testamentar seing the Office is gratuitous and free and not sought by them but in Tutors of Law and
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
is indirectly more then the ordinary Annualrent and so falls under the Act 1597. and on the other that improper Wodsetts are there exprest and proper Wodsetts seem ex proposito omitted and in proper Wodsetts all hazard lyes upon the Wodsetter Of setting the Land of dead poor and waste we shall leave this to every mans private judgement till publick judgement cast the ballance but all proper Wodsetts before 1661. are restricted to the Annualrent by the Act of Parliament 1661. cap. 62. If upon offer of security the Wodsetter will not quite possession he is countable from the offer as hath been often decided since that Act. There uses also in Wodsetts and Reversions to be included a condition to set the Wodsett Lands for such time to begin after redemption which if it be far within the true worth is Usurary and is declared so Parl. 1449. cap. 19. That Lands provided to be set for Tacks not near the true worth the same shall not be keeped yet such a Tack was sustained seing the Wodsetter had not his full Annualrent by reason of a Liferent reserved in the Wodsett and the Wodsetter was the Constituents Brother and so like to be for his Portion natural whereof the Tack was a part June 21. 1662. Laird of Polwart contra Home but in other cases such a Tack was found null by the said Act but not by the Act betwixt Debitor and Creditor February 15. 1666. my Lord Ley contra Porteous 75. This much for Usury of Annualrent by Contract or Pactions it is also due of the Law and by the obligation of recompense and reparation and in the Civil Law in all Contracts bonae fidei it is due ex mora by the delay of the Debitor which is understood after he be required for the same or that the Term is past nam dies interpellat pro homine and in other Contracts by litiscontestation but our custom hath little use of that distinction neither followeth it that rule but where Annualrent is not agreed first ordinarly it is not due till Horning be used against the Debitor and that by a special Statute 1621. cap. 20. Yea though the Horning was not registrat and so null as to Escheat it was found valid as to the Annualrent July 16. 1673. Isabel Ker contra Parochioners of Moramside but it was found not competent by way of special Charge in the Suspension of the principal Debt but ordinarly by ordinary action July 2. 1629. Purveyance contra Laird of Craigie where Dury his opinion is That if the Charger had raised Horning upon the Act of Parliament it would have been sustained summarly and is now ordinarly sustained summarly by a special Charge when the sum is charged for or suspended but it being once due it not only continueth during the life of the person denounced but still thereafter till payment July 4. 1642. Huntley contra Heirs of Mr. John Manson 2. Annualrent provided by a Bond for one year though it express not for all years thereafter yet continueth due till payment Decemb. 2. 1628. Blair contra Ramsay The like where one Term was only in the Bond Spots usury Keith contra Bruce and where Annualrent was promised for a time by a Letter it was found still due till payment January 13. 1669. George Home contra Seaton of Menzies 3. It is due by use of payment only without express paction March 4. 1628. Forrester contra Clerk 4. Annualrent is ordained to be due to Cautioners by their Principals for sums payed by them as Cautioners by the Clause of relief as being damange and interest though the Bond bear no Annualrent by Statute of Session Decemb. 21. 1620. Hope usury Torry contra Dowhill Dec. 4. 1629. 〈◊〉 contra Johnstoun where the Clause of relief bare only to relieve the Cautioners of his Caution and not of all damage The like though there was no further distress against the Cautioner but registration January 24. 1627. I. Wauchton contra L. of Innerweek and this was extended to co-principals having Clause of mutual relief of cost skaith c. Novemb. 15. 1627. Black of Largo contra William Dick. 5. Annualrent is due without paction by Tutors and Curators to their Pupils of which formerly in the Obligations betwixt them 6. Annualrent was found due without paction by an Heir-male for the Portion of the Heir-female though not required for many years and that still from the term of payment July 5. 1610. Calhound contra L. of Luss. The like by a husband who was oblieged to his wife for the Annualrent of the Tocher payable by the Father though the Tocher was never payed Hope Husband and Wife Baird contra Gordoun Spots Usury Mr. John Skeen contra Mr. John Hart. 7. Annualrent was found due for the price of Lands possest by the buyer without paction Hope Usury Mr. James Stirling contra Mr. David Ogilvy February 17. 1624. Dury of that ilk contra Lord Ramsay the like though the delay of payment was not the Debitors sault November 14. 1628. Cuming contra Cuming Spots Usury Home contra Laird Rentoun Annualrent was not found due without paction for a sum lent to an old man on condition that if he died without Heirs the Creditor should become the Debitors Heir and yet he having Heirs Annualrent was not found due Decemb. 11. 1662. George Logie contra Logie But the Lords do sometimes allow Annualrent or an equivalent expense among Merchants and they did so in a Provision by a Father to his natural Daughter payable at her Marriage which was found so favourable not to hasten her to marry that Annualrent was allowed her seing the condition was in her power June 25. 1664. Margaret Inglis contra Thomas Inglis The Romans allowed Annual till it equalled the Principal but no further but our custom hath no such restriction Yet we restrict the English double Bonds to the single Sums and Annualrent thereof but no further then till it be equivalent to the Principal seing by the tenor of such Bonds it appears the meaning of the Parties that no more should be demanded in any case January 2. 1679. Sir Alexander Frazer and Leyes Burnet contra Sir James Hamiltoun Annual upon Annual is condemned of all when it is comprehended in the first paction but it is ordinar by posterior Contracts to accumulate Annualrents and make it a Principal and so both that which was first Principal and that which was once Annual bears Annual so also Annual by vertue of the Act of Parliament if Decreet follow thereupon and Horning will bear Annual seing there is no limitation but this will not be extended to Annuals in time coming after the Horning and last Annualrent payed by a Cautioner by the said Statute of Session will bear Annual because to him it is a Principals Annualrent was also found due without paction for money expended by the Custom of Bourdeaux Decemb. 8. 1677. Antonieta Peron contra Morison To return to Location all things may
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-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
are designed there is no relief by other Kirk-lands except these who had Feus of other parts of the same Gleib seing by the foresaids Statutes the Feuars of old Manses or Gleibs are to suffer Designation or to purchase new Manses and Gleibs so that these old Manses and Gleibs do not infer relief This relief is not debitum fundi affecting singular successors as was found June 1675 Schaw contra Hamiltoun of Munckland But when the Designation is of Temporal Lands the whole Heretors of Temporal Lands are to contribute for a recompense thereof proportionally Par 1649 cap 131 revived Par 1663 Session 3. cap. 20. Gleibs are Teind-free Parl. 1578. cap. 62. The like where they are Arable or Grass Par. 121. cap. 10. And a Gleib was found Teind-free though lately mortified voluntarly without Designation or Process and though not mortified to a Paroch Church but a Chappel seing Divine Worship was accustomed to be therein June 9. 1676. Alexander Burnet contra William Gibb 41. There is another division of Infeftments into these which are granted to one Person and his Heirs and to more Persons and their Heirs which are of diverse sorts sometimes as Conjunct-infeftments and sometimes conceived in favours of Fathers and after their decease to Children or relations therein nominat Conjunct-infeftments are called Conjunct-Fees whereby the Fee is disponed joyntly to more persons and their Heirs which may be to three or more persons who by the Infeftment become all Fiars joyntly and equally whence there ariseth a Communion by which they do possess the Fee pro indiviso until division thereof be made which doth not comprehend an Infeftment to an Incorporation as to a Town or Colledge or to the use of the Poor who do not thereby become joynt Fiars but have only a share of the benefite according to the distribution appointed These Infeftments are not conceived to Heirs seing Incorporations are perpetual and die not neither doth the publick use fail therefore such Infeftments require no renovation Superiours will not easily be induced to accept Resignations from their Vassals in favours of Incorporations and publick uses by which all the Casualities of their Superiority cease or to grant Confirmations thereof having the same effect Nor can they be compelled to grant such Infeftments upon the Vassals Bonds granted of purpose that Adjudication may be used thereupon that thereby the Superiour may be compelled to receive the Incorporation yea though without design an Incorporation should become Creditor to a Vassal in a debt truly borrowed either from the Incorporation or their Cedent The question is whether an Adjudication thereupon might force the Superiour to receive the Incorporation for a years Rent Craigs opinion is in the Negative and I have not heard such a case come to be debated And though Custom hath oblieged Superiours to receive man and Wife in Conjunct-Fee which abate their Casualities during the life of two persons the consequence would not be good to reach to an Incorporation that never dies though the Act of Parliament introducing Appryzings and Adjudications be generally in favours of all Creditors It were more just that Incorporations should pitch upon a person and assign their debt to him expresly to the effect that the Lands might be adjudged to him and his Heirs for the use and behove of the Incorporation or such other uses as were designed which would be effectual against all singular Successors especially if the Trust were exprest in the Seasine but the Superiour would have all his Casualities by the death neglect or delinquence of the Trustee and his Heirs I shall not pre-determine my self or others in the case but leave it to publick determination Conjunct-Fees by the Custom of England are always so understood that the survivers have the whole benefite so long as any of them are alive but we do only extend this survivancy to Conjunct-infeftments to Husband and Wife which bears ordinarly to the longest liver But though that were not exprest it would be understood as implyed and generally it resolves in the Wife but as a Liferent and the Husband is understood to be Fiar unless it be evident that the Right was originally the Wifes and a Liferent only designed for the Husband and therefore if no Heirs be exprest or only generally their Heirs the Husbands Heir is understood in Heretable Rights Nam potior est conditio masculi and the Wife is only Liferenter but with greater power then by a separate Liferent June 24. 1663. Elizabeth Scrymzour contra Murrays And a Wife having charged upon a Bond granted to her Husband and her and the longest liver was found not to have right to uplift the sum or to insist therefore without concurse of the mans Heir or he being called that if the sum were insecure it might be consigned to be re-imployed to the wife in Liferent and to the Heir in Fee December 10. 1671. Katharine Ross contra Laird of Hunthill Yea a Clause in a Bond bearing a sum borrowed from a Husband and wife and payable to the longest liver of them two in Coniunct-fee and to the Heirs betwixt them and their Assigneys whilks failing to the Heirs and Assigneys of the last liver was found to constitute the Husband Fiar and the Wife Liferenter albeit she was last liver whereby her Heirs of Line failing Heirs of the Marriage became Heirs of provision to the Husband and lyable to his debts January 29. 1669. Graham contra Park and Gerdan January 23. 1668. John Justice contra Mary Barcley his Spouse And a Clause in a Contract of Marriage oblieging the Husband to take the Conquest to him and his future Spouse and the Heirs betwixt them whilks failing the Heirs of the Mans Body whilks failing the Wifes Heirs whatsomever was found not to constitute the Wife Fiar but Liferenter and the Husband Fiar whereby failing Heirs of the Marriage and of the Mans Body the Wifes Heirs of Line were Heirs of provision to the Man February 20. 1667. Cranstoun contra Wilkison For by this Clause of Conquest it is evident the means were to come by the Man yet an Obliegement by a Man bearing that whatsoever Lands or sums of Money he should purchase during the life of him and his future Spouse their present debts being first payed that the wife should be secured therein in Conjunct-fee and in case of no Issue or Children the one half thereof to be disponed as the Wife should think fit was found to make the Conquest divide betwixt the Heirs of the Man and the Wife and that her power to dispone the half was not a personal Faculty but did make her Fiar in that half and took off the presumption of the preference of the Husband seing no mention was made of the Heirs of either party June 27. and 28. 1676. Earl of Dumfermling contra Earl of Callender Conjunct-Fees to Husband and Wife and the Heirs of the Marriage do imply a restriction upon the Man not to
Solemnities requisite in Infeftments there uses to be many Clauses insert therein all which we cannot follow but shall insist in the most ordinar and and important These are Union Erection Warrandice Reservations Provisions Conditions and Clauses irritant 44. Union is the Conjunction or Incorporation of Lands or Tenements lying discontigue or several kindes unto one Tenement that one Seasine may suffice for them all in which there is sometimes exprest a special place where Seasine should be taken and when that is not Seasine upon any part is sufficient for the whole Lands lying contiguous are naturally Unite and needs no Union so that Seasine taken upon any of them extendeth to the whole But where they ly discontiguous other Tenements being interjected there must be Seasine taken upon every discontiguous Tenement which must be all particularly so exprest in the Instrument of Seasin whereof one will serve for all the Tenements or otherways when they are Tenements of several kinds as Lands Milns Fortalices and Fishing all which are several kinds of Tenements and require several Seasines and pass by several symbols or tokens as Lands by Earth and Stone Milns by the Clap Fortalices by the Entry at the Gates and inclosing the person possest and excluding the granter of the Possession solemnly conform to the Charter or Precept Union can be Constitute originally by no other then the Soveraign Authority conceding the same January 16. 1623. Mr. Hendry Aikin contra Greenlaw Or Confirming the same January 16. 1623. Aikin contra Stuart And therefore Union being Constitute by a Subject not having the same from the King was found null by Exception at the instance of the Possessors though pretending no Right December 16. 1628. Lady Borthwick contra Scot of Goldylands And when there is a place for the Seasine of the Union a Seasine taken elsewhere reacheth none of the Lands lying discontigue March 19. 1636. Lady Dunipace contra Laird of But if the Lands united by the King be Disponed wholly together by the Vassal to others Subalternly Infeft the Union stands valid July 12. 1626. Stuart and Dowglas contra Cranstoun Home repeated Jan. 5. 1627. which for the same reason ought to be extended to Subaltern Infeftments of an annualrent of a Barrony or United Tenement which was found to extend to a Miln and to Lands lying discontigue though not taken in the place designed in the Union Spots Executors Lady Ednem contra Tennents of Ednem 45. Erection is when Lands are not only Unite in one Tenement but are Erected into the dignity of a Barrony which comprehendeth Lordship Earldom c. All which are more noble Titles of a Barrony having the like seudal Effects and whensoever the Tenements are granted as a Barrony Union is comprehended as the lesser Degree though not exprest and therefore one Seasine carryeth the whole Barrony and all Milns and Fortalices thereupon and fishing adjacent thereto Erections can be only granted by the Soveraign Authority and are not Communicable by the Subaltern Infeftments though the Union implyed therein may be Communicat Erection was found to be instructed by the Kings Confirmation of a Charter Designing the Lands a Barrony though it was not a Barrony before but the half of a Barrony wherein the Barron Infeft his Son in Libera Baronia which Infeftment being Confirmed by the King did Constitute it a full Barrony whereby an Infeftment of annualrent taken upon a part of the Land affected the whole November 16. 1630. Laird of Clackmanan contra Alardice Erections of Kirklands in Temporal Barronies or Lordships whereby the Lords of Erection were interjected betwixt the King and the Feuars are prohibite Par. 1592. cap. 119. and Par. 1594. cap. 195. for all these Lands are annexed to the Crown Par. 1587. cap. 29. and Par. 1633. cap. 10. The Reason whereof is evident that such Erections are prejudicial both to the King who loseth his Casualities of the Feuars and to the People who must accept another Superiour in stead of the King and though they had formerly but Subjects to their Superiours yet Church-men were much more easy then secular persons as requiring little service and being ashamed to demand rigorous Rates but any man may obtain the Lands he hath in property holden mediatly of the King which were Kirk-lands Erected in any dignity the King pleaseth to grant There are many exceptions in the Acts of Annexation of the Temporality of kirk-Kirk-lands and in the Acts against Erections by which the kirk-Kirk-land excepted are validly Erected and all the Erections are so far allowed as to give the Lords of Erection right to the feu-duties or fruits of the property of kirk-Kirk-lands feued till they be redeemed by payment of ten per cent and the Infeftments granted to the Vassals medio tempore are valid but the Casualities ought still to belong to the King It hath been sometimes questioned whether the Union and Erection of Lands be dissolved and lost by an Infeftment of a part thereof from the Vassal holden of the Superiour by Resignation or Confirmation Craig l. 2. Dieges 7. is for the affirmative confirmed by the resemblance of a Sheaf of Arrows bound with one Ligament for if one Arrow be pulled out all become louse and so the Union of the whole is dissolved unless the Superiour give the new Infeftment but prejudice of the rest But though such cases frequently occur whereby Infeftments of discontiguous Lands would only be valid as to the contiguous Lands upon which they were taken yet in no competition or other Process hath it been observed by any to be drawn in question or decided so that we have ever rested in the Negative and the consequence from that resemblance is not sufficient But on the contrary he who unites many Discontiguous Lands unites every part of them to every part so that the taking off of one part dissolves only it self the rest remaining unite But Union or Erection doth not change the Jurisdiction of the Lands unite as to the Shires and Bailziries where they naturally ly Vide Tit. Confiscatione § Horning Barronies and United Tenements when they are originally granted ought to express the several Tenements according to their proper Designations and so expresly Unite them But when these are acknowledged to have been Baronies or otherways Unite or are named or defigned as such by these who have power to Unite then the common Name of the United Barony or Tenement is sufficient to carry all that is holden and repute as part and pertinents thereof which was extended to Lands as parts of a common Designation though some particulars were named and the Lands in question had also proper names and were exprest in the ancient Infeftments the right in question being an Appryzing March 23. 1622. Gallowsheils contra Lord Borthwick Union and Erection are as qualities of the real Right and pass unto singular Successors as is before exprest 46. Warrandice is either real when Infeftments is given of one Tenement in security of
an Inhibition in Moveables yet much more inconvenient because Inhibition must be published at the Mercat Cross and registrat whereas arrestment may be done most privatly before two witnesses And though Inhibitions at first were designed to disable debitors not only to dispone or dilapidat their Lands or heritage but their Moveable Goods as the stile of Inhibition doth still express yet experience did early show that there was a necessity for current course of Moveables and that it could not consist with Traffick and Commerce that no man could securely buy Moveables without inspection ofregisters and therefore Inhibitions have now no effect as to Moveables much less should arrestment of the debitors moveables in his own hand which could with no reason affect the moveables when disponed for a just cause to third parties much less could it infer breach of Arrestment against the buyers after Arrestment and all the effect it could have were only to superad upon the Debitor the penalty of breach of Arrestment thereby to Confiscat all his Moveables whereas there are ordinarly liquidat penalties agreed upon of consent of Debitor and Creditor 26. Arrestment being a personal Prohibition used against him in whose hands the Arrestment was made if he die it is not extended to his Successors but they may dispose of the Goods or Sums Arrested unless it be renewed in their hands in the same manner as an Inhibition which is also a legal Prohibition extending to Heretable Rights as Arrestment doth to Moveables but though the Debitor whose Goods or Sums were Arrested die the Arrestment ceasseth not but the debt being established against his successors Processmay proceed upon the Arrestment Feb. 19. 1669 Isobel Glen contra John Home Jan. 22. 1681. James Riddel contra Mr. William Maxwel As to the effect and extent of Arrestments they can only be laid on and affect moveable goods or moveable debts and can only be made use of for satisfying of moveable debts what rights are moveable and what heretable hath been shown in the Title real rights wherein by heretable not only these are understood which are properly so by Infeftment but also such sums and deeds as are by destination such as bearing obliegement for Infeftment or Annualrent even though the Bond did bear no Clause of requisition yet it did bear Annualrent Arrestment or Appryzing had been found null thereupon unless it had been made moveable by a Charge July 20. 1622. John Cranstoun contra Laird of Eastnisbit The like Hope Obligations Alexander Morison contra Creditors of John Richardson John Cranstoun contra Laird of Lugtoun Yet the contrary hath also been found in Bonds bearing Annualrent without Clause of requisition that Poinding Arrestment and Appryzing might proceed without a Charge July 10. 1629. Laird of Clakmannan contra Barronnie Jan. 25. 1642. Johnstoun contra James Lotch But the matter is now cleared by the Act of Par. 1644. cap. 41. renewed Par. 1661. cap. 51. declaring that all Bonds and Sums though bearing Annualrent are Arrestable at the Instance of any Creditor of that person if Infeftment hath not past actually thereupon yet a sum whereupon Appryzing had followed was found not to be Arrestable by the Appryzers Creditor and therefore an Appryzer from that prior Appryzer though posterior to the Arrester was preferred Feb. 22. 1666. Lockhart contra Lord Bargonzie And though they do not so clearly determine upon what Bonds Arrestment may proceed as against what Bonds or sums it may proceed yet it bears equally for satisfying of any debt which though it cannot be extended to Heretable debt upon which actual Infeftment is till they be made moveable yet ought to be extended to all other moveable debts upon which Infeftment hath not followed that a pari as such debts are Arrestable without a Charge so may they be Arrested for satisfying of the like debt without a Charge upon the debt to be satisfied more then upon the debt arrested for satisfying thereof 27. Though no Heretable right upon which Infeftment hath past can be arrested till it be made Moveable Yet the rents and profites thereof are Arrestable and moveable December 15. 1630. Ogilbie contra Lord Ogilbie 28. And so are the bygones of an Annualrent constitute by Infeftment for these bygones are as to all effects moveable though the right it self is heretable as Fruits falling from a Tree are moveable though the Tree be not 29. Yea Arrestment of Annualrents or Mails and Duties is effectual though laid on before the Term if the Debitor to whom they belong were not denuded thereof before the Term the Term being current when it was laid on March 28. 1624. Brown contra Jan. 15. 1628. Hamiltoun contra Falconer where it was found that the Arrestment did only extend to the Term current against an Assigney though not intimating till long after seing he was a singular successor and had attained payment of some Terms Annualrent prior to the Arrestment but it will not extend beyond the subsequent Term where the Rent is payed Termly as in silver rents Hope arrestments Mr. Roger Mowat contra Walter Dick. Otherways it will extend to the whole year in which it was laid on as in Ferms which are payed together Ibid. Thomson contra Captain Wishart Yea an arrestment of rent laid on before the Term was preserred to a posterior appryzing not having Infeftment before that Term July 2. 1667. William Litster contra Aitoun and Slich And an arrestment laid on currente termino was preferred to a posterior assignation to that Term July 27. 1673. Creditors of Andrew Scot compeating arrestment is also valid being laid on upon sums before the Term of payment Feb. 21. 1624. Brown contra Laird of Johnstoun eodem die Rentoun contra Atcheson But in all these the execution was superceded till the Terms of payment of the arrested sums were payed July 3. 1628. Scot contra Laird of Drumlanrig Yet arrestments ought not to be laid on for satisfying of debts whereof the Term of payment is not come Therefore such an arrestment was excluded by an arrestment posterior which was laid one for satisfying a sum whereof the Term of payment was come when it was laid on July 17. 1678. Lord Pitmaiden contra William and Robert patersons Yea it was extended to the price of Lands though laid on before Write but after agreement Hope arrestment Lord Dalhousie contra 30. Neither was arrestment effectual being only laid on in the hands of the debitors Factor and not in their own hands for making the same forthcoming for payment of his debt to whom it was due because Factors are not Debitors but their Constituents Hope arrestment William Muirhead and Mcmichael contra William Wallace 31. Arrestments have never been extended to future Debts or Goods for arrestments both by their name and nature do only stop the Debitors goods or debts arrested to remain in the same condition they were in when arrested till Caution be found or Sentence be obtained for making forthcoming But
poynder as was formerly found relevant Hope arrestment Doctor Kinloch contra Halyburtoun Iames White contra Robert Blackater Ian. 20. 1672. Iohn Bell contra Fleming and Watson It is also a relevant Exception that the ground of the arrestment or the sum arrested was Heretable before the Act of Par. 1664. Or since that Infeftment hath passed upon either unlessit be made moveable and therefore arrestment being laid on upon sums consigned for a redemtion was not found effectual till Declarator of redemption pass which only makes the sums moveable and during the dependance of the redemption these sums cannot be arrested as belonging to the user of the Order because they come in place of the Lands redeemed and can belong only to the Wodsetter or Appryzer or any having right from them to the Lands Wodset but after Redemption the sum consigned may be arrested and made forthcoming for payment of the Wodsetters debt Spots Arrestment Hepburn contra Hay It is also a competent exception that the thing arrested is a proper Aliment Expresly Constitute and not exceeding the measure of Aliment Novem. 19. 1622. Thomas Donaldson contra Kirkaldie and Barclay And the Fee of a Servant was not found arrestable in so far as it was necessary for the service he was in but only for the superplus more then was necessary for his Aliment in such a service July 9. 1668. Heugh Begg contra Robert Davidson Preceptor of Heriots Hospital The like holds in the Kings Pensions and Fees of His publick Ministers Lords of Session and others which are not arrestable in the Thesaurers hands by Act of Sederunt 1613. and was so found in the case of Sir Robert Murray Justice Clerk a part of whose Sallary was arrested Feb. 8. 1662. 38. When pursuits are for making arrested Goods forthcoming which are not liquid the party in whose hands arrestment was made will not be decerned for making forthcoming a liquid sum for the price But if he offer the Goods ipsa corpora the Decreet will contain a Warrand to the Magistrates of the place to rope the Goods arrested that the price thereof may be delivered to the arrester Novem. 12. 1680. Stevinson contra Sir John Paul Appryzing and Adjudication of Heretable sums whereupon Infeftment hath not followed being little in use though competent since the Act of Parliament 1644. We shall say no more of it in this place but as we have considered these several ways of Transmission of Personal Rights severally we shall now consider them joyntly as they fall in competition for preference amongst themselves and each with others 39. In these Competitions it must be considered that arrestment doth constitute no Right in the Arrester but is only a legal Prohibition to alter the condition of the thing arrested and to pay or deliver the same to the Arresters debitor but that it may remain in his hand for satisfaction of the debt arrested for And it is only general arresting all sums of Money or Goods in the hands of the party in whose hands it is laid on due or belonging to the arresters debitor for satisfying of the debt whereupon the arrestment proceeded and therefore cannot be of more effect then a denunciation of Lands to be appryzed or a Citation on a summonds of Adjudication and therefore doth Constitute or Transfer no Right but is a legal diligence rendering the subject matter arrested litigious so that the party in whose hands the arrestment is made cannot alter any sums or debts belonging to that debitor in prejudice of the debt arrested for until the Arrestment be loused and Caution found for the debt or Decreet absolvitor or declarator be obtained excluding the arrestment And if he do any thing in the contrary it infers breach of Arrestment confiscating his Moveables and he is lyable as if the sums or goods remained in his hand pro possessore habetur qui dolo desiit possidere And though the Arrestment have no intimation to the Arresters debitor or any of his Creditors yet if any of them recover the sums or goods arrested by the Collusion or neglect of the party in whose hands arrestment is made he will still remain lyable and if he have not acted bona fide he will incur the breach of arrestment as if by Collusion and gratification he or his procurator whose deed will be presumed his oppose the arrester and procure delay to compear and depone and acknowledge the debt or he holden as confest to another arrester neither will he be liberat by offering his oath that he gave no such Warrand for the imploying a Procurator is a sufficient Warrand for all the common course of Process and requires no special mandat Yea if he pay or deliver to any other arrester or even be poynded upon a Decreet at his instance he will not be liberate seing he ought to have raised a Process of multiple poinding calling the debitor and all the arresters or assigneys to dispute their several rights that once payment to the party found to have best right might liberate him yet if he have payed he does thereby without a direct assignation come in the place of the party to whom he hath payed and if he can show that parties right is preferable to the arrester insisting he will be heard thereupon And unless it be found that he proceeded warrantably not only will he be decerned to make forthcoming though it infer double payment but he to whom he payed unwarrantably will be compelled to restore and satisfie the arrester the subject having been litigious by his arrestment before the other party recovered the same albeit he have recovered payment bona fide without any fault in him but by the litigiousness of the subject For payment made bonafide with a preferable Right relieveth only the payer who was or might have been compelled to pay being conscious of no other Right For it is not relevant for the party obtaining payment bona fide nor will that ground of Law secure him qui suum recipit licet a non debitore non tenetur restituere which holds only in voluntary payments a non debitore and where the subject is not litigious Upon the same ground albeit the party in whose hands arrestment is made collude not but do equally passive or equally oppose the Competitors Yet if the debitor collude and propone Defences against some of the Competitors and not equally against all and thereby procure delay and Terms to prove if he succumb though another pursuing in a several Process before the same or different Judge obtain Decreet and payment thereupon yet he will be necessitate to refound if he had not a preferable Right 41. If the party in whose hands arrestment was made appear and offer to depone if the pursuer suffer him to depone generally that the time of the arrestment he had neither Goods nor Sums belonging to the Debitor in his hands the arrester will not ex intervallo obtain him to be more
thereto as Dury observes but expresses not the parties July 22. 1626. As to the contrair Decision observed by Craig it saith nothing seing the first Infeftment upon the last Resignation was in favours of the resigners Son and so inter 〈◊〉 〈◊〉 was fraudulent which would not hold so if that Son had been a stranger acquiring bona fide for a cause onerous so then the Resignation in 〈◊〉 doth not denude the resigner of the real right but is incompleat till Infeftment follow and therefore a personal renunciation of him in whose favour it was will fully evacuat the Resignation and make the resigners Infeftment as intire as at first which could not be without a new Infeftment if the resigner had been divested as in the case of a Resignation ad remanentiam the Superiours simple renunciation or discharge thereof could not revive the Vassalsprior Infeftment but he behoved to be Infeft de 〈◊〉 and though after the Resignation till it be past from or Infeftment follow the Lands be in Non-entry it will not conclude that the resigner is denuded and the Fee is in the Superiour more then other Non-entries which give not the Superiour the property but a Casuality of the Fee In what case Dispositions of Moveables or Lands are holden to be simulate or fraudulent hath been shown before Title Reparation upon Circumvention or Fraud wherein retention of Possession in Moveables is a main ground for presuming simulation especially in gifts of Escheat yet if the Disposition of Moveables bear expresly to take effect after the Disponers death retention of Possession will not annul it neither will it be esteemed as a Legacy or donatio mortis causa if death be the Term and not the consideration of it and it was not found ptejudged by the Disponers universal Legacy March 8. 1626. Traquair contra Traquair 13. So much for Conventional Conveyances of real Rights Judicial Conveyances of real Rights are competent not by the nature of the right which cannot be alienate without consent of the owner and in the case of Infeftments holden of the Superiour without his consent who is not oblieged to receive any to be his Vassal but the Heirs and Successors of the first Vassal provided in the first Investiture and though the Investiture bear also the Vassals Heirs and Assigneys yet the Superiour cannot thereupon be compelled directly to receive a singular Successor Assigneys being only meaned such Assigneys to whom the Dispositions should be assigned before Infeftment thereon as was found in the case of recognition Lady Carnagy contra Cranburn February 5. 1663. But Law hath introduced in favours of Creditors Judicial Conveyances requiring no consent but authority of Law which hath also its Foundation in natural equity by which as Obligations are effectual for exaction of what is thereby due So is there were no positive Law norCustom the Creditor might exact either what is due in specie or the equivalent and therefore reprysals betwixt Nations not governed by one common Authority are lawful And by the custom of Nations extended not only against the party injurer who is oblieged to repair but against all the Subjects of his Soveraign if he do not cause reparation to be made The Judicial transmission of Moveables is by poynding which being a legal execution we shall leave it to that place Arrestment and the action for making for the coming do also transmit moveables but is rather proper to personal rights and so is competent against the havers of Moveables by reason of that personal obligation of restitution which is upon the haver to the owner beside his own property Of old alienations of Lands for money were very rare in Scotland or the contracting of considerable debts for the Nobility and Gentry did then live in a plain and sober way contenting themselves with that which their own Estates did afford And there was then known no legal execution for Debt against Lands or Heretable Rights but only against Moveables by the brieff of distress or Poynding by which not only the Moveables of the Debitor were poynded for his debt but all the Moveables upon his Lands belonging to his Tennents as appeareth from Act 36. Par. 1469. bearing this Title That the poor Tennents shall pay no further then their Terms Mail for their Lords Debt by the Brieff of distress which is correctory of the former custom whereby the goods and cattel of the Inhabitants of the Ground were distrenzied for their Lords debts though their Mails extended not to the avail of the debt and that not only for real debts affecting the ground by Infeftments of Annualrent Feu-duties or Casualities of Superiority or other debita fundi for which the Moveables of the Tennents and Possessors may yet be poynded for the Lords debt not exceeding their Terms Mail which is ordinarly in their hand or if payed may be allowed in the next Term but for the Heritors personal debt for by the Act the Debitors moveables in that or any other Barony or Shire are appointed to be poynded for satisfying of the Debt but debita fundi can only reach the Moveables of the Barony or Tenement affected therewith and though that this Act by its Tenor would yet extend to poynding of Tennents Moveables for their Masters personal debt custom hath restricted it only to real debts and it is intirely in desuetude as to personal debts which cannot burden Tennents but upon arrestment in so far as they are then debitors to their Masters Before this Statute in the year 1469. there is no mention in our Law or Customes of Appryzing or Adjudication But Appryzing was thereby introduced in this manner that where the debitor has not Moveable Goods but Lands the Sheriff shall cause sell the Lands to the avail of the debt and pay the Creditor which shall be redeemable by the debitor within seven years and if he cannot find a buyer he shall appryze the debitors Lands by thirteen persons of the best and worthiest in the 〈◊〉 least suspect to either party and assign to the Creditors Lands to the avail of the sum and the superiour shall receive the Creditor or any othe buyer for a years Rent as the Land is set for the time or otherways shall take the Land to himself and undergo the debt According to this Act Appryzings did proceed by Sheriffs and Baihes who for satisfying of debts Liquidat by Decreets issued Precepts for denuncing such Lands to be appryzed upon fifteen days warning conform to the act of Parliament which denunciation was publickly read upon the ground of the Land before witnesses and a Copy thereof left fixed thereupon and also at the Mercat Cross of the head Burgh of the Jurisdiction where the Lands ly and to the debitor whose Lands were to be appryzed expressing the Creditor sum day and place of appryzing that all parties interested might appear persons of Inquest and Witnesses were also summond to the same dyet and ordinarly the place was upon the ground of
yet common to Mankind 7 Grass and Fruits on High-wayes are publick not common 8 In Possession what is facti what is juris 9 Possession described 10 Possession natural and civil 11 Possession of Moveables 12 Possession of the Ground 13 Possession by Limits and Bounds 14 Possession by Occupation and by lifting the Profits 15 Symbolical Possession 16 Possession by Reservation 17 Definition of Possession 18 Requisits to begin Possession 19 Requisits to retain Possession 20 How Possession is troubled interrupted or lost 21 Kinds of Possession 22 Lawful Possession gives Right to continue it against all illegal and 〈◊〉 Acts contrary thereto 23 Bonae fidei possessor facit fructus consumptos suos 24 This not extended to unlawful Possessors 25 Possessor decennalis triennalis non tenetur docere de titulo 26 Quinqutnnial Possession of forefaulted Persons 27 Possession to what Right ascriveable 28 The nature of Property 29 Property by Possession of things common 30 Appropriation by Industry 31 First Property of the Ground was of Houses and Wails 32 Next of Fields and Countreys 33 Quae nullius sunt 34 Appropriation by Accession of Birth and Fruits 35 Appropriation by 〈◊〉 36 Appropriation by Specification 37 Appropriation by necessary Conjunction 38 De tiguo injuncto 39 Inaedificata solo cedunt 40 Things sown and planted haw far-they follow the Ground 41 Posseision of Moveables presumes property 42 Reprisals 43 Enemies Goods taken in War 44 Goods of Neuters assisting Enemies become Prise TITLE XIII Infeftments of Property 1 THe original of Fees 2 Feudal Jurisdiction especially of the King in Parliament 3 Feudal Jurisdiction of Superiours 4 〈◊〉 5 Requisits of proper Fees 6 Kinds of improper Fees 7 Dominium directum essential to all Fees 8 Dominium 〈◊〉 9 Fidelity 〈◊〉 necessary 10 Feudal Contracts 11 Udal Rights 12 Infeftment what it signifies 13 How Writ is necesiary for Infeftments 14 What kinds of Writs are necessary for Infeftments 15 The 〈◊〉 of formal Charters 16 When Instruments of Sealin became necessary 17 The Tenor of formal Seasins 18 The essentials necessary in Seasins 19 Seasins must have Warrands and Adminicles and what these are 20 Registration of Seasins 21 Registration of Ressignations ad remanentiam 22 Registration of the Allowance of Apprisings and Adjudications Inhibitions and Hornings 23 The Attest of the Nottar and two Witnesses necessary in Seasins 24 Extracts of Seasins not probative 25 Transumpts of Seasins 26 Bounding Infeftments 27 Base Infeftments how far effectual without Possession 28 Infeftments by Confirmation 29 Infeftments upon Apprising or Adjudication 30 The effect of Apprisings or Adjudications with a Charge 31 Infeftments Ward 32 Feus of Ward-lands how far valid 33 Infeftments Blench 34 Infeftments Feu 35 The annexed Property of the Crown can only be set Feu after Dissolution in Parliament 36 Feus of the annexed property set with diminution of the retour'd Duty are null 37 Feus of Kirk-Lands 38 Infeftment in Burgage 39 Infeftment in Mortification 40 Manses and Gleebs 41 Conjunct Infeftments 42 Infeftments to Heirs substitute 43 Infeftments Simple and Tailzied 44 Union 45 Erection 46 Warrandice 47 Tacit Conditions implyed in Ward-Lands 48 Tacit Conditions in Warrandice and Relief 49 Tacit Conditions in Infeftments of Offices 50 Tacit Conditions in Excambion 51 Tacit Conditions in Feus 52 Liferents reserved in Infeftments of Property 53 Exceptions in Infeftments how far effectual 54 Faculties reserved in Infeftments 55 Burthens of Sums in Infeftments how far effectual 56 The effect of impossible or unlawful Conditions in Infeftments 57 Conditions inconsistent are null 58 Clause de non alienando in Tailzies 59 Clauses restrictive and irritant in Tailzies 60 Regalia not exprest are not carried by Infeftment 61 Regalia are carried in Barony though not exprest 62 Jurisdiction and Courts 63 Juriidiction of Baron Courts how far restricted 64 Issues of Baron Courts belong to themselves 65 Infeftments of Constabulary 66 Fortalices how far extended 67 Forrestries 68 Hunting of Deer inter regalia 69 Salmon-fishing 70 Cruves 71 Milns 72 Priviledge of Brewing 73 Part and Pertinent 74 Wood and Coal 75 Houses and Biggings and Park Dykes 76 Fowling Hunting and Fishing 77 Cunningars 78 Dovecotes 79 Free Ish and Entry 80 Herezelds 81 Steel-bow Goods 82 The effect of infeftments in possessorio 83 The effect of Infeftments in petitorio 84 Inhibitions and their effects against Infeftments TITLE XIV Superiority where of its Casualities Non-Entry Relief Compositions for Entries Ward Marriage and Liferent-Escheat 1 THe Superior's dominium directum 2 How Property is established in the King 3 Superiors may exerce all Acts of Property except against their Vassals 4 How the Property coming in the person of the Superior is established 5 Superiors cannot interpose betwixt them and their Vassals 6 How far Superiors need to instruct their Title 7 Superiors have personal Action against Intrometters with the Rent of the Land for their reddendo 8 They have also real Action for the same by poynding of the Ground 9 Jurisdiction of Superiors 10 Superiority carrieth to Heirs and singular Successors all bygone Casualities not separat by Gifts or Decreets 11 Superiors of Kirk-Lands need not instruct a Consent to the Surrender 12 Superiors must receive Apprisers or Adjudgers or pay the Debt salvo jure suo 13 He must receive the King's Donatar upon presentation gratis 14 He must receive his Subvassal whom his immediat Vassal resuseth to enter 15 How far Superiors may extend Gifts of their own Ward against their Vassals 16 Superiors need not accept Resignation or Confirmation and if they do it is salvo jure suo 17 Superiority falling to more persons the eldest Heir or greatest Interest only receives the Vassals 18 Non entry falls when Infeftment is not renewed by every Vassals Heir or singular Successor or upon Resignation 19 Non-entry falls by Reduction or Nullity of Infeftments or Retours 20 Burgage falls not in Non-entry as to the Burgh or particular Persons 21 The effect of the general Declarator of Non-entry 22 The effect of Non-entry after Citation in the general Declarator 23 Exceptions against Non-entry as to the Feu-duty or retoured Maill. 24 Exceptions against Non-entry as to the full Rent 25 Whether Non-entry after Ward requires Declarator 26 The original of Relief 27 The Custom of England and France as to Relief 28 The quantity of Relief with us 29 Whether Relief be due during Non-entry 30 Whether Relief is due when the Heir is entered whether the Fee be burdened with Conjunct-fee or Liferent 31 Relief stops not the Heir's Seasin 32 Compositions for the Entry of Apprisers of Adjudgers 33 The original of Ward 34 The effect of Ward as to the Heir's person 35 The effect of Ward as to the Fee 36 The Restrictions of Ward 37 The Value of the Marriage of Heirs of Ward-Vassals 38 The true Interest of Superiors in the Marriage of their Vassals 39 The single Value of Marriage not penal but favourable 40 Double Value penal
to which it was estimate all the other Goods of the Wife were Paraphernalia whereof she had the sole Power and Right The Customs of most Nations even where the Roman Law hath much weight in this matter have returned to the natural course as is observed by Cassaneus ad consuetudines Burgundiae tit 4. And Duarenus tit ff de nupt in relation to the Custome of France Wessenbecius in parat ad tit ff de ritu nuptiarum And Covaruvias Epitt. lib. 4. Decretal part 2. cap. 7. In reference to the Customs of the Germans Spaniards and most part of the Nations of Europe Gudelinus de Jure Noviss sheweth the same to be the Custome of the Netherlands in which they do almost in every thing agree with our Customs to which we return By the Custome of Scotland the Wife is in the power of the Husband and therefore First The Husband is Tutor and Curator to his Wife and during her Minority no other Tutor or Curator need to be conveened or concur to Authorize So it was decided French contra French and Cranstoun hop tit de minoribus But on the contrair the Wife is in no case conveenable without calling the Husband and though she be Married during the dependance the Husband must be cited upon Supplication and the Process continued against him for his interest Spots Husband and Wife Margaeret Bailie contra Janet Robertson And likewise a Wife being charged upon her Bond given before Marriage but the Letters not being raised against her Husband for his interest they were found null by way of exception Nic. Reverentia Maritalis Relict of Robert Young contra Wachup yet a Wife was found con veenable without calling the Husband he being twenty years out of the Countrey and she repute Widow June 19. 1663. Euphan Hay contra Elizabeth Corstorphin Yea a Wifes Escheat or Liferent falls not upon any Horning execute against her during the Marriage because being then under the power of her Husband she hath no power of her self to pursue suspend or relaxe Dury February 16. 1633. Stuart contra Banner man and this was found though the Decreet was an ejection committed both by man and Wife yet where the Horning is upon a deed proper to the Wife as to divide the Conjunct-fee Lands Horning is valide Nic. Reverentia Maritalis Duff contra Edmonstoun or where the Horning was upon a Delinquence as on Laborrows Hope Husband and Wife Lord Roxburgh contra Lady Orknay In like manner a Wife cannot pursue or charge without concourse of her Husband and so Letters not raised at his instance were reduced though he concurred thereafter Dury July 27. 1631. Robert Hay contra Mr. John Rollo The like Spots Husband and Wife Napeir contra Mr. Robert Kinloch and Agnes Lial The like in a Reduction of an Heritable Right done by the Wifes Father on death bed which was not sustained unless the Husband had concurred or had been called in which case if he refused concourse without just reason the Lords would authorize the Wife to insist July 8. 1673. Christian Hacket contra Gordoun of Chapeltoun But we must except from this Rule if the Husband were Inhabilitat or forefaulted Had. the 26. of March 1622. William Hamiltoun contra Stuart or the Wife authorized by the Lords upon special consideration the Husband refusing to concur Dury the 9. of January 1623. Marshel contra Marshel Or that she were pursuing her Husband himself against whom ordinarily she hath no Action except in singular cases ut si vergat ad inopiam or in case he had diverted from her Dury December 21. 1626. Lady Foules contra her Husband Or if a Wife with concourse of her Friends at whose instance Execution was provided by her Contract were pursuing reduction of a deed done by her Husband in prejudice thereof during her life February 12. 1663. Lockie contra Patoun or that the Obligation in its own nature require execution in the Husbands life as an obliegement to Infeft the Wife in particular Lands but if it be a general Obliegement to imploy Money for her or to Infeft her c. which the Husband may at any time of his life perform the Wife will have no Action against him neither will she get Inhibition upon supplication unless the Lords grant the same upon knowledge that the Husband is becoming in a worse condition or that the Wife hath quite a present Infeftment for an Obligation of an other in which case the Lords granted Inhibition July 13. 1638. Lady Glenbervy contra her Husband This delay where a Term is not exprest is upon consideration of Merchants who ordinarily having no other means than the Stock with which they trade it would ruine them if they were necessitate to imploy it on security so soon as they are married It is a Priviledge of Women amongst the Romans per Senatus consultum velleianum that the Obligations by which they became surety or interceeded for others were void But our Custome hath inlarged that Priviledge so far that a Wifes Obligation for Debt or personal Obliegement contracted during the Marriage is null even though the Bond were granted by her and her Husband containing an Obliegement to Infeft the Creditor in an Annualrent out of their Lands and in this case the Bond as to the Wife and an Apprising thereon as to her Life-rent of these Lands was found null But here there was no special Obliegement of Annualrent or Wodset of the Wifes Life rent Lands but generally out of both their Lands Dury March 24. 1626. Greenlaw contra Gulloway The like Hope Husband and Wife Archibald Douglas of Tofts contra Mr. Robert Elphingstoun and Susanna Hamiltoun The like Dury January 30. 1635. Mitchelson contra Moubray in which case the Bond being granted by the Man and Wife and thereupon Apprising deduced though she did Judicially ratifie it upon Oath never to come in the contrair yet the Bond and Infeftment as to her Life-rent was found null seing there was nothing to instruct her Ratification but the Act of an inferiour Court whereof the warrand was not produced But a Wifes Obligation with her Husband conjunctly and severally oblieging them to pay and also to Infeft in an Annualrent out of either of their Lands found null as to the Wife in the Obliegement to Pay but not as to the Obliegement to Infeft December 15. 1665. Master John Ellies contra Keith Neither was a Wife found lyable for furnishing to the House in her Husbands absence furth of the Countrey which did only affect her Husband Spots Husband and Wife John Loury contra Lady Louristoun The like January 29. 1631. Porter contra Law The like though the cause of the Bond was Money advanced for the Wifes necessar Aliment for which no Process was granted against her till her Husband was first discussed December 22. 1629. Mr. David Artoun contra Lady Hackertoun And also a Wifes Obligation without consent of her Husband found not to affect her but him
the Mother Nov. 117. de haered cap. 10. 12. The Custome of the Neighbouring Nations do follow more closely the Natural Law as the Custome of France and the Netherlands as is recorded by Gudel de jure Nov. cap. 13. And Mathias Stephanus 〈◊〉 the like of the Customes of Germany oecon juris civilis lib. 2. cap. 67. § 4. The Custome of this Nation also keepeth close to what is expressed before of the Natural Law as to the Interests and Obligations of Parents and Children and thereby Aliments are frequently decerned to Children to be payed by their Fathers if they expell them from their Families and that not only by the Act of Parliament providing Aliment to Heirs of Land to be payed by the Liferenters but a Father though his Son had no Lands was found conveenable super Jure naturae alendi 〈◊〉 July 21. 1636. Laird of Ramorney contra Law So also by our Custome a Father is Tutor of Law to his Sons being Pupils and therefore a Father was found lyable to the Son for Annualrent of his Mothers third of Moveables remaining in the Fathers Hands February 4. 1665. Beg contra Beg. But a Father was not found oblieged for Annualrent of a Legacy belonging to his Son uplifted by him seing he Alimented the Son December 15. 1668. Margaret Winram contra Mr. James Ellies A Father is also Curatour to his Children specially when in his Family unless other Curatours be chosen by his consent and so a Father discharging the Rent of his Sons Lands set by the Father though he was only Life-renter and the Son the Pupil-Fiar was found valid for years after the Fathers Decease in respect he was lawful Administrator young Rosyth contra his Tennants But a Father being poor was not allowed to lift his Sons Money without finding Caution to make it forth-coming February 12. 1636. Givan contra Richardson Neither might a Father being lapsis bonis assign a Tack acquired by him to his Son though he might uplift the Duties as Administrator January 29. 1629. Lands contra Dowglas So deeds done by such Minors without their Fathers consent as lawful Administrator were found null George Stuart contra Home of Rentoun After Pupilarity a Father is no more Tutor to his Children and so might not discharge for his Daughter being past Pupilarity but only consent with her as Curatour June 26. 1610. John Forrest contra Forrest A Father is lawful Administratour both as Tutour and Curatour honorarie of himself without any Cognition or Solemnity and is not lyable for omission neither is he exclusive of other Curatours But deeds done without a fathers consent by a Son were found null albeit the Son resided not in his Family but followed the Law having no Calling or Patrimony to maintain himself but living on his Fathers Charges neither was his Fathers Subscribing with him found a sufficient Authorizing of him seing he Subscribed with his Father as Cautioner for him December 7 1666. Sir George Mckenzie contra Mr. John Fairholme 13. As to the Fathers power to keep his Children within his Family and to apply their work for his use though controversies in that point have seldom been moved but the matter transacted by consent It is not to be doubted but that Children may be compelled to remain with their Parents and to imploy their Service for their use even after their Majority unless they be foris-familiat by Marriage or by Education in a distinct Calling from their Parents unless their Parents deal unnaturally with them either by Attrocity or unwillingness to provide them with a competent Marriage in due time and with means suitable to their Condition for that obliegement to provide for them would be a ground of exception against them if he would unjustly detain them in these cases or if the Father countenance or allow the Children to live by themselves and to mannage their own Affairs apart from whence his tacit consent to their Emancipation may be inferred in which cases also Zas 19. in lib. utrum turp c. De verb. oblig And Math. Steph. oecon juris civilis lib. 2. cap. 1. doth declare that the Consuetude of Germany is the same with our Customes before expressed The English account Children to be Emancipat so soon as they passe their Minority Cowell Institut jure Anglicani Tit. 12. § 4. TITLE VI. Obligations of Tutors and Curators Pupils Minor and persons Interdicted 1. The rise of Tutory in the Law of Nature 2. Order of Tutory by the Law of Nature 3. The Naturall Obligation of Tutors 4. Pupils Obligations to their Tutors 5. Kinds of Tutors by the Common Law 6. Tutors Testamentar 7. Tutors Testamentar exclude all others 8. Tutors of Law who 9. How Tutors of Law are entered 10. The time within which they must enter 11. Tutors Dative 12. Pro-tutors 13. Factors for Tutors 14. Con-tutors 15. Tutors custody of the Pupils Person 16. Tutors Authorizing their Pupils 17. Tutors or their Factors Rights relating to the Pupils accress to them 18. Tutors can only do necessary not free arbitrary deeds but may not sell Lands sine authoritate Judicis 19. Tutors are lyable for Annualrent for their Pupils means 20. Tutors are conveenable with their Pupils and lyable in quantum intus habent 21. Tutors Accompts 22. Tutors are lyable for exact diligence both for intromission and omission 23. Tutors are lyable in solidum 24. Tutory how finished 25. Tutors of Idiots and furious Persons 26. Gesta Tutorum accrescunt Pupillis 27. Removing of suspect Tutors 28. Duty of Pupils to their Tutors 29. Rise of Curators 30. Curators ad lites Negotia 31. Minors may at their option choose or not choose their Curators 32. Minors deeds having Curators without their consent are ipso jure null nisi in quantum â—â—erantur 33. Curators consent not requisite to latter Wills 34. Restitution of Minors upon enorme Lesione 35. Minor non tenetur placitare super haereditatem paternam 36. Differences betwixt Tutors and Curators 37. Duty of Curators 38. Curators or Interdictors for Prodigals or lavish Persons 39. Interdictors constitute causa cognita 40. Interdiction by Parents consent 41. Publication and Registration of Interdictions 42. Interdictions only extend to Heretable Rights not Moveables not to Personal Executions 43. Interdictions are only Competent by way of Reduction 44. Interdictions cannot be taken off but by Authority of a Judge TUTORS and Curators succeded in the place of Parents and their Obligations have a near resemblance and therefore shall be here fitly subjoyned though in the constitution and duties of Tutors and Curators the Positive Law predomineth yet that without any Positive Law or Contract there is a duty of Tuition and Protection of Orphans and specially upon these who by relation of Blood are their nearest Kinsmen and in place of their Parents it will appear by what ensueth and what is superadded either by the consent of parties in Curators or by the Law in Tutors with the condition and interest of
Tutor Testamentar it being evident by the Testament that he was only overseer June 10. 1665. Swintoun contra Notman But a Write under the Tutors hand designing him Tutor found to instruct unless the contrair were proven by production of the Tutory December 2. 1668. Mr. Alexander Seatoun Advocat contra Seatoun of Menzies And a Tutor nominat with other two who accepted not was only found lyable from the time of his acceptance by acting as Tutor and not for what was lost before although there was a considerable Legacy left to him in the Testament and that shortly after the Defuncts Death he Confirmed himself qua legatar and had inspection of the Defuncts Writes and subscribed an Inventar thereof whereof the Testament was one yet did not act as Tutor for three years after but he was not found to have Right to the Legacy not having followed the Defuncts Will by accepting the Tutory at first February 2. 1675. Margaret Scrimzeor contra Wedderburn of Kingennie But where the condition of the Tutor nominate appeared otherways than when he was nominate Action was found sustainable at the Pupils Goodsirs Instance to cause him find Caution if the Overseers thought fit Nic. rem pupuli Salvam fore Thomas Foules contra Alexander Mcmath Neither needed there any making of an Inventar of the Pupils Goods as was prescribed in the Civil Law Nov. 72. l. ult Authen quod nunc generale l. de curat furiosi by which it is clear that all Tutors did make faith de fideli Administratione they behooved also to find Caution l. tutores 24. C. de Administratione tut and they behooved to make Inventar l. 7. Tutor qui 7. ff de Administratione tut l. tutores C. eodem But now by the late Act of Parliament 1672. Cap. 2. all Tutors e'r they can act must make Inventar of the Pupils Means with advice and consent of the nearest of Kin on both sides and deliver to them doubles signed or in their absence leave them with the Clerk to be delivered to them according to the order prescribed in the Act. 8. A Tutor Testamentar is ever preferred to a Tutor of Law or Dative even though the Tutor nominat forbear to act for seven years and that a Tutor Dative was nominate and in possession of the custody of the Pupils Person December 17. 1631. 〈◊〉 contra Oliphant or though the Tutor nominate had ceased six years and was Curator to a party against whom the Pupil had an Action or Process seing in both cases no detriment could be shown by his forbearance July 6. 1627. Campbel contra Campbel The like where the Tutor nominate had abstained seven years and yet was preferred to the custody of the Pupils person here the Pupil had no means to be Administrat Spots de tutel Irving contra Irving If there be no Tutor nominate there is place for Tutors of Law who ordinarily are these who have the benefite of Succession in the Pupils Estate and so by the Roman Law all the Agnats of the nearest degree as they were Heirs so were they also Tutors by the Law of the twelve Tables l. 5. 6. ff de legit tut and so after the Succession was extended as well to the Cognats as to the Agnats with the benefite thereof the burden also of the Tutory was extended Nov. 118. cap. 5. And with us upon the same ground as the prerogative of Primogeniture hath given the Succession not to the whole next degree of Agnats but to the eldest Male and his Issue so the Tutor of Law is only one viz. the nearest Agnat or Kinsman on the Fathers side of twenty five years of age Par. 1474. cap. 51. where it is expresly declared that though the Tutor of Law be ordinarily Heir yet not always for though the Pupil have a younger Brother who is immediat Agnat yet the nearest Agnat of twenty five years old will be his Tutor passing by all others within that age 9. The Tutor of Law is servded upon a Brief Directed out of the Chancellary by an Inquest as appears by the foresaid Act of Parliament but the Brief may be directed to and served by any Judge ordinar though the Pupil live not within the Jurisdiction March 8. 1636. William Stuart contra Agnes Henderson Tutors of Law before they Act must find Caution rem pupuli salvam fore which though it be a ground to compel them to find Caution or exclude them from authorising or acting for the Pupil till they find Caution yet it did not anull their office or prefer a Dative to them so soon as they find Caution though the Dative had already found Caution June 29. 1632. Irwing contra Elsick 10. The Tutor of Law must serve himself within year and day from the time that he is in a capacity to be Tutor either counting from the Defuncts death or from the Birth of the Pupil if posthumus or the ceasing of a just impediment so that after the Marriage of a Tutrix Testamentar place was found for a year for the Tutor of Law to serve himself before a Dative had access July 15. 1631. Grant contra Grant But there seems no prefixed time to the Tutor of Law to serve himself to the Tutory of an Idiot and therefore the nearest Agnat as lawful Tutor was preferred to a Tutor Dative though he had made faith and found Caution and though the Service was not till five years after the Idiots Majority February 22. 1628. Calquhun contra Wardrop It was also found that a Tutory Dative did not hinder the service of a Tutor of Law to an Idiot quandocunque January 21. 1663. Stuarts contra Spreul because by the Act of Parliament 1585. Tutors to Idiots must beserved by an Inquest cognoscing the Idiotry Par. 1475. cap. 66. Par. 1585. cap. 18. 11. Where there is no Tutor nominat nor the Tutor of Law claimeth right within the year there is place for a Tutor Dative which though by diverse Municipal Customs may be Constitute by the Ordinar Magistrate of the place yet is most fitly Constitute by the Supream Magistrate and so with us is given by the King in Exchequer and by the late Act of Exchequer 1672. It is appointed That before Constituting of any Tutor Dative the Pupils nearest friends on both sides shall be cited that they may offer and inform concerning the fittest persons to be Tutor Tutors may be given to strangers Pupils in so far as concerns their Lands in Scotland December 17. 1627. Fleming contra Brown The like Spots de tut Donaldson contra Skiltoun In the nomination of Tutors Dative though it be in the Arbitriment of the King to choise whom he thinks fit yet he will have regard to the Interest of the Pupil to give a Tutor either who was nominat by the Father but not Legally or who was nominat by the Mother or Grand-mother though having no Legal Power or the nearest of Kin though they have neglected to serve within the year
Debitor whom the Creditor brought home from abroad that he might prevent the diligence of an other Creditor who had denunced that Debitors Lands to be Apprized upon sixty days but upon return of the Debitor this Creditor denunced upon fifteen days and so did first Apprize yet the first Denunciation and last Apprysing was preferred Hope de dolo Sir Hendry Wardlaw contra Thomas Dalyel And the Liferent Escheat of a Vassal was excluded because the Superior upon whose Horning it fell had taken payment of the Debt and had not acquainted the Vassal that he was Denunced that he might have relaxed within the year as was found in the same case Ibidem Though this case and that of latent insufficiency be rather lata culpa quae dolo equiparatur for the difference betwixt dolus lata culpa is that dole est magis animi and oftentimes by Positive Acts and lata culpa is rather facti and oftentimes by Omission of that which the Party is oblieged to show A Discharge was found null as to an Assigney to a Bond granted by one Brother to another the Discharge being of the same date with the Bond which could have no construction but that the Brother by assigning the Bond might deceive December 4. 1665. Thomson contra Henderson And a Discharge by a Son to his Father of a Sum provided to him by his Contract of Marriage without satisfaction But upon agreement betwixt the Father and the Son the time of the Contract that the Sum in the Contract should be Discharged gratis was found fraudulent and null as to the Sons Creditors who Traded with him even after the Discharge January 21. 1680. Isobel Caddel contra John Raith And a Liferent by a Husband to his Wife of his whole Estate providing she disponed the half to the Children of the Marriage was found fraudulent as to that half and the Creditors of the Husband preferred to the Children therein December 23. 1679. John Erskin contra Carnagies and Smith But where the Liferent was but suitable to the Parties a clause therein that so much of it should be applyed for the Aliment of the Children that clause was not found fraudulent in prejudice of the Husbands Creditors but was sustained to the Children it flowing only from the Mother November 16. 1668. Wat contra Russel 12. Under Fraud Simulation and Collusion are comprehended Simulation occurs mainly in two cases in Dispositions retenta possessione for although the Disposition be delivered and that there be Instruments of delivery of the Goods Disponed yet if the natural Possession be retained the Disposition is presumed simulat and others affecting the things disponed by Legal Diligence or by natural Possession are preferred Simulation in Gifts of Escheat and Liferent are very frequent and easily presumed retenta possessione Vide Tit. 25. § 12. 13. Collusion occurs chiefly when the Debitor or common Authour opposes some Creditors and concurs with others that these may attain the first compleat Diligences which imports direct Fraud or if he oppose one though he do not concur with an other but only not oppose that other his opposition is holden as Fraudulent 14. Fraud gives remeid by Reparation to all that are damnified thereby against the Actor of the Fraud either by anulling of the Contract or other deed elicit or induced by Fraud or by making up the damnage sustained by the Fraud at the option of the injured and so Fraud was sustained at the instance of a Seller to anull a Bargain of sale of Wines delivered to a Skipper upon the Buyers order because the time of that order the Buyer knew himself to be insolvent which might appear by his Books and though the Wines were Arrested by a Creditor of the Buyers in the Ship and a Decreet for making forth-coming recovered yet the Wines were ordained to be restored to the Seller December 22. 1680. Magnus Prince contra Peter Pallet 15. Reparation of Fraud is not only competent to the Party defrauded but also to his Creditors or Assignays for which the Romans had a peculiar remeid Per actionem Paulianam for anulling all deeds in fraudem Creditorum in imitation whereof the Lords of Session made an Act of Sederunt in July 1620. against unlawful Dispositions and Alienations made by Dyvers and Bankrupts which was Ratified by Act of Parliament 1621. cap. 18. By this Act of Sederunt the Lords declare that according to the Power given to them to set down Orders for Administration of Justice meaning to follow and practise the good and commendable Laws Civil and Canon made against Fraudful Alienations in prejudice of Creditors against the Authors and Partakers of such Fraud that they wil Decern all Alienations Dispositions Assignations and Translations made by the debitor of any of his Lands Teinds Reversions Actions Debts or Goods whatsomever to any conjunct and confident Person without true just and necessary Causes and without a just price really payed the same being done after contracting of lawful Debts to have been from the beginning null by way of Action or Exception without further Declarator but prejudice to purchasers of the Bankrupts Lands and Goods for just and competent Prices or in satisfaction of their lawful Debts from the Interposed Persons But the Receiver of the Price from the Buyer shall be holden to make it forthcoming to the Creditors and it shall be sufficient to prove by Write or Oath of the Receiver of the Disposition from the Bankrupt that the same was made without a true and just Cause or that the Lands and Goods being sold by him that bought them from the Dyver that the most part of the Price was converted or to be converted to the Bankrupts profit and use And in case the Bankrupt or interposed Person shall make any voluntar Payment or Right to any Person he shall be holden to make the same forthcoming to the Creditor having used the first lawful Diligence and he shall be preferred to the Con-creditor who being posterior to him in diligence hath obtained payment by the partial favour of the Debitor or his interposed Confident and shall recover from the said Creditor what he hath so obtained But what the interposed Person hath payed or assigned to the Bankrupts lawful Creditor before preferable diligence done by others shall be allowed to him and he shall be lyable to make forthcoming the rest of the price Yea the saids Bankrupts and interposed Persons and all others who shall give Counsel and Assistance in devising and practizing the Fraud shall be holden infamous incapable of Honour Dignity or Office or to be Witnesses or Assyzers This excellent Statute hath been cleared by Limitations and Extentions in multitudes of Decisions occurring since relating to defrauding of Creditors which being of the greatest importance for Publick Good and Security We shall distinctly and in order hold forth the several Cases that have been decided in this matter First then though the Statute be only in favours of anterior
Law rejected pactum legis commissoriae which we call a Clause Irritant whereby it is provided that if the Debt be not payed at such a time the Reversion shal be void Our Custome doth not annull such Clauses but by Act of Sederunt November 27. 1592. it is declared that the Lords would decide in all Clauses Irritant in Infeftments Bonds and Tacks according to the express words and meaning thereof precisely yet the Lords allow such Clauses to be purged by performance before Sentence declaring the Clause irritant committed In which Process though it be committed long before yet by payment at the Barr it will be purged even though the Party after the irritancy get Possession Hope Clause irritant John Edgar contra Gordoun of Earlestoun Yea though the Wodsetter had obtained a Decreet of Removing two years after the failzie against which Reposition was granted paying all Damnage and Interest July 8. 1636. Cleghorn contra Ferguson And albeit the Money was not ready to purge at the Bar so that the Failzie was declared yet it was superceeding Extract for a time that it may be purged in the mean time February 7. 1628. Pringle contra Ker. But where the Requisition was on nine score days there was no time granted after the Decreet to purge July 19. 1625. Nairn contra Naper This Clause is so odious that it was elided by the Wodsetters Possession of a part of the Lands and thereby getting a part of the Annualrent March 18. 1629. Barcley contra Stevinson The like by accepting of payment of Annualrent after Failzie Hope Clause irritant Nasmith contra Kinloch The like by payment of Annualrent or by compensation therewith ibid. Barns contra Barcley The reason of the Law and our Custome is because Impignoration is a permutative Contract wherein equality is meant and required and Clauses irritant are redacted to equality respect is not had to the Terms and Expressions of the Contract but to the thing truely done and therefore though sale of Lands with Reversion be exprest yet if there be not a competent equivalent price and that it be not a real and proper sale but only a Wodset under that conception the Clause irritant hath no further effect then is before exprest but if it be a true sale and competent price the Clause irritant is not penal but hath its full effect but otherwise it is still purgeable till declarator which therefore is necessar even though the Clause irritant bear that the Reversion shall be null without declarator for the remeeding of the exorbitancy of such Clauses irritant 61. Impignoration is either express by the explicit consent of parties or implicit which is introduced by Law without consent of parties of such tacite hypothecations there have been many in the Civil Law as in the Ware for the price in Houses for expenses in Preservation or Melioration or for Money lent for that use to a Wife in the Goods of her Husband for her Tocher To Pupils and Minors in the Goods of their Tutors and Curators for their Duty and Administration to Pupils in the Goods of their Mother being their Tutrix or in the Goods of her second Husband if she did not make an accompt and procure a new Tutor before her Marriage to Legators in the Goods of Executors To the Fisk for their Tribute or their Contracts to Cities in the Goods of their Administrators But our Custome hath taken away express hypothecations of all or a part of the Debitors Goods without delivery and in the tacite legal hypothecation hath only allowed a few allowing ordinarly parties to be preferred according to the priority of their legal diligence that Commerce may be the more sure and every one may more easily know his condition with whom he contracts and therefore Goods sold were not found under any hypothecation for the price June 14. 1676. Thomas Cushney contra John Crystie Yet with us there remains the tacite Hypothecation of the Fruits on the Ground in the first place and they not satisfying the Goods on the Ground belonging to the Possessour for the terms or the years when the Cropt was on the Ground but not for prior or past years and therefore all Masters of the Ground or their Assigneys having right to the Mails and Duties have interest to recover the rents thereof from all intromettors with the Fruits Rents or profits thereof though upon a Title unless their Title be preferable or at least have the benefite of a Possessory Judgement This was extended to Intromettors though they bought the Corns which grew on the Ground in publick Mercat at Zule albeit the Heretor had Poynded a part of the Crop for the Rent of a prior year unless at the Term of payment Candlemas there were sufficient Fruits on the Ground to satisfie the Rent March 29. 1639. Dam Mary Hay contra Archibald Elliot Secondly It is extended to Intromettors with the Cropt and Goods of the Ground though they lawfully Poynded the same from the Tennants for their just Debts Nic. in quibus causis pignus c. Earl of Wintoun contra Barcley unless they left as much upon the Ground as might satisfie the rent besides the Houshold Stuff July 25. 1623. February 3. 1624. Hay contra Keith The like wherein the present Cropt was not accompted but left for the subsequent Rent of which the Terms were not come June 29. 1624. Polwart contra Thirdly It is extended that thereby the Master of the Ground may summarly stop Poynding unless sufficient Goods be left to pay the Rent beside the plenishing of the House February 3. 1624. Arrocks Bairns contra Keith Fourthly This is extended against the Donatar of the Tennants Escheat intrometting thereby who was found lyable though no Action was moved by the Master of the Ground for seven years in the said case Hay contra Keith The like is sustained as to the Goods of the Possessours of Houses invecta illata for House-mailes for all intromettors therewith are lyable and the Goods may be stopped from Poynding for the Possessours Debt without Deforcement being invecta illata But this extends only to one year or two Terms Mail December 7. 1630. Dick contra Lands But the Hypothecation of the Fruits of the Ground is greater then of the Tennants other Goods for the Fruits are lyable according to the value thereof for the rents though there remain other Goods sufficient to pay the Rents on the Ground seing there remained not sufficient Fruits to pay the same March ult 1624. Lady Down and her Spouse contra Laird of Down This Hypothecation of the Fruits for the Rent was extended to a Town setting their Customes even against the Sub-tacksman not bound to the Town who were preferred to the Tacksmans Creditors in a double Poynding January 31. 1665. Anderson and Proven contra the Town of Edinburgh It was also extended to the seller of Fishing against the Donatar of the Tacks-mans Escheat who was found lyable to restore
may be conditionally if the price be payed by such a day or if any other offer not a better Price in such a time or with condition not to sell without consent of which in order 65. As to the First Though giving of Earnest be very ordinary in Bargains of sale and others yet it is no less dubious what the Nature and Effect thereof is some holding it to be to the effect the Bargain may be evident and certain for though sale be perfected by sole consent yet it is not always evident to the parties and the witnesses whether it be a Communing or a Contract and therefore to make it sure to both Merchants who may not hazard upon dubious Interpretations do give Earnest as an evidence of the Bargain closed and perfected But others think that the effect and intent of Earnest is that the giver of the Earnest may resile from the Bargain if he please to lose his Earnest and the taker may resile if he return the Earnest with as much more The Civil Law l. 17. C. de side instrumentorum instit de empt vend in principio And many Interpreters seem to favour this construction Yet many Texts in Law adduced by Wezenbecius Faber and others are for the former opinion and they do Interpret the contrary places not to be of sale perfected but of an antecedent promise or paction to buy or sell It hath not oft occurred so far as I have observed to be decided with us which of these opinions is to be followed with us but the former seems to be preferable because ordinarly with us Earnest is so inconsiderable that it cannot be thought to be the meaning of the parties to leave the Bargain Arbitrary upon the losing or doubling thereof so was it found February 24. 1628. contra James Riddel To this also suits the sense that Earnest is taken in the Scripture for Evidence and Assurance making the matter Fixed and not Arbitrary which at least evinceth that the Word hath been anciently taken so whatever hath been the Custome and Constitution of the Romans 66. Reversion or the Paction of Redemption though ordinarly it is used in Wodsets which albeit they be under the form of sale yet in reality they are not such there being no equivalent price yet may it be where there is a true sale and this paction is no real quality or condition of the sale however it be conceived but only a personal obliegement on the buyer which therefore doth not affect the thing bought nor a singular Successor though Reversion of Lands and Heretable Rights be made as real and effectual against singular Successors when it is ingrosled in the Bargain or duely Registrate yet that is not by the nature of the thing but by the Statute and takes no place in other cases as in Reversion of Moveables which are sold under Reversion but if impignorat the Reversion is a part of the Contract and is effectual against singular Successors As to the other Pactions adjected to sale sometimes they are so conceived and meaned that thereby the bargain is truely conditional and pendent and so is not a perfect Bargain till the condition be existent Neither doth the property of the thing sold pass thereby though Possession follow till it be performed as if the Bargain be conditional only upon payment of the price at such a time till payment the property passeth not unto the buyer but there are many other adjections which are exprest under the name of Conditions and Provisions which are not inherent as essential in the Bargain But extrinsick personal Obliegements the existence where of doth not annual the sale or suspend or annual the property in the buyer at least in his singular Successors as hath now been said in Reversions and is frequent in many other cases 67. In Sale there uses to be adhibit a Clause irritant or resolutive Clause that if such a thing or Condition were or were not in that case the Bargain should be null and void as if it had never been made and granted whence ariseth a very subtile Debate whether such Clauses whatsoever their Tenor be are effectual and follow the thing to singular Successors and do render the Bargain and Property acquired null in it self Or whether such be but personal Obligations only Which though they may annul the Property or Bargain if it remain in the hands of the Contracter cannot reach it if it be in the hands of a third party is the Question for clearing whereof it appeareth First That if such Conditions or resolutive Clauses do stop the transmission of Property and be so meaned and exprest then as is said before the Bargain is pendent and the Property not transmitted even as to singular Successors and the seller remains the Proprietar But if by the Contract and Clause the buyer become once the Proprietar and the condition is adjected that he shall cease to be Proprietar in such a case this is but personal for Property or Dominion passes not by conditions or provisions but by Tradition and otherways prescribed in Law so that these conditions however exprest are only the foundation upon which the Property might pass from the buyer if the thing bought remain his unless by Law or Statute it be otherways ordered as in Reversions of Lands Alienation of Fewdal Rights which become void and return if alienat and not payment of the Few Duty whereby the Few Right becomes void but all by Law and Custome and not by privat Paction 68. Secondly The doubt remains if such personal Conditions with such Clauses resolutive be in the body of the Bargain whether it be effectual against singular Successors who cannot but know their Authors Rights and therefore are in dolo mala fide if they acquire such Rights in prejudice of the conditions thereof and so ex dolo at least such Clauses will be effectual against the singular Successors But first this hath no force where the acquiry is not voluntar but necessar for satisfaction of Debt by Appryzing and other Legal Diligence in which ordinarly the acquirer doth not neither is supposed to know his Authors Right Secondly If the Bargain be so necessar that the Purchaser be a Creditor and hath no other probable way of payment in which though he see his Authors Right bearing such Clauses yet he acteth upon necessity for his own satisfaction Thirdly These who acquire such Rights without necessity and see therein such conditions in themselves personal though having resolutive Clauses do not thereby know that the third party hath the Right jus in re but only jus ad rem and therefore if they acquire such Rights the property is thereby transmitted and though there may be Fraud in the acquirer which raiseth an Obligation of Reparation to the party damnified by that Delinquence yet that is but personal and another party acquiring bona fide or necessarly and not partaking of that Fraud is in tuto but certain knowledge
granted for them the Bond bearing expresly for a Term and having lain over very long and all subsequent Terms payed March 18. 1634. Dowglas contra Bothwel But Discharges of three subsequent years granted by Merchants who had bought Ferms did not Liberat from former years March 26. 1626. Minister of Corstorphen contra Neither where the Discharges were not in Write February 19. 1631. Moristoun contra Tennents of Eastnisbit Neither where the payment of three Terms was acknowledged by the parties oath which bore not three Terms immediatly subsequent March 26. 1622. Kennedy contra Dalrymple of Stair Nor where there were two years Discharges and Receipts making up the third March 28. 1631. Laird of 〈◊〉 contra Wood and therefore Receipts though being joyned they would make up more then three years inferr not this presumption that all preceeding years are payed yea one Discharge for three consequent Terms or years would not infer the same for the presumption is mainly inferred from the reiteration of the Discharges without reservation which no prudent man is presumed to do the presumption is also introduced in favours of Debitors that they be not oblieged to preserve fourty years Discharges and therefore if the payment be Annual there must be three Discharges of three years immediatly following one another as in the payment of Ferms but if the payment be Termly as in Annualrents or Silver Rents the ground of the presumption holds by three several Discharges of three immediate subsequent Terms Hope Bonds David Weyms contra the Lady St. Colmb But as to the Discharges of Factors or Chamberlains three subsequent Discharges are sufficient against the Chamberlain during his Commission and against his Constituent who gave him power to Discharge during that Commission But the presumptions from Discharges of the Chamberlains will not always hold as if the former Chamberlain Discharge two Terms and the later one much more if the former Discharge one Term and the later two But if there be three consequent Discharges from two immediat Chamberlains though they will not infer presumptionem juris which the Law hath acknowledged yet they may infer presumptionem judicis But the strongest of these presumptions admits of contrary Probation by the Debitor that he knows there are preceeding Rents which his Write will not prove though he should acknowledge in Write so much resting at such a time for three subsequent Discharges thereafter will presume that rest payed though still his oath may prove it is not payed so that the strongest of these presumptions though they be presumptiones juris yet they are not presumptiones juris de jure which admit of no contrary Probation The more proper way of dissolving Obligations is by performance by which they attain their effect and that is either by payment or consignation the more Improper ways are Acceptilation Compensation Innovation Confusion of which in order 3. Payment is the most proper lousing of Obligations and therefore retaineth the common name of Solution And therefore in many cases payment made bona fide dissolveth the Obligation though he to whom it was made had no right for the time So payment made to a Procurator was thought sufficient albeit the Procuratory were thereafter improven seing there was no visible ground of suspition of the falshood of it February 15. 1661. Elphingstoun of Selms contra Lord Rollo and Laird of Niddery And payment made by Hererors to their Ministers who were suffered to continue to Preach was sustained though they had not obtained Presentation or Collation conform to the Act of Parliament 1661. seing no Process Civil or Ecclesiastical was intented against them nor the Heretors before payment February 10. 1666. Collector of the vacand Stipends contra Heretors of Maybole and Girvan And payment made to a Minister though he was deposed having continued to Preach after the Term before intimation of the deposition was sustained but not for Terms after the intimation February 10. 1679. Colledge of Aberdene contra Earl of Aboyn So also payment made by a debitor to his creditor bona fide was found sufficient to Liberat against an Appryzer who had appryzed the Right of that sum before payment made albeit the Appryzing as a Judicial Assignation was sound to need no intimation as was found in the case of Thomson contra Elizabeth Dowglas Lady Longsormacus And payment made bona fide to a Donatar was found relevant against a prior Donatar Hope Horning James Wright contra Thomas Wright And most ordinarly payment made bona fide by Tennents to their old Master is found relevant against singular Successors though publickly Infeft using no diligence to put the Tennents in mala fide Spots Appryzing Lord Lowdoun contra the Tennents of Jedburgh And payment by Tennents to their Master was sustained against the Donatar of his Escheat not having obtained Declarator February 10. 1610. Blackburn contra Wilson Neither will Citations against Tennents or Arrestments upon the Titles of singular Successors put them in mala fide to pay to their Master till the Titles of the singular Successors be judicially produced against the Tennents compearing because Tennents are not oblieged as purchasers to search Registers to find their Masters Rights or the Rights of singular Successors yea the Arrestments of their Masters Rents not insisted upon and their Masters Debts instructed before the Term seem not to infer double payment against the Tennents paying after their Terms are past But payment made before the hand doth not liberat against Donatars Arresting and doing diligence after payment before the Term February last 1628. Laird of Lauchop contra Tennents of Cleghorn February 5. 1667. Lady Traquair contra Marion Houatson But it will not be accompted payment before the hand if by the condition of the Tack the first Terms payment be made at the entry and the Tennents to be free at the ish January 7. 1662. Earl of Lauderdail contra Tennents of Swintoun Neither will a Discharge freely granted without true and real payment besufficient though it bear payment to obtain the priviledge of payment bona fide as was found in the foresaid case Thomson contra Dowglas Payment made by Tennents bona fide to their Master of Stock and Teind promiscue as they had been accustomed found to Liberat from their Teind Master who had Inhibite and intimate the same to the Tennents seing the proportion of the Duty they payed for Teind was not known December 13. 1627. Arbuthnet contra Tennents March 21. 1628. Mr. Patrick Murray contra Tennents of Inchassray Abbay Yea payment made of a part of the price of Lands to the Disponers Bairns to whom it was destinat was found relevant albeit after a Reduction depending of that Disposition seing there was no reason filled up against the Bairns interest nor they cited July 19. 1662. Peter contra Mr. William Wallace Payment of a Tocher Contracted by a Wife inferred by presumption that the lived twenty two years and that the Husband acknowledged in his
Acts either without the possessors consent or by their tollerance or tradition and delivery or by forsaking or relinquishing them so that in the matter of possession of Moveables there is little controversie 12. Secondly Possession of the Ground is also clear in many cases As First In Habitations whether in Caves Tents or proper Houses Next in Gardens Inclosures and all Plantations Thirdly In Fields by Pasturage or Tillage in so far as the Acts extend so far these all are most natural possessions But after that most ancient simplicity Rights and the ways of acquiring thereof were multiplied and therefore possession could not be intire but behoved to be divided amongst the several interests then did the difficulties arise as when one had the property a second the fruits a third the use a fourth the servitudes in some part a fifth the detention for security a sixth the custody or location and all these exercised either by the parties themselves their servants or Children in their power and their Procurators in their name Yea and by opposite and interrupting Acts many at once pretending to the same kinds and parts of possession 13. So then the third kind of Possession was when the Earth began to be divided by limits and bounds and to have common denominations then the possession of the whole was attained by exercising possessory Acts upon a part as he who possesseth a Field needs not go about it or touch every Turff of it by himself or his Cattel but by possessing a part unless there were contrary possessory Acts. So possession of the greater part of Lands contained in one Tenement was found sufficient to validat a base Infeftment as to the whole and to exclude a posterior publick Infeftment for removing the Tennents from a part of the Tenement though the base Infeftment had possession several years and had attained or pursued for no possession of these Tenements Spots removing Hunter contra Hardie observed by Dury January 14. 1630. The like of possession of a Tack of a part of Teinds in a Tack found sufficient to validat the Tack as to the whole Spots 1. possessione Lady Merchistoun contra Wrights-houses 14. Possession Civil is extended to uplifting of Mails and Duties which is sufficient to introduce and preserve property though the pasturage and tillage and all other natural deeds of possession be in others who are properly called possessors who hold and possess for themselves in so far as concern the excresce of the profits above the rent as to which they possess in name of their Masters and therefore this possession is partly naturral to the Master of the Ground and partly civil by their Tennants 15. Fifthly Possession is attained Symbolically where there is not use of the whole or a part but only of a Symbol or Token and this is when the thing to be possest is present as the civil possession by Infeftment by delivery of Earth and Stone upon the Ground of the Lands or by delivery of a parcel of Corns for a Stack or Field of Corn or some of a herd or Flock for the whole Flock being present in which the Symbols being also parts of the thing to be possest have some affinity to natural possessions Sixthly Civil Possession is by a Token or Symbole which is no part of the thing to be possest but is a Token to represent it as either having some resemblance with it as the delivery of a Copy or Scroll for an office or a penny for an Annualrent or otherways hath no resemblance but is a Token meerly suppositious to represent it as delivery of a Batton in Resignation or Delivery of a thing bought or sold by a wisp of Straw which ordinarly is in absence of the thing to be possessed 16. Seventhly Possession is attained or retained without Symbol and without Interposition of any person in our power or procurator but only by conjunction of Interest So when the property of Lands is granted to one and the Usufruct or Liferent to another or when the Liferent is reserved the possesssion of the Liferenter is held to be the possession of the Fiar as to all other third parties and Rights And a Husbands possession of Lands by himself or any deriving right from him is held to be the Wifes possession by her Liferent Infeftment The several kinds and degrees of possession being thus laid open it will be more easie to takeup the common notion and nature of it and it may be thus described 17. Possession is the holding or detaining of any thing by our selves or others for our use it is not every holding or detaining which makes possession for so Depositars detain but because it is not for their use they do not possess To Possession there must be an act of the body which is detention and holding and an act of the mind which is the inclination or affection to make use of the thing detained which being of the mind is not so easily perceiveable as that of the body but it is presumed whensoever the profite of the detainer may be to make use of the thing but where it may be wrong or hurtful it is not presumed As he who taketh another mans Horse by the Head or keepeth that which is waith or taketh in his hands the Money or Goods of another which if it were to make use of it would infer theft and therefore such detention is not presumed to be possession He also who detaineth or holdeth a thing not at all for his own use but for anothers who doth detain by him as by his Servant or Procurator doth not possess But otherways if he have no warrand from another but only intended or is oblieged that it shall be to the behove of another in that case he is possessor because the real Right is in him and there is upon him only an obligation to make it forthcoming to another And they who possess partly for themselves and partly for others as Tennants have possession in part 18. To come now to the Requisites for entering and beginning Possession there must be both the detention of the body and the detention of the mind for use for neither of the two alone can begin possession corporal possession alone can neither begin it nor continue it and if any act of the mind were enough possession would be very large and but imaginary but the manner of this seasure of possession to begin it is very diverse by all the several ways which are before set forth 19. Possession being once begun is continued not only by reiteration of possessory acts but even by the mind only though there be no outward acts exerced and the mind and affection to continue possession is always presumed unless the contrary appear so that if the thing once possessed be void as to outward acts yet it is held possest by the mind and any contrary act of others entering to that possession is unwarrantable and intrusion For as hath been
granted after the Liferent Escheat fell in prejudice of the Superiour and Donatar July 3. 1624. Moor contra Hannay and the Earl of Galloway And extended to a Tack or Few of Ward-Lands not Confirmed by the Superiour in prejudice of his Donatar of the Ward March 13. 1627. Laird of Ley contra Blair And extended to the profits of a Procurator-Fiscals place wherein the incumbent served three years without interruption though his Right was reduced thereafter and declared null ab initio February 17. 1624. Thomson contra Law It was also extended to one who having a posterior Right of Reversion first redeemed and possessed thereby as to bygones before the Citation though he had not possest so long as to give him the benefite of a possessory Judgement November 18. 1664. Guthrie contra Laird of Sornbeg It was also sustained against a Minor reducing upon Minority and Lesion yet the possessor by vertue of his Contract was secure as to bygons before Citation here there was a probable cause of contracting for an onerous consideration though not fully equivalent February 16. 1666. Earl of Wintoun contra Countess of Wintoun Upon this Title a Tennent was liberat from removing upon a warning by a Fiar after the death of his Father the Liferenter in respect he set the Tack without mention of his Liferent and was reputed Fiar and therefore the Son was put to a new warning February 16. 1669. Hamiltoun contra Harper Possession bona fide was found to Liberat an Appryzer from being countable to the other Appryzers within year and day July 17. 1675. Bailzie Baird contra Bailzie Johnstoun It was also sustained against the Donatar of forefaulture January 28. 1679. Laird of Blair contra Lady Heslehead It was also sustained upon an Infeftment for relief whereby the rents were to be imputed in satisfaction both of the Principal and Annual February 8. 1676. Margaret Scrimzour contra the Earl of Northesk Yea it was sustained though the possessors Title was forged he being a singular Successor not accessory to or conscious of the forgery even after improbation of his Title was proponed by exception but not sustained but reserved by way of Action in which the Title was found false yet the bona fides was extended to the rents spent till he was put in mala fide by probation of the forgery but he was found lyable in quantum lucratus for getting more price for the Land in question then he payed to his Author therefore December 10. 1677. Dick of Grange contra Sir Laurance Oliphant But no unlawful Possession is valid in this case if it be vitious violent clandestine or momentany But it is not so evident when a possession is accounted momentany sure little time will suffice in Moveables but in Lands more time is required a year or term or less time may suffice This Right is different from the possessory Judgement competent upon Infeftments which require longer time and because it is an effect of Infeftments Tacks or the like we shall speak thereof in that place If the Possession bona fide be by vertue of a colourable Title though perhaps null in it self upon informalities in the Law requisite or upon Inhibition interdiction or want of power in the granter it is effectual Yet when by a common or known Law the Title is void materially in this case the possessor is not esteemed to possess bona fide it being so evident ignorantia juris non excusat As if a Relict should possess Lands or others the Marriage being dissolved by her Husbands death within year and day November 16. 1633. Grant contra Grant Hereby it is evident that possession hath much in it dictinct and several from Fact and therefore it stands in place of a Title in Ejections and Spuilzies 25. By the Canon Law allowed by our Custom possessor decennalis triennalis non tenetur docere de titulo etiam in causa salsi whereupon Prebendars were assoilzied from production in an improbation of their provisions Hope Improb Bishop of Galloway contra the Prebendars of the Chappel-royal But this holds not in Reductions where the Title is supposed but craved to be reduced upon a better Right as when the debate is who hath the right of Patronage Earl of Wigtoun contra Drummellier July 24. 1622. Earl of Wigtoun contra Bishop of Glasgow for in these cases an Ecclesiastical persons Title was to be reduced in consequentiam with the Patrons Title which hath not this priviledge But this possession must be as being holden and repute a part of a Benefice and must be proven by Witnesses and therefore the possession of Lands by tollerance was found probable by Witnesses to elide thirteen years possession thereof by a Minister who pretended to it as a part of his Glibe Ministers of contra Duke of Bucleugh And if the Church-mens Title can be found their possession will be ascribed thereto and regulate thereby And therefore the Bishop of Dumblain as Dean of the Chapel-Royal having long possest ten Chalders of Victual as a part of his Benefice there being found a Mortification of that Victual by the King bearing the King to have had right by Disposition from another and that others right being produced did bear Reversion in the body thereof for seven thousand Merks which being payed to the King when the Bishops were supprest and his grant of Redemption thereupon voluntarly without an Order or Sentence The Church-mens possession more then thirteen years before the Redemption and thirteen years after the Redemption was elided by the reverse Right and Redemption Neither did the Act of Sederunt after the Reformation declaring ten years possession of Kirk Lands before the Reformation and thirty years after to import a right sustain this Church-mans possession That Act being only for Fews granted by Church-men not for rights granted to Church-men July 7. 1676. Bishop of Dumblain contra Francis Kinloch And it was found that thirteen years possession of Viccarage by a Minister did not prefer him to a Tacksman where the Ministers Title was a Decreet of Locality produced and not containing the Teinds in question February 24. 1681 Doctor Lesly contra the Minister of Glenmuck This right in favours of Church-men is by a rule of Chancelary of Rome which hath been continued after Reformation as being convenient that less time and Title should give right to the Church Benefices whose Mortifications may be easilier lost or supprest then other Rights There is also another rule in the Chancelary that triennalis pacificus possessor beneficii est inde securus this rule gives not right to the Church but prefers one Church-man to another if he continue to possess three years without interruption though he could not defend by his Right There is a third Benefite by Possession of Benefices and Stipends by seven years peaceable possession whereby they have the benefit of a possessory Judgement and cannot be called in question but by Reduction or Declarator and
the witnesses insert make a strong probation To return to Seasines propriis manibus by Husbands to Wives without warrand or adminicle in write they are not generally probative except in such cases as have been now exprest Hope Seasine Bell and Morison contra Thomson Laird of Coldingknows contra Dam Helen Hereis 20. But for the further securing of Infeftments and Land-rights that excellent Statute which before was attempted was at last perfected Par. 1617. cap. 16. whereby all Seasines Reversions Regresses Bonds or Writes for making of Reversions and Regresses Assignations thereto and Discharges thereof Renunciations of Wodsets and grants of redemption not being Registrat in a peculiar Register appointed for that end or in case of Consigning Renunciations and grants of redemption in Process within 60 dayes next after the Decreet ordaining the same to be given up to the parties having right thereto or at least within 60 dayes after Seasing taken of the Lands or Rights to which the reversions relate It is declared that the saids Seasines and other Writes shall make no faith in Judgement by Action or Exception in prejudice of a third Party who had acquired a perfect and lawful right to the saids Lands and Heritage without prejudice to make use of these rights against the granter and his Heirs But there are excepted Reversions contained in the body of the Infeftment and all Seasines Reversions c. Of Tenements within Burgh 21. And to make Land-rights yet more secure because the former Act did not require Registration of Instruments of Resignation in the Superiors hands adremanentiam whereby purchasers were not secure but that the Lands acquired by them might have been resigned or renounced to the Superior whereby their Authors Fie became Extinct without necessity of new Infeftment being consolidat with the Superiority whereby the Superiors Infeftment carryed both Superiority and Property Therefore Instruments of resignation not being Registrat are declared null yet with exception of Tenements holding Burgage And therefore a Seasine within Burgh was sustained though not found in the Towns books June 30. 1668. Mr. Robert Burnet contra Swan February 11. 1681. Francis Irwing contra Corsan Upon Consideration of this Case the Lords by act of Sederunt ordained the Burrows to take sufficient Caution oftheir Town Clerks present and to come to insert in their books all Seasines given by them of the Tenements within Burgh and all reversions or Bonds for granting reversions assignations thereto and discharges thereof renunciations and grants of redemption and that within 60. dayes after the giving of Seasine or presenting to them of the reversions or others foresaids and that under the pain of the damnage of any Party acquiring bona fide for onerous Causes by such Latent rights though prior declaring that they will hold all such Seasines reversions c. to be given hereafter and not insert in the Towns books in manner foresaid to be Latent and Fraudulent keeped up of design to insnare lawful purchasers But there is now an Act of Parliament requiring the inserting of Seasines within Burgh in the Town-Clerks Books in the same manner and under the same certifications as is required to the Registration of Seasines without Burgh 22. And for the further security of Land-rights because Apprysing or Adjudication with a Charge of Horning thereupon against the Superior maketh for some time a real right Therefore an abbreviat of Apprysings contained in the allowance thereof written on the back of the same and signed by two of the Lords was ordained to be Registrat in a particular Register for that purpose within 60. dayes after the date of the Apprysing with certification that any other Apprysing though posterior in date yet first allowed and registrat shall be preferred Parliament 1661. cap. 31. which is extended to Adjudications Parliament 1672. cap. 19. But this relates only to the new form of Adjudications then introduced in place of Apprysing But for the old Adjudications upon there nunciations of Heirs or implement of Dispositions neither Statute nor Custom have yet cleared whether these will be effectual against singular Successors from their Dates or from the Charge against the Superior or only from the Seasines thereupon which as all other Seasines must be registrat And if the Lords do sustain these from the Charge it will make a defect in the security of Land-rights till it be supplied by act of Parliament And for further security of Land-rights because they might be reduced upon Inhibition or Interdictions Therefore these if not registrat are also null And in respect Horning continuing unrelaxed year and day after the denunciation the Superior hath the Fee during the life of the Vassal denunced therefore horning if not registrat is also null and the act of Prescription excludes all prior rights preceeding 40. years unless they have obtained Possession or done digence therefore by interruptions which must be repeated every five years or else they are null and must also be execute by a Messenger so that where before a Citation made interruption which continued for forty years which might much insecure Purchasers they can now last but five years in which short time the noise thereof may readily reach purchasers so that if purchasers get a progress of Infeftment for fourty years he may by the Registers know it there be any real Right that can affect the Fee within that time and hath no more to enquire but as to interruptions within five years which if the Lords appoint to pass only upon Bills it may be found at the Signet So that upon the whole matter no Nation hath so much security of irredeemable Land-rights as we have It is true redeemable rights are not so secure because they may be evacuat by order of redemption which proceed by Instruments of premonition and Consignation which require no registration and therefore purchasers of Appryzings or Adjudications during the legal reversion are in hazard of any order of Redemption or Summonds for Count and Reckoning and likewise these who purchase Wodsets or Infeftments of property or annualrent for security of sums run the hazard of satisfaction and payment of these sums by intromission or otherways wherein there is little inconveniency for no man should purchase a redeemable right without consent of the reverser but upon his hazard or if there be any reversion reservation or real burden in his authors right sibi imputet it is his fault and negligence if he did not see it and secure himself against it The Question may occur here if the Keper of the Register of Seasines do according to the Custom mark the Seasine Registrat and attest the same by his subscription and yet by negligence or fraud shall not insert it in the Register whether in that case a purchaser bona fide for causes onerous though Infeft thereafter will be excluded by that prior Infeftment marked by the Clerk not recorded though nothing hath been observed in this case If Seasines marked Registrat
any thing mentioned in the Statute as to the competition of Infeftments upon Appryzing or Adjudication with prior base Infeftments nor of the competition of one base Infeftment with another Yet Custome since that Statute hath cleared and determined the competition of publick and base Infeftments and hath restricted this Statute in some points and extended it in others First Custom hath preferred all publick Infeftments upon Resignation or Confirmation or upon Appryzing or Adjudication to base Infeftments though prior if the base Infeftment hath lain out of all kind of possession and likewise hath preferred posterior base Infeftments first clede with Possession to prior base Infeftments without possession especially in consideration that such base Infeftments are fraudulent or simulat retenta possessione for the retaining of Possession is a pregnant ground of simulation not only of Infeftments but many other Rights as when Moveables are disponed and delivered but presently taken back and the natural Possession continued in the Disponer though Instruments be taken upon the delivery yet other Dispositions or legal Diligences attaining and retaining Possession are preferable because the other Dispositions are presumed fraudulent and simulat And gifts of single Escheat or Liferent Escheat are presumed to be simulat if the rebel or his conjunct and confident persons be long suffered to retain the Possession and therefore base Infeftments retenta possessione are also presumed fraudulent and simulat and that not only presumptione juris by this and other Statutes but presumptione juris de jure admitting no contrary probation For certainly base Infeftments may be and oftentimes have been without simulation and for onerous causes and yet these have never been sustained or admitted to probation to validat such base Infeftments And albeit long retention of Possession may raise presumptionem hominis that publick Infeftments are simulat or without cause onerous yet that presumption hath not been owned by Law Secondly Custom hath preferred posterior base Infeftments attaining possession or using diligence to attain it to prior base Infeftments not attaining Possesion nor using diligence to attain it And albeit the superveening Statute for Registration of Seasines be designed for publication thereof that purchasers thereafter may not be insnared or disappointed whereby it might seem that the difference betwixt privat or base Infeftments and publick Infeftments might have been laid aside since the Act for Registration of Seasines whereby the uncertainty of real Rights by proving base Infeftments cled with Possession by Witnesses wherein our Law is so justly Jealous and Cautious that they are not admitted in cases where Write uses to be adhibit might be avoided Yet the preserence of publick Infeftments to prior base Infeftments not cled with Possession being fixed by Custom from this Statute before the Act for Registration of Seasines by the space of threescore seventeen years hath been still continued And such Infeftments as are without consent of the Superiour or order of Law have still retained the name and nature of base Infeftments and albeit the alledgeance useth sometimes to be proponed against base Infeftments that they are null not being cled with Possession yet it is no simple nullity but only a preference of a more solemn right for pursuits for Mails and Duties Removings yea and Reductions are sustained thereupon and will not be excluded upon pretence of want of Possession as thereby being null though they had lain long out of Possession So a base Infeftment without Possession was found a sufficient Title in a Reduction to inforce production of all other Infeftments base or publick albeit the Superiour did not concur Spots Kirk-men Dowglas contra the Earl of Home And such Infeftments do always exclude posterior Arrestments They do also exclude the Terce of the granters Relict January 27. 1669. Bell of Belford contra Lady Rutherford But base Infeftments do not exclude the Liferent Escheat of their authour unless they attain Possession in cursu rebellionis March 19. 1633. Laird of Rentoun contra Laird of Blackiter February 21. 1667. Robert Milne contra Clerkson Where there is no further ground of Simulation then the want of Possession very little Possession or Diligence for Possession will prefer base Infeftments to Posterior publick Infeftments or to posterior base Infeftments cled with Possession as the lifting of one Terms Rent did prefer a base Infeftment to a posterior publick Infeftment cled with many years Possession Hope alienation Hamiltoun contra Mcadam And the payment of a small part of Annualrent far within a Terms Annual was sustained to prefer a base Infeftment of Annualrent and it was also preferred because there was a Decreet of Poynding of the Ground though not put to Execution February 26. and 27. 1662. Creditors of Kinglassie competing And a citation for attaining Possession was found sufficient February 13. 1624. Corse contra July 2. 1625. Raploch contra Tenents of Lethem June 26. 1662. Wilson contra Thomson January 24. 1679. Hamiltoun contra Seatoun Yea a base Infeftment of Annualrent was preferred to a posterior base Infeftment of property which interveened before the first Term at which the Annualrent was payable and cled with Possession before that Term so that the Annualrenter did not lye out of Possession but could attain none July 26. 1676. Captain Alison contra Bailzie Carmichael And an Infeftment of Annualrent being out of discontiguous Lands in several Shires was preferred as to both Tenements by getting payment of Annualrents from the Heretor or Tenents of either Tenement November 6. 1673. Mr. Alexander Miln contra Mr. Thomas Hay And Possession by an Infeftment for Corroboration of an Annualrent did preferr the principal Infeftment of Annualrent having no other Possession July 9. 1668. Alexander contra 〈◊〉 And an Infeftment of principal Lands and Warrandice Lands being cled with Possession of the principal Lands these being evicted was found to make the Infeftment of the Warrandice Lands effectual from its date and preferred to a posterior publick Infeftment of the Warrandice Lands though cled with long Possession January 9. 1666. Elizabeth Brown contra John Scot. Yea base Infeftments to Wivesupon their Contracts of marrage 〈◊〉 preferre to all posterior Infeftments and the Husbands Possession is accounted the Wives Possession though he be common author to both November 23. 1664. Elizabeth Nisbet contra Patrick Murray And though the Husband did not 〈◊〉 himself but Wodsetters deriving right from him June 18. 1667. Lady 〈◊〉 contra Sir John Strachan And where the Husbands Mother did 〈◊〉 by a Liferent flowing from the Husbands Father to who 〈◊〉 he was Heir it was found sufficient to cloath his Wifes Infeftment with Possession February 21. 1672. Mr. James Reid contra Countess of Dundee But a base Infeftment of a Wodsett with a back-tack to the granter is not held cled with Possession by the granters Possession as Tacks-man till some further possession be attained Where there is any further ground of suspition or simulation there must be a clear
hath unwarrantably refused to Enter if the Appryzer or Adjudger insist in his Appryzing or Adjudication for Possession but he may forbear to make use of the Appryzing or Adjudication and if hely long out without further diligence he will be presumed to have relinquished his Appryzing or Adjudication and posterior Rights and Diligences will be preferred But if he enter in Possession no posterior Infeftment or Diligence will exclude him although he insist no further but the Charge of Horning and it hath not occurred to be determined how long that Right will subsist without infeftment but it hath been found that the Superiour will not be excluded from the Casualities of Superiority by his former Vassal if he have not been in the fault in refusing to Enter when the Appryzer or Adjudger offered him a Charter with a years Rent of the Land or Annualrent of the sum adjudged or appryzed for this was in the case of Ward February 9. 1669. Black contra David Trinch Neither was a Superiour found to have interest to exclude an Appryzer from Possession till he payed a years Rent but that he might possess during the legal if he insisted not for infeftment which insinuats that after expyring of the legal the Superiour might hinder the appryzer or adjudger to continue in possession till he take Infeftment and pay a years Rent but during the legal the appryzing or adjudication is but as a legal assignation to the Mails and Duties so that the appryzer cannot be forced to take Infeftment till the legal expyre and the Land become irredeemably his own and then he is to pay a years Rent but in this case there was no Charge upon the appryzing December 3. 1672. Mr. Hendry Hay contra Laird of Earlestoun Albeit in the case of Johnstoun contra the Tennants of Auchincorse July 22. 1665. the appryzer having charged the Superiour though he did not then obey yet appearing in the Process of Mails and Duties he offered now to receive the appryzer and therefore the appryzer was excluded till he payed the years rent which being under consideration of the Lords in the posterior case of Mr. Henry Hay they resolved to give the apyryzer his option within the legal to take Infeftment or not so that the Charge doth only hinder others to preveen but doth not exclude the Superiour from any Casuality of the Superiority falling by his former Vassal unless he had been in culpa refusing the appryzer Entry insisting orderly to be Entered which is a great advantage both to debitors and creditors not to have the accession of a years rent till the ancient Rights may be discovered and that it may appear whether the appryzing becometh an absolute Right The main division of Infeftments is in relation to the holding is in Ward Blench Feu Burgage and Mortification 31. An Infeftment Ward hath its denomination from Ward which is the chief Casuality befalling to the Superiour thereby it is the most proper Feudal Right we have and therefore wherever the holding appeareth not or is unclear there Ward-holding is understood it is ordinarly expressed by rendering service used and wont and if the reddendo be not express in name of blensh or Feu Ferm though it bear payment of some Duty yet Ward is inferred as by a Charter bearing sex dinarios nomine cana with a taxed Marriage So also it was inferred by a reddendo bearing a particular Duty payable at Whitsunday and Martimass cum servitiis in curiis nostris alibi debitis consuetis Hope de feudi renovatione Williamson contra Thomson The main importance of a Ward-holding was indefinite service to be performed by the Vassal to his Superiour and especially in War but that being now little in use the main effect of it is the Ward and Marriage of the Vassal of which hereafter 32. Ward Lands according to the nature of proper Feudal Rights might not be alienat by the Vassals granting any subaltern Infeftment thereof otherways not only the subaltern Infeftments were void but the Vassal granter thereof his own Infeftment became void by Recognition yet by Act of Parliament 1457. cap. 72. all Feus to be granted by the King Prelats Barons or Free-holders are allowed and declared not to fall in Ward as being but Heretable assedations as the act bears paying to the Superiour during the Ward the Feu-duty providing the Lands be set to a competent avail without prejudice to the King which is ordinarly interpret to be the retoured duty the same is repeated Par. 1503. cap. 91. and extended not only to subaltern Infeftments Feu but also of annualrents so that it be without diminution of the Rental which in Lands holden of the King by secular men is the retoured mail and in the Kings property and in Kirk-lands is the full rental they should happen to be at the time of the subaltern Infeftments which therefore the Feus may not diminish and the annualrent may not be so great as to exhaust the Land that the rental remain not free This last Act was temporal for that Kings life and therefore the extention as to annualrents ceaseth though the first Act expresseth that the King will ratifie all Feus granted by the Kings immediat Vassals yet the Act bears that the King thereby will give good example to the rest viz. to other Superiours and therefore a Feu of ward-Ward-lands granted by a Vassal holding Ward of a Subject before the Act of Parliament 1606. was found valid though without the Superiours consent June 24. 1668. Stuart of Torrence contra Feuars of Ernock This priviledge was taken away as to all Superiours and their Vassals except the Vassals of the King who only might grant subaltern Infeftments of their Ward lands Par. 1606. cap. 12. whereby all such subaltern Infeftments of their Ward-lands are declared null by exception or reply unless the Superiours consent were obtained and therefore the Superiours consenting in the Disposition by a Vassal to a Sub-vassal was found to exclude the Vassals Ward so far as concerns the Sub-vassal though it was a redeemable Feu July 2. 1672. Earl of Eglintoun contra Laird of Greenock The same was extended to the Vassals of the King and Prince who were thereby also excluded from setting of Feus of Ward-lands to Sub-vassals Par. 1633. cap. 16. but the Vassals of the King and Prince were restored to their former priviledge and the said Act 1633. wholly repealed Parliament 1641. cap. 58. which now is rescinded Par. 1661. cap. 15. Yet the Lands set in Feu during the time of these several Acts now repealed are valid So ward-Ward-lands holden of the King or Prince may not be set in Feu nor of any other Superiours except Bishops and their Chapters for these might set Feus for a Feu-duty equivalent to the retour Par. 1621. cap. 9. But this Act was only temporary for three years and therefore subaltern Infeftments granted by Vassals if of the most part of the ward-Ward-lands infers recognition thereof
the saids Gleibs were set in Feu or long Tack before or not unlesse a sufficient Manse be builded by these who have right to the Few or long Tack Par. 1563. cap. 72. Which was explained Par. 1672. cap. 48. That the Manse either pertaining to the Parson or Viccar most ewest to the Kirk shall belong to the Minister and four Aikers of Land lying most Ewest to the said Manse to be designed by the Bishop or Superintendent at the Visitation by advice of any two of the most honest and godly of the Parochioners For want of this Solemnity a designation was found null because it bore not two honestmen by name required to joyn with the Presbytery or their Commissionersthough it bore that all the Elders of the Paroch were present and consented but named none Spots Kirk-men Minister of Lamingtoun contra Tweedie though Parsons or Viccars Manses may be designed to be the Manse of a Minister yet no other house can be designed though it were in an Abbay but the Parochioners must build one 11. of February 1631. Minister of Innerkeithing contra John Kerr If there be no Manse nor Gleib of old extending to four Aikers of Land then the designation is to be made of Parsons Viccars Abbots or Priors Land and failing thereof of Bishops Lands Friers Lands or any other Kirk-lands within the Paroch aye and while the four Aikers be compleat with freedom of foggage pasturage fewel feal and divet Par. 1593. cap. 161. By which there is a clear order of designation First of Viccars and Parsons Manses most ewest and failing thereof of Parsons or Viccars lands Failing these Bishops Lands Frier Lands or any other Kirk-lands as Chaplanries Prebendaries Which order was so found to be observed 13. of July 1636. Thomas Halyburton Minister contra John Paterson And therefore a designation of a Manse or Gleib out of Abbots Lands was annulled because there were Parsons Lands in the paroch though they were builded with houses and feued for which the Feuers were obliged to acquire a Gleib 24. July 1629. Mr. James Nairn contra Mr. James Boswell The like though the Lands were fewed all before the Act of Parliament 25. of January 1665. Parson of Dysart contra Watson Yet Bishops Lands were ordained to be designed before Abbots Lands though they be named after in respect of their greater interest in the Cure Nicol. de sacro sancta Ecclesia 2. of July 1622. Nicolson contra Porteous Where there is not arable Land near the Kirk the Geib is to be designed of pasture lands sufficient for 16 soums most ewest to the Kirk Par. 1621. cap. 19. The designation of Manses and Gleibs where they are not designed or not a full quantity or are become unprofitable by Inundation or other extraordinary accident are ordained to be out of the Kirk-lands most ewest to the Kirk according to the order in the Act. 1593. Burrowstoun Kirks being always excepted yet a Gleib was found competent to a Minister of a Burgh having a Land-ward part of his Parochin Spots Kirk-men Mr. Robert Ruch The Designation of Gleibs was committed to Presbyteries Par. 1644. cap. 31. which is declared to be by three Ministers and three Elders Par. 1649. cap. 31. Revived Par. 1663. cap. 20. whereby Designations are referred to the Bishop or such Ministers as he shall appoint with two or three of the most knowing in the Paroch In which Acts the power of Designation is extended not only to Kirk-lands but where these are not to other Lands arable or Grass ewest to the Kirk provided that the Heretor thereof may offer other sufficient Lands and Grass within half a myle of the Kirk and Manse And by the said Act 1649. there is added to the Gleib pasturage for a Horse and two Cows which is found to be regulat as the Gleib before which is also revived Par. 1663. cap. 20. with this alteration that if there be not kirk-Kirk-lands near the Manse or are not Arable Lands the Heretors shall be lyable to pay yearly to the Minister twenty Pounds Scots for his Horse and Kines Grass and this Act is declared to be as if it had been made in March 1649. as to designations after 1649. that Parliam being rescinded without reservation contained in the Act rescissory as is in the Act Rescissory of the other Parliaments saving all privat rights done thereby but there is no warrand in any of these Acts to design temporal Lands where there are any Church lands and therefore a Designation was reduced because temporal Lands were designed and Kirk-lands past by albeit the Minister had been possessor decennalis triennalis which gave him a presumptive Title because his Designation which was the true Title was produced February 6. 1678. Lord Forret contra Mr. John Maters A Gleib designed was found to carry a proportional part of the common pasturage following to the Lands designed February 2. 1630. Hamiltoun contra Tweedie Designation of a Gleib was sustained though it bore not the same to have been four Aikers measured in respect it bore that the possessors servants hindered the measuring and therefore it was designed according to the common estimat July 5. 1626. Kers contra Minister of Alloway And also sustained though there were Lands nearer the Kirk and Manse which were Bishops Lands seing they were inclosed as a part of the Kings Park February 13. 1629. Lady Dumfermling contra Minister of Dumfermling Bat a Designation was annulled because there was an old Gleib possest long by the incumbent being four Aikers Nicol. de sacro sanct Eccles. Minister of Aberdour contra Brown and Ramsay A Designation was sustained though there was only a Nottars Instrument without the subscription of three Ministers Designers December 17. 1664. Mr. Thomas Paterson contra Watson Here the Ministers Designers their Testificat under their hand was ordained to be produced before extract A Gleib being designed was sustained though it was an united Kirk the other Kirk having a Gleib January 22 1631 Ministers of Innerkeithing contra John Keir A Designation was also sustained though it proceeded upon warning out of the Pulpit or at the Kirk-door after Divine Service in respect of the custom so to do though some of the most considerable Heretors were out of the Countrey January 28 1668 Ministers of Hassanden contra the Duke of Bukcleugh It was also sustained though done but by two of the three Ministers named by the Bishop without a quorum unless weighty reasons upon the matter were shown to the contrary February 7 1668 Minister of Cockburnspeth contra his Parochioners Manses Gleibs being designed as said is the Feuars Possessors and Tacksmen have relief of the remnant Parochioners having Kirk-lands pro rata Par 1594 cap 199 which was extended to a 〈◊〉 Manse being Designed and the other Kirk-lands a part where of were mortified to and holden of a Colledge did bear burden February 12 1635 John Cock contra Parochioners of Auchtergivan But where old Gleibs
Superiours must be called 73. All other interest of Fees are carried as part and pertinent though they be not exprest and albeit Woods and Lochs use oft to be exprest yet they are comprehended under parts and pertinents and therefore the Master of the Ground hath not only right to the Water in Lochs but to the Ground thereof and may Drain the same unless servitudes be fixed to Water-gangs of Milns or other Works and the Ground of the Loch and all that is upon it or under it is a part of the Fee But if the Loch be not wholly within the Fee but partly within or adjacent to the Fee of another then unless the Loch be exprest it will be divided amongst the Fiars whose Lands front therupon The parts of Fees are only exprest in bounding Charters but in all others the parts are only known by the common reputation of the Neighbour-hood what they comprehend under the Designations exprest in the Infeftments and by Possession as part and pertinent of the Lands Designed in the Infeftment whether they have but one common Designation as such a Barrony or Tenement or if there be an enumeration of their parts by distinct Names which doth not exclude other parts though belonging to none of the parts enumerat there is only this difference that expresse Infeftments are preferable to these which alledge but part and pertinent much more if it be alledged to be separatum tenementum requiring a distinct Infeftment and yet prescription as part and pertinent will exclude an Infeftment as a separat Tenement But where there are March-stones set it is a great convenience to preserve peaceable Possession and though it cannot be proven when these Marchs were set yet their being repute as March-stones will be sufficient to defend at any time within prescription But Lands are oftimes so large comprehending Mures and Mountains that March-stones cannot be set for remeid whereof the Lords of Session by an Act of Sederunt 1580. Ratified in Par. 1587. cap. 42. Ordained all Molestations in Property or Commonty in possessorso to be before Sheriffs Bailies of Regalitie and other inferior ordinar Judges where the Lands ly and for that effect the Lords will direct Letters of Cognition to proceed upon fifteen days warning by an Inquest of persons who best know the Matter the most part thereof being Landed-men having at least four Ploughs of Land or three hundred merks of irredeemable Rent and the rest substantious famous Zeamans of the same Paroch and failing thereof of the Paroch nearest adjacent and if both parties have Cognitions raised before Litiscontestation on either the half of the Assyzers shall be taken of these summoned for either party or in case there be not a sufficient number of them habile the Judge shall supplie the same and the odd man to be chosen by lot which Inquest shall visit the ground and shall return their verdict upon oath both upon the Clames and exceptions of the parties and in case the Judge ordinar be suspect or that the Lands ly in divers Jurisdictions the Lords are to appoint unsuspect Judges to be past under the quarter Seal There are only excepted the actions belonging to the members of the Colledge of Justice which are to be before the Lords yet the Lords are accustomed to grant Commissions to some of their own number where questions arise concerning the parts or Marches of Tenements to visit the Ground and there to receive witnesses hinc inde both as to Possession and Interruption which the Lords do advise and determine without an Inquest Parts of Tenements in possessorio are sustained by the present peaceable Possession for some time for seven years peaceable Possession will sustain the Right of the whole till Reduction And fourty years Possession as part and pertinent is sufficient in petitorio for the point of Right and will exclude an Infeftment express yea though it be an Infeftment as distinctum tenementum November 14. 1671. Walter Young contra William Carmichael But if there be interruptions and that either party hath had some Possession the express Infeftment will be preferable and any lawful Interruption will preserve an Infeftment of a separate Tenement but if neither party be expresly Infeft in the Lands in question interruption by either party will not exclude prescription because there is not a prior special Right valid of it self without Possession and therefore if both parties have had mutual or promiscuous Possession each Possessing when they could and turning off the other that part of the Land so possest will continue as a promiscuous Commonty which frequently falls out about the Marches of large Tenements and was so determined betwixt the Lord Strathoord and Sir Thomas Stuart of Gairntully if neither party have an express or several Infeftment Discontiguity will not exclude part and pertinent though if the question be with him to whom the Land is Contiguous less Probation will prefer him Craig l. 2. Dieges 3. relates a case in his time betwixt the Earl of Angus and Hoom of Polwart where Discontiguity did not exclude part and pertinent not being known as a distinct Tenement Pertinents comprehends all the Natural Fruits for Corns are accounted as Moveable and as no part of the Ground as hath been shown in the former Title Section second And also all servitudes so a servitude of a Pasturage in another Heretors Wood was sustained as a Pertinent by long Possession Spots Servitude Laird of Knockdolian contra Tennents of Partick And Part and Pertinent being exprest in a minute of Sale it was found to carry common Pasturage in a Mure which was a Commonty to a Barrony whereof the Lands sold was a part February 14. 1668. William Borthwick contra Lord Borthwick And in the case betwixt the Laird of Haining and Town of Selkirk decided February 15. 1668. A Barrony of the Kings cum pertinentibus cum pascuis pasturis was found to carry common Pasturage in the Mure of the Barrony and that the last fourty years Possession did presume the like Possession in the Feuars from the obtaining their Feues and that interruptions by the Town whose Infeftment was but general cum communiis did not exclude the Pasturage of the Feuers who had also made interruptions against the Town 74. Craig l. 2. Dieges 8. Debates this question whether Wood and Coal be parts of the Ground or only Pertinent as Fruit thereof for if these be parts of the Ground Conjunct-feers or Liferenters will have no share thereof nor Donatars of Ward Non-entry or Liferent-escheat so that the question is very important wherein he relates two Decisions one betwixt the Lord Seatoun and his Mother who being served to a Terce was found to have right to the third of a Coal-work constantly going for sale in the Defuncts time and another betwixt Ramsay of Dalhousie and Mary Ballantine his Predecessors Relict in relation to a Wood which the Fiar was found to have the only Right to Sell and
Earl of Argile as Donatar to his Fathers forefaulture seing the King had done no deed to accept Mcleod as his immediat Vassal but that he was Infeft by Precepts out of the Chanclery passing of course 6. Superiours nor their donatars need not instruct the Superiours Right but the Vassal must acknowledge it or disclaim him upon his peril so it was found in the Casuality of Marriage February 25. 1662. Arbuthnet contra Keiths which will not hold if the Right of Superiority be newly acquired and no Infeftment given to the Vassal or his Predecessors by vertue thereof The Superiours Infeftment gives him interest to pursue Reductions and Improbations against all parties even against his own Vassals who will be forced to produce their rights under the Certification to be declared null or false and feigned though when they are produced they may defend them 7. Superiority carrieth a right to the Service and Duty contained in the Vassals reddendo and that not only personally against the Vassal upon any personal Obligation or Contract in Write but also by vertue of Intromission in meddling with the Fruits and Profits of the Land for all such intromettors may be pursued and distressed personally for the Duties contained in the reddendo which being granted to Masters of the Ground for their Tack Duty against Tennents and all intromettors with the rents is much more competent to the Superiour for his Feu-duty or other Service in kind how far this will be extended to Blensh-duty hath been shown in the former Title And as to Services which are annual as winning and leading of Peats c. these are not due if they be not required yearly in due time whether they be due by Vassals to the Superiour or Tennents to their Master January penult 1624. Carnowsie contra Keith So Service of Harrage and Carriage in a Feu-duty was found not due but when demanded within the year June 27. 1662. Mr. David Watson contra Mr. James Elleis 8. But also the Superiority carrieth the right to the duty of the reddendo really against the ground of the Fee for which he hath Action of Poinding of the Ground against the Vassal and all singular Successors to him whereby he may appryze the Goods upon the Ground or the Ground-right and Property of the Lands the saids Duties being liquidat upon repayment whereof the Lands are redeemable as in other Appryzings 9. Superiority carrieth the Right of Jurisdiction over the Vassals Lands and Inhabitants thereof if the same be granted to the Superiour in his own Infeftment either implicitely as being a Barrony Lordship or Earldom or expresly having the power of Courts and their Issues and though the Superiour grant the same to the Vassal yet that is not exclusive of his own right but cumulative therewith how far Superiority carrieth the right of Thirlage of the Vassals Lands to their Superiours Milns when the Vassals have not granted to them the priviledge of Milns and Multars will appear amongst Servitudes of which hereafter 10. Superiority carries all the Casualities thereof requiring Declarator to Heirs and singular Successors hoc ipso that they have the Superiority established in their person and do not fall to the Executors of the Superiour as to bygones before his death unless gifted or liquidat by Sentence March 5. 1611. Dowglas contra Captain Crawford February 19. 1635. Cunninghame contra Stuart July 11. 1673. Robert Fa contra Lord Balmerino and Laird of Pourie But Feu-duties or any Casuality may be separat from the Superiority by Sentence or Assignation and therefore a Disposition of the Superiority was found to imply an Assignation to the Feu-duties bygone which being to the vassal himself needed no intimation and was valid against a singular Successor Infeft in the Lands in Superiority December 14. 1676. Earl of Argile contra Lord Mcdonald 11. A Superiour of Kirk-lands pursuing his vassal for his reddendo was not excluded till he instructed that he consented to the surrender conform to the Act of Parliament 1633. annexing the Superiority of kirk-Kirk-lands to the Crown reserving the Feu-duties to the Lords of Erection who consented to the surrender which was presumed in possessorio June 27. 1662. Mr. David Watson contra Mr. James Elleis 12. Superiours are oblieged to receive Appryzers or Adjudgers for a years Duty albeit the Superiour alledge a better Right then the Appryzer but the Infeftment to bear salvo jure cujuslibet suo July 4. 1667. George Shein contra James Chrystie Yet a Superiour having received an Appryzer was not found excluded from any right to the Property though he made no reservation thereof seing his receiving was necessary July 19. 1664. Hospital of Glasgow contra Robert Campbel But a Superiour being charged to receive an Adjudger was found to have his option either to receive him for a years Rent or to pay the sum adjudged for getting Assignation to the Adjudication being redeemable by the Vassal from the Superiour and without any years Entry to be payed at Redemption seing the Vassal was not changed as is provided Par. 1439. cap. 36. June 10. 1671. Sir Francis Scot of Thirlestain contra Lord Drumlanerk 13. And a Superiour is also oblieged to receive a Donatar upon the Kings Presentation gratis without present payment of the Non-entry duties till declarator and if he refuse he loses his Superiority during his Life June 25. 1680. Laird of Blair contra Lord Montgomerie 14. A Superiour must also receive his Sub-vassal whom his immediat Vassal refused to Enter without further instructing of the Vassals Right but by receipt of the Feu-duty by him as Superiour wherein the mediat Superiour supplet vicem of the immediat salvo jure June 28. 1672. Menzies contra Laird of 〈◊〉 Yet a Superiour cannot exclude an Appryzer or Adjudger within the legal from the Rent of the 〈◊〉 till he pay a years rent December 3. 1672. Mr. Hendry Hay contra Earlstoun 15. And if a Superiour or any to his behove take the gift of his own Ward he was found to have no interest to extend it further against his Vissal Infeft with absolute warrandice then to a proportional part of the Composition and Expenses February 15. 1665. Boyd of Penkil cintra Tennents of Carslooth The like where the Ward had fallen after the Vassals Right for if it had fallen before he could have nothing December 1. 1676. Lord Lindsay contra Bargallon 16. Superiours are not oblieged to receive upon Resignation or by Confirmation and having accepted Resignation it did not exclude the marriage of the Resigners Heir there being no Infeftment upon the Resignation before the Resigners death November 14. 1677. Sir William Purves contra Strachan of Kinadie 17. Superiority falling to more Persons doth not obliege the Vassal to take Infeftment of them all but if heirs portioners of the eldest July 30. 1678. Lady Lus contra Inglis And by the same reason if the Superiority fall to many singular Successors by Appryzing or otherways the Vassal
of the Statute being to Satisfie Creditors by a Judicial alienation of the Debitors Lands ex paritate rationis it was extended against the Debitors appearand Heir who being Charged to Enter Heir did not Enter and therefore Lands were Adjudged from him to which he might have Entered either for his Predecessors debt or his own whereupon the Superiour is descerned to receive the Creditor Adjudger whether for sums of Money or for Implement of Dispositions and Obliegements to Infeft But the Custom allowed not a years Rent to Superiours for receiving Adjudgers till the years Rent was also extended to Adjudications by Act of Parliament Decem. 3. 1669. The Lords of Session have always taken latitude in the modification of the years Rent especially if the sum Appryzed or Adjudged for be small and the Lands he great and they have allowed the Appryzer or Adjudger his option during the legal to take Infeftment or not and yet not to be excluded from the Rents of the Lands till he be satisfied Decem. 3. 1672. Mr. Hendry Hay contra Laird of Farlstoun Vide Tit. 13. § 29. But the Appryzer runs that hazard that if the Debitor die before he be satisfied if the Land be holden Ward it will fall in Ward and relief by the Debitors death and in Non-entry for there is no reason that the Casualities of the Superiority should neither fall by the Appryzer nor by the Debitor There is not the like reason that the Liferent-escheat of the Debitor should exclude the Appryzer if it fell after the Appryzing and Charge for the Liferent-escheat falls to the Superiour with all the burdens which affected it by the Vassal even with the burden of his Tacks and therefore Appryzing with a Charge way be as effectual as these July 24. 1632. James Rule con Laird of Billie The Superiour can have only one years Rent from all the Appryzers or Adjudgers But now since Appryzers and Adjudgers within year and day come in pari passu where one needs only to be Infeft or to Charge there is less reason to give an easie modification of the years Rent to the first Appryzer or Adjudger insisting for Infeftment then before because one Infeftment serves for all and he who advanceth the same gets relief of the rest before they have access to the Rents 33. The prime Casulity of Fees is Ward which is not competent to all Superiours Ward is only competent in Fees holden in Military Service which have their Denomination from this Casuality being therefore called Ward-holdings and that not by the Tenor of the Investiture which seldom mentioneth Ward but by the Nature of it for when the Fee is holdeu for Military Service or as the English better express by Knight Service extending not only to following in War but to Council and Assistance in Peace then when the Vassal is unfit for such Service the Fee is open and remaineth in the hands of the Superiour or his Donatar and though this capacity might be in some sooner yet it is fixed in men to their majority at twenty one years compleat and in Women till they become fourteen years compleat for then they are capable of Husbands who may do the Service required in the Fee Decem. 20. 1609. and Jan. 27. 1610. Lady Kilbirnie contra the Heirs of Fairlie What Fees are holden Ward we have cleared in the former Title It now remains that we hold forth the effect of this Casuality 24. Ward reacheth the Custody of the Person and of his Lands holden Ward it hath its denomination rather from the former for Ward is as much as Guard or Custody The Superiour or his Donatar is by the Nature of this Right as a Tutor to the Vassals Heir Craig observeth that he is preserable to all other Tutors except only the Father of the Heir whose Fee descends by the Mother or some other person and that he is oblieged as other Tutors to pursue the rights of the heir but the course of time having turned this Right from its ancient Institution so that the Superiour hath less enjoyment of Service but more of Profite of the Fee there is the less regard to the Pupils Education with or by the Superiour to the effect he might be fitted for his Service and therefore other Tutors not only for the administration of the Pupilsmeans but even for the Custody and Education of his Person will be preferred though of old the Donatar of the Ward was preferred to the Tutor in Custody of the Pupils Person Sinclar June 15. 1543. Laird Auchnames contra Laird of Elphinstoun Ledingtoun March 16. 1565. and July 12. 1566. Weir contra Lochart Yet later Decisions have favoured Tutors more and preferred them Nicol. ubi pupuli educari Mr. James Chalmers contra Elizabeth Howstoun Lady Gadgirth Neither have I ever observed that Superiours or their Donatars were made lyable as Tutors for Administration of their Pupils Affairs 35. The main effect of Ward then is that thereby the Superiour or his Donatar have during that time the full fruits and profites of the Fee and may remove Tennents and do all other deeds that the Proprietar might have done and was accustomed to do as to continue the profites of a Wood if there be constant cutting as being divided in so many Hags that the first is ready by the last be cut Or going Heughs as they were accustomed by the Vassal but he cannor cut more then the accustomed yearly Hags of Wood or put in more Coalziers then the Vassal had at his death and ordinarly before and he may remove and in put Tennents and that without any preceding declarator or favourable account esteeming the retour Mail for the Rent as in Non-entry but he may immediatly pursue actions for Mails and Duties removing c. unless the Ward be Taxed and then the Superiour can have no more then the Duties to which it is Taxed But for it he hath not only the Vassal and all Intromettors with the Fruits personally But he may also Poynd the Ground for the Taxed Duty as Craig affirmeth in this Title 36. Yet the reach of the Ward by the Nature of the Fee cannot extend to alienation or consumption of the Substance of the Fee or any part or pertinent thereof and this is cleared by the Statute Parliament 1491. cap. 25. Whereby Donatars must find Caution not to destroy the Biggings Woods Stanks Parks Meadows or Dovecoats but to keep them in such kind as they get them Ward is also restrained by the Statutes confirming Feues of which formerly and these stand valid against the Superiour during the Ward so do also all Infeftments holden of him either by Resignation or Confirmation but not Infeftments to be holden of his Vassal unless Confirmed by him for albeit Confirmations by the King which pass of course do not take away the Casualities of Ward c. of the Kings Vassals which affect the Fee of the Sub-vassals yet the Confirmation of other Superiours of Sub-vassals
rights doth take off from him the Ward if the right be Feu only generally without mention of the Ward seing the Act 1606. doth only annul Feues set by Vassals holding Ward of Subjects without their Superiours consent which was so found albeit the Feu was under reversion that it was free of the Ward and Marriage of the Vassal as to the subvassal feuer but did only affect the Vassals interest viz. the Feu duty reversion and back-tack July 2. 1672. Earl of Eglintoun contra the Laird Greenock Ward is also restrained by the Terce and Liferent of Husbands by the Courtesie of Scotland both which are introduced by Law and are valid without the Superiours consent But Rentals and Tacks set by the Vassal have only this effect against the Superiour or his Donatar that the Tennents or Labourers shall not be removed till the next Whitsonday after the beginning of the Ward paying the old accustomed Duty Par. 1491. cap. 26. But then the Superiour or his Donatar may remove them notwithstanding their Tacks be unexpired which therefore sleep during the Ward but revive against the setter and his Heirs and endure as many years after the Ward as they were excluded by the Ward Sinclar May 21. 1549. Laird of Durie contra Robert Steuart Ledingtoun December 16. 1569. Kings Donatar contra Tennents of Drorgan July 4. 1611. Laird of Couter contra Where also the Terce was found relevant to exclude the Superiour yet Ward is not excluded by Annualrents holden of the Vassal March 11. 1629. James Weyms contra Kincraig But now since the Act of Parliament 1606. Prohibiting Feues without consent of the Superiour these did not exclude the Ward or other Casualities of the Superiority as to Fees not holden of the King which was even extended to the Fees holden of the Prince Hope Ward Lady Cathcart contra Vassals of Cathcart And after the Act of Parliament 1633. extending the foresaid Act to ward-Ward-lands holden of the King and Prince Feues then granted till the year 1641. when the effect of that Act being before suspended by Act of Parliament 1640. was taken away And so Feues of Lands holden of the King or Prince were valid till the rescissory Act 1661. whereby the said Parliament 1641. was rescinded Par. 1661. cap. 15. So that now Feues of Lands holden of the King Prince or any other Superiour without their consent do not exclude it or other Casualities of the Superiority except such Feues as were granted the several times they were allowed by Law but a Charter upon an Apprizing did exclude the Ward though no Infeftment was taken thereupon during the Vassals life as Hope observes Title Ward Hamiltoun contra Tenents of Newburgh because the Superiours Charter without Seasine did import a Gift of the Casualities which might befall to the Superiour and he there observes that a Ward was excluded by Appryzing and Infeftment thereupon whereby the Defunct was denuded albeit it was to the behove of his Heir Laird of Ley contra Laird of Barro During the Legal the Superiour or Donatar as before the Infeftment upon the Apprysing they might pay the Appryzer and take his right So after they may redeem him and exclude him it being against reason that by Appryzing suppose of a great Tenement for a small debt the Superiour should be simply excluded and it may be upon design if an Appryzer Possess his Ward falls and not the former Vassals though the Legal be not expired but after the Ward is fallen though the Superiour received an Appryzer Appryzing from the Heir without Protestation yet it was found not to prejudge the Ward by the death of the former Vassal July 9. 1664. Hospital of Glasgow contra Robert Campbel But a Superiour was not excluded from the Ward by his Vassalt death because an Appryzer had charged him to Enter him during that vassals life seing that Charge could not make the Apprizer vassal by whose death Ward would fall and thereby make the Superiour lose this Casuality by the death of both the old Vassal and the appryzer unless the Superiour had been in mora aut culpa which was not found unless a years rent of the Land or Annualrent of the Money And a Charter were offered with a Bond to pay what further the Lords should modifie February 19. 1669. Black contra David Trinch If an Appryzing be satisfied or extinct by Intromission the Ward-lands appryzed become in the Superiours hands by Ward till the Majority of the heir July 20. 1671. Lindsay of Mount contra Maxwel of Kirkonel In which case the Appryzer was not found oblieged to restrict to his Annualrent to the effect that the Donatar of Ward might have the superplus by the Act of Parl 1661. cap. 62. betwixt Debitor and Creditor whereby there is a power given to the Lords of Session to cause Appryzers restrict to their Annualrent which is only personal in favours of the debitor if he demand it The benefite of Ward is also burdened with the Mentainance and Sustentation of the Heir by vertue of the foresaid Act 1491. cap. 25 whereby a reasonable Sustentation according to the quantity of the Heritage is appointed to the Heir if he have not Lands Blensh or Feu to sustain him and that by the Superiour and his Donatar and Conjunctfiars and Liferenters of his Estate the quantity whereof is to be modified by the Lords according to the quality of the Heir and so found not only when the Heir had no means but though he had if it was not sufficient to entertain him the superplus was modified out of the Ward-lands and Lands Liferented proportionably March 16. 1622. Heirs of Miltoun contra Calderwood We shall say no more of the Aliment of Heirs by Ward Superiours or their Donatars in this place but you may see it in its proper place Title 27. Section third Thus it appeareth in what way the Casuality of Ward is excluded burdened or restricted being always by Law or by the consent and deed of the Superiour but no private deed of the Vassal without the Superiours consent or appointment of Law can burden the Fee when it is in the hands of the Superiour by Ward c. So that Servitudes introduced by the Vassal as Thirlage ways and the like are not effectual against the Superiour or his Donatar when the Fee is in their hands Unless such Servitudes be introduced by Prescription of fourty years or immemorial Possession whereunto all parties having interest their consent is presumed and therefore in that case there is more ground for sustaining of the Servitude even against the Superiour who might at least have used civil interruption Marches set by the Vassal of consent or by Cognition whereto the Superiour is not called hath no effect in his prejudice during the Ward Feb. 8. 1662. Lord Torphichen contra As to the personal debts of the Vassal whether Heretable or moveable they do not affect the Fee though in Ward albeit Craig Dieges 20. relateth that of
old it was otherways and that the Superiour had the Ward with the burden of intertaining the Heir and with the paying of the Annualrents of his Heretable debts and that the Custom of Wards in France is such Yet there is no appearance that the custom hath ever been so with us since the reign of King Malcolm who gave out all his Lands to his Subjects and reserved only to himself for sustaining of the Royal Dignity the Ward and Marriage of his Vassals which at that time were very considerable when most of all the Lands in Scotland were holden by simple Ward but since a great part hath been changed into blensh or Taxed Ward or given out in Burgage and Mortifications or in Feues The Casuality of Ward may be enjoyed immediatly by the Superiour but is more ordinarly gifted to Donatars not only by the King but by other Superiours which Donatars may do whatsoever the Superiour himself might because they Act by his Right and are in effect his Assigneys So that if gifts be granted to more Donatars the first Intimation or Diligence will be preferred Gifts of Ward and Non-entry were accustomed of old to be granted by the Exchequer together bearing not only for bygones but for time coming till the Entry of the 〈◊〉 Heir or Heirs And albeit Gifts of Ward run still in the same Style yet by the Acts and Customs of Exchequer Ward and Non-entry are several Casualities and pass by several Gifts and notwithstanding the foresaid Clause the Gift of Ward reacheth only during the time of the Ward and three terms thereafter if the Lands run in Non-entry but ward was not found to give right to three Terms full Rent here the Donatar was not in Possession during the Ward Novemb. 2. 1680. Laird of Dun contra Viscount of Arbuthnet And albeit the Gift contain relief yet that Casuality as Hope observeth is always demanded by the Exchequer and counted for by the Sheriff being but a small duty of the retoured mail as the gratuity to the Superiour at the Vassals Entry In that same place he saith that under the Gift of a simple Ward is not comprehended Taxed Ward which being Taxed is as a Feu duty and rather as a part of the Kings ordinar Revenue then a Casuality Upon which ground the Earl of Kinghorn as Tutor to the Earl of Errol having gotten a gift of his Ward without mention of Taxt-ward he was necessitat again to take a new Gift for the Taxt-ward and gave a considerable Composition and did not adventure to put the matter to debate before the Lords of Session whether his first Gift would have been extended to Taxt-ward or not 37. The fourth Casuality of Superiority is the interest of Superiours in the Marriage of their Ward-vassals which doth arise from the Nature of the Feudal Contract in proper Fees whereby the Vassal oweth the Superiour faithfulness and Military Service and is thereby in his Clientele which could Import no more then that he should not Contract affinity by Marriage with any that were in enmity with his Superiour for thereby his Fidelity might become suspect which would take place not only in the first Marriage of the Vassal but as to any subsequent Marriage though he had Succession by a former Marriage and might take place in the Marriage of the Vassals eldest Son even in his life and might be considered as an Act of Ingratitude if the enmity betwixt the Superiour and the Family with whom the Vassal was to marry were known to him and might import a breach of his Fidelity if the Superiour did prohibit him to match with that Family which was in open and known enmity to him The Superiour might also have Interest in his Vassals Marriage when he had the custody of his Person as a Tutorial Trust for the good of the Vassal 38. But Time and Custom hath given Superiours a far different interest in the Marriage of their Vassals here and in England of which there is no mention in the common Feudal Customs nor is it in use in other Kingdoms for albeit by the Custom of France female Heirs in the Kings Custody must require the consent of the King or his Procurator yet the not doing so infers not the value of their Marriage as in England and with us it is become a power in the Superiour to exact out of his Vassals Fee the value of a Tocher suitable to the whole means and Estate of the Vassal if he Marry without his consent and the double value being solemnly required to Marry a suitable person without disparagement if he doth not obey but Marry another this Custom was introduced in England in the Reign of King Henry the third It is commonly held to have been introduced in Scotland in the Reign of King Malcolm the second who gave out all his Lands in Scotland in Fee and reserved to himself for the ordinar support of the Royal Dignity the Ward and Marriage of his Vassals whence the marriage was designed as a profit to the Crown and by example was derived to the Subjects who giving their Lands Ward were understood to give the same with the like Priviledge of the value of their Vassals Marriage which doth never take effect till the Vassal be Major for during his Minority his Superiour or his Donatar have the full profites of his Fee over and above the expenses of his Education and mentainance according to the Vassals quality if he have no other Estate which is not Ward the profits whereof may be sufficient to Entertain and Educate him or in so far as these profits come short for no Minor is oblieged to spend his Stock upon his mentainance nor may his Tutors or Curators securely do the same Therefore the true Interest of Superiours in their Vassals Marriage should now be the Tocher suitable to the Vassals Estate Marrying after his Predecessours death if he had not been Married before for the value of the Marriage being due but once and not for every Marriage if the first Marriage fall not after the Defunct Vassals death it should not be demanded nor any account called for of the profite of the Marriage falling before he could be Vassal though it hath been claimed where the Vassal was Widow at his Predecessors death having no Children of the former Marriage but it came not to be determined by the Session though it was demanded by the Commissioners of the Thesaury from Sir Robert Barcley of Pearstoun And albeit the Vassal never marry yet if he be solemnly required by Instrument to Marry a suitable Person without disparagement if he live to his majority though he never Marry his Fee will be lyable to the value of his Marriage albeit he willingly ly out uninfeft not by the Superiours fault but his own for though Creditors have a remeid by a Charge to enter Heir within fourty dayes with certification that all execution shall pass as if the debitor were Entered yet there
in Fee in certain Lands if the Sons Relict be no otherwayes provided she may claim a Terce of these Lands though the Father did not perform his obliegement which may be construed as fraudulent and in her prejudice 17. Terce is excluded by all wayes whereby the Marriage was dissolved upon adultery or desertion or by the death of either party within year and day without Children or may be found null of which formerly amongst Conjugal Interests Tit. 4. And also by whatsoever way the Husband is sine frande divested the Terce is excluded as by a Crime inferring Forefaulture or Recognition by the Husband or his Superiour though not declared before his death or by the Ward and Non-entry of his immediat Superiour There was one decision observed by Spotswood and Hope betwixt the Relict of John Cranstoun and Crichtonn That an Apprising without Infeftment did exclude a Relict from her Terce it were hard to sustain that in all cases even though there were a Charge against the Superiour upon the Apprising which as it would not exclude the Superiour from the Ward Non-entry or Relief So neither should it exclude a Relict from her Terce unless she had a Conjunct-fee or Life-rent by consent equivalent to a tertia rationabilis And though our custom hath far deborded from the ancient design of Terces whereby a reasonable Terce was appointed and if any voluntary Liferent were granted Craig observes that it was ever understood to be no more but for clearing and securing the Tercer against the trouble and difficulty of recovering possession by a Service and therefore was alwayes retrenched unto the Terce Yet now not only real voluntary Provisions are sustained though of the Husbands whole Estate and Conquest albeit granted in aestu amoris with this temperament only That if the Heir have no other Estate the Liferenter must intertain and educat him according to his quality by Act of Parliament which is more extensive then a simple aliment but she is also lyable super jure Naturae to aliment her other Children if they have no provisions But Custom hath so far proceeded as not only to allow voluntary provisions how great soever but therewith to add a Terce of any other distinct Tenement unless the voluntary Liferent were accepted in satisfaction of the Terce which indeed were reasonable in many cases The voluntary Liferent being oftimes small and suitable to the Estate the parties have when they Marry but cannot make a rationabilis tertia if by Conquest their Estate should grow great neither is it reasonable that though the voluntary provision be never so great that a Terce should be given though litle remained to the Heir only because by Ignorance or negligence the clause in satisfaction were not adjected Which satisfaction may not only be proved by Write but by Presumption from the design of parties in the Contracts of Marriage which are uberrimae fidei For suppose which is ordinary enough that a Liferent of Lands are provided by the Contract of Marriage yet some Lands are not mentioned but there is a Clause adjected for the Liferent of the whole Conquest were it rationabilis terlia to give the Wife a third of that which is omitted though she had a particular Liferent of more and the whole Conquest though never so considerable Yea it came lately to be 〈◊〉 whether a Liferenter Infeft in an Annualrent out of her Husbands Estate consisting of one Tenement lying Contigue the Annualrent being two thirds of the Rent thereof because it bore not in satisfaction of a Terce The Relict did also claim a Terce out of that same one Tenement which is yet sub judice But so far as I can understand by former Decisions it hath not yet been determined whether Relicts should have a reasonable Terce according to the Terms of the ancient Law inducing Terces Or whether she should have a Terce proportionable or suiteable or not though she be already suitably provided if she have not expresly accepted her former provision in satisfaction of her Terce Which Terce is most favourable when suitable and therefore takes place in the two cases before mentioned even beyond the Letter of the Law and therefore if it were unproportionable to the quality of the Husband and Wife who might have a great Estate in Money and little Land a voluntary Provision out of any Tenement should not exclude a Terce out of the remanent of the same Tenement or of any other Tenement unless the Relict were sufficiently provided before There is one Interloquter betwixt Jean Crightoun and Kirkhouse her Son wherein it was alledged that she was sufficiently provided to more then a Terce of her Husbands Estate which was repelled but the Case was in possessorio where the Relict was already served and kenned to a Terce and was pursuing the Tennents so that the Service and Kenning being a standing Sentence doth not determine what might be done in petiterio Neither was that allegeance proponed and offered to be proven but only alledged informative whereas the Defence proponed was that the Relicts provision was but a minut of Contract bearing to be extended with all Clauses requisite whereof there was a Process of Extension depending including the acceptance in satisfaction of the Terce as being ordinary but it was replyed that that Clause was omitted in the full Contract already extended But now by the late Act of Par. 1681. cap. 1. there is no place for a Terce where there is a provision for the wife of liferent unless a Terce be expresly reserved Craig proposeth another case whether the 〈◊〉 would have a Terce of Lands competent in Fee to her Husband and so possest by him though by fraud or neglegence he never Infeft himself which he says is the opinion of Litletoun and it is not without much ground though it hath not come to be decided with us voluntary Liferents in satisfaction being so ordinary for though the appearand Heir not entering cannot burden the Fee with his debt yet his jus apparentiae gives him or his Executors right to the Fruits during all his life whereunto it would be suitable enough that though his voluntary provisions to his Wife could not affect the Fee yet the legal provision of a reasonable Terce might By the Custome of England Relicts loose their Terces by falling in publick and atrocious Crimes as Treason Murder Witchcraft although they be restored by the King by way of grace because thereby the memory of their husbands and fame of their Children are disgraced I know no such Point to have been drawn in question with us Craig in the forecited place holds that if the Fiar Transact for his own or his Superiours Forefaulture or Recognition or obtain a Gift thereof it should accress to the Tercer whose provision is onerous importing Warrandice and therefore might be effectuall against the Fiar if he represent the Husband and in all distresses Relief doth import what the party distressed truly payed
the Miln of the Barony albeit the defender was infeft cum molendinis prior to the Infeftment of the Heretor of the Miln and did sometimes go to other Milns but clandestinely and sometimes was brought back by force June 24. 1665. Colonel Montgomery contra Wallace and others which did not import Interruption which was not found by clandestine abstraction but by paying no Multure at least for a whole year Fourthly Thirlage is not inferred by any deed of Tennants Possessors Wodsetters Liferenters or any other but the Fiar and therefore there will be no Process sustained against the Tennants for Multures unless the Fiar be called February 9. 1628. Laird of Wardess contra Laird of Dunkincie or at least that there have been prior Decreets wherein he was called constituting the Thirlage and all 〈◊〉 and Acts otherwayes are null by exception if quarrelled within prescription Fifthly Thirlage of Lands to another mans Miln doth not infer a Thirlage of the Teinds of these Lands though acquired by the Heretor who thirled the Lands July 7. 1635. Laird of Innerweek contra Hamiltouns The like in molendino Regio where no write was shown but possession to consttute the Thirlage which was found not to extend the Teinds January 8. 1662. James Stewart contra Feuars of Aberledno The like where the Clause of thirlage bore omnium granorum crescentium super terris suis Here the Heretor of the Lands thirled had no right to the Teind Spots Milns and Multures Laird of Wauchtoun contra Hoom of Foord The like where the Clause in a Charter granted by an Abbot to his Feuars bore the astriction omnium granorum which was found to extend to the Teinds which then belonged to the Abbot and the Teind was found thirled when a Feu-duty was payed both for Stock and Teind January 21. 1681. Greirson contra Gordoun of Spado Nor will the exception of Teind be sustained in Milns belonging to Kirkmen having right to both Stock and Teind 18. The next point proposed was the effect and extent of Thirlage being constitute which is exceeding various for clearing whereof advert That thirlage is either introduced and instructed by Custom and Prescription or by Paction and Write when it is by Prescription and Custom it is wholly regulat by Custom and the Heretor of the Miln and his Tennents can get no more and wil get less then they instruct to be their ancient custom which holds where thirlage is constitute by write but generally with the multures sequels and services used and wont for then also custom must rule it and the Heretor of the miln will not be put to prove what the custom was before that Write though it relate to custom past but long custom present will be sufficient presumption and proof of what was that preterit custom if the contrary cannot be proven and though it should be proven yet fourty years possession will alter the case and either increase the Servitude or the Freedom If the Servitude be constitute by Writ special regard is had to the tenor of the Writ which therefore varieth thirlage accordingly So thirlage simply exprest in the Writ without mention of all Grain growing upon the ground was found to extend to all Corns growing thereupon abstracted to other Milns or sold though they had payed no Multure past memory for sold Corns June 26. 1635. Laird of Wauchtoun contra Hoom of Foord 19. A Clause of thirlage bearing Una cum Multuris omnium terrarum intra Parochiam found not to extend to other Corns bought-in and not growing within the sucken Hope Milns and Multures Giles Murray contra Tennants of Drumsei A Clause of thirlage thirling an Heretors tennants to another mans Miln and all the Tennants Grain growing upon the Land found not to extend to that Heretors Farm-bear whether delivered to him or sold by him to his tennants or others but that the same was Multure-free but yet was thirled and behoved to come to the Miln and pay the smal duties only Hope Milns and Multures Lord Keith contra Nathaniel Keith Which is also observed with this further that invecta illata were not thereby thirled Spots de servitutibus A Clause of thirlage omnium granorum crescentium was found not to extend to the Heretors Farms who had so thirled his Lands not being grund at any other Miln but sold or otherwayes made use of Neither to Corns not growing within the thirle though tholing fire and water or garnelled there July 11. 1621. Keith contra Tennants of Peterhead A Clause of thirlage granted by a Town to a Miln expressing invecta illata found to be extended to all Corns Kilned or Steeped within the Thirle though not brought to the Miln nor use made of within the thirle Spoos de servitute Ruthven contra Cuthbert of Drakies Thirlage of invecta illata constitute by a Towns Charter found effectual as to the Grain that grew in the thirle of that Miln and was lyable for a greater multure as grana crescentia so that these Corns being bought by the Town fell to pay both the ordinary multure as growing in the Thirle and a lesser multure by a several Thirlage by the Towns Charter thirling omnia invecta illata in their Town to that same miln seing the Town might shun the inconvenience of double multure by buying only Corns which grew not in the Thirle of that miln Decemb. 11. 1678. Sir Andrew Ramsay contra the Town of Kirkaldie 20. In this case invecta illata was found to import mault made within the Liberties of the Town or Brewed within the same but not to meal where they did not buy the Corn but bought the meal though it was baken in the Town in respect it was so proven to be the custom November 24. 1680. inter eosdem But the quantity of abstract multures being referred to the Towns mens oathes they were not found olieged to depone that they had payed the whole Multures of years long bygone but only if they knew and remembered that any part of it was not payed and what that part of it was December 12. 1679. inter eosdem But ordinarly invecta illata or tholing Fire and Water is only interpret of Steeping and Killing but not of Baking or Brewing A Clause in Feuars Charters Thirling them to the Superiours Milns of such a Paroch whereof there were four was found not to be put in the option of the Feuars to go to any of the four but to keep to the particular Miln to which they were accustomed in respect the Milns had several Suckens and the Feuars were in use fourty years to pay Multures and do all services thereto as was found 1663. as to the Miln of Catharine And the like found as to the Miln of Dalsangan another Miln of Mauchlein about the same time Thirlage being constitute or determined by custom doth ordinarly carry not only Multures of the Grain growing within the Sucken but those that thole
The Viccarage Teinds is local according to the custom of every Benefice or Paroch and therefore was suftained for the Viccarage of Salt and so much out of each Loom but not upon thirteen years Possession but only upon prescription by fourty years Possession November 29. 1678. Mr. John Birnie contra Earl of Nethâ—sdaâ—â— and his Tennents Yea in the same Paroch there was found diversity of the Viccarage some places having no Viccarage of Cows and other places paying Viccarage of Milk and Wool for Sheep and other places paying Viccarage of Hay Goose and Grice July 7. 1677. Parson of Prestounhaugh contra his Parochioners And Viccarage was not found due out of Yards which were a part of the Chanrions Portions unless it were proven that they had been in use of payment of Viccarage before 7. Some Lands also by long custom are Teind-free as temple-Temple-lands being out of use of payment of Teinds for fifty years were found free for all time thereafter Hope Teinds Earl of Wigtoun contra Lady Torwood Gleibs and Manses are also Teind-free And the Teinds of Lands belonging to the Cystertian Order Hospitlers and Templers were Teind-free and so continue in their Feuars though the priviledge was only as to what these Orders laboured themselves yet the Teind was found to belong to their many Feuars for what the Feuars themselves labour July 15. 1664. Thomas Crawford contra Laird of Prestoungrange 8. Teinds were prohibite to be set in Feu to Lay-men by the Lateran Council held by Pope Innocent the second or any way to be alienate from the Church Though Church-lands might be set Feu these being accounted but the Temporality and the Teinds the Spirituality as flowing from a Spiritual ground or Divine Right 9. Teinds are also acknowledged with us to be the Patrimony of the Kirk Par. 1567. cap. 10. and they are not annexed to the Crown as the temporality of Benefices are Par. 1587. cap. 29. 10. Yet decimae inclusae are here excepted for these are Feued with the Stock and can be only such as time out of mind have gone along with the Stock and never have been drawn nor separate and therefore are so ordinarly exprest decimae inclusae nunquam antea separatae and therefore such are presumed to have been Feued out with the Stock before the Lateran Council and so consistent with the Canons But if it can be proven that once they were separate by Church-men though they had right both to Stock and Teind and were Feued with Teinds included they are not valide decimae inclusae which no Church-man could Feu after the said Council Neither can the King constitute Feus de novo cum decimis inclusis so that these Teinds included are estimate as no Teinds long custom being fufficient to make Lands Teind-free and therefore they have never come in with Teinds or Benefices in any burden affecting Teinds by Law as Ministers Stipends c. 11. About the time of Abolition of Popery in Scotland the Popish Clergie did grant more frequently long Tacks of their Teinds the King also gave Donatives of Teinds and erected them with Church-lands into Barronies and Lordships so that there remained little of them no way able to entertain the Ministers and much Contraversie was like to arise about them till all parties having interest submitted and surrendered the same to the King First By the general surrender of Erections and Teinds Secondly By a particular surrender of some Beneficed persons Thirdly Of the Bishops Fourthly Of the Burrows The King upon the 2. of September 1629. Ordered the whole matter to this effect that the whole Teinds should be consolidat with the Stock being always affected with competent Stipends to Ministers c. And that therefore the Titular or the Tacks-man of the Teinds having perpetual or hereditable Right should sell the same to the Heretors at nine years puchase and where the Right was temporary or defective the price thereof should be made less accordingly 12. And for that effect a Commission was granted for valuation of Teinds and for disponing thereof as aforesaid and for modifying and localling Stipendsto the Ministers His Majesty reserved to Himself only a yearly Annuity of ten shilling Scots out of each Boll of Wheat and Barley eight shilling of Pease and Rie six shilling of Oats where the Boll rendered a Boll of Meal and proportionally less where it rendered less these Decreets were Ratified and prosecuted by several Acts of Parliament 1633. cap. 8 15 17 19. And 1641. cap. 30. Par. 1647. cap. 32. Par. 1649. cap. 46. Par. 1661. cap. 61. there was an exception in the Act 1633. cap. 19 which ordained the Teinds of all Abbacies and other Benefices except the Teinds pertaining to Bishopriks and other Benefices which fell not under the submission in which there is a Clause that the saids Bishops and Beneficed persons should enjoy the Fruits and Rents of their several Benefices as they were possessed by them the time of the said Submission and therefore where they did draw the Teinds by the space of fifteen years before the year 1628. or at least seven years of the saids fifteen years or had the same in rentalled Bolls they should so continue and not be valued which provision is repeated Par. 1662. cap. 9. all this proved for the most part ineffectual for compelling Titulars and Tacksmen of Teinds to sell their interest in other mens Teinds to the proper Heretors because these Commissioners allowing them an option to allocat whom they pleased for the payment of the Ministers Stipend few ventured to pursue them for Vendition least they might be excluded be allocation which they were willing to avert by giving the dearest Rates but if the Stipend had been laid proportionally upon all the Kings favour had been more effectual and equal but buying of Teinds being thereby retarded the great work of these Commissioners was to value modifie and allocat Stipends when the Tack-duties of the Tacksmen were not found sufficient to make up theStipend the Commission did increass the Tack-duties upon the tacks-men and in recompense thereof prorogat their Tacks whereby they though at first being but slender Rights by many nineteen years Prorogations became little less then Heretable Rights 13. The Annuities of Teinds not being annexed to the Crown were disponed by King Charles the first to James Livingstoun a Groom of His Bed-chamber to be uplifted by him till he was satisfied of the sum of Which Right was purchased by the Earl of Lowdoun and did receive many stops and took litle effect till the Kings return who gave a Commission to the late Earl of Lowdoun to transact for the bygone Annuities and to Dispone them with the full Right thereof in all time coming and his Disposition with consent of two Members of Exchequer was declared sufficient Rights to the buyers and were appointed to be Recorded in the Books of Exchequer that the sums gotten therefore might be known and imputed unto the sum
teind any other intrometteth therewith The former act is like Ejection and this is like Intrusion especially if the Teind-master have used Inhibition by publick Letters published at the Paroch-Church where the Teinds lye as an intimation to all parties having interest to forbear medling with the Teinds otherwayes then by order of Law which may be execute by any person as Sheriff in that part January 27. 1666. Earl of Eglintoun contra Laird of Cunninghamhead This Inhibition is the competent legal way to take off tacite relocation when Teinds have been set in Tack and the Tack expired and when they are in use of payment of certain duty and hath then the same effect that Warning hath in relation to Tennants of Lands and being once duly used it interrupts tacite relocation or use of payment not only for the years wherein it is used but for all other subsequent years March 18. 1628. Lord Blantyre contra Parochioners of Bothwel But the Titular may not by force draw the Teinds after Inhibition but must pursue therefore where there was any pretence of title else it is a Spuilzie in him January 27. 1665. Laird of Bairfoord and Beanstoun contra Lord Kingstoun Upon Process Spuilzie was sustained against the Heretor receiving a joint duty for Stock and Teind March 16. 1627. John Inglis contra Gilbert Kirkwood But it is not effectual to infer Spuilzie against Tennants continuing to pay their Masters a joint duty for Stock and Teind as they were in use before though the Inhibition was particularly intimat to the tennents seing they knew not how to distinguish the proportion of Stock and Teind having still payed a joint duty promiscuously for both December 12. 1627. Arbuthnet contra tennants of Fairnieflat But the priviledge of tennants paying to their Masters for stock and teind jointly was not extended to a Merchant buying a whole Cropt together who was found lyable for the teind though he payed before any diligence June 24. 1662. Mr. Alexander Verner contra George Allan In like manner Merchants buying the Herring where they were taken in the Isles were found lyable for the teind by immemorial possession so to uplift the teind-fish from the Merchants who bought whole boat-fulls of the Herring green December 13. 1664. Bishop of the Isles contra the Merchants of Edinburgh But as Warning so Inhibition of Teinds is taken off by accepting the old duty thereafter or of the ordinary taxation accustomed to be payed for the tack-duty Hope teinds Lord Garleis contra tennants of Whitehorn or by a small part of the old tack-duty ibidem Mr. Andrew Balfour contra Lord Balmerino John Glendinning contra tennants of Partoun 24. Rentalled teind-bolls is when the teinds have been liquidate and settled for so many Bolls yearly by Rental or old use of payment which presumeth a Rental By this means the beneficed persons gained an advantage of the possessors and therefore by the Kings Decreet Arbitral such teinds which are separat and severally set or known from the Stock had a diverse and dearer valuation and therefore rentalled teind-bolls were found due by use of payment immediately preceeding the debate though exceeding the worth of the teind till the teind in kind were offered and intimation made that the party would not continue the use of payment of rentalled Bolls March 22. 1626. Lennox of Branshogle contra tennants of Balfroon Teind-bolls were found due according to the old Rental though a lesser quantity was received by a Minister for several years Here the Bishop to whose Bishoprick the Teinds of that Paroch were annexed opposed the alteration of the old rentalled Bolls whereof a part only was allocat to and received by the Minister July 3. 1630. Mr. George Summer contra Stewart of Balgillo The like where there was a Decreet formerly for the Teind-bolls but prejudice to offer the Teind in kinde in time coming Feb. 20. 1633. Colledge of Glasgow contra Mr. James Stewart 25. The interest of Bishops in their Benefices is much alike with Ministers as to their entry which is regulat by their Consecration or Translation which if before Whitsonday gives them the benesit of that year and if after Whitsonday it gives them the half During their incumbence they have not only the Fruits and Rents of the Benefice but the power to set Tacks for nineteen years with consent of their Chapters Vide § 17. and to receive Vassals and to constitute Commissars all which are effectual after their death or removal They have also the Quots of Testaments confirmed by all their Commissars during their life or within the time of their Ann after their death but they have no Quots of Testaments not then confirmed although the persons died in their life or during their Ann because the Quot is due for the Confirmation as was found July 6. 1676. Bishop of Edinburgh contra Captain Wishart and for the same reason they have not the Compositions or Duplications of Heirs Apprisers or Adjudgers whom they do not actually receive in their life which will not belong to Executours or fall within their Ann but to the next Intrant who only can receive these Vassals 26. The Interest of Ministers in the Teinds may be considered either in their entry during their incumbency or after their removal In all which the Ministers interest is of two kindes for either he hath the Benefice Parsonage or Viccarage or hath only a Stipend modified thereof for these Benefices did ordinarly belong to the incumbents of particular Paroches and sollowed the Office of serving the Cure there and therefore when these Benefices were not erected in Temporal Baronies and Lordships or otherwayes so affected by Titles Tacks or new Erections that the Ministers thereby could not have a competency they betook themselves to the Benefice and had the same Right and Priviledges as to them as beneficed persons formerly had and might set Tacks thereof in the same way and with the same restriction as is before declared But more frequently the Ministers had modified Stipends which were appointed by the King and Parliament to be modified out of the Teinds whatever the Title or Interest of any other person were therein which they could not reach if they took them to the Benefice it self as they might have done by the Act of Par. 1581. cap. 102. Ordaining That all Benefices of Cure under Prelacies should be provided only in favours of able Ministers 27. The Interest of Ministers was according to the nature of the Benefices whereunto they were to have right or out of which their Stipends were to be modified for all Kirks were either Patrimonial or Patronat and by clearing Patronage it will easily appear what Kirks are Patrimonial For this distinction is taken from that of persons in the Civil Law in these who are ingenui or fully free and libertini or become free but with some acknowledgements and services to the Authors of their freedom who were therefore called their Patrons So there
when they are allocat all Intrometters with the Teinds of these Lands allocat are lyable for the Stipend not proportionally with other Intrometters but in so far as their whole Intromission can reach even though they made payment before they were charged by the Minister which they alledged was bona fide to the Heretor or Tacksman February 19. 1629. Kirk contra Gilchrist And if there be no Allocation the Stipend is a burden affecting the whole Teind out of which it is modified and the Minister may take himself either to the Heretor or possessor Spots Kirk-men Mr. Andrew Ker contra William Gilchrist December 3. 1664. Mr. J. Hutcheson contra Earl of Cassils In which case it was found that the Minister might take himself to any of the Heretors of the Paroch for the whole Teind inso far as his modified Stipend went seing he had no Locality and that the Heretor distrest behoved to seek his relief proportionally from the rest And a Minister was found to have right to pursue an Heretor for his Stipend payed out of his Lands and that accepting an Assignation to a part of the Tennents duties did not liberat the Heretor further then what the Minister received unless the Assignation bore in full satisfaction November 9. 1677. Mr. John Rutherford contra Murray of Skirling Yea though an Heretor was but an Appryzer of the Stock and Teinds he was found lyable personally though he had not intrometted and though he offered to assign as much of the Rent December 20. 1622. Sir John Prestoun contra Sir John Ker. And though the intrometter was but a Wodsetter both of Stock and Teind having no more but his Annualrent and there being sufficient Teind beside the Wodset March 21. 1633. Mr William Keith contra James Gray and others But where a Liferenter possessed she was only found lyable not the Fiar June 24. 1663. Menzies contra Laird of Glenurchie 31. But Teinds before valuation are only due according to the Cropt and Goods without restraining the Heretor in the free use of his Ground who may leave it all Grass though it had never been so long Corn and may Stock it with yeld Goods which will yield no Viccarage and therefore having inclosed a parcel of Ground and sown it with Kail Carrets and Herbs the same was found Teind free unless these were accustomed to pay Teind in that place June 9. 1676. Alexander Burnet contra William Gibb 32 Even after valuation Teinds are not debita fundi nor do affect singular Successors as to bygones before their Right February 28. 1662. Earl of Callender contra Andrew Monro 33. The legal terms of Benefices and Stipends whereby they are due to the Incumbents are Whitsonday at which the Fruits are held to be fully sown and Michaelmess at which they are presumed to be fully separate and therefore if the Incumbents Entry be before Whitsonday he hath that whole year So if he be Deposed or transported before Whitsonday he hath no part of that year if after Whitsonday and before Michaelmess he hath the half July 24. 1662. Mr. Patrick Weims contra Cunninghame If after Michaelmess he hath the whole But if the Incumbent die he hath further interest in his Benefice even after his death 34. Ministers dying their Wives Bairns or Executors have the Annat of their Beneficeor Stipends which is acknowledged to be their ancient Right Parl. 1571. cap. 41. whereby it is declared that Beneficed persons dying shall have right to the fruits of their Benefice upon the ground and the Annat thereafter to pertain to their Executors But the question is what the Annat importeth there is a Letter concerning it written by the King to the General Assembly and ratified by them All do agree that if the Incumbent die after Michaelmess he hath right to that whole year by his Service and to the half of the next year by the Annat But if he die before Michaelmess he hath right to the half of the Stipend if he survived Whitsonday proprio jure And to the other half as the Ann which his Executors have right to but all the question is when the Incumbent doth not only survive Michaelmess whereby he hath the half of the next year but if he survive the last of Dec. whether he hath right to the whole Stipend of that year as to which that Rule hath been sustained in favorabilibus annus incaptus habetur pro completo therefore the Ann was the whose year which was so decided July 5. 1662. Executors of Mr. James Fairlie contra his Parochioners but the Anns of Bishops and Ministers are now brought to a much more equal way by Act of 〈◊〉 August 23. 1672. whereby it is Statute that the Ann in alltime thereafter shall be half a years Rent of the Benefice or Stipend over and above what is due to the Defunct for his Incumbency viz. if he survive Whitsonday he shall have the half of that year for his incumbency and the other half for his Ann and if he survive Michaelmess he shall have the half of the next year for his Ann whereas before if he survived Michaelmess and lived but till the last of December his Ann was but the half of the next year but if he lived till the first of January his Ann was that whole year whereby the next Incumbent had nothing to expect for a year during which the Kirk was like to ly Vacant The Annat divides betwixt the Relict and nearest of Kin if there be no Bairns and is extended to the profite of the Gleib if there be no new Intrant July 19. 1664. Elizabeth Scrimzour Relict of Mr. John Murray contra his Executors But where there is an Intrant the Gleib belongs to him and is not part of the Ann nor did belong to the former Minister unless it had been sown by him and the Cropt upon it at the Entry of the Intrant July 6. 1665. Mr. John Colvil contra Lord Balnterino Where it was also found that the Defunct had his Ann though he had neither Wife nor Bairns 35. To conclude this Title with the Interest of Patrons in Benefices we have already shown their Original and Kindes their interest in the Benefices or Stipends is first the Right of Presentation of a qualified person for the Ministry whom the Presbytrie behoved to try and admit if he were qualified whereanent the Patron might appeal to the Synod and thence to the General Assembly and if that person be still rejected he must present another which must be done within six moneths after the Vacancy may come to his knowledge Otherways the Kirk may admit a qualified person for that time Par. 1592. cap. 115. Par. 1606. cap. 2. Par. 1609. cap. 12. Since the Restitution of Bishops Presentations must be directed to them in their several Diocesses Secondly During the Vacancy without the Patrons default but by the default of the Presbytery refusing to admit a qualified person he had
Chapters in common were not properly Patronat by Presentations but by Nominations and Collations yet the Incumbents were not Stipendiaries but enjoyed these Kirks as Benefices But after the Reformation when Bishops and Chapters were supprest these common Kirks were declared to be of the same nature with other Parsonages and Viccarages and to be conferred by Presentations of the lawful Patrons and Collation whereby they become then Patronate the King or these to whom he gave right being Patrons but after the Restitution of Bishops and Chapters Parliament 1617. cap. 2. these common Kirks were restored to their ancient condition Colledge Kirks were Benefices whereof the King was Patron except some few which belonged to Subjects Chaplainries and Altarages were under Patronage of the Founders or their Successors Before the Reformation there were but few inferior benefices below Prelacies viz. Collegiat and common Kirks Parsonage and Viccarages which are but very few and many be found by the Stent Rolls whereby eveny Parsonage and Viccarage are Taxed apart as distinct Benefices the far greater part of all the Teinds of Scotland did belong to Prelacies such as Bishopricks and Abbacies and all the paroch Kirks which belong to them are not distinct benefices but a part of their patrimony and were served by themselves their Viccars or their Substitutes without any fixed maintenance but ad placitum so that there was no patronages of all these Kirks and the ordinar provision thereof was the Viccarage or small Teind and sometimes Viccar pensions out of the parsonage Teinds After the Reformation all monasteries being supprest they return to the King jure Coronae as to their whole benefices both the Teinds or Spitituality and Lands and Baronies or other Temporal Rights but the King gifted the most part of these benefices both Spirituality and Temporality to the Nobility and Gentry and Erected the same in Temporal Baronies and Lordships but with burden of competent provisions to the Ministers of all the Kirks which were parts of the patrimony of the saids great benefices whereby the Lords of Erection coming in place of these Monasteries had right to all the Teinds of the Kirks which were the patrimony thereof and the Abbots and Priors did nominate their Viccars in these Kirks so the Lords of Erection did nominate the Ministers to the same and presented them to the Church-men to be tryed and admitted and thereupon assumed the Title of patrons though properly they were not such because the Ministers had no benefices but were Stipendaries having no Rights to the Fruits till the year 1587. when the Temporalities of all benefices belonging to Arch-bishops Bishops Priors Prioresses or whatsomever Ecclesiastical benefite belonging to any Abbay Cloister Friers Monks Channons Common-kirks and Collegiat kirks were annexed unto the Crown with several exceptions Act 29. par 1587. and though that Act seem only to annex the Temporality then belonging to these Church-men and not to extend to the Temporalities already Erected to secular persons yet by the exceptions of the many Erections therein contained it hath been ever held as an Annexation of all the Temporalities that did belong to these benefices but the Spirituality or Teinds are declared not to be annexed but by the Act 115 Parliament 1592. Erections either of kirk-kirk-lands or Teinds in Temporal Lordships after the said Act of Annexation are declared null except such parts and portions of the kirk-kirk-lands already erected in Temporal Lordships to such persons as since the Act of Annexation have received the honours of Lords of parliament and have sitten and votted in parliament as Temporal Lords whence the question ariseth whether that exception derogates only from this Act or also from the said general Act of Annexation but by the 195. Act parliament 1594. all Erections since the said general Act of Annexation not excepted in the said Act are declared null which doth also leave a doubt as to to the Erections preceeding the said Act of Annexation and by the second Act parliament 1606. Restoring bishops it is declared for the better satisfaction of His Majesties Subjects and faithful Servants whom His Majesty hath rewarded with Erections Feues patronages Teinds and Confirmations of Teinds patronages and other Rights of Abbacies and that they may not be put in mistrust therefore ratifies the hail Erections Infeftments Confirmations Patronages Tacks and other securities of Benefices not being Bishopricks given disponed and confirmed by His Majesty during the Parliament 1587. before or sinsine agreeable to the saids Laws and Acts of Parliament and faithfully promits in verbo principis never to quarrel the same which seems to give further ground to Erections though qualified with that provision that the saids Erections be conform to the Acts of Annexation and Laws made sinsine whereby the same might only extend to the Erections excepted and warranted in the said Act of Annexation which excepts several Erections formerly made and leaves some kirk-Kirk-lands to the Kings dispose by subsequent Erection In this case did King James leave the condition of Kirk-lands Teinds and Patronages King Charles the first coming to the Crown and being informed of the great Benefite His Father might have made by suppressing of Popery and the Popish Benefices if He had not gifted them away before He consider did resolve to recover the same to the Crown and therefore made a very ample Revocation of all Deeds done in prejudice of the Crown or any of His Royal Progenitors and in the year 1627. there was a Reduction intended of all Erections of Kirk-lands Teinds Patronages which did pertain to whatsomever Abbacy Priory or other Benefice and Acts of Parliament Ratifying the same with all Infeftments of Heretable Offices or Regalities Which Revocation and Process having made a great noise the King gave Commission to several Noblemen and others to endeavour an agreement with these who had right to Erections or any right to Kirklands or Teinds whereupon there was a Submission made by many persons who had right to Kirk-lands and Teinds containing a Procuratory of Resignation in the Kings hands ad perpetuam remanentiam of the Superiority of all Lands and other Temporal Rights pertaining to whatsomever Erection of the Temporality of Benefices reserving and excepting the Property of all the saids Lands and others whereunto they had right before or after the saids Erections paying the ancient Feu-duties to His Majesty that were payable to Kirk-men and that such demains and mensal Lands of the saids Benefices as were never set in Feu or Rental by the ancient Titulars before the Act of Annexation nor by the King and were then possessed by any of the Lords of Erection should be Feued to them and no others for such Feu-duties as His Majesties Commissioners should appoint they did thereby also submit to His Majesty what satisfaction He should give them for the Feu-duties and other constant Rent of the Superiorities Resigned and all rights of Teithes that they had that His Majesty might appoint the quantity rate and
price thereof to be payed by the Heretors to the saids Titulars of Erection with a burden of Annuity to the King excepting the Teinds of the Surrenderers own proper Lands being always subject to His Majesties Annuity Which Submission His Majesty accepted and there followed thereupon an Instrument of Resignation at Whitehall May 14. 1628. There was also a Submission made by the Bishops of all Teinds belonging to them or their Patrimonial Kirks providing they be not damnified in their Benefices as they were then possessed either in quantity or quality whether the samine were payed in Rental Bolls or drawn Teind so that the Submission did only reach to Teinds that were in Tack or other use of payment and whereof the Bishops or beneficed Persons were not then in Possession by Rental Bolls or drawn Teind this Submission was in Anno 1628. There is also a Submission by the Burrows of their Teinds in the same year and a fourth Submission by several persons having right to Teinds in Anno 1629. The King did pronounce His Decreet Arbitral upon the Submission of the Lords of Erection upon the second of September one thousand six hundred and twenty nine whereby He Ordains the Lords of Erection to have ten years Purchase for the Feu-duties and all their constant Rents consisting of Victual or Money the Victual being reckoned at an hundred Merks the Chalder deducing so much of the Feu-duties as were equivalent to the Blensh-duties contained in the Infeftments of Erection for which nothing was to be payed and allowing the Lords of Erection to retain the Feu-duties untill they were redeemed His Majesty did also decern that each Heretor shall have his own Teinds that such as have right to other mens Teinds shall after valuation thereof whereby the fifth part of the constant Rent which each Land pays in Stock and Teind is declared to be the Teind and where the Teind is valued severally that the Heretor shall have the fifth part of the yearly value thereof deduced for the Kings ease and the price of the said Teind for an Heretable Right was made nine years purchase And for other Right of Teinds inferiour to Heretable Rights proportionably according to the worth thereof to be determined by a Commission to be granted by His Majesty to that effect and that both for Tacks of Teinds and Patronages There are also Decreets by His Majesty upon the other Submission to the same purpose and by the tenth and fourteenth Act Par. 1633. the Superiorities of all kirk-Kirk-lands are annexed to the Crown except these belonging to Bishops with the Feu-duties of the said Superiorities reserving to the Lords and Titulars of Erections who subscribed the general Surrender of Submissions Their Feu-duties till they be redeemed at ten years purchase and reserving to them the Property holden of His Majesty for payment of the Feu-duties contained in the old Infeftments preceeding the Annexation By the 12. Act Par. 1633. the King restricts his general Revocation in October 1625. Registrate in the Books of Secret Council February 9. 1626. in a Proclamation then emitted and another July 21. 1626. to the annulling all pretended Rights to the Property of the Crown as well annexed as not annexed whereof an account hath been made in Exchequer and of the principality unlawfully disponed by His Predecessors against the Laws and Acts then standing and to the annulling of Erections and other Dispositions of whatsoever Lands Teinds Patronages and Benefices formerly belonging to the Kirk and since annexed to the Crown and any other Lands and Benefices Mortified to pious uses and of Regalities and Heretable Offices and the change from Ward to Blensh or Taxt-ward since the year 1540. Upon this progress it may be questioned whether the Patronages that formerly belonged to Church-men and were annexed to the Lands Burrows or Benefices and thereafter were erected in Temporal Estates do belong to the King or Lords of Erection And next whether these more improper Patronages of the Patrimonial Kirks of Abbacies whereby the Lords of Erection coming in the Abbots place do claim the Right of Presentation or Nomination of Stipendiary Ministers to these Kirks do belong to them or the King As to the first there seems less difficulty that the Patronage which did belong to Abbots of Kirks which were not of their Patrimony but whereof they had only jus presentandi do belong to the King because such Patronages are annexed to the Crown by the general Act of Annexation which though it does not mention Patronages yet the Barony or Benefice wherein such Patronages were comprehended were expresly annexed And Barony or Benefice being nomina universitatis will comprehend Patronages Incorporate therein or annexed thereto so that without Dissolution no Subject can pretend right to the Ecclesiastick Patronages of Abbots Priors c. and as to the Lords of erection who fall under the exceptions of the general Act of Annexation they having submitted and surrendered all their Titles of erection to the King and particularly their Patronages and thereupon the King having by His Decreet Arbitral Ratified in Parliament reserved only to them their Property Lands and Teinds and Feu-duties till they be redeemed and the Superiority being again annexed which is the dominium directum of these ecclesiastical Baronies the ecclesiastick Patronage of the Abbots comprehended in nomine Barroniae do therewith belong to the King unless they have been Disponed after Dissolutlon or a Subjects Title to the Advocation Donation or Right of Patronage of such Kirks be perfited by prescription for the act of prescription 1617. hath no exception of the Kings Right to which the prior act that the King should not be prejudged by the neglect of His Officers doth not extend but that interruption within the fourty year is requisite even for the King the form whereof was ordered by the Lords of Session and approven by Parliament 1633. cap. 12. But there is much more difficulty as to the other point concerning the Patronage of these Kirks that were parts of the Patrimony of the Abbots which before the Reformation were not Kirks patronat but patrimonial but thereafter being dissolved and declared distinct Paroch Kirks The Abbots power of nomination of Viccars in these kirks became to be exercised by Presentations to the Kirks which Presentations were given by the King to some Kirks even where there were erections but in most erections the Lords of erection did present as coming in place of the Abbots and did in their Original or subsequent Right insert the Patronage of some or all of the Patrimonial Kirks of these Abbacies and where the Right of Patronage is not exprest the Lords of erection have but small ground to pretend to these and where they are exprest and perfited by Prescription they are secure so that the question will remain as to the power of presentation to the patrimonial Kirks of Abbacies where prescription hath not cleared the question but that sometimes the King sometimes the
Successor who is oblieged to know or warn none but the natural Possessor which was not in the former case And tacite Relocation will be sufficient after a verbal Tack or where the Tack is presumed upon use of payment though none can be shown or proven Yea tacite Relocation was sustained for more years then the setter could expresly set and is ordinarly in the case of tacite Relocation upon Liferenters Tacks which continue still after their death till warning and was so found in a Patrons Tack of teinds after the Patrons right to set by the Act of Par. 1649. was rescinded January 16. 1663. Earl of Errol contra Tennents of Urie Relocation is valide against the Donatar of a Ward till Warning or Citation though the Tack-duty be elusory and that the Tack then sleep Spots removing Laird of Lie contra Glen of Barn But tacite Relocation is no relevant active Title against any but these who have right from the Tacks-man though they had acknowledged the same by payment to him for years anterior Decem. 12. 1621. Laird of Lag contra Porochioners of Leymon By what hath been said it may appear that the force and effect of Tacks is so great by reason of the foresaid Statute and Custom extending the same that it would swallow up all Heretable Rights and make Infeftments useless unless Tacks had their own Retrincnments and defects making Infeftments necessary 24. First Tacks not being Liferent-tacks fall in single Escheat but these fall by Liferent-escheat Par. 1617. cap 15. 25. Secondly Tacks have no effect against Superiours but sleep during the time of Wards Non-entires c. For Infeftments Feu are then valide only in some cases Yet Tacks are valide against Liferent-escheat which is a casuality falling not by the nature of Fees but by Statute or Custom Vide Title 14. § Liferent-escheat 26. Thirdly Tacks are strictissimi juris and no further extended then is exprest and therefore are not extended to Assigneys unless exprest and therefore Tacks granted to Women fall by their Marriage which is a legal Assignation and cannot be annulled yet may revive by the Husbands death unexpired Vide Craig lib. 2. Dieges 10. Upon the same ground a Tack not bearing to Assigneys was not found to accress to a Relict as infeft with absolute Warrandice as jus superveniens authori June 18. 1680. Margaret Home contra Janet Lyel which is to be limited thus that it doth not exclude legal Assignations by Appryzing and Adjudication But only voluntary Assignations Hope hic Lord Elphingstoun contra Laird of Airth November 16. 1680. Drummond of Carlourie contra Sir John Dalrymple Liferent-tacks also may be assigned not mentioning assigneys February last 1637. Home contra Craw. July 16. 1672. Duff contra Fouler The like when it is of more value then a Liferent-tack as being of many nineteen years Spots hic Ross contra Blair The like holdeth in the power of making Sub-tacks or out-putting and inputting of Tennents or Removings which are not competent thereupon unless express or unless it be against these who had the possession from the Tacks-man except in Liferent-tacks and these of greater importance 27. Tacks cannot be perpetual and therefore necessarly must have an Ish or else they are null what favour is herein granted to Rentals is herein showen 28. If there be no particular Ish but to endure till the payment of a sum it hath been variously decided whether it be effectual against a singular Successor negative July 13. 1621. Laird of Mckal contra his Tennents March 5. 1629. Laird of Lie younger contra Kirkwood Affirmative Hope hic Laird of Clackmannan contra Tennents of Balmaino The like in a Tack set to a Smith so long as he should worke the setters work July 11. 1610. Sir James Lundie contra Smith of Lundie This is unquestionable in Back-tacks which have no Ish but during the Non-redemption And in other cases the Affirmative is stronger both in reason and practice but it holds not if it be but an obliegement not to remove the Tennent until such a sum be payed that is only personal And neither a Tack nor an obliegement for a Tack unless it be contained in a tack bearing such a sum to be due to the tacks-man and for seourity thereof the Lands to be set and the rent to be as satisfaction of the Annualrent pro tanto was found valide against a singular Successor and that the tack wanted not an Ish because the payment of the Money was the Ish January 22. 1625. Isobel Ronald contra Strang. But the contrary was found March 5. 1629. Laird of Lie contra Kirkwood A Bond assigning to the Ferms till a sum were payed was not found valid against a singular Successor July 2. 1624. Mitchelson contra Law So a tack set for seven years for a certain tack-duty exprest with a Clause that the tacks-man should retain a part of the tack-duty for the annualrent of a sum due to him by the setter and should not be removed till the sum were payed was found valide against a singular Successor for the seven years because there was an excresce above the annualrent which remained for the Tack-duty but not for the rest being but a personal obliegement not to remove June 15. 1664. Thomson contra Reid January 27. 1674. Peacock contra Lauder The like where a Tack was set by a Liferenter for four years And while a sum were payed found valide against the Liferenters Assignayes the 18 of December 1668. Mr. Robert Smitoun contra Mr. John Brown The like was found in a Tack against an Appryzer allowing the Tack-duty for the annualrent of the sums there remaining a several Tack-duty December 11. 1677. Charles Oliphant contra James Currie 29. Fifthly Tacks are not valide as real rights against singular Successors unless they have a Tack-duty yea if they have one but in the Tack it self it be wholly discharged yet the Tack is valide neither will the discharge of the Tack-duty be valide against the setters singular Successor January 31. 1627. Mr. James Ross contra Blair 30. But the want of an Entry vitiats not a Tack for when there is no Entry the date or the next Term is the Entry December 4. 1629. Mr. William Oliphant contra Mr. Heugh Peebles 31. Sixthly All Tennents are burdened with necessity to enter and labour the ground that the Master may have ready execution February 27. 1623. Samfoord contra Crombie and not to rive out Meadow or Greens never plowed or destroy Mosses or deteriorat the ground worse nor he found it February 6. 1633. Laird of Haddo contra Johnstouns and must leave the Houses as good as at his entry February 27. 1610. contra All which are without express provision Neither may the Tennent open the ground for winning of any Mineral Coal or Clay for Pipes without that power be exprest the 15. of February 1668. John Colqhoun contra Watson Seventhly Albeit Tacks be by Statute as real
successors right because being only probable by oath of party the oath of the author will not prove against his singular successor Neither will Declarations Back-bands or conditions of Trust be comprehended under Reversions but they remain obliegements personal upon the person intrusted unless they contain express obliegement to re-dispone which is a reversion albeit it be not formal or if it bear to denude himself in favours of the disponer or any other but if it be but in trust to his behove though thereupon via actionis he might be compelled to denude yet is no reversion and however hath no effect against singular successors unless they be registrate as aforesaid except in so far as they may be grounds of reduction against the parties intrusted or their singular successors partakers of the fraud 6. It is also frequently provided in Reversions That if the condition of the Reversion be not performed betwixt and such a time the reversion shall expire and sometimes it is provided so to be ipso facto without Declarator This is a clause irritant irritating or annulling the Reversion which in the Civil Law is called Pactum Legis Commissoriae in pignoribus and is thereby rejected and void as an usurary paction whereby the Wodsetter getteth more then his just interest as a penalty which therefore as in other cases ought to be modified to the just interest especially seing indigent Debitors through necessity of borrowing money will be easily induced to such Clauses And therefore a Back-band for redemption of a Tenement bearing such a Clause irritant was found null two years after the terme and after a Decreet of removing all meliorations being satisfied July 8. 1636. Cleghorn contra Ferguson The like was found in an Assignation to a Bond under reversion of a smaller sum which was found penal and modified to the just interest June 25. 1623. Mitchel contra Robson Yet such clauses irritant are effectual upon the failie committed unless they be purged by performance which is ordinarly received when offered at the bar in the Declarator of the expirie of the reversion So was it found purgeable at the instance of the Reversers Creditors 19. of March 1631. Doctor Scot contra Dickson of Headrig Yea though the payment be not present a time will be granted before the Extract of the Decreet of Declarator of the expirie of the reversion that in the mean time the failie may be purged Feb. 7. 1628. Pringle contra Ker but no such time was granted where the requisition was upon ninescore dayes but Decreet was given unless present payment were made July 19. 1625. Nairn contra Napier But Clauses irritant in Reversions are only thus qualified in real Impignorations but when the reversion is of a true sale not in security but for an equivalent price or where it is granted after the right related to and not for implement of a promise or condition made at that time it is valid for only pactum legis Commissoriae in pignoribus is rejected in Law And therefore the Irritancie was not found purgeable before the Declarator where the Reversion was of Lands disponed for a competent price by a true sale January 17. 1679. James Beatsone contra Harrower A Bond bearing that failing Heirs-male of the granter and of his Brothers bodie that the Heirs-female should denude in favours of a Sisters son upon payment of a certain sum being registrat in the Register of Reversions was found valid against a singular Successor as a conditional reversion and not as a substitution albeit the Bond was granted by an Heretor and that the Land was never wodset but became redeemable by this Bond and was not prejudged by a posterior Liferent granted by that Heretor in favours of his Wife which would have been effectual if it had been a substitution But the sum upon which the Heir-female was oblieged to denude was ordained to be re-imployed for the Wife in Liferent January 16. 1679. Laird of Lambertoun contra Lady Blanergesk 7. As to the nature of Reversions they are stricti juris and not to be extended beyond what is exprest and so not to be extended to the sAssigneys of the reverser when not exprest yea not to his Heirs unless it be so exprest but where Heirs of the Reverser were not exprest without adjecting the ordinary clause of paying the debt to the Wodsetter by the Reverser any time during his life and so Heirs were not found omitted dedita opera but by negligence they were not excluded January 9. 1662. Earl of Murray contra Laird of Graunt And a Reversion taken by a father disponing to his son found to be extended against the Heirs of the son though Heirs were not mentioned Feb. 6. 1630. Muir contra Muir The like Spots redemption William Hamilton contra Hamiltons And therefore the day of consignation being appointed eight dayes after the terme the Consignation was not sustained at the terme it self though these dayes were introduced in the Reversers favours July 12. 1634. Lord Balmerino contra Eliot of Stobs Yet where the Reversion bore the premonition to be at the Paroch-Church it was sustained being used only personally Decemb. 11. 1638. Finlason contra Weyms And where the Reversion did bear consignation at the Creditors house in London it was sustained being at his successors house at Edinburgh Feb. 1. 1667. Creditors of Sir James Murray contra Sir James Murray 8. The constitution or nature of Wodsets being thus cleared as to the kindes thereof Wodsets are either proper or improper and they are either publick or base 9. A proper Wodset is where the fruits of the thing Wodset are only given for the annual-rent of the sum and the hazard or benefit thereof whether it rise or fall is the Wodsetters and there hath never been any case decided finding such proper Wodsets usurary upon exorbitancy of profite But by the Act of Par. 1661. betwixt Debitor and Creditor all Wodsets before that Act though proper are so altered that if the person having right to the Reversion offer surety and demand possession the Wodsetter must quite possession or else restrict himself to his annualrent and count for the superplus and that not from the Act of Parliament or Citation but from the offer of security which was not sustained at the instance of a singular successor in the right of Neversion not having produced his right to the Neversion at the requisition and though it was produced in the Process the Wodsetter was not found oblieged to restrict or cede the possession because he was in natural possession by labourage till he were warned before Whitsonday Feb. 20. 1679. Bruce contra Robert Bogie though there was a Clause in the Wodset renuncing the Usurpers Act and all such Acts made or to be made for that Exception in the Act of Parliament relateth only to preceeding Clauses thereof and not to the Clause anent Wodsets which is posterior January 29. 1662. Laird of Lamingtoun contra Sir John
Superiour whether the rise hereof be from the personal obligation of fidelity which the Vassal oweth to the Superiour only or from the obliegement of gratitude and service or from that peculiar choice of the person and race of the Vassal which the Superiour hath made contrair to which a stranger cannot be obtruded upon him neither can the Vassal withdraw himself from the fidelity or render himself unfit for his service or from all these yet in this do most agree that the nearest cause of Recognition is the alienation of the Fee So then the main difficulty is what is meaned by that Alienation by which Recognition is incurred Craig lib. 3. dieges 5. declareth that this Alienation cannot be by naked Contract or Disposition till Seasine follow for these being but personal and incompleat Rights do not alienat the Fee from the Vassal but only constitute upon him a personal obliegement so to do It is also clear that by Infeftment granted by the Superiour upon resignation there can be no recognition because the Superiours accepting of the resignation importeth his consent So that the question will only remain when the Vassal granteth Disposition or Charter a se to be holden of his Superiour and before the Superiours Confirmation obtained giveth Seasine For the Confirmation being the express consent of the Superiour if the Seasine be after it there can be no hazard of Recognition or otherwayes while the Vassal granteth a subaltern Infeftment to be holden of himself 11. As to the first case it seems there can be no recognition incurred by Infeftments granted by the Vassal to be holden of his Superiour because if these be confirmed the Right is null and there is no alienation nor transmission of property but the Vassal granter of the Infeftment remains still Proprietar And therefore such an Infeftment is equivalent as if the Vassal did alienat upon condition that the Superiour should consent and if he did not consent the Infeftment to be null In which case most Feudists do agree that by such Infeftments there is no recognition and this reason is the more fortified that Craig in the fore-cited place relateth that an Infeftment null for want of Registration was not found to infer Recognition in the case of the Kings Advocat against Kenneth Mackenzie and Bain For solution of this difficulty it is not to be denyed that if a Seasine be null by defect of any substantial or essential necessarly requisite to Seasine or symbolical delivery of possession there would follow no Recognition as if there were no tradition of earth and stone or symbol requisite or not by the Superiour or his Bailie or not to the Vassal or his Procurator or not upon the ground of the Land naturally or by union But though Seasine may be null by defect of some accidental solemnity introduced by Statute or Custom and not necessarly involved in the nature of tradition as the indiction or year of the Princes Reign though Law should declare the Seasine null for want of these yet the Vassal performing such essential requisites the Feu falleth in Recognition and therefore there seemeth no ground to follow that Decision adduced by Craig excluding Recognition upon the nullity of the Seasine for want of Registration But as to the case proposed the Superiours Confirmation is not essential to the Vassals Seasine neither is it so required by the common Feudal Customs as with us for thereby if the Superiour did acquiesce approve or homologate the Seasine granted by a Vassal to a stranger the same would be valid without a formal Confirmation in write albeit by our Custom such Infeftments till Confirmed are null not only as to the Superiour but as to all other third parties and so is become as a substantial of the Infeftment not being truly essential by the common Fedual Customes it doth not exclude Recognition and as Craig in the forecited place rendereth the reason that Infeftments by the Vassal a se not Confirmed infer Recognition is because he hath done all that in him is to alienate the Fee there being no Act remaining to be performed by him or his Procurator and therefore in the Declarator of Recognition pursued at the instance of Lady Anna Hamiltoun Lady Carnagy contra Lord Cranburn upon the Earl of Dirletouns Disponing of the Lands of Innerweek holden of the King Ward to Cranburn and Infefting him therein to be holden of the King this Defence was not found relevant that the Seasine was not Confirmed and so null though done upon Death-bed accepted for a Minor absent and inscient and recalling and reducing 12. For in such cases as in rebellion or escheat there is no priviledge of minority nor of deeds upon death-bed against the Superiour though done by a minor except the deeds upon death-bed be in prejudice of the Heir and be reduced by the Heir ex capite lecti But in this case Dirletouns Heir did not quarrel the Disposition made by him as done upon death-bed but did take a gift of recognition from the King But where the gift of recognition was not granted to the Heir-male who was heir in the investiture but to an heir Female the Heir-male proponing that the alienation was upon death-bed and so null as to him The Lords found that if the Disposition was upon death-bed the Defence was relevant and competent by way of exception the Declarator of recognition not being a possessory Judgement But where the Disposition was in leige poustie and was delivered with a Precept of Seasine simply without 〈◊〉 not to take Seasine base upon the Precept which imported a Warrand to take Seasine thereupon It was found the taking Seasine when the Disponer was upon death-bed upon that precept subscribed and delivered in 〈◊〉 poustie did infer recognition July 20. 1669. Barcley contra Barcley 13. It is much debated amongst the Feudists whether by Sub-feudation Recognition be incurred or whether it be comprehended under alienation because in libro Jeudorum albeit alienation of Fees be expresly prohibite yet in the same place as Craig observeth Sub-feudation is allowed because by sub-feudation neither the personal right betwixt Superiour and Vassal is altered seing the Vassal continues Vassal and lyable to all these Neither is the real right and interest of the Superiour in the Fee it self diminished but he hath the same access thereto as if there had been no sub-feudation yet Sub-feudation in all cases is accounted alienation And where alienation is prohibite Sub-feudation is understood and so Emphitiosis or Feu-ferm which is at least a perpetual Location For solving this difficulty it must be remembered that feudalia are localia regulable according to the custom of the several places and according to the Nature of Feudal-rights and common Feudal-customs where special customs are not and therefore there is no question of this point in France or most places in Germany where alienation of Fees many ways is allowed But in Italy and other Countreys where the common Feudal
immediat Vassal but by all subaltern Vassals and would not only be competent to the King upon deeds of treason committed against him by his sub-vassals but by all deeds of attrocity done against another Superiour by his sub-vassals as if his sub-vassal should kill wound or betray his Superiour So that the question behoved to return whether there were any feudal Contract or Obligation of fidelity betwixt the Superiour and his Sub-vassals for if that were then Vassals might fall in Recognition by such deeds not only against their immediat Superiours but against all their mediat Superiours though never so many For though the case in question be most odious and unfavourable being rebellion yet it hath its proper punishment introduced by Law and Statute whereby the rebel loseth Life Land and Goods to the King to whom all his Subjects owes fidelity as Subjects though all do not owe the feudal Fidelity as Vassals yet if Recognition take place as to the King it must likewise fall to all other Superiours whatever way the Land be held Ward Feu Blensh or Mortification if they have not a confirmation or consent of the Superiour anterior to the deeds inferring Recognition We shall not therefore anticipat the publick determination of the question if custom hath determined it what will take place for all feudal Rights are local but there hath not yet appeared any case by which a Donatar by his Gift and Presentation being infeft in the Fee of the Kings sub-vassal forefault has excluded these who had real Rights from the forefaulted person before the treasonable fact though much hath been disputed upon the Act of Par. 9. cap. 2. concerning the quinquennial possession of forfaulted persons especially from the last clause thereof bearing that no person presented by the King to feu Lands forefaulted nor any Vassal of any Feuer forefaulted shall be compelled to produce their Acquittances of their Feu-mail or Annualrents of their forefaulted Lands of any year preceeding the forefaulture which doth clearly acknowledge that when the Feuers right is forefaulted his Sub-vassals right is not forefauted yet it was alledged that would not end the controversie by the Act 72. Par. 1457. because these rights of the Sub-vassals of the forefaulted Feuer might have been confirmed by the King specially or generally by the foresaid Act 1457. But the general Confirmation from that Act can have no effect because the the sub-vassals whose Rights are preserved by the Act are not Feues granted by Ward-holders but are subaltern Infeftments granted by forefaulted Feuers And without question the King hath given no consent to any to grant Feues but to Ward-holders only for though the Law hinders them to grant sub-feues or Annualrents yet there being no consent or confirmation by the King thereto Therefore if the King his immediat Vassal be forefaulted all the ancient Feues granted by him of the Lands holden Ward will stand valid as being consented to by the King by the foresaid Statute But the Feues granted by him of Lands holden Blensh or Feu will fall in consequence with his own Feu or Blensh and cannot defend against forefaulture more then Annualrents or lucrative Tacks granted by him which Law doth allow and yet fall with his right unless consented to or confirmed by the Superiour TITLE XXII Prescription 1. Prescription distinguished and described 2. Usucapion 3. The several times required to Usucapion or Prescription by the Roman Law 4. Requisites to Prescription 5. Bona fides requisite to Prescription 6. Whether he who doubteth of his authors Right be in bona or mala fide 7. Evidences of mala fides 8. The Title requisite to Prescription 9. The motives inductive of Prescription 10. Exception where Prescription took no place by the Civil Law 11. The common rule of Prescription with us 12. The beginning of Prescription of personal Rights with the extensions thereof 13. Prescription of Moveables 14. Prescription is reckoned de momento in momentum per tempus continuum 15. Prescription of Heretable Rights 16. Prescription is not extended against the right of Superiority 17. Prescription runs not for Tennents against their Masters 18. Prescription runs not against Minors but there is no exceptions of Mortifications to pious uses 19. In our long Prescription bona Fides is not required 20. The Titles requisite in Prescriptions of Heretable Rights 21. This long Prescription secures Wodsets Infeftments for Security Teinds and long Tacks 22. How far Teinds can prescribe 23. This Prescription extends to Patronage and Offices 24. And to Thirleage and all Servitudes 25. This Prescription excludes all Action and Ground of Reduction and Declarator if the Essentials of the Title appear 26. The several wayes of Interruption of Prescription 27. The way of Interruption by King CHARLES the first as to special rights of the Crown by Letters of Publication 28. The annual prescription of the priviledge of appearand Heirs intra annum deliberandi 29. The biennial prescription of the preference of diligences of the Creditors of Defuncts to the diligences of the Creditors of the Heir 30. Triennial prescription of Spuilzie Ejection Intrusion and succeeding in the vice Merchants-counts House-mails and Removings 31. Quadrennial prescription of the priviledge to reduce deeds of Minors intra quadrennium utile 32. Quinquennial prescription of Arrestments Ministers Stipends Multures Rents of Tennents removed and legal reversion of special Adjudications 33. Septennial prescription of old Apprisings and Summonds for Interruption 34. Decennial prescription of late Apprisings or general Adjudications 35. Prescription of twenty years of Holograph Bonds Missives and Subscriptions in Count-books without Witnesses 36. No prescription runs in Minority except Removings House-mails and Merchants-counts 1. PRESCRIPTION is the common extinction and abolishing of all Rights and therefore is reserved here to the last place the name and nature whereof we have from the Civil Law wherein Prescription is sometimes largely taken for any exception but hath been appropriat to the most common exception in all cases whereby all Actions and Causes are excluded by course of time and so Prescription had no further effect then to maintain the possessor in possession by exception but not to recover possession being lost and could not constitute the right of Property 2. In this Prescription did chiefly differ from Usucapion by the ancient Roman Law that Usucapion did constitute Property and therefore is defined by Modestinus l. 3. ff de Usucapione Adjectio vel acquisitio dominii per continuationem possessionis temporis lege definiti To which description the name doth agree for usu-capere est capere ex usu aut possessione to take or acquire by use or possession But every possession was not sufficient unless it were a possession as Proprietar or for the possessors own use only So detention of any thing in the name and for the use of another and for the possessor only in security as a Pledge or Wodset cannot Constitute property 3. As to the time appointed for Usucapion
the possessor or his predecessor November 27. 1677. Graunt of Ballindalloch contra Graunt of Balvey Whereupon it was alledged that a Tennent possessing by Tack from his Master could not prescrive against him which was not respected in this case nor in that of the Countess of Murray contra Mr. Robert Weyms Feb. 20. 1675. The like June 4. 1675. Colledge of Aberdeen contra Earl of Northesk But all annual prestations preceeding fourty years prescrive though constantly payed for thirty nine years every year being a several obliegement though in one write and prescrives severally January 19. 1669. Earl of Athol contra Laird of Strowan It holds also in Annualrents July 22. 1671. and Feb. 7. 1672. Blair of Balleid contra Blair of Denhead But it cannot be extended to prescrive against a Superiour for not payment of the reddendo because a right of Property cannot consist without Superiority unless there be a Right taken from another Superiour 25. Prescription doth not only exclude the preference of other better Rights which if insisted upon within prescription would have been preferred as anterior and thereby the posterior right a non habente potestatem But all ground of Reduction by the King or other Superiours or Authors is excluded So that the neglect of the Kings Officers cannot be obtruded by the Act of Parliament declaring that their neglects shall not prejudge the King neither any nullity in the titles of prescription except it be in the essentials thereof So prescription cannot sustain a perpetual Tack without Ish which is essential thereto nor a Seasine without a Symbol generally or particularly or not given upon the ground of the Land But all requisites in Rights introduced by Custom or Statute and not essential thereto are cut off by Prescription 26. The main Exception or Reply against Prescription is Interruption not only by the discontinuing the possession of the whole but also of a part which was found sufficient to interrupt the Prescription as to the whole as an Infeftment of Thirlage and possssion of Corns growing upon the Lands was found sufficient to exclude the prescription of the Multures of invecta illata June 29. 1635. Laird of 〈◊〉 contra Home of Foord So likewayes payment of Annualrents within fourty years interrupts prescription of Bonds and that not only as to the party paying but payment made by the principal Debitor was found to interrupt prescription as to the Cautioner who never payed nor was pursued during the space of fourty years December 18. 1667. Sir Thomas Nicolson of Carnock contra Laird of Philorth December 18. 1667. Gairns contra Arthur And an Annualrent constitute out of two Tenements was found unprescrived as to both by uplifting the Annualrent out of either though that the one was now fourty years in the hands of a fingular Successor June 22. 1671. Lord Balmirrano contra Hamiltoun of Little-prestoun Prescription is ordinarly interrupted and excluded by the dependence of any action whereupon the right might have been taken away or impeded Hope Patronage Laird of Glenurchie contra Alexander Campbel Idem Tacks and Tennents Carnousie contra Keith even though there was only the first Summons without continuation or second Summons February 13. 1665. James Butter contra Gray yea though the pursuer past from the Summons pro loco tempore Hope Removing Sir Robert Douglas contra Lord Herreis or by a Transferrence though reducible because not proceeding upon the right Title seing the right Title was also in the pursuers person July 26. 1637. Laird of Lawers contra Dumbar The like though the pursute might have been excluded for want of solemnity in re antiqua where the custom was not clear November 25. 1665. White contra Horn. Yea an Annualrent was found interrupted by a poinding of the ground though therein the Heretor was not called June 15. 1666. Sir Robert Sinclair contra Laird of Howstoun Prescription was also found validly interrupted by a Charge of Horning upon the Bond in question albeit proceeding only upon summar Registration by the Clause in the Bond and by no Citation July 21. 1629. David Moris contra Johnstoun But Warning whereupon nothing followed was not found a sufficient interruption of an old Tack-duty Hope possession Mr. Robert Bruce contra Captain Andrew Bruce Idem March contra Keir Neither was it found sufficient to interrupt prescription in the first part of a mutual Contract that action was used upon the second which saved the second from prescription seing the party concerned in the first neither used action or charge thereupon nor founded exception upon it when pursued by the oaher party November 27. 1630. Lauder contra Colmill Interruption was also sustained upon a Citation at the instance of a party not then entered Heir being entered thereafter within the years of Prescription The like upon a Summons of Reduction upon Minority though it was not filled up within the fourty years being insinuat in the Title of the Summons that Minors have interest to reduce deeds to their lesion July 14. 1669. Earl Marishal contra Leith of Whitehaugh But Interruption was not sustained from the Citation in a Summons of Reduction ex capite Inhibitionis but from filling up of the reason February 11. 1681. Kennuay contra Crawford And it was sustained upon Citation upon the second Summons being only a day before the year was compleat albeit the first Summons should be found null and though the Citation was at the Mercat-cross upon a priviledged Warrand purchased upon pretence that non fuit tutus accessus past of course among the common Bills and the reason of the priviledge was neither true nor instructed and though the execution bore not a Copy left at the Cross the party adding that and abiding thereby as truly done be the executor of the Summons July 6 1671. John Mackbra contra Lord Mcdonald Interruption was also sustained upon a Citation in a Reduction in Anno 1630. 〈◊〉 the Execution bore not the name of the pursuer or defender but the parties within mentioned And were not written upon the back of the Summonds but upon a louse Shedul and the Citation was in the last of the thirteen years excepted from prescription against a party of great quality against whom many interruptions were like then to have been used The user of the Interruption Deponing that he received the same from his Father or amongst his Evidents and knew not that they were the Executions of other Summonds Feb. 11. 1677. Laird of Rewallan contra Lawson of Cairnmuire But Interruption was not sustained upon summar Registration without Citation or Charge January 12. 1672. James Johnstoun contra Lord Balheaven And Interruption by warning and Citation thereupon was not found effectual in a Competition betwixt two parties both being then in acquirenda possessione by prescription and neither having a sufficient Right Constitute before unless the party warned and cited had discontinued his pessession for a year at least January 1680. Brown of Hunthil contra
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
would be thereby preferable to all other Rights after the Registration thereof June 8. 1665. 25. There are many debates which arise concerning the Entry betwixt appryzers and Superiours as whether the Superiour can be compelled to receive the appryzer without instructing that the Vassal from whom he hath appryzed was Infeft or specially Charged which hath been several times decided Negative fifty years since But now of a long time Charges against Superiours for Infefting appryzers salvo jure ejuslibet suo have been still sustained because it is unusual and difficult for the appryzer to get his debitors Evidents unless it were the Extract of his Seasine and the Superiours receiving him upon obedience cannot prejudge him and therefore the Superiour was ordained to receive the appryzer though himself was in possession by vertue of a Right March 5. 1634. Black contra Pitmedden The like whatever Right the Superiour might pretend March 11. 2636. Margaret Scot contra Gilbert Eliot 26. The quantity of the years Rent by the Act of Par. 1469. cap. 36. is exprest to be a years Mail as the Land is set for the time wherein consideration is had of such real burdens affecting the Land as are taken one with the Superiours consent But in the case of a Liferent so taken on the years Rent was modified full but delayed to be payed till the Liferenters death July 18. 1633. Branden Baird contra Consideration is also had of Feus set by the debitor before the appryzing which while warranted by Law the Superiour will only get a years Feu-duty for receiving the appryzer in the Superiority Feb. 15. 1634. Munktoun contra Lord Yester Spots appryzing Walter Cowan contra Master of Elphingstoun But the Superiour will not be oblieged to receive the appryzer for a years Rent of the Money appryzed for but of the Lands appryzed March 23. 1622. Mr. Simeon Ramsay contra Laird of Corstoun March 30. 1637. Thomas Peterson contra Walter Murray Yet in this last case the Lords modified the Rent far within the worth of the Lands for the Rent being worth 800. Merks was modified to 300. Merks A Superiour must not only receive the first Appryzer but all others who Charge though one was Infeft before any other Charged March 11. 1628. Ferguson contra Couper And if more Charge he must accept a years Rent for all providing that he who should be preferred refound to the rest the proportions payed by them to the Superiour July 22. 1628. Lord Borthwick and Walter Hay contra Haistoun and Smith 27. If the Superiour be contumacious and will not enter the appryzer upon diligence Craig lib. 2. dieg 2. Prescrives that the Superiour may be thrice required and if he refuse Letters may be obtained from the Lords to Charge his Superiour to receive the appryzer supplying his place and so from Superiour to Superiour till he come to the King who refuseth none by which the Superiour would loose the Casualities of his Superiority during his Life as is ordinary in the Entry of heirs upon retour 28. As to the next Point Infeftment following upon appryzing doth Constitute a real Right but under Reversion of seven years being before the Act debitor and creditor Par. 1661. cap. 62. or since of ten years which is counted from the date of the Appryzing and not from the allowance or Infeftment November 11. 1630. Laird of Limpitlaw contra Mr. James Aikenhead 29. Yet it remains but as a security which the appryzer may renunce or make use of other securities till he be satisfied March 15. 1628. Lord Blantyre contra Parochioners of Bothwel The like though after the Legal was expyred Decem. 7. 1631. Scarlet contra Paterson But here the appryzer had attained no Possession 30. Remains the last Point proposed how appryzings become extinct and are taken off and that is first when the appryzing is declared null thorow defect of any essential Solemnity Secondly When the sum whereupon it is deduced is not due as when the half thereof was payed Hope appryzing Samuel Blackburn contra James Lamb. James Lamb contra Hepburn of Smeatoun Or being deduced for a Terms Rent which was not due till after the appryzing albeit it was an assigney who appryzed seing it was to the behove of the Cedent it was found relevan to reduce the appryzing in totum June 20. 1678. Scot of Burnfoot contra Sir John Falconer and James Edmonston Jan. 31. 1679. Francis Irving contra contra Laird of Drum The like where a part of the sum was Poinded for and yet the appryzing was for the whole Nicol qui potiores in pignore John Steven contra Maxwels Or where the denunciation was before the Term of payment though the appryzing was after Nov. 28. 1623. Mr. Robert Craig contra Wilson And an appryzing for two Sums instead thereof as to one of which sums the decreet was loosed turnedin a Lybel before the appryzing was deduced Yet the appryzers intromission thereby before Citation was not found to be repealed as being consumed bonafide upon a colourable Title Nov. 23. 1677. Boid and Graham contra Malloch And an appryzing was reduced because one of the sums appryzed for was Registrat a non suo judice July 20. 1678. Moreis contra Orrock of Balram In which case the Lords would have sustained the appryzing as a security for the true sums resting if the appryzer would have past by the Termly failzie for the Lords do frequently Supply defects in appryzings or adjudications in so far as they may stand as securities of true debt and real expence especially when the question is betwixt the debitor and the appryzer but not in competition with more formal Rights and they are most strict against appryzings or adjudications when they are insisted upon as expired or for penalties Sheriff-fees and the annualrents thereof and therefore a posterior appryzing being solemn and formal according to the Custome then in use was preferred to a prior not being so formal July 15. 1670. Lady Lucia Hamiltoun contra Boyd of Pitcon And likeways an appryzing being led for Penalties and termly Failzies was reduced as to these because a part of the sum was not due at the date of the appryzing though it was deduced at the instance of an assigney But if it were proven to the Cedents behove it was also found reducible quo ad the accumulation of the annualrents and making them and penalties Principal sums But seing the appryzer declared it redeemable though the Legal Reversion was expyred it was sustained as a security of the first principal sum and current annualrents thereof Jan. 31. 1679. Francis lrving contra Laird of Drum And appryzing was sustained upon a Bond bearing a long Term of payment with a Clause irritant that if two Terms annualrent run together unpayed the whole principal and annual should be payable without abiding the first Term though there was no Declarator of the irritancy it not being penal but taking away the favour of the
Creditor to the debitor by delay of the term June 20. 1678. Scot of Burn-foot contra Falconer and Edmistoun 31. Albeit the Lords do not ordinarly modifie Penalties after appryzing yet if they be exorbitant they do modifie the same and all Termly Failzies as they did in the said case of Orrock of Balram and Francis Irvin 32. Appryzing was sustained upon a sum payable without Requisition albeit there was no Charge preceeding the appryzing July 21. 1666. Mr. John Thomson contra Mcgutrig The like though the Bond bore annualrent before 1641. seing there was no Infeftment thereupon or Requisition therein Jan. 14. 1679. Farquhar of Finian contra Robert Stuart 33. And an appryzing was sustained though the Lands appryzed were not filled up in the Letters of appryzing or special Charge nor in the Executions because the Messenger who execute was Judge in the Appryzing which relating the Denunciation of the Lands particularly and Charging the appearand heir to Enter thereto in special was found a more solemn Execution then any Execution a-part Jan. 16. 1680. John Brown contra Nicol. 34. An appryzing was sustained without producing the Letters of appryzing being in anno 1636. But the Instructions of the debt was found necessary to be produced being within Prescription February 11. 1681. James Kenuay contra Thomas Crawford Yea an appryzing was sustained upon a Bond payable upon Requisition though the appryzing made no mention of the Requisition the Instrument of Requisition being produced 35. And though the Dispensation to appryze was neither at Edinburgh nor the head Burgh of the Shire but a place upon the open Fields and upon a count of a great rain the Messenger did not appryze that day but adjurned the Court of appryzing til the next day July 12. 1671. the heirs Mr. Thomas Lundie contra the Earl of Southesk 36. And an appryzing of the ground-right of Lands and all other right belonging to his debititor the Superiour being Charged thereupon was preferred to a posteriour appryzer who appryzed particularly an annualrent out of the Lands which was the only Right of the common debitor November 21. 1673. Mr. John Fairholm contra Rentoun and the Countess of Levin 37. Appryzings are elided by satisfaction or payment without necessity of Renunciation Resignation or Reduction as in the case of other Infeftment July 25. 1626. Lord Lovat contra Frazer The reason is because appryzing being but a legal diligence for security of the sum which ceassing it falleth without other solemnities and the dobitors own Infeftment stands valid without Renovation which with the Infeftment upon the Appryzing stood but as a paralel Right for security so that all returned adpristinum statum and amongst the rest the Casualities of the Superiority if they were taken off by the appryzing and therefore an heir not entering but being Chargeed if he satisfie and redeem the appryzing he will be in non-entry till he be received of new 38. Appryzings are excluded and qualified with the Back-bonds and obliegements of the appryzer as in personal Rights which are valid against singular Successors as a back-bond that an apprysing should not be prejudicial to anothers parties Right was found relevant against the appryzers singular Successor the Kings Donatar of the appryzers forefaulture July 31. 1666. the Earl of Southesk contra Marquess of Huntly The last and most ordinary Exstintcion of appryzing is by Intromission with the Mails and Duties of the appryzed Land over and above the annualrent for these are imputed in the principal Sum by the Statute Par. 1621. cap. 6. which is also extended to Minors having the priviledge after the ordinary legal of seven year But it was not provided for in the said Statute that the appryzer should be countable for his Intromission thereafter which is therefore provided for Par. 1641. cap. 67. which though it was neglected and not revived Par. 1661. yet the Lords sustained the same as now in Custom twenty years and more Feb. 18. 1663. John Ross contra Mckenzie But the Tenor of the said first Statute being that the quantities of the Mails and Duties shall extend to as much as will satisfie the whole principal sum and annualrents thereof composition to the Superiour and annualrent thereof and expenses in deducing the appryzing In that case the appryzing is declared to expyre ipso facto So that if any part thereof remain and the debitor be so negligent as not to use an Order and count and reckoning within the legal but suffer it to expire the appryzing will stand valid and carry the Right of the whole Lands and will not be extinct in so far as satisfied proportionally Hope Confirmation Doctor kincaid contra Halyburtoun which was so found where a part of the sum was satisfied by payment Novem. 28. 1623. Mr. Robert Craig contra Wilson But if the remainer be very small the Lords may be the more strict in modifying pryces and if that be not sufficient a small remainder will not take away the Right de minimis non curat Lex Intromission is not only extended to the Rents and Profits of the appryzed Lands but to the pryce of any part thereof sold by the appryzer within the Legal Jan. 14. 1669. Mckenzie contra Ross. And ansappryzing was also found extinct by the Intromission of him to whom the appryzer granted Back-bond declaring the appryzing to be to his behove and that against a singular Successor who thereafter was Infeft upon the appryzers Resignation July 12. 1670. Kennedy contra Cunninghame and Wallace Yea An appryzing was found excluded as being satisfied by the debitor and retired by him with a blank Assignation thereto lying by him at his death though his Son thereafter filled up his name therein which was instructed by the sons oath and witnesses ex officio Feb. 27. 1666. Creditors of the Lord Gray contra the Lord Gray But an appryzing was not found extinct by Intromission where the appryzer payed to his debitor the superplus of the rent above his annualrent before the leading of any other appryzing yet where any order of Redemption is used before the expyrie of the legal the appryzing was found extinct by intromission after the course of the legal July 7. 1676. John Edgar contra Patrick Milu The like was found in respect of an order used by a second appryzer and was sustained though the first appryzer had acquired right to an order of Redemption by a third appryzer used against the second appryzer which was not found to hinder the second appryzer to declare the first appryzing satisfied by Intromission during the legal or the order but prejudice to the third appryzer or to the first appryzer having Right from the third appryzer to Redeem the Lands from the second appryzer by satisfaction of the sums due to him July 18. 1676. Gordoun of Seatoun contra Watson Yea an appryzing being both against the Principal and Cautioners Estates an order of Redemption used by the principal debitor was found to keep the appryzing
unexpyred not only as to his own Estate but as to the Cautioners Estate February 10. 1675. Lady Torwoed-head contra Florence Gardner 39. But the appryzer hath it in his option whether he will enter in Possession of the Mails and Duties or will uplift more thereof then his annualrent yet if a posteriour appryzer insist for Possession the first must either Possess do diligence and be countable or suffer him to possess February 11. 1636. Colqhoun contra Laird of Balvie But if the appryzer possess he must do diligence for the rent of that Land he possest and be countable not only for what he intrometted with but for what he might have intrometted with and if the Lands were Tennent-stead at his entry he must count accordingly at that rate though thereafter given over and waste if he neither set nor laboured them himself nor intimat to the debitor so to do Feb. 9. 1639. Brownhill contra Cawder The like found that the appryzer was countable according to the Rental allowing all defalcations Jan. 4. 1662. James Seaton contra Antony Roswal But where the appryzer entered in possession of the Lands waste he was not found countable according as he set them thereafter for the first year of his proper Labourage seing by the Season without his fault he lost thereby Decem. 23. 1629. John Dickson contra Young But an appryzer was found countable for the Rental of all the Tennents of a small Tenement lying contigue having taken Decreet against all the Tennents and yet refusing to count for some particular Rooms without showing any hinderance to uplift from these which other appryzers calling to account could not know that he had forborn these but nothing was determined as to the common debitors own labourage Jan. 14. 1681. Schaw of Grimmat contra John Mure Writer Yet where the appryzer was disturbed in his Possession by the debitor Via facti or via juris he was not found countable by a Rental but what he recovered till he attained to peaceable Possession Jan. 20. 1681. Burnet contra Burnet of Barns 40. The Act of Par. 1661. cap. 62. hath lengthened the legal of appryzings and hath brought in all who appryze within a year of the first effectual appryzing pari passu By this Act these these alterations are introduced as to appryzings First Whereas before the first appryzer being infeft or doing diligence had only access to the whole appryzed Lands till he were satisfied Now the Lords are impowered to limit the Possession during the legal as they shall see cause the appryzer getting his annualrent or security therefore and therefore an appryzer pursuing for removing and Mails and Duties his pursuit was only sustained for so much of the appryzed Land as she should choose the rent whereof would be equivalent to eight per cent of the sums appryzed for he being countable for the superplus more then his annualrent and publick burdens the defenders House and Mains being always excepted seing there was sufficient of other Rents June 27. 1672. Nicolson contra Sir William Murray But the power granted to the Lords to restrict appryzers is only personal and peculiar to the debitor and not to the posterior appryzers July 28. 1671. Murray contra Earl of Southesk and others Secondly All appryzings led since the first of January 1652. before the first effectual Compryzing obtaining Infeftment or charging the Superiour to receive or within a year after the same or to be led thereafter upon any persosonal debts come in pari passu as if they all had been contained in one compryzing the other appryzers paying to the first effectual Compryzer the expenses of his compryzing and Infeftment thereupon but the year is not to counted from the Infeftment or Charge by which the appryzing becomes effectual but from the date of the Decreet of appryzing July 4. 1671. Laird of Balfour contra Mr. William Dowglas But this extends not to appryzings or annualrents or other debita fundi and accordingly it was decided by the Lords that those other appryzers behoved to pay the whole composition to the Superiour Feb. 5. 1663. Robert Graham contra John Ross. Yet these appryzings that were prior to the Act were not found to come in pari passu from the dates of the appryzings albeit the Act bear that they should come in as if they were in one appryzing but only from the date of the Act of Parliament And as to what the first appryzer had possessed bona fide before the act of his intromission exceeded his annualrent the same should be imputed to the expenses of the compryzings and composition and in payment of the sums appryzed for pro tanto Jan. 7. 1665. Graham of Blaitwood contra Browns But an appryzing led before January 1652. though Infeftment or Charge were used thereon after Jan. 1652. was found to exclude all appryzers after Jan. 1652. whose Infeftment or Charge were posterior to the Infeftment or Charge upon the appryzing led before Jan. 1652. and that the said posterior appryzing did not come in pari passu with that led before Jan. 1652. Because the Act of Parliament relates nothing to appryzings deduced before Jan. 1652. Decemb. 12. 1666. Sir Henry Home contra Creditors of Kello And albeit the first effectual appryzing was satisfied and so extinct yet it did stand valid as to the second appryzing within year and day but a third appryzing was not found thereby to come in pari passu with the second appryzing as being within year and day thereof as if the second appryzing became the first appryzer Decemb. 13. 1672. Street contra Earl of Northesk and James Deans Feb. 20. 1679. Tennents of Mortoun contra Earl of Queensberry And where the first appryzer 〈◊〉 but a part of the Lands appryzed the second appryzer not Infeft was preferred to the third appryzer Infeft as to the remanent Rents because the second appryzer needed no Infeftment but the Infeftment upon the first appryzing was sufficient for all the appryzings led within the year of the first Decemb. 22. 1664. Doctor Ramsay and William Hay contra Alexander Seatoun There is also an exception from this Clause by another Act of Parliament 1661. cap. 21. Session 3. that second apprysers shall not be prejudged if they did acquire right to a former apprysing redeemed and satisfied by them for their own security before the said Act albeit led since Jan. 1652. which first comprysing shall remain in the same case as apprysings were formerly it was so decided without necessity to alledge that Right was taken to the first apprysing to shun the expyring of the legal or any other necessary cause Decemb. 9. 1664. Veatch of Dawick contra Alexander Williamson Thirdly The extent of the legal is altered from seven years to ten years so that where the legal was not 〈◊〉 the time of the act three years were allowed to redeem them from Whitsonday 1661. which terminated at Whitsonday 1664. Whereanent it being questioned whether intromission
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
Signet was found null 1. of June 1610. John Megill contra Secondly the Executions or Indorsations thereof must bear that the partie was charged personally or at his dwelling house designing the house And therefore a Horning was found null by Exception for not designing thereof though the partie was designed to be Burgess of such a Burgh which might have presumed his dwelling place to be there July 14. 1626 Adam contra Baillies of Air yet a Horning was sustained though not designing the dwelling house nominatim but by discription of it Thus the Messengers Execution did bear that he charged the partie designed by such Lands at his Dwelling House it being proven that he then dwelt there November 9. 1632. Montgomerie contra Fergushall 3. If the Charge be in absence at the parties Dwelling House the Execution must bear the Messenger to have craved entrie to give the Charge to the Partie or his Wife and Familie and not getting Entrie six Knocks to have been given by the Messenger at the most patent Gate or Door thereof yet this being wanting in the Extract the same was sustained It being proven by the Keeper of the Register and his Servant That when the Horning was offered to the Register these words were in it and by the Messenger and Witnesses insert in the Execution that the Knocks were used the intent of the Cause being Alimentarie and Favourable March 28. 1637. Scot contra Scot. But this is not to be drawn in Example For the Register of Horning is that upon which the People ought to rest and nothing ommitted to be exprest in the Register should be supplied by the principal Hornings Messenger or Witnesses For Executions of Hornings cannot be proven by Witnesses and consequently no matterial point thereof 4. Knocking at the Door audiblie is necessary without which Executions might be Clandestine and never come to the parties knowledge And therefore the Messenger must express this as truely done wherein he runs the hazard of being a Forger if the Executions be improven that either the Knocks were not given or were given fraudulently that these within might not hear as if the Gate had been but Struck with ones hand a piece of Earth or Stick which could not reach theirEars that were within for the affixing of a Coppie may be more easily evaded Seeing the partie may send of purpose to take the Coppie off being none of the Witnesses in in the Execution albeit sometimes even the Witnesses carrie away the Coppie and the Messenger may imagine that his Executions were true when he said he left a Coppie affixed because it was affixed when he began to move from the Gate Yet if he saw it carried away his Executions would be found false and he would not escape punishment A Horning was also sustained though it bore neither Personally nor at the parties Dwelling House seeing it bore a Coppie to have been given which necessarily imported to have been personally apprehended July 22. 1626. Stewart contra Hannai 5. Thirdly the Executions must bear that the Messenger gave a Coppie of the Letters to the partie charged personally or in his absence affixed it upon the most patent Door of his Dwelling House And therefore a Horning was found null because it bore not delivery of a Coppie but only of a ticket bearing the tenor of the Letters Hope Horning Monteith contra Kirkland But if the Messenger get enterance into the house of the partie Charged and deliver a Coppie to the parties Wife or some of his Family There the Execution will be sustained though it bear not Knocks at the Door or affixing of Coppies thereupon these being only required where entry is not gotten December 11. 1679. James Somervail contra William Staines 6. The Charge must also be upon 15. days being beyond the water of Die and six upon this side Par. 1600 cap. 25. Yea though fewer dayes be in the Claus of Registration it was not found valid February 14. 1625. Stewart contra Bruce The contrary was found December 16. 1664. Philorth contra Forbes of Asloun and the Lord Frazer Jannuary 20. 1675. Laird of Meldrum contra Tolwhoun And it was found that the Act 1600. Was not to be Extended to Hornings upon Clauses of Registration of consent And that the meaning of the Statute was both interpret by the Narrative and Subsequent Consuetude Nam Consuetudo optima legnm interpres And that the Decision Anno 1625. hath been upon this Consideration that the Charger lived in Fyfe and the Debitor in Orknay who could not possible either come to the Creditor and pay or to the Lords and Suspend on six days and so was not contumacious but free by the Act of Parliament 1592. cap. 138. Annulling impossible Conditions in Contracts whereby their is sufficient ground of reconciliation of these Decisions for it is only Contumacy that makes the Escheat fall which gave the rise to the Act of Parliament to allow 15 days for all beyond the water of Die And though parties consent to lesse time yet Contumacie cannot be inferred but where the partie could by exact diligence come in time either to satisfie the partie or to Suspend which some beyond Die might do if the Charger were near that they might offer him just satisfaction and if he refused they might have time to reach Edinburgh and Suspend But in other cases that cannot be as was evident in the Case in Anno 1625. And therefore consent in that Case can no more inferr Contumacie then the express Consent of parties that Charges and Denunciations at the Mercat Cross of Edinburgh shall be sufficient which is declared null Par. 1532. cap. 138. 7. Fourthlie The Executions must bear that the partie was Denunced conform to the Charge for not Obedience thereof And that either at the Mercat Cross of the Head Burgh of the Shire where the partie charged dwells or at the Head Burgh of the Stewartrie or Regalitie or Balliary of Royalty if he dwel within these Par. 1597. cap. 264. Yea though the write bear that Letters of Horning execute at Edinburgh should be sufficient against parties out of the Shire the same is declared null by the said Act. When there was no Head Burgh of the Regalitie known the Execution at the Head Burgh of the Shire was sustained Spots Horning Stirling contra Auchinleck And the Head Burgh of the Shire where the Denunceds dwelling lyes Locally is sustained by the Act of Par. Though his dwelling be upon Lands by annexation in another Jurisdiction unless that be commonly known and in use Therefore Horning was not found null not being Execute at the Head Burgh of Renfrew the dwelling being upon Lands annexed to the Principalitie January 11. 1677. Scot conra Dalmahoy Neither because the Denunced dwelt in Temple Lands within the Regalitie of Torphichen unless there were a known Head Burgh and Register there January 12. 1672. Mr. James Scot contra Boyd of Temple 8. Fifthly The Execution should bear that the
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
27. The entrie of heirs by hesp and steeple within Burgh 28. Entrie of heirs by Brievcs out of the Chancellarie 29. To whom these Brieves are directed 30. The manner of citting the Inquist and Proclaming the Brieve 31. Exceptions competent against members of Inquist 32. The appearand heirs claim 33. Exceptions against the Claim 34. First head of the Brieve 35. The 2. head of the Brieve 36. 3. head of the Brieve 37. The 4. head 〈◊〉 of Brieve 38. The 5. head of the Brieve 39. The 6. head of the Brieve 40. The 7. head of the Brieve 41. The Service 42. The Reture 43. Reduction of Retures by a great inquist 44. Reduction thereof otherways 45. Reduction of Retures how competent 46. Precepts out of the Chancellarie to Superiours to Infeft 47. Suspensions of the precepts and the reasons competent therein 48. The certification of the loss of the Superiority during the life of the Superiors disobeying 49. Further reasons of Suspension of these precepts 50. Whether the Persons nearest at the Defuncts decease may be entred where a nearer is in spe 51. Who are Fiars of Conjuct-fees or Provisions substitute 52. The entreast of heirs of Provision and import of Clauses of Conquiest in Contracts of Marriage BY the former Title it appeareth who are Heirs let us now Consider what their Interests are by being Heirs And that is either Active by the benefit or Passive by the Burden whereunto they do succeed For Heirs being successors in Universum jus quod Defunctus Habuit they do fully represent the Defunct both in the Rights belongiug to him and in the Debts due by him First then of the Interest common to all Heirs And next of the interest speciall to the severall Heirs 1. The interest of Heirs are most properly Competent when they are entered Heirs according to the due Course of Law of which afterward Yet somethings are competent not only to heirs entred but to appear and Heirs as first they have interest to prusue Exhibition of all writs made by their Predecessors to their Wives Children and others in Familia but not of writes made by them extra Familiam December 6. 1661. Margaret Forrester and Schaw of Sor nebeg her Spouse Contra Tailzefere Or to their Predecessors Simply to the effect they may know the condition of the heritage And may desiberat whether they would Enter Heirs or not Seing if they do Enter they are lyable for all the Defuncts Debts though they farr exceed his Estate and have no benefit of Inventary as in moveables And therefore they are allowed to pursue for inspection of all Writes Importing a debt of the Defunct Yet not so as to open the Charter Chists of Strangers who have purchased Lands from the Defunct on pretence of the Burden by the Warrandice for in that case the Strangers Infeftment will exclude them and only dispositions made to these in the Family hinder not inspection of the Heirs whole Rights Flowing from the Defunct or his Predecessors But I doubt not but all will be oblieged to produce Bands or Personal obleigements which might burden the appearand Heir if he enter As was found in the Case of Dispositions and Bandsgranted by the Defunct to Strangers Feb. 26. 1633 Laird of Swynton contra Laird of Westnisbit But if Infeftment had followed upon the Disposition the Defender would not be oblieged to produce the Disposition because the appearand Heir might by the Registers find his Predecessors denuded This inspection is competent during their Annus deliberandi It was so found in Favours of the appearand Heir pursuing Exhibition within the Year Feb. 26. 1633. Laird of Swinton contra Laird of Westnisbit where the Writs pursued for were likely to be the ground of a Plea against the Defender himself This Exhibition ad deliberandum is competent at any time before the Heir enter even after the Annus deliberandi which is granted to appearand Heirs that they may be free of all Actions on Chargesto enter Heir Reductions or Declarators during that time if they do not enter or behave as Heirs But on this accompt the appearand Heir hath no Interest to put parties to Compt and Reckon ad deliberandum June 22. 1671. Lessies contra Alexander Jeffray In these Exhibitions the Relations or Propinquity of Blood of the appearand Heir passeth without probation as Notorium So as if the Defender be absent the Decrcet will not be null for want of Probation of the Title Yet a Scots man born of Parents residing in Holland was found to have no Interest to pursue Exhibition as appearand Heir to his Father till he produced an Authentick Declaration and Tryal by the Magistrants in that place that he was the eldest lawful Son of his Father December 17. 1627. Fleming contra Broun 2. Appearand Heirs may defend all Rights competent to them upon Production of their Predicessors Infeftments whether they be called or compear for their Interest January 19. 1627. Laird of Rosline contra his Tenents and George Fairbairn for his interest They may also continue their Predecessors Possession and pursue for Mails and Duties of there Lands finding Caution in case of doubtfulnesse to make these forth-coming to any other having Interest Spots Heirs James Oliphant contra his Tenents Yea the Rents of Lands were so far found to belong to an appearand Heir That though he died un-entered the next Heirs not entering to him was found obleiged to pay the former appearand Heirs Aliment in so far as he intromitted with the Rents of the Years during which the former appearand Heir lived December 20. 1662. Ladie Tarsapie contra Laird of Trasapie And consequently the Rents might be confirmed by his Executors or arrested for his debt The like was found of moveable heirship wherewith the appearand Heir was intertained by his Mother June 29. 1629. Robertson contra Dalntahoy They may also pursue the Life-renters of their Estate for Aliment Feb. 12. 1635. James Hepburn contra Dam Margaret Preston and Isobel Seatoun 3. The Aliment of Heirs out of there Lands being Life-rented or in Ward is constitute by the Act of Parliament 1491. cap. 25. Bearing a reasonable Living to be given to the Sustentation of the Heir after the Quantitie of Heritage if the said Heir have no Blensh or Feu ferm to sustain him as well of Ward Lands fallen in the Kings hands as in the hands of any Barron Spiritual or Temporal whereby it is clear 1. That the Quantity of the Aliment is indeterminat And therefore is modified by the Lords according to the Quality of the Heir and his Estate 2. It takes no place if the Heir have Blensh or Feu Lands sufficient to sustain him but if these be not sufficient the same will be made up by the Life-renters and Wardatars proportionally March 16. 1622. Heir of Milioun contra Calderwood Yea where the Minor had any other means sufficient to intertain himself as the Heir being a Writer and thereby able to Aliment himself he
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
Redeemable to that Partie during his Life as it is ordinarily adjected when that is meaned January 9. 1662. Earl of Murray contra Laird of Grant The like of an Annualrent though it bore only to be payed yearly and not perpetually or heritably or to heirs Feb. 2. 1667. pourie contra Dykes And a Substitution mentioning only a Person substitute without mention of Heirs was found competent to that Persons Heirs January 7. 1670. Innis contra Innis 6. Heirs have the benefit of heritable Rights not only whereupon Infeftment hath followed or which by Destination are heritable or requiring Infeftment to their accomplishment as heritable Bands bearing Clause of Infeftment for these bearing only Clause of Annualrent are declared Moveable by and since the Act of Parliament 1641. cap. 57. Revived Par. 1661. cap. 32. Of which in the last Title So also are Reversions Pensions Tacks without necessity of being entered Heir June 17. 1671. John Boyd contra Hugh Sinclair July 9. 1675. Hoom contra Johnston of Oldwells And all Rights having a Tract or Course of time after the Defuncts Death In these Cases where the Defuncts Right is Temporary and runneth out by a certain Course of Time that time runneth whether the Defuncts Heir be entered or do Possesse or not as Tacks Pensions or Annuell Prestations during so many Years And therefore these require not Service or Solemnitie but that Person who might be Served may continue or recover the Defuncts Possession and his Possessing makes him lyable passive as Representing the Defunct Neither needs there any Service of Children nominatim substitute immediately to their Parents but if they be Substitute in the Second place a Service must be used to instruct that the Heirs appointed in the first place did fail July 21. 1676. 〈◊〉 of Drumelzier contra the Earl of Tweddel What Rights are heritable and what moveable vide Title Real Rights 7. Heirs have also Right to Moveable Heirships and to all Obleigments though the matter be in moveable Rights if Executors be expresly secluded otherways if the matter be moveable and Heirs only be exprest but not Executors yet Executors will not be Excluded because Heir is a General Term comprehending Exectors Hope Ejection Sr. Lewis 〈◊〉 contra Tenents The special Interest of Heirs are according to their several kinds viz. Heirs of Line and of Conquest heirs Portioners heirs Male and heirs of Tailzie and Provision 8. The Interest of heirs of Line is that they are heirs Generally not only because they may be Served by a General Service but chiefly because they must Generally represent the Defunct So that what cannot be claimed by a special Title either as being Conquest or Specially provided by the Tenor of the Infeftment befalleth to the heirs of Lyne And therefore in dubious cases what doth not appear to belong to other Heirs appertaineth to these in respect of whom heirs Male and of Tailzie and provision are accounted as Strangers and may come against the Defuncts Deeds in favours of the Heirs of Line But the Heirs of Lyne cannot come against such Deeds in favours of others because as heirs of Line they are reputed as one Person with the Defunct and so are obleiged to maintain and fulfil his Deeds not done on Death-bed It was so found in the Case of an heir of Tailzie against an heir of Line Spots Earl of Hoom contra And as heirs of Line have generally the Benefit so they have more effectually the Burden of the Defuncts debts which ordinarily reach them in the first place So that oft-times the heirs of Line have little or nothing free We shall not need to be Special what befalleth the heirs of Line being to show particularly what befalleth to the other heirs For what remaineth belongeth to the heirs of Line only Heirships moveable belong only to heir of Line and not to heirs of Tailzie January 27. 1668. Collonel Montgomrie contra Stewart 9. Heirship moveable is the best of every kind of moveables belonging to the Defunct which the heirs of Line may draw from the Executors whereof there is an ordinary list The reason of this Heirship moveable is because by our Law by primo geniture excludeth the Defnncts other nearest of Kin in Heritage wherethe nearest of Kin Succeeds alone in moveables and as they have no share with the heir in heritable Rights so most sitly the heir hath no share with them in moveables but hath only the best of every kind which therefore is called heirship moveable In which the Defunct cannot in his Testament or any other Deed done on Death-bed prejudge his heir as was shown last Title but if the nearest of Kin be all Femals they are both heirs 〈◊〉 Executors or if but one Male he is both heir and Executor in which cases there is no heirship moveable drawn Heirship Moveable is established by the Act of Parliament 1474. cap. 53. Ordaining the Heirs of Prelats Barons and Burgesses to have the best of every kind according to the Burrow Lands and so was found not to belong to the Heir of a Defunct who had only heritable Bands being neither Prelat Baron nor Burgess Hope de haered Todorig contra 〈◊〉 But the heirs of Prelats was Extended to other Beneficed Persons as was found in the heirs of the of Person of Dingwal Novem. 28. 1623. William Rig contra Mckenzie And likewise the heirs of Barons was extended to any Persons heirs dying in Fee of Lands though not erected in a Barrony Hope de haered Keith contra Mckenzie Todoirg contra Purdie heirship Moveable was found competent to the heir of a Person who died only Infeft in an Annualrent July 19. 1664. Elizabeth Scrimzeor contra Executors of Mr. John Murray But heirs of a Burgess was found not to extend to an honorarie Burgess who died not Trading or Working in the Burgh Spots heirs James Leslie contra Hugh Dumbar Heirship Moveable is not always a single thing but goeth sometimes by Pairs and sometimes by Dozens as in Spoons So the heirship of Oxen was found to be a Yoke and not a single Ox Nicol. de haereditatis petitione July 20. 1610. Black contra Kincaid And heirship taketh place only in corporibus but not in quantitatibus as in Money Cloath Mettal c. And so the Shell of a Salt-pan which was out of use was accounted but Iron and not to fall under heirship Moveable Had. January 19. 1611. Reid contra Thomson 10. Heirs of Conquest though they be also heirs of Line as befalling by the Course of Law and not by the tenor of the Infeftment and therefore were set down as Lineal Successors in the preceeding Title Yet because heirs of Conquest have only place where there is an Elder and Younger Brother or an Elder and Younger Father Brother c. and their Issue to succeed In which case the Law alloweth two heirs the immediat Elder succeedeth in Conquest and the immediat Younger in the heritage Therefore the one is specially called the
whose hands the same now is From what time How By what Service By whom and through what cause It is needless to be Curious concerning the number of the heads of this Brieve some parts thereof not being distinct but explicatory of the former 29. These Brieves are accordingly direct to the Judges ordinary where the Land or Annualrent lyes as to Sheriffs Bailiffs of Royaltie or Regality or Bailiffs of Burghs-royal But if there be just exception against the Judge ordinary of the place or if the Lands or Annualrents lye in divers Jurisdictions and so be represented Warrand will be granted upon Supplication to the Lords that the Director of the Chancerie issue Brieves to other Persons and frequently in the case of diverse Jurisdictions they are directed to the Macers 30. By Vertue of this Brieve the Judge ordinary or Delegat to whom they are direct citeth Persons to be members of inquest upon 15. dayes And 〈◊〉 the Brieves at they Mercat Cross unless they be Served at the 〈◊〉 Court when all the Free-holders are oblieged to be present and then the Brieve may be served without further delay conform to the Act of Parliament 1429. cap. 27. and Par. 1503. cap. 94. where it is left arbitrary to summon the Inquest on what dayes the Judge server of the Brieve pleaseth or presently if they be Persons of Inquest present in the Tolbooth un-summoned But in all cases the Brieves must be proclaimed publickly at the Market Cross in plain Market where most confluence of people is gathered so as it may come to the knowledge of the partie before whom it should be served And then that the said Brieve be thrice cryed plainly together which is by three several Oyesses with a loud and audible Voice before the reading of the Brieve and the Sheriffs Precept thereupon and each Oyes to be at as great distance from other as the time required to give the said Oyes thrice and that the Officers of the Town be present But if the Brieve come to be served so near Whitsunday or Martinmass that there does not intervene a Market day the Brieves may be proclaimed upon any week day the Officers and six others of the Town being present Yet either the day of Compearance or the day of Citation is numbered as one of the fifteen July 27. 1626. Mackculluch contra Mackculloch There is no necessity to Summon any Defender in lieu whereof is the publication of the Brieve by Proclamation at the Market Cross. Yet upon the Supplication of the partie interessed Warrant was granted by the Lords to the Director of the Chancerie that no Brieves should be issued for serving Heirs to such a Defunct unless they contained a Clause to cite the Supplicant who was Donatar to the Defunct's Bastardrie Spots de haereditarijs actionibus Mackculloch contra Laird of Martoun 31. The Inquest being called consisteth ordainarly of 15. Persons against whom like Exceptions are competent as against Witnesses And though Craig lib. 2. dieg 17. regrateth that any person is admitted to be one of the Inquest whose Rent exceedeth not 40. lib. though they be not pares curiae nor Con-vassalls with the partie to be served neither of the vicinity or Neighbour-hood contrary to the Intent and Ancient Custom of these Services Yet he acknowledgeth that it was so ordainarly especially in the Service of Noblemen and Custom hath containued the same hitherto But those of the Neighbour-hood were fittest because as Craig observeth in that place Inquests are in the middle betwixt Judges and Witnesses partaking part of them both for two or more of them of their proper Knowledge will be sufficient for Witnesses in the matter of fact and upon their declaration all the rest will Serve affirmativè without any other Testimony And it is like they have been of old sole Judges in Brieves the Judge ordinary having no more power but to call and order them And they are yet with the Judge ordinary or Delegat as Judges for they must serve and do sometimes seal the Service with him 32. The Inquest being settled the Heir apparant gives in his Claim craving to be served Heir to his Predecessor in such Lands or Annualrents and therewith the Brieve and Executions thereof together with the instructions of the same 33. The Brieve and Claim are as a Libel against which any partie compearing and found to have Interest may propone their Exceptions which are many more than those contained in the said last Act of Par. 1503. cap. 94. And first against the Executions as being blotted in the date or other Substantials and so null which thereby may not be mended as other Executions as the Name and Sir-name of the Followers and of the Defender the name of the Land and Cause upon which the Brieve was purchased Which was found not only to extend to the blotting of the Brieve but to the Executions thereof July 27. 1623. Mackculloch contra Martoun Or as not proclaimed upon fifeen days which also will be relevant by way of Reduction Or that the Defunct was Bastard and had no lawful Issue Or that the pursuer of the Brieve is Bastard and so incapable of Succession wherein if the proponer be more special and pregnant than the apparant Heir in his alledgence of being nearest and lawful Heir he will be preferred Exceptions also are Competent as to the point of Right by proponing and instructing that the Defunct was denuded of the Fee but Exceptions upon paralel Rights that the Defunct had not a good Right are not competent here And also Exceptions upon the age of the apparent Heir or his being forefault or Rebel c. are here competent and likewise Objections and Debates upon Instructions and Writs adduced for proving of the Claim and Head of the Brieve In which cases if there appear difficultie or intricacie the Lords upon supplication will constitute Assessors or grant Advocation of the Service and after discussing of the points in jure will remit the same either to the same or to other Judges delegat But no Objection or Exception will be admitted unless it be instantly verified because this Brieve is no Brieve of Plea Par. 1503. cap. 94. and therefore cannot admit of terms to prove Exceptions 34. The Debates upon the Brieve being discussed the Pursuer thereof must prove and instruct sufficiently the Heads of the same As first that the Defunct died last vest and seised as of Fee at the faith and peace of our Soveraign Lord which comprehends first the Death of the Defunct which is ordainarly proven by the Knowledge of the members Notorietie or common Fame without necessity to instruct the same by ocular Witnesses who saw the Defnnct die or buried But in case of the Defunct's Death out of the Countrey or if it be dubious or controverse the testimony of Witnesses or proper knowledge of two at least of the Inquest or Testificats from abroad especially from the Magistrats of the Place where the Defunct died
delictum should not be competent after the Intrometter's Death It was also thought by the whole Lords after dispute in presentia upon this Title That it takes only place where there appeared the apparant Heir's animus immiscendi adeundi haereditatem and not where he hath any probable or colourable Title Spots Heirship Corser contra Durie Yet in favourable cases a smal Intromission was sustained as making use of the Defnuct's chief Bed and Board though standing in the Defunct's House seing the Heir entred the House before he obtained Inventary of the Moveables made by authority of a Judge though the House belonged to himself proprio jure March 8. 1610. John Bailzie contra Hoom of Bassenden Or by Intromission with a Mazer Cup of the Defunct's and drinking therein entering in the House when he died lying in his Bed and bed Cloaths standing there and wearing his Silk Stockings though all these were undisposed upon and that the Defunct's Mother who had given them to her Son had medled therewith who died in a Chamber belonging to his Mother and his name was upon the Mazer January 15. 1630. Cleghorn contra Fairly 6. There are two Cases of Behaving as Heir viz. Intromission with the moveable Heirship and Intromission with the Lands Teinds Tacks or other Rights which might have belonged to the Intromitter as Heir In both which cases the Intromission will not infer this passive Title unlesse the Intrometter might succeed in the same particulars And therefore the apparant Heir of Line and no other can be lyable by Intromission with Heirship moveable because the same can only belong to the Heir of Line So the Intromission with Rents of Lands Tiends or Tack will not infer gestionem unless by the apparant Heir who would succeed therein according as they are provided to Heirs of Line of Conquest Heirs male or of Tailzie or Provision Neither will any other Intromission be relevant but what is immediat or by express Warrant Command or Ratihabition 7. A Tutor or Curator's Intromission will not infer gestionem upon his Pupil unless he accept the same from the Tutor in his Accompts Nor the Intromission of one having a general Commission as Factor c. It was so found in the Case of a Tutor's Intromission with the Rents of the Pupil's Predecessor's Lands for the restitution whereof he was only found lyable Nevember 3. 1665. David Boyd contra Tailzfair 8. Behaving as Heir by Intromission with the moveable Heirship is most unquestionable when the said moveable is chosen drawn and separat by the Heir from the remanent moveables In which case the apparant Heir will not be admitted to alledge that the Defunct could not have an Heir or Heirship moveable when he formerly drew the same July 13. 1631. Laird of of Gadgirth contra Laird of Auchinleck But it seems very hard where the apparant Heir's choice of such particulars as the best of every Kind for her Heirship doth not evidently appear for that must be accounted the best which is such in the opinion of the apparant Heir And yet in favourable Cases Intromission with any Kind of moveables out of which Heirship may be drawn will be found sufficient and repute as the Heir's choice As the apparant Heir's making use of his Fathers Board lying in his Bed though he disposed not thereof and though the same were standing in a House disponed to him by his Father before contracting of the Debt pursued on seing he continued two years in possesion and got no Warrant from the Lords or made any Inventary thereof July 14. 1626. Gilbert Johnston and Masson his Spouse contra Masson The like by making use of the Defunct's Bassin Silver Spoons Timber Beds and Boards without alienation thereof though the beginning of the Intromission was when the Intrometter was not apparant Heir himself but was Tutor to another Heir who was Idiot seing he continued five years after the Idiot's Death himself being then apparant Heir January 17. 1627. Frazer contra Monimusk Yet the contrary was found where the Intromission began before the Intrometter was apparant Heir there being a nearer apparant Heir though it continued after that nearer apparant Heir's Death when the Intrometter was apparant Heir July 〈◊〉 1629. Mr. Robert Cuuingham contra Moultry Yea Behaving as Heir was sustained by Intromission with certain Goods of the Defunct which might have been Heirship though they were confirmed promiscously by an Executor and bought from him by the apparant Heir But this Executor was his own domestick Servant and confirmed to his own behoof December 16. 1630. Weir contra Ker of Cavers The like where the Heirship Goods were sold to the apparant Heir by a stranger seing they were not delivered to that stranger but possest by the Defunct till his Decease but his possession continued by the apparant Heir Nicol. Plus valet quod agitur Feb. 9. 1621. Melvil contra Melvil But the contrary was found the Goods being disponed by the Defunct to the apparant Heir albeit not delivered before his death otherways than that the Defunct being un-married came to his Son's House and lived with him till his death January 30. 1630. Calderwood contra Porteous Neither was the same inferred by a Disposition of the Defunct to his apparant Heir of certain moveables in satisfaction of his Heirship moveables whereunto he might succeed Feb. 24. 1636. Meidhope contra Hepburn 9. The ordinary Objections and Exceptions against Behaving as Heir by Intromission with the Heirship moveable are First That the Defunct was neither Prelat Baron nor Burgess to whose Heirs only Heirship moveable is competent by the Act of Parliament the extent whereof is shown in the former Title And therefore the Pursuer must condescend and instruct that the Defunct was either Baron Prelat or Burgess which would besufficiently instructed by the Defunct's Infeftments of Lands or Annualrents at any time for thence it would be presumed that he continued undenuded till his death semel baro semper baro presumptivè And this will be elided by this Exception That the Defunct was denuded before his Death For though some have been of opinion that semel baro semper baro is meant that though a Person once infeft were denuded yet his Heir would have Heirship as a Baron For which I find neither Reason nor Decision But it is most reasonable that he who is once proven to be a Baron should be presumed so to continue unless the contrary were proven that he was denuded It was so found January 27. 1636. Straiton contra Chirnside But if the Legal was not expired at the Defunct's Death he is not esteemed denuded and therefore his Heir hath Heirship Feb. 26. 1663. Cuthbert of Drakies contra Monro of Foulis July 8. 1628. Dumbar contra Lesly Neither will it be sufficient that the Defunct was once Burgess but itmust be proven that when he died he was acting as a Burgess So that neither the Heirs of honorary Burgesses nor they who once were
stood the like relation betwixt Patrons and Kirks patronat as betwixt Patrons and Libertines the ground whereof was an eminent good deed done by the Patron or his Predecessor to that Kirk especially these acknowledged in Law Patronum faciunt Dos AEdificatio fundus Signifying the building of the Church or giving of the Stipend or of the Ground necessary for the Church Church-yard Manse or Gleib were the grounds for constituting the Patronage which were sufficiently instructed by custom of the Kirks acknowledging such a Patron It was lately contraverted who should be patron of a second Minister whose Stipend was constitute not out of the Teinds but by Contribution and ingagement of a Town for the greatest part and the Heretors of the Landwart paroch for the rest whether the patronage and power to present that second Minister should belong to the patron of the Kirk having the unquestionable power of presenting the first Minister or the Contributers in which competition the patron of the Kirk was preferred because the contributers had never been in possession of presenting nor had reserved the patronage nor power of presenting in the erection of the second Minister which was only by an Act of the Bishop and presbytry bearing the shares contributed for a second Minister but neither Reservation nor protestation by them concerning the patronage or power of presenting the second Minister nor was any thing of custom or possession to show the meaning of the parties November 18. 1680. Town of Haddingtoun contra the Earl of Haddingtoun This case will not prejudge Erections of second Ministers in most of other Towns in the Kingdom where the Erection doth bear reservation of the patronage But for clearing of the derived Right from the first patron especially to singular successors the patronage was ordinarly conveyed by Infeftments carrying expresly Advocation Donation and right of patronage of such Kirks Such Kirks then as acknowledged no patron are fully free and these are provided not by presentation but the ordinar conveyeth pleno jure whereby the Incumbent hath right to the Benefice and full Fruites But in Mensal Kirks the Incumbent hath but a Stipend and these belong to the proper patrimony of Prelats who have right to the Fruits thereof as a part of their own Benefice and therefore are called patrimonial or mensal Patronage is also either Laick or Ecclesiastick Laick is that which belongs to secular persons Ecclesiastick that which belongs to Church-men as when a Bishop hath the right of presentation to a Kirk not in his own Diocess there he presents but another must confer as Ordinar and so he is but Ecclesiastick patron 28. Kirks patronat required for the entry of Ministers a presentation of the patron presenting a person to the Church and Benefice to be tryed by Church-men having that power and giving him the right of the Benefice or Stipend being found qualified and Collation of the Office and Institution therein by Church-men upon tryal without which the Incumbent could have no right yet where the Bishop had the power of Collation and Institution and to confer pleno jure a Gift from the Bishop conferring and admitting was found sufficient without a distinct Presentation and Collation July 4. 1627. Minister of Sklate contra parochioners But in Kirks not patronat Institution and Collation was sufficient And of late the Act of Ordination or Admission of Ministers by presbytries served for all But in Benefices without cure as prebendries or Chaplanries presentation is sufficient without Collation and Institution March 14. 1622. Scot contra Penman 29. Ministers being thus Entred have Right to their Benefices or Stipends during their incumbency which they need not instruct by Write but it is sufficient to prove by Witnesses that the Minister or his predecessors have been in possession of that which is contraverted as a part of the Benefice or Stipend of that Kirk and that is commonly holden and repute to be a part thereof for there being no competent way to preserve the Rights and Evidents of the Kirk amongst successors in Office as there is of other Rights amongst other Successors The Canon Law attributeth much more to possession then the Civil for thereby possessor decennalis or triennalis nontenetur docere detitulo Which was not only extended to instruct that the thing possessed belonged to the Benefice but that the incumbent had sufficient right and therefore liberated prebendars from production of their provisions in the case of improbation Hope improbation Bishop of Galloway and Dean of the Chapel-Royal contra the prebendars This presumption would not be elided by any extrinsick Right Yea it will liberate from preduction of any written Right in Reduction and Improbation where there is no Right extent But if a Right be found by the oaths of Church-men or others to be extent in their hands the same will be presumed to be the Right by which they posses and it may be improven by a positive probation but not by a presumptive probation by way of certification concluding it false because the possessors declined to produce it or to abide by it when the Right is produced any exception may be proponed upon any thing contained therein and therefore an Annualrent of ten Chalders of Victual mortified by the King to the Chapel-royal was excluded by a Redemption thereof granted by the King voluntarly upon payment when the Bishops were supprest in respect the mortification boresuch a Right mortified which had therein a Reversion and therefore after Redemption thirteen years possession could not relieve the Right being Redeemed Neither could the Act of Restitution of Bishops restoring them to the Rights and possession they had before 1637. seing that could not hinder another party ro redeem July 11. 1676. Bishop of Dumblain contra Francis Kinloch A Ministers Stipend as to the use of payment and quantity was found probable by witnesses without write in possessorio as was lalely found Ministers Relict contra Earl of Caithness As to the time sufficient to give a possessory Judgement in Benefices or Stipends upon possession without Evidents in write but being holden and repute as a part of the Benefice The Canon Law Regula Cancellariae 33. determines it to three years peaceable possession which is rather as to the Incumbents Right that after three years possession he cannot be questioned during his Life I find not our Decisions so clear in it but it cannot exceed seven years possession which gives a possessory Judgement in Infeftment of property c. it was so found November 25. 1665. James Petrie contra John Mitchelson The like about that same time Mr. Alexander Ferguson contra Lievtennant Collonel Alexander Agnew Ministers also during their Incumbencie may set Tacks according to the Rules for setting of Tacks by Beneficed persons before exprest which are valide and effectual though the Incumbent be deprived or transported par 1592. cap. 115. 30. Ministers Stipend are ordinarly allocat out of the Teinds of particular Lands and