last Infeftment will also be presumed to continue Superior and the Inquest will serve accordingly unless another Superior be instructed or acknowledged by the Pursuer Which acknowledgment in respect of the Pursuer's hazard of Disclamation and that the subsequent Superior's Rights are in his own hand and he cannot be prejudged by the Service therefore that poynt will be so served Periculo petentis 37. The fourth Head of the Brieve is By what Service the Fee is holden whether it be Ward Blench Feu or Burgage which also must be instructed by the Evidents And if nothing else appear the Fee is presumed to be Ward because that only is the proper Fee and the others are improper declyning from the nature of Fees and therefore are not presumed but must be proven And as Craig observes lib. 2. dieg 17. It will not instruct the Fee not to be Ward though it contain a particular Reddendo of a Cane or Dutie yea though it bear pro omni alio servitio questione seculari unless it express the said Reddendo to be in name of Blench Dutie or in name of FeuDutie So an Infeftment bearing a particular Duty payable at Whitsunday and Martinmass yearly cum servitiis in curiis nostris debitis consuetis was found to be a Ward Holding Hope de Feudi Renovatione Williamson contra Thomson And an Infeftment bearing sex denarios nomine canae with a Taxed Marriage was found Ward Feb. 7. 1610. As was resolved by Oliphant the King's Advocat in a Consultation with the Bishop of St. Andrews for entring the Lord Lindsay to the Lands of Struthers 38. The fifth Head is The Value of the Fee now and in time of peace The reason of inserting of this Article is because there is due to the Superior a years Rent of the Fee for the entire of the Heir which is called the Relief of which formerly Title Superiority And that it might be constant and liquidat there was a general Valuation of the whole Kingdom which is called the old Retour or old Extent Thereafter there was a second Retour called the new Retour or Extent whereby the new Retour of some Shires was made the Triple and some the Quadruple of the old Yea different new Retours were in the same Shyre but there is no new Retours in Southern Shires upon the Border which were frequently wasted with War and little addition in the Northern Shyres So the meaning of the Article is what the Fee is worth now that is what the new Retour or Extent thereof is and what it was worth in the time of Peace or what is the old Extent thereof Craig declares he could never find clear satisfaction in the reason of these expressions especially why the old Retour is called that which was in the time of Peace And he conjectureth that because our fore Fathers are said to rest in peace therefore by the same peace is meant the time of our Predecessors But I conceive the matter may be better cleared thus The Casualities of the Superiority were of old the Chief Patrimony of the Crown of Scotland and were further extended than of late and therefore it seems that the time of the making the new Retour and cause thereof was the frequency of War requiring an Addition of the Royal Revenue And though through the alteration of the Rate of Money neither of the Retours be now considerable Yet doubtlesse they were very considerable in those times So that by quid valet nunc is to be understood in time of War at which time the new Retour was made which is the more evident by the opposite member what was the Value in the time of Peace So that the old Retour being that Value which was before the necessity of heightening thereof by the War is fitly said to be that which was in time of Peace and the new Retour that which was made in time of War And immediately after the Constitution thereof the Brieve was made to expresse it by the then present time Nunc which hath been always so continued because the Style of Brievs is not to be altered This is the more evident that the Bordering Shyres which were frequently wasted by Incursions were not altered in their Extent So that it hath been made in a time of War The new Extent is not only the Rule of Relief but of Non-Entrie in Lands holden Ward and Blench for the new Retour Mail is only due till general Declarator But in Feu Lands there is only regard to the Extent for during the Non-Entry thereof at least before general Declarator nothing is due but the Feu Dutie and the Duplication thereof for the Relief Annualrents have no difference before or after Declarator and therefore are alwayes Retoured to the full Value of the Annualrent and is thus exprest quod valet seipsum 39. The sixth Head is Whether the Pursuer be of lawful age Wherein we must distinguish betwixt Ward Holdings and other Holdings Blench Feu or Burgage For in these any Age is lawful Age. but in Ward Holdings because the Superior by vertue of the Ward hath the profit of the Land during the Heirs Minority therefore they cannot enter till their Majority at which time only the Heir is of lawful Age which in Men is twenty one Years compleat and in Women fourteen Years compleat January 27. 1610. Laird of Kilbirnie contra Fairly Yet if the King or any other Superior give Dispensation of the Age the Service will proceed but the benefit of the Ward continueth with the Superior by the Dispensation in the Disposition The Heir Age must also be instructed to the Inquest either as being Notour by inspection of the Persons for it would be Ridiculous to prove a Gray-headed Heir to be Major but in dubio Witnesses or other sufficient Adminicles must be adhibited 40. The seventh Head of the Brieve is In whose hand the Fee is that is to whom the profit and benefit thereof doth now belong For ordinarly the Fee is Retoured to be in the hands of the Superior by reason of Non-Entrie but sometimes retoured to be in the hands of the Supeiors Superior when the Sùperior hath lost the Casualities of the Superioritie during his Life and sometimes it is in the hands of the Liferenters by Conjunct-Fee or Liferent holden of the Superior which doth not hinder the Entrie of the Heir to the Fee yet excludeth Non-Entrie The remanent Particles of the Brieve From what time how by what Service by whom and through what Cause are but circumstances relative to the last Head that thereby it may appear First How long the Fee hath been in Non-Entry or in the hands of the immediat Superior or Liferenter 2. How it came to be in that Condition So it became in Non-Entrie by the Vassal's Death and in the hands of the mediat Superior by the contumacie of the immediat Superior in not entring his Vassal and in the hands of the Liferenter
Deeds contrary to the Tack 37 Or by Removing 38 Summary Removing without warning in what Cases 39 The old way of removing Tenents 40 Warning of Tenents to remove 41 The active Title in Removings 42 Exceptions against Removings not instantly verified are not receiveable till Cautiou be found for the violent Profits 43 Defenses against Removing and Replys thereto 44 Violent Profits 45 Succeeding in the vice of Tenents removed TITLE XX. Wadsetts where of Reversion Regress and Redemption 1 Infeftments for satisfaction of Sums Principal and Annual or for Relief are proper feudal Impignorations consisting with the Disponer's Property 2 The Nature of Wadsets 3 The Nature of Reversions 4 Kinds of Reversions 5 〈◊〉 requisit in Reversions 6 The effect of Clauses irritant in Reversions 7 Reversions are stricti juris 8 Kinds of Wadsets 9 Proper Wadsets 10 The effect of Tacks after Redemption contained in Reversions 11 Improper Wadsets 12 Regress 13 Discharges of Reversions 14 Wadsets become legally extinct by Declarator of explring thereof or by the Order and Declarator of Redemption 15 The Order of Redemption of Apprisings or Adjudications 16 The Order of Redemption by conventional Reversions 17 Premonition 18 Gonsignation 19 Declarators of Redemption 20 The effect of Declarators of Redemption 21 Defenses against Declarators of Redemption 22 Requisition 23 How far other Rights may be reserved in Redemptions or Renounciations TITLE XXI Extinction of Infeftments where of Resignation ad remanentiam Recognition Disclamation Purpresture and other Feudal Delinquences 1 THe form of Resignations ad remanentiam 2 They may be by Procurators or propriis manibus 3 Instruments of Resignation prove not without a Warrant in writ 4 Resignations ad remanentiam were valid without Registration till the year 1669. 5 Resignations imply all Burthens by the Vassal affecting the Fee 6 Resignation by him who hath no Right with consent of him who hath Right how far effectual 7 How far Superiors may not reject Resignations ad remanentiam 8 How Infeftments become extinct by Succession as Heir or singulari titulo 9 The original of extinction of Fees not by the Vassals consent but by his Deed. 10 Recognition by Alienation of the Ward Fee 11 Recognition by Infeftments a se. 12 Whether Recognition can be incurred by Deeds in minority or on Death-bed 13 Whether Recognition can be incurred by Sub-feudation 14 How far Feus exceeding the Half of the full Rent may subsist without Recognition 15 In what Cases other Feus of Ward lands infer not Recognition 16 Recognition by Alienation is only of Lands clearly Ward simple or taxed 17 Recognition is not incurred unless the major part be alienat 18 Recognition is not incurred by Alienations to the Vassals apparent Heir 19 Whether Recognition be incurred by Alienations on condition that the Superior consent 20 Inhibition excludes not Recognition 21 Recognition is not excluded by the Vassals drunkenness when he alienat 22 How the Superior's Consent may be adhibit to Alienations to shun Recognition 23 How far the Kings Confirmation without a novodamus takes off Recognition 24 How Recognition is taken off by homologation 25 Recognition excludes all Infeftments Tacks or Servitudes by the Vassal's Deed without the Superior's Consent or authority of Law 26 Servitudes by Prescription are not excluded by Recognition 27 In Recognitions who must be cited and who may compear 28 The Title and Order in Declarators of Recognition 29 Disclamation how incurred 30 Purpresture how incurred 31 Feudal Delinquences adduced by the Feudists for resolving Fees 32 Atrocious Deeds against Vassals Fidelity to their Superiors resolving their Fees 33 How far the Ignorance or Weakness of the Vassal excuses with other exceptions for the Vassal 34 Whether the Delinquence of the Subvassal infers Recognition TITLE XXII Prescription 1 PRescription distinguished and described 2 Usucapion 3 The several times required to Usucapion or Prescription by the Roman Law 4 Requisits to Prescription 5 Bona fides requisit to Prescription 6 Whether he who doubteth of his Author 's Right be in bona or mala fide 7 Evidences of mala fides 8 The Title requisit 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 heritable Rights 16 Prescription is not extended against the Right of Superiority 17 Prescription runs not for Tenents against their Masters 18 Prescription runs not against Minors but there is no exception of Mortifications to pious uses 19 In our long Prescription bona fides is not required 20 The Titles requisit in Prescriptions of heritable Rights 21 This long Prescription secures Wadsets Infeftments for Security Teinds and long Tacks 22 How far Teinds can prescribe 23 This Prescription extends to Patronage and Offices 24 And to Thirlage 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 ways 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 apparent 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 Compts House-maills 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 Tenents removed and legal Reversion of special Adjudications 33 Septennial Prescription of old Apprisings and Summons for Interruption 34 Decennial Prescription of late Apprisings or general Adjudications 35 Prescription of twenty years of holograph Bonds Missives and Subscriptions in Compt-books without Witnesses 36 No Prescription runs in Minority except Removings House-maills and Merchant Compts PART II. TITLE XXIII Assignations Where of Arrestments and Actions for making forth-coming 1 THe several Conveyances of Rights 2 What Rights are not transmissible 3 The rise of Assignations 4 The tenor of Assignations 5 The Conveyance of blank Bonds c. 6 The rise and effect of Intimations 7 The several wayes of Intimation 8 What Assignations are perfected by Possession without other Intimation 9 Other supplies of Intimation 10 Intimations to more correi debendi 11 Intimation is not necessary to Rights registrat for publication as Reversions c. 12 Nor to Orders of Merchants 13 Nor to judicial Assignations by Apprisings c. 14 Nor to the legal Assignation Jure mariti by Marriage 15 Nor against the Cedent's Heirs or Executors even though Creditors 16 To what Rights Assignations extend 17 Assignations carry Inhibitions following on the
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-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-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-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
hereafter Teinds also must come in as Servitudes though they are accounted a distinct Right 1. The Roman Law divideth personal Servitudes into Usufruct Use and Habitation Usufruct is the power of disposal of the use and fruits saving the Substance of the thing which if it be restrained to these persons and their proper use without making profite or disponing to others it is called the use and because of some special Consideration in the Law of that use of Houses Habitation is a distinct Servitude from other uses 2. All Servitudes with us come under some of the kinds before named Personal Servitudes are either constitute by the deeds of men or by the Law which provideth a competent portion to either of the surviving Spouses out of the Lands and Tenements of the other during the Survivers Life as if the Wife survive she hath the third of her Husbands Tenements and if the Husband survive he hath the Liferent of the Wifes whole Tenements and that provisione legis alone But other Liferents constitute for surviving Spouses or otherways are provisione hominis So may the Terce or Liferent by Courtesie be provided and some things altered from the course of Law but oftner Liferents are constitute by Conjunctfee and most ordinarly otherways which therefore retain the common name of Liferents appropriat thereto and distinct from Conjunctfees 3. Liferents are sometimes provided particularly and sometimes generally for the whole or such a share of the Conquest during the Marriage which though not fulfilled by the Husband in his Life is effectual against his Heirs and is not accounted a fraudulent provision though it be the whole Conquest even amongst Merchants yea it was found effectual for recovering the rents of the Conquest Lands without Infeftment against the Husbands Heir in the case of the Relict of Johnstoun Merchant in Glasgow And where a Husband purchased Lands in favours of his eldest Son being then an Infant and not to himself yet his Relict was found to have Right to her Liferent thereof as being a fraudulent deed in prejudice of the obliegement of Conquest July 3. 1627. Countess of Dumfermling contra the Earl of Dumfermling her Son But these provisions of Conquest do not hinder the Husband acquirer to denude himself wlthout Fraud for any onerous or just cause as selling for a price or disponing to Children whether it be the appearand Heir by ordinary Terms of Contracts of Marriage to younger Children or to Wives of subsequent Marriages June 16. 1676. Katharin Mitchel contra the Children of Thomas Litlejohn And such a Clause being of all sums acquired during a second Marriage was found to annul an universal Legacie to the eldest Son of the first Marriage but not to annul competent provisions to the Bairns of the first Marriage June 19. 1677. Murrays contra Murrays The like January 3. 1679. Mr. Alexander Gibson contra Elizabeth Thomson Yea a Clause providing the present Stock and all the Conquest to the Bairns of the Marriage whilks failing the one half to the mans Heirs the other to the wifes Heirs was found to make the man Fiar and not to hinder him to provide his whole means which were very great to his Bairns of a subsequent Marriage there being no Bairns surviving of the former marriage December 1. and 21. 1680. Alexander Anderson contra Andrew Bruce But as to such Clauses Conquest is only understood where the Husband acquired more then he had the time of the Clause but not when he sold some Lands and acquired others of no greater value June 27. 1676. Earl of Dumfermling contra Earl of Callender yea a Clause of Conquest in a Wifes Contract of Marriage who was otherways sufficiently provided was found to be with the burden of the Annualrent of a sum which the Husband declared under his hand to be a part of the price of the Lands acquired remaining due to the seller Decem. 20. 1665. Lady Kilbocho contra Laird of Kilbocho 4. This is common to all kinds of Liferents and involved in the nature thereof that they must be salva rei substantia which by Statute is especially extended to Conjunctfiars and Liferenters that they must be countable and find surety not to wast or destroy the Biggings Orchards Woods Stanks Parks Meadows or Dovecoats but that they hold them in such like kind as they receive them Par. 1491. cap. 25. which is confirmed and declared to proceed upon twenty one days by Sheriffs Bailies of Burghs or Regalities under pain of Confiscation of the Liferent-right to the Kings use Parliament 1535. cap. 14. And though the Narrative of the Statute expresseth Conjunctfiars and Liferenters giving Caution as being most ordinary by provision of men yet the Statutory part is general at least may be extended to Terces and Liferents by the Courtesie So a Liferenter was Charged Summarly to uphold the 〈◊〉 Liferented and to leave it in as good case as she found it without precognition how it was the time of her Entry March 28. 1626. George Foulis contra Isobel Allan By Act of Parl. 1594. cap. 226. Anent ruinous Tenements within Burgh which being cognosced by an In quest to be ruinous as become or which may become within a short time uninhabitable the same must be repaired by the Liferenter or the Fiar may enter in Possession finding Caution within the Burgh to pay the Liferenter the Mail thereof as the samine gave or might give the time of the precognition but this Act was not found to derogat from the former Acts nor that Precognition was requisit before finding Caution except in Tenements within Burgh decayed before the Liferenters entry as was found in the foresaid case George Foulis contra Isobel Allan Neither was the Liferenter freed from Caution upon her offer to quite the Possession to the Heretor for paying of the Rent the Tenement not being ruinous at her Entry 5. It is also common to Liferents and Conjunctfees that the Liferent-right is lyable with the Superiour of ward-Ward-lands or his Donatar for an Aliment to the Heir to be modified by the Lords proportionally according to the quantity of the Land in Ward and Liferent by the said Statute 1491. cap. 23. Vide Tit. Heirs § 3. 6. Liferents are either Constitute by way of Reservation in Infeftments of Property or otherways by a several Infeftment but it cannot become a real Right and be effectual against singular Successours without Infeftment though most Servitudes may be Constitute by Disposition and Possession 7. Yea though Liferents being Constitute by Infeftment may be conveyed by Assignation because there can be no subaltern or renewed Infeftment of a Liferent which is only personal to the Liferenter and the Right is incommunicable yet the Fruits and Profits arising thence are communicable and assignable 8. It is also common to Liferents that nothing done after their Infeftment by the Constituent or his singular Successor can prejudge the Liferenter And so an Appryzer from the Husband was
out A Terce of Wodset Lands wherein the Husband died Infeft was not found elieded because the Husband Required or Charged for the Money not being denuded before his death Feb. 16. 1642. Veich contra Veich of Dawick But the wifes third continues as to the third of the Annualrent of the Money in lieu of the Lands Redeemed by the heir after his predecessors death Terce is not excluded by Ward Non entry or Liferent-escheat of the Husband as hath been more fully shown before Title Superiority 18. Terce is burdened proportianally by all debita fundi affecting the whole Tenement as Annualrent Thirlage Pasturage but with no other debts of the Defunct being personal though they be Heretable and have provision of Infeftment 19. Liferent by the Courtesie or Curiliaty of Scotland is the Liferent competent to the Husband of the Wifes Lands and Hereditaments It is introduced by our Common Law which is our most ancient Custom wheroef no beginning is known in the same way as the Terce of the surviving Wife whereby without any paction or provision 〈◊〉 enjoys the third of her deceassed Husbands Heretable Rights wherein he 〈◊〉 Invested as of Fee during her life so the Husband Liferents the whole Lands and Hereditaments of the wife wherein she died Infeft in Fee and that without any Service or Kenning as in Terces but Summarly by vertue of his having been Husband to the Defunct neither is there any difference whether the Defunct wife had a prior Husband or not or whether her hereditament be Ward Blensh Feu or Burgage The original of this Liferent by the Courtesie as Craig observeth lib. 2. dieges 22. is from the Rescript of the Emperour Constantine whereby the Father had the Usufruct of the heretage of his Children befalling to them as heirs to their Mother and therefore the Courtesie takes no place but where there were Children of the Marriage one or more which attained that maturity as to be heard cry or weep for then the Law regardeth not how long the Children live or whether they do Survive their Mother but hoc ipso that they are born at maturity they are heirs appearand of the Fee and the Liferent is established in their Father In this the Courtesie of Husbands differs from the Terce of Wives for the Wife hath her Terce if either the Marriage continue undissolved year and day or though it continue not so long if a Child was born of the marriage heard cry and weep though the Child had been begotten before the Marriage yea though it had been born before the Marriage being Legitimat by the subsequent Marriage how short soever it endured the wife should have her Terce But the Courtesie takes no place unless a ripe Child beborn though the Marriage should continue for many years so that the being of Children procreat and born to maturity is the chief motive introductory of this Law Skeen in his Title de verborum significatione upon the word Curialitas limiteth the Courtesie to the Lands or Hereditament into which wives succeed as heirs to their Predecessors whether before or during the Marriage which Craig in the foresaid place doth likewise follow and doth exclude the Husband from the Liferent of the wifes Land to which the wife had right by any Contract as titulo emptionis which will not exclude the husband where the wises Predecessor Infefts her per praeceptionem haereditatis If a Father should Infeft his Daughter reserving his own Liferent with power ro Dispose she is not thereby heir active nor is that Estate accompted Heretage but Conquest yet she is heir passive and there is more reason that the husband should enjoy his Liferent of that Estate then if his Wife had been therein heir of Provision or Tailzie whereby failing her and her Issue another Branch not nearest of blood to her might readily succeed so that if her Children were dead before her self her heirs of Tailzie would have much more reason to question her husbands Liferent by the Courtesie then his own Children as heirs of line would have to contravert his Liferent of the Estate wherein she was Infeft by her Father or any of her Predecessors to which she was appearand heir but there have been few Debates or Decisions or limitations thereof which would clear this and other points thereanent The Law hath well fixed the maturity of the Children by their crying or weeping and hath not left it to the conjecture of witnesses whether the Child was ripe or not both as to the Courtesie Terce and Dissolution of the Marriage within the year in all which cases the Law alloweth Women Witnesses as being necessary in the case of the death of the Children at the time of their Birth Liferenters were found free of the Reparation of Ministers Manses by the Act of Parliament 1662. cap. Ordaining Heretors to build or repair Manses to the value of 1000. Pounds whereof no share of relief was found due by the Liferenters they not being exprest November 14. 1679. Minister of contra Laird and Lady Beanstoun Yet if the whole Estate were Liferented by Conjunctfee the Conjunctfiar might be liable as Fiar in that case when the Heretor had no profite of the Land and if the whole were affected with a separat Liferent the effect would be the same seing what the Heretor would be lyable to would diminish his Aliment which behoved to be made up by the Liferenter Liferent by the Courtesie hath the same extensions and limitations sa terces it affects all the wifes Lands not Acquired by a singular Title it is not excluded by the Ward but it is excluded during the Non-entry or by Liferent-Escheat and also by the Ward of the Superiour or the Forefaulture or Recognition either of the Superiour or Wife it is burdened with all real burdens by Infeftment or Tack and with the Aliment of the Wifes Heir if he have not aliunde It is also excluded by the Dissolution of the Marriage within year and day by Divorce or by the Husbands desertion of the Wife though Divorce followed not Or by his Adultery or other atrocious Crimes 20. Amongst personal Servitudes may be numbered publick Burdens imposed by the King and Parliament for publick use such as Taxations which by the Acts imposing them are declared real affecting the Ground and that thereupon the Ground may be poinded and so consequently do affect singular Successors The extraordinary burdens of Mentainance and Sess imposed by the Parliament during the troubles had not that Clause therein of Poinding the Ground and so were not found debita fundi but debita fructuum nor do they affect singular Successors July 13. 1664. Grahame of Hiltoun contra the Heretors of Clackmannan TITLE XVII Servitudes Real 1. Requisites to Constitute real Servitudes by consent 2. How Prescription Constituteth Servitude 3. How far Servitudes are effectual against the Superiour 4. Extinction of Servitudes 5. Kinds of Servitudes 6. Servitudes of Support 7 Stillicides 8. Sinks
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
heir of Conquest and the other retaineth the common name of the heir of Line Conquest is feudum novum whereunto the Defunct did not succeed as heir to any Person or whereunto the Defunct could not succeed as heir for if that were disponed to him by the Defunct whereunto he would have succeeded it were but Preceptio haereditatis and so remained to be repute as heritage to descend to the Younger and not to ascend to the Elder as Craig observeth lib. 2. dieg 15. Such heritages are rare and befall only by Tailzie or Provision amongst midle Brethren Because the eldest by primogeniture excludeth the rest from being heirs of Line but it may befall in case of the heirs of Lyne when the nearest Successor is the Fathers or Grand-fathers Brothers or their Issue there being Elder and Younger Brothers but Conquest is frequent because not only that which is acquired properly by the means and industry of the Defunct But that which is by Gift of the Defuncts Parents or any other or whatsoever the Defunct could not succeed to is Conquest Yet if the heir of Conquest succeed that which was Conquest becomes heritage and descends As if there were four Brothers and the third acquiring Lands Died without Issue the second would be his heir therein who if he Died also Infeft the Lands would fall downward to the Youngest Brother and not upward to the Eldest Brother The custom of England is contrary for thereby the eldest Brother succeedeth to all his Brothers failling the Issue But with us the Immediat elder or younger doth always succeed though of different Marriages none of them being Brothersgerman And therefore in the case proposed by Craig lib. 2. 〈◊〉 15. In fine of a Brother by a second Marriage dying without Issue and having three Brothers of a former Marriage no doubt the youngest would succeed according to the Opinion of Oliphant and King there related Albeit that Craigs opinion be that the eldest would succeed It was so decyded contrary Craigs opinion July 20. 1664. Laird of Clerkington contra Stewart Heirs of Conquest succeed not only to Lands Conquest by their immediat Predicessors but in other heritable Rights passing by Infeftments as Annualrent or such as are heritable by distination and which are accomplished by Infeftment as Despositions of Lands or Annualrents Appryzings or Adjudications c. The like where an Annualrent was first Disponed and a Clause of Requisition and Reversion subjoyned July 7. 1675. Robertson contra Lord Halkertoun and in Reversions Hope de Successionibus heirs of Pitcairne But in this case it is not cleared whether the Lands given in Wodset were heritage or conquest but it seems if the Lands had been heritage as they were Wodset the Reversion would also belong to the heir of Lyne as the Lands whereto it was accessory would Yea heirs of Conquest succeed in heritable Bands bearing Clause of Annualrent As was found amongst the heirs of Doctor Craig But the heirs of Lyne and not the heirs of Conquest succeed in Tacks acquired by the Defunct Hope Succession Earl of Dumbars heirs June 23. 1663. Ferguson contra Ferguson The heirs of Lyne do also succeed in Pensions or any other Right not requiring Infeftment as in these which having a tract of time after the Defuncts Death do thereby exclude Executors and do belong to the heir of Lyne and not of Conquest though they be acquired The heir of Lyne and not the heir of Conquest falleth to be Tutor or nearest Agnat to the Pupil to whom the heir of Lyne might Succeed The heir of Lyne hath right to the heirship Moveable and not the heir of Conquest 11. Heirs-portioners are amongst Heirs of Line for when more Women or their Issue succeed failing Males of that degree it is by the course of Law that they succeed and because they succeeed not in solidum but in equal Portions they are called Heirs-portioners and though they succeed equally yet Rights indivisible fall to the eldest alone without any thing in Lieu thereof to the rest As first Dignity of Lord Earl c. 2. The principal Manse being Tower Fortalice c. which doeth not extend to houses in Burghs nor to ordinary Country-houses the former being divisible the latter falls under division as pertinents of the Land whereupon they stand and are not as separata jura or distinct Rights 3. Superiorities are accounted indivisible and befal only to the eldest Daughter and her Issue and thereby all the Casualities of the Superiority either preceeding or following the Defuncts death as Ward Relief Marriage of the Vassals Heirs Nonentry Liferent Escheat c. The reason is because the Vassals condition ought not to be worsted and made subject to many Superiors by such Successions Craig lib. 2. dieg 14. excepteth the Superiority of Feu Lands the Feu Duties whereof are divisible amongst all the Heirs-portioners yet the former reason of the indivisibility of the Superiority in respect of the Vassals Interest reacheth Feu Superiorities as well as others and it is hardly conceivable how Superiorities should belong to the eldest and yet the Feu Duties divide to the rest seing the Superiority as being Dominium directum is the only Title for poynding the Ground or pursuing the Possessors or Intrometters with the fruits thereof It seems for the reason adduced the Superiority and therewith the Feu Duty befalleth to the eldest yet so because the Feu Dutie is constant and liquid and is not like the other Casualities of Superiority which are illiquid and accidental therefore the other Heirs-portioners ought to have Compensation for their parts of the Feu Duty in or off other proper Lands Or if there were moe Superiorities of Feu Lands so that some of the Superiorities might befal one Heir and others to other Heirs no particular Superiority being divided or the Vassal made Vassal to many Superiors I conceive it would be allowed or otherways the eldest Co-heir would be dicerned to infeft the rest in Annualrents out of the Fee correspondent to their share of the Feu Duty A Vassals Heir though the Defunct had taken Infeftment of more Heirs-portioners was not found oblieged to take Infeftment of some of them severally but either of all jointly or the eldest July 30. 1678. Lady Luss contra Inglis How far Heirs-portioners succeed passive and are lyable for the Defuncts Debt shall forthwith appear 12. Heirs Male and of Tailzie and Provision succeed not by Law but by the tenor of the Infeftment or Provision and therefore have that benefit and no more which is so provided to them or which is accessory thereto whereby any Right or Security of Lands or others befalling to these Heirs which is thereafter acquired by their Predecessors though the same be acquired to him and his Heirs whatsover yet the same will befall with the principal Right to which it is accessory to the Heir Male or of Tailzie or Provision As if a Proprietar Infeft himself or his Heirs
proper Debt whichis taken off by the duply of purging the same as appears in the Decisions before adduced The said Exception is also elided by the Reply As behaving as heir albeit the same were libelled as a several passive Title March 18. 1631. Reguel Bennet contra Bennet 25. The Entry of Heirs is either of heirs general or heirs special The former requires only a general Service which is necessary to all heirs except heirs in Tacks Pensions and heirs nominatim immediately substitute in Bands But heirs of Tailzie or Provision must be served that it may appear that the heirs to whom they are substitute are failed And therefore the only Child of a Marriage was found to have no title to pursue Implement of the Contract of Marriage till he was served heir of the Marriage July 21. 1676. Hay of Drumelzier contra Earl of Tweeddale The general proceedeth thus a Brieve is taken out of the Chancery of course without Citation or Supplication for serving such a Person nearest and lawful heir to such a Defunct It may be directed to any Judge ordinar at the Parties option albeit the Defunct nor the heir never lived within that Jurisdiction March 6. 1630. the Laird of Caskiben Supplicant The Lords may in Cases where an ancient or important Service is required choose the Judge most fitting for the Affair And when Brieves pass of course they are obtained to any Judge desired But they are easily Advocat and remitted to the Macers with Assessors in cases of difficulty The tenor of the Brieve is by way of Precept from the King to the Judge To enquire per probos fideles homines patriae That such a Person died at the Faith and Peace of our Soveraign Lord And that the user of the Brieve is the nearest and lawful heir So this Brieve hath only these two heads And thus not only Heirs of Line may be served generally but also Heirs of Conquest being to Succeed to Reversions heretable Bonds or the like Rights not having an Infeftment or requiring a special Service Hope Succession Earle of Dumbar's Heirs And no doubt Heirs Male may be served generally that they may succeed to the like Rights which may be conceived in their Favour and whereunto they can have no other Access And for the same reason Heirs of a Marriage may also be served and Heirs of Provision in Bands General Services use to be included in special Services as Members thereof and a Retour to an Annual-rent bearing to be granted to Heirs whatsoever and that the persons retoured Heirs in the said Annual-rent was found to instruct him general heir though it did not bear per expressum that he was heir generally but only in that Annualrent Feb. 9. 1676. Ricartoun Drumniond contra Stirling of Airdoch The general Service of Heirs being retour'd doeth so establish Rights not having Infeftment as Dispositions Heretable Bonds Reversions Apprisings and Adjudications in the Person of the heir served as that no posterior heirs can have Right thereto unless they be served heirs to the Person last served heir though the Right stood in the name of the firstAcquirer and not of the last heir as an heretable Bond or Reversion remaining in the name of aFather to whom his eldest Son was served heir generally who dying without Issue the second Brother must be served heir to his Brother and not to his Father therein as was thought by all the Lords after dispute in praesentia albeit the matter was agreed without decision Spots Heirs Captain Peter Rollo contra Stewart of 〈◊〉 The reason is because the general Service is a compleatestablishing of the Right in the Person of the heir and therefore as in special Services the heir is served to him who died last vest and seised as ofFee whereby that Right is established so in the general Service the heir must be served to him in whose Person the Right stood last And though in special Services the heir cannot be served to him who is last served special heir unless he had been also Infeft the reason thereof is because the special Service as an incompleat Right evanisheth and the next apparant heir must be served again to the same Defunct but it is not so in general Services 26. The Entry of Heirs to Lands or Annualrents the Fee whereof is by Infeftment is either by consent of the Superior voluntarly or by Law The former is by the Superiors Precept which from the initial words thereof Quia mihi clare constat c. is called a Precept of Clare constat by which the Superior acknowledgeth that the Defunct died last vest and seised in such Lands or Annualrents and that the same are holden of him by such a Tenor and that the obtainer of the Precept is nearest and lawful Heir to him in the said Lands c. and that he is of lawful Age for entering thereto And therefore commands his Bailiff to Infeft him therein Infeftment being past accordingly giveth that Party the real Right of Lands or Annualrents if done by the light Superior It doeth also constitute the receiver thereof Heir passivè and makes him lyable to his Predecessors Debts but it will not constitute or instruct him Heir activè or give him an active Title to pursue as Heir Yea it will not be a sufficient title as to the real Right of the Ground against any other Party than those who acknowledge the Giver thereof to be Superior and the Receiver to be Heir For if upon any other colourable Title they question any of these the Infeftment and precept of Clare Constat will not be sufficient alone unless it have obtained the benefit of a Possessory Judgment or Prescription 27. Like unto this is the entry of Heirs within Burgh Royal by Hespand Staple according to the Custom of Burgh which is instructed by the Instrument of Seasing only without other adminicles November 13. 1623. Mershall contra Mershal July penult 1629. Wilson contra Stewart In which case though a Seasing by Hesp and Staple was sustained to instruct an Heir activè yet it was only because this pursuer had been proven Heir passivè the eby at the instance of that Defender 28. The securest Entry of Heirs specially in Lands or Annalrents is by Law The procedor whereof is in this manner Any Person may summarely 〈◊〉 a Brieve out of the Chancerie in the same manner as the general 〈◊〉 which is directed by way of Precept from the King or Lord of the Regality having Chapel and Chancelarie whereby the Judge to whom it is directed is ordained by an Inquest upon oath to enquire Who died last Vest and Seized as of Fee in such Lands or Annualrents And if at the Faith and Peace of our Soveraign Lord and Who is his nearest and lawful Heir therein Of whom it is holden in Chief By what Service and What the Value of it is now and in time of Peace And if the said Heir be of lawful Age In
though she was not praeposita Negotiis but because she was Persona Illustris and her Husband out of the Countrey Hope Husband and Wife Mr. David Russel contra Earl of Argyle but a Wifes Bond for necessar Habiliments for her Body found to obliege her self and not her Husbands Executors and as to these she may contract Had. July 6. 1610. Eustacius Wise contra Lady Hallyrudhouse this must be understood where the Wife has an Aliment constitute by her Husband or other Right exempt from his Jus Mariti And it was so lately found in the case of Adam Garrns Merchant contra Elizabeth Arthur December 19. 1667. February 23. 1672. John Neilson contra Arthur But a Wifes account of Furniture to her Person not being great found valide against her Husband being subscribed by the Wife though she was minor being Persona Illustris February 20. 1667. Andrew Littlejohn contra Duke and Dutchess of Munmouth This Priviledge of Wives was extended to Obligations or Dispositions made by the Wife though before compleating of the Marriage being after Contract and Proclamation whereupon Marriage followed January 29. 1633. 〈◊〉 contra Brown The like specially where the Proclamation was not only at the Husbands Paroch Church but the Wifes July 8. 1623 Stewart contra Aitkin The like of a Disposition in favours of the Wifes Children after their Contract and one Proclamation July 5. 1611. Fletcher in Dundee contra Brown Yet Wives Obligations relating to their Delinquence are not void but only such as relate to their Contracting So a Wife was found oblieged to fulfil an Act of a Kirk Session under a Penalty that she should forbear an other mans company which was found not to affect her Husbands Goods but her own Hope Husband and Wife John Bell contra Executors of James Hogg and the Kirk Session of St. Cuthberts Here also are excepted Obliegements relating to Dispositions of Lands Annualrents or Liferents of which hereafter 13. As to the Husband and Wifes Interest in their Goods by our Custome without any voluntar Contract there arises betwixt them a communion of all Moveables except the Habiliments and Ornaments of the Wifes Body which though they be superfluous and the Husband insolvent are not Arrestable for his Debts the Husband hath the full and sole administration of all moveable Goods belonging or accressing to the Wife during the Marriage and the Rents and Profits of Heretable Rights as being moveable And therefore an Heretable Bond found to belong to the Husband Jure mariti because he was married before the Term of Whitsonday at which time it was payable June 15. 1627. Nicolson contra Lyell and a sum was found to belong to the Executors of the first Husband though the Term of Payment was after his Decease and not to the Wife or her second Husband Also a Legacy left to a Wife was found to belong to her Husband Hope Legacies Elizabeth Brown contra 〈◊〉 Likewise a Husband found to have right to a Bond blank in the Creditors name which the Wife during the Marriage put in the hands of a third Party who filled up his own name therein though the Husband and Wife were voluntarly separate February 11. 1634. Drummond contra Captain Rollo except Aliments duely and competently provided for the Wife which are not Arrestable for the Husbands Debt November 29. 1622. Thomas Edmonstoun contra Christian Kirkaldie and Alexander Barclay The like of an Aliment modified by Decreet Arbitral betwixt the Husband and a third Party though the cause thereof was founded upon the Husbands Right March 27. 1627. Westnisbit contra Morison yea the Husband himself found to have no access to a Sum provided to a Wife by her Father for her Aliment July 4. 1637. Tennant contra 〈◊〉 This communion of Goods by our Custome extendeth not to the Wifes Rights Heretable as Lands Annualrents Heretable Bonds nor to Liferents for as to these the Wife may obliege her self personally in Clauses relative to such Rights as Clauses to Infeft Clauses of Warrandioe and Clauses of Requisition of Sums for which her Lands were Wodset by her if the Wife be first and principally bound with consent of her Huaband but where the Wife and Husband were bound for Infeftment in Lands belonging to the Wife and both bound in the Requisition yet thereby the Wife was not found oblieged either for granting the Infeftment or in the Requisition because it appeared that the Money was not borrowed for the Wifes use December 19. 1626. Mathie contra Sibbald other ways such Obliegements are effectual against the Wife The like Hope Annualrent Agnes 〈◊〉 contra James 〈◊〉 where a Wife was found lyable to pay an Annualrent disponed by her and her Husband out of her 〈◊〉 fee-Fee-Lands even during the time they were in Ward The like of an Annualrent disponed by a Wife and her Husband for which both were personally oblieged in respect she lifted the Rents of the Lands out of which it was to be uplifted Spots Husband and Wife Walter 〈◊〉 contra Margaret Chisholm The like of a Clause of Requisition in a Contract of Wodset granted by the Wife upon her Lands stante matrimonia Hope Husband and Wife Agnes Gordon contra Elizabeth Gordon And this is the difference betwixt these and other Personal Obliegements of the Wife stante matrimonio which even though the Husband consent are 〈◊〉 and obliege her not yea a Renunciation of a Tenement by a Wife without consent of her Husband being absent though he ratified it at his return was found null Spots Husband and Wife Helen Melvil contra So that the Husbands Right Jure Mariti to the Rents and Annualrents of the Wifes Rights which are not Alimentary cannot be evacuate without the Husbands consent though the Wife may dispose of the Right it self to take effect after the dissolution of the Marriage In Heretable Rights of Wives Bonds bearing Annualrent though without a clause of Infeftment are comprehended for these remain Heretable 〈◊〉 〈◊〉 relictum by the Act of Parliament 1661. cap. 32. And therefore a provision by a Father to his Daughter bearing Annualrent five per cent found not to fall under the Husbands 〈◊〉 Mariti June 28. 1665. James 〈◊〉 against 〈◊〉 Edgar July 4. 1676. John 〈◊〉 contra Bruce The Marriage without any Contract is a legal Assignation to the Rents and Profits of the Wifes Lands and other Heretable Rights during the Marriage so that without his consent the Wife cannot alter the condition thereof in prejudice of his Right during the Marriage Jus Mariti is so effectual as to the moveable Goods of the Wife that though a Life-renter in her second Contract of Marriage reserved a part of her Life-rent Lands to be solely at her own disposel and that the Husband in the same Contract of Marriage renounced his Jus Mariti thereanent yet that Renunciation was found to be his Jur. Mariti and so the profits of her Life-rent were affected by his Creditors it not being constitute
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-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
of Incorporations or persons or otherways a servitude of common Pasturage c. Therefore we shall first speak of the Right of property in Fees both in relation to the Superiour and to the Vassal Next of the Servitudes competent in Fees which comprehending all Rights not reaching the alienation or substance but the lesser interests extending only to the profits or use of Hereditaments must comprehend both the interest introduced by Law as Teinds and these that are by consent by Infeftments or other grants or long possession whether they be personal as Liferents Conjunct-fees Terces and the Right of Courtisie Annualrents Pensions Rentals Tacks c. Or whether real Servitudes as Thirlage Pasturage c. And last Feudal Pledges which are called Wodsetts But in all we are only here to speak of the constitution of Feudal Rights leaving the transmission thereof to Heirs or singular Successors to the next part Vide Title 24. and 27. 4. The property of all Lands and Immoveables or Hereditaments are either Allodial or Feudal Allodial is that whereby the right is without recognisance or acknowledgement of a Superiour having a real Right in the thing thus are Moveables enjoyed and Lands and Immoveables were so till these Feudal Customs and now there remains little Allodial For Lands holden Feu or Burgage or Lands Mortified are not Allodial seing they acknowledge a Superiour having the direct Right of property and to whom there must be some Rent or return though they be not so proper Fees as Land holden Ward Yet the Superiours Right in the Soveraign power is not Feudal but Allodial here though some Kingdoms be holden of Superiors as Feudal So also the Gleibs of Ministers seem to come nearest to Allodials having no Infeftment holding Rent or acknowledgement though they be more properly mortified Fees whereof the Liferent-escheat befalls to the King only Kirks and Kirk-yards are only Allodial without any acknowledgement of a Superiour but they are destinat for pious Uses and are ordained to be upheld and repaired Par. 1563. cap. 76. And the Parochioners of every Paroch ar ordained to build and repair Kirk-yard-dykes with Stone and Morter two els high and to make Kirk-styles therein Par. 1597. cap. 232. The manner of reparing Kirks was remitted to the Council by the said first Act of Parliament and thereupon an Act of Council was made which is ratified Par. 1572. cap. 54. but is not repeated in the Ratification but only in general that the Parochioners were warranted to name persons to stent the Neighbours A Fee signifieth either the right it self or the thing affected with the Right whether it be corporeal as Lands Lochs Woods Fortalices Milns or incorporeal as Annualrents Fishing Jurisdiction Pasturage or the like and at the first it was freely granted for Fidelity and Military service of the Vassal 5. And therefore it implyed first That it was a free and gratuitous Donation as to Money or other anterior cause and only for fidelity and service Secondly None could succeed therein but such as could perform that service whereby women were excluded Thirdly It could descend to none but to the Male Issue of the first Vassals body which ceassing it became void and could not be transmitted to the Collaterals or to the Ascendents of the first Vassal Fourthly Whensoever it was open or void by the death of the Vassal Infeft it returned to the Superiour until the Vassals Heir were capable of Military Service which was esteemed to be so soon as he attained Majority And while it was in non-entry by the negligence of the Vassal not demanding Infeftment but in his Minority when he was unable to serve both the Lands and the Vassal were in the hands of the Superiour in Ward and Custody or of his Donatar as his Legal Tutor who was to educat him for his own service and to intertain him beside which he had then no other profit of his Fee And if he married without the Superiours consent he lost a sum equivalent to that Tocher which were suitable to his Quality and Estate And if contrary his Superiours will he refused a suitable Match he forefaults the double of the Tocher The reason introductory of this was because the Superiour might be concerned in the affinity contracted by his Vassal in his marriage In all Fees fidelity by the Vassal to his Superiour is necessarly implyed and if any thing were acted contrary to fidelity and gratitude against the life and fame of the Superiour to the great prejudice of his Estate or nearest Relations the Fee became void wherein is also comprehended the Vassals disclaiming of his Superiour or owning another in his place or Infefting another Vassal without his Superiours consent Fees are not only unalienable without consent of the Superiour for the reasons now adduced but they are stricti juris and there is no obliegement upon the Superiour to receive any stranger or singular successor his Vassal except what the Law hath introduced by Statute or Custom in favours of Creditors for obtaining satisfaction of their Debts by Appryzings or Adjudication whereby the superiour may be compelled to receive singular successors Yet the Disposition procuratory or precept of seasing before Infeftment are asignable and the superiour may be compelled to receive the Assigney if the Disposition be in favours of Assigneys But Infeftment being once taken he is not oblieged to receive any Assigney or singular successors otherways then in obedience of Horning upon Appryzing or Adjudication getting a years Rent for accepting a new Vassal 6. These being the ancient requisits of Fees that is a proper Fee which hath them and the want of any of them makes it Improperin so far but most of them might always and now are changed by the Tenor of the Infeftment as when the Fee is granted to the Vassal and the Heirs of his body it is so far improper that women may succeed If it begranted to him and his Heirs simply then his Collateral Heirs or Ascendents may succeed Or if to his Heirs male whatsoever much more if to the Heirs or Descendents of other persons in Tailzies Fees are also granted not for Military service or service indefinitly but for some definite particular service as for carrying of a Sword or other Ensign of Honour before the Superiour in solemn days or not for service at all but for some Rent which is either inconsiderable as a meer acknowledgement of the Superiour as a penny Money or a grain of Pepper a Rose c. Or for a Feu-ferm-duty in Money or any Fungible or other performance Or when the avail of the Marriage and profit of the Ward is taxed to such a sum Hence we may consider what remains as to the essentials of Fees and common interests thereof which are these 7. First there must remain a right in the Superiour which is called dominium directum and withal a Right in the Vassal called dominium utile The reason of the distinction and terms thereof
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-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-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 abolishing of Popery they return to the Crown as the Narrative of the Act of annexation of the temporality of Benefices Par. 1587. cap. 29. bears and therefore Benefices of Laick Patronage as having proceeded from these Patrons are excepted by the said Act and though after the restitution of Bishops and their Chapters the Act of Annexation in so far as concerned their Lands was rescinded Par. 1606. cap. 6. Yet Bishops being abolished Par. 1640. cap. 6. their Lands were again annexed to the Crown Par. 1649. cap. whereby all Erection of Kirk-lands in temporal Barronies or Lordships by which the King interposeth any person betwixt himself and these who were formerly Vassals of Kirkmen are prohibit and declared null this Act is rescinded in the general Act rescissory 1661. cap. 15. The annexed property after Dissolution may not be granted in ward or blensh except upon Excambion for as good Lands Par. 1597. cap. 234. 37. Feus of Kirk lands by Prelats or other beneficed persons being granted by consent of their Chapters with all requisite Solemnities were esteemed Legal Securities without any particular Confirmation by the King or Pope there being no Statute nor Constitution obliging the Subjects thereto and in case any Confirmation had been requisite the consent of the Prince under his proper Seal and Subscription was sufficient Par. 1593. cap. 187. Yet it was the Custome that the Kings or Popes Authority was interposed to all Feus of Kirk-lands therefore all Feus not Confirmed by the King or Pope before the 8. of March 1558. or being thereafter not Confirmed by the King are declared null by Exception Par. 1584. cap. 7. The Reason hereof was because in March 1558. the Reformation of Religion began to be publickly professed in Scotland and the beneficed persons became hopeless to preserve their rights of their Kirk Lands and therefore endeavoured to dilapidat the same But this was found not to extend to an Infeftment of an Office as the Office of Forrestrie though it had Lands annexed thereto and a threave of Corn out of every Husband Land of the Abbacy seing the Statute mentioned only Feus of Lands And this was but like a Thirlage 20. of Ianuary 1666. Lord Renton contra Feuers of 〈◊〉 It is also declared in the 7. Act Par. 1594. that the old Possessors were to have their Confirmation for payment of the quadruple of their silver rent or the double of their ferm Providing they sought the same within a Year after the publication of that Act otherwayes they were to pay the eight fold of the Silver rent and the triple of the Ferm and the King was thereby obliged to grant Confirmation to the old Possessors upon these terms and being so Confirmed the same could not be questioned upon aleadged Dimunition of the Rental or Conversion in monie or any other cause of Nullity Invalidity or Lesion or by any Law Canon or Statute except Improbation only And it was declared that Confirmations by the King of Posterior Feus should not perjudge the Anterior Feus granted by Prelates and their Convents with their common Seals and Subscriptions at any time being granted with consent of the Kings Predecessors under their Privy Seal though without farder Confirmation by the Kings or Popes Par. 1593. cap. 187. The Reason hereof was because in the time of the Reformation most of the Evidents of Kirk Lands were destroyed And therefore the Ancient Possessors were presumed by their very Possessions to have Right And for clearing who were the Ancient Possessors and what were Kirk Lands it is declared by Act of Sederunt 16. of December 1612. that ten years Possossion before the Reformation or thirty years Possession thereafter but interruption should be sufficient to stand for a Right of Kirk-lands the same being possest as such and Feu dutie being payed to Kirkmen before the Reformation or to the King or others having Right from them after the Reformation therefore it was so decided 5. of July 1626. Laird of Kerse contra Minister of Alva though much stronger probation of being part of a temporal Barronie for longer time was alledged in the contrary Hope Earl of Home contra Earl of Balcleugh Spots Kirkmen Mr. John Hamiltone Minister at Linton contra John Tweedie Secondly Feus granted by Prelats were null Except they were expede by the consent of their Chapters or Convents Par. 1593. cap. 187. Thirdly Feus granted by the beneficed Persons as of themselves they ought to have been without diminution of the Rental seeing the Property thereof was mortified to the Kirk and the incumbents were but as Liferenters Administrators and Tutors it was also expresly declared and statute that any diminution of the Rental or change of Victual for Money or any other Disposition making the Benefice in a worse Estate then at the Kirk-mens entrie should be null Par. 1585. cap. 11. 38. Infeftments in Burgages are these which are granted to the Burghs by the King as the common Lands or other rights of the Incorporation and that for Burgal Service in Watching and Warding within their Burghs c. These can have no Casualities because Incorporations die not and so their Land can never fall in Ward or in Non-entrie These Infeftments in Burgage are held by the Incorporation immediately of the King for Burgal service Watching and Warding within Burgh c. And the particular persons Infeft are the Kings immediate Vassals and the Bailies of the Burgh are the Kings Bailies And to the effect that such Infeftments may be known it is declared that all Seasines of Burgage Lands shall only be given by the Bailzie and common Clerk thereof otherwayes the famine is declared null which seems to have given the rise to the exception in the Act of Parliament anent Registration of Seasins that it should not extend to Seasins within Burgh Par. 1567. cap. 27. 39. Infeftments of mortisied Lands are these which are granted to the Kirk or other Incorporation having no other Reddendo then Prayers and Supplications and the like Such were the Mortifications of the Kirk-lands granted by the King to Kirk-men or granted by other privat men to the Provost and Prebendars of Colledge Kirks founded for Singing Or to Chaplains Preceptors or Alterages in which the Patronage remained in the Mortifiers 40. Of all these Mortifications there remains nothing now except the Benefices of Bishops Deans and Chapters and the Manses and Gleibs of Ministers which are rather Allodial then Feudal having no holding Reddendo or Renovatione Yet are esteemed as holden of the King in Mortification And therefore the Liferent of the Incumbent by being year and day at the Horn falls to the King Manses and Gleibs did belong to Parsons Viccars and other Kirk-men before the Reformation after which they were prohibited to set the same Feu or in long Tack without the Royall assent and the Ministers were ordained to have the principall Manse of the Parson or Viccar or so much thereof as should be found sufficient Whither
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-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-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-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
is not known And if the Warrandice be not absolute the Purchasers hazard was the greater But in Warrandice of personal or redeemable Rights the matter is ordinarly liquid and there is no design of hazard but an absolute relief But Warrandice hath no effect where there is Collusion by being holden as confest Nicol de evictione Aikenhead contra Blackwood The like was found by suppressing the Warranders Right and receiving considerable Sums therefore whereby the Right warranted fell in consequence February 18. 1679. Laird of Wedderburn contra Sir Robert Sinclar March 3. 1629. Murray contra Lord Yester Neither where Eviction falls through default of the party warranted when having a Disposition of Ward-lands with double Infeftment he infeft himself base without the Superiors consent and thereby the Lands recognosced February 1. 1610. Maxwel contra Mowbrey Neither inferred by the Forefaulture of the Disponers apparent Heir seeing the Fiar omitted to obtain the Kings Confirmation which would have excluded the Forefaulture Hope Warrandice Hamilton contra Laird of Nidderie It is not so clear either in Reason or Practice whether Warrandice takeseffect upon any other ground then what is or may be a ground of Eviction to take away the Right of the Party by whom the Warrandice is graunted judicially as when Lands are taken away by Innundation or are become barren Or when a Right assigned with Warrndice becomes ineffectual because the Debitor is not solvendo or when any accidental or extrujudicial distress or damnage befalleth to the party warranted through occasion of the ground of Warrandice though not by legal Eviction Secondly Whether Warrandice takes place when the Right warranted is taken away or burdened by a subsequent Law Thirdly Whether Warrandice in general will extend toward Releef and it Or to Forefaulture of the warrands own Superior As to the First Warrandice relates to the point of Right and not to the Matter of Fact and therefore will not reach to Accidents the hazard whereof lies alwayes upon the Acquirer and the Propriatar Yea a Clause of Warrandice that Lands should be worth so much yearly Rent was not extended to Desolation by famine March 10. 1636. Lady Dunipace contra Laird of Rouiston It was also 〈◊〉 that a Cautioner being conveened and through occasion of Compearance was made Prisoner in a Ship taken prize had thereby no interest upon the Clause of Warrandice to distress the Principal for this accidental Damnage James Maxwel contra James Nisbit of Ladytoun So that unless some what more be concurring then the naked Warrandice either by the value of the onerous Cause for which the Right is granted or Tenor of the Assignation it reacheth not the sufficiency of the Debitor or the like points of Fact as is Spotswoods opinion Tit. Assignation And it was lately found that where a Creditor had given a blank Assignation to a Cautioner who had payed him with absolute Warrandice that as to the Cautioner to whom it was gratuitous for the Creditor to give such a Warrandice importeth not the sufficiency of the Debitor July 16. 1663. William Hay contra Nicolson and Mitchel It was also found that absolute Warrandice in an Asignation bearing that the samine should be good valid and effectual was not found to extend to the Solvency of the Debitor but only that the Debt could not be excluded by any legal Exception either from the cedents deed or otherwise as if the write Assigned had been false the cedent not being accessory null or declared a publick Debt November 24. 1671. Sir Rober Barclay of Pearstoun contra Robert Liddel which quadrats with lib. 4. ff de haereditate et actione vendita Venditore nominis tenetur prestare debitum subesse Debitorem vero Locupletem esse non tenetur prestare As to the distress by subsequent Laws when these are by way of Declarator of an anticedent Right it is equivalent to a Judicial Eviction But when the Law is Statutory introducing a new burden as Taxes Augmentations of Ministers Stipends c. It was Craigs opinion dieges de evictione § 6. Which he reports as the Judgement of the Session that in such Cases the Warrand should be lyable in quantum lucratus est But Custome since hath cleared the contrary that Warrandice is never extended to subsequent Statutory Laws but that these are alwayes upon the Purchasers hazard And therefore a general Clause of absolute Warrandice was not extended to a burden imposed by a subsequent Law though there was an Anterior abrogat Law to that same effect July 12. 1667. Watson contra Law Neither was extended to the making up of a Gleib though it was by vertue of a Prior Law but the Designation was after the Disposition July 1. 1676. Laird of Auchintcul contra Laird of Innes Yea absolute Warrandice in a Ladies Liferent which is most favourable was found not to extend to an Augmentation of a Ministers Stipend thereafter though grounded upon a Prior Law March 27. 1634. Lady Dumfermling contra her Son But where a Clause of Warrandice did bear that a Rental of a Ladies Liferent should be so much worth yearly it was found effectual to make up an Abatment of the Rental by a Ministers Stipend modified thereafter July 28. 1635. Lady Cardross contra her Son Or to the making up a Readers Stipend imposed by a Posterior Law For in these Cases it was the special tenor of the Clause to uphold the Rental which would have been effectual not only as to Eviction in Jure but as to distress in facto by Inundation Devastation or the like The intent of Absolute Warrandice being only against legal eviction it doth not extend to every burden that may affect the Land as to a servitude of Pasturage Fewel Feal or Divet Or to a Thirlage of the Land to the Miln of the Barrony paying the ninteetnh Corn June 21. 1672. Sandelands contra Earl of Haddingtoun Absolute Warrandice is sometimes general and sometimes special against Ward Relief and Non-entry c. with a general Clause and all other dangers perils and inconveniences whatsoever as well not named as named c. as to which the general Clause is not to be extended above the greatest of the special But the question ariseth if such Clauses will reach subsequent Wards or Marriages of the Superiour or to future Porefaultures or Recognitions Non-entries Liferent-escheats c. It is certain that whatever of these burdens besal by the fault of the Warrand he must be lyable therefore Absolute Warrandice being much stronger then Warrandice from Fact and Deed which reacheth not only to Facts of Commission but even to ommission of Duties and therefore if the Warrandice be but by the Authour and not by the Superiour these subsequent distresses will not reach the Author unless the Clause bear expresly such distresses past present or to come and so though the fee were extinct by the Forefaulture or Recognition of the Superiour or burdened by his Non-entry or remaining at the
of Tailzie named was found to give interest to that person as heir of Tailzie to declare that the sum was unwarrantably uplifted or payed without his consent or order of Law by consigning it to be imployed in the same terms and that though he was heir of Tailzie to the uplifter that he was not oblieged to fulfil his deed or warrand his Discharge being contrair to the terms of the Tailzie as to which terms he was Creditor reserving always to lawful Creditors how far they could affect the sum for the Fiars Debt February 3. 1674. Drummond contra Drummond And a Clause in a Bond whereby a Woman oblieged her self to resign Lands in favours of her self and the heirs of her Body whilks failing to the heirs of her Father and oblieging her self to do nothing contrary to that succession whereupon Inhibition was used before her Marriage was found effectual against her and her Husband whom she Married thereafter and Disponed the Lands to him and his heirs asbeing a voluntary deed without an equivalent cause onerous albeit the Fathers heirs behoved to be the Womans heir of Tailzie January 28. 1668. Alexander Binnie contra Margaret Binnie Yet these restricting Clauses without irritancy though conceived as Provisions or Conditions if they be not in the Investiture albeit they be in prior Obligations Dispositions or Contracts there is no pretence thence to affect the Fee as a real burden and even though they be contained in the Investiture seing Clauses irritant uses to be added thereto they are understood to be but personal Obliegements whereupon no diligence having followed they cannot be effectual against singular Successors whether by Legal or Voluntary Dispositions And as to such restrictions with Clauses irritant we shall add no more thereunto then what hath been said Property being thus Constitute by Infeftment it is to be considered what are the particulars it comprehends and implys though not exprest wherein this is a general Rule that Lands being Disponed with part and pertinent all is carried thereby that falls under the Denomination of the Lands Disponed a caelo ad centrum and all that in the time of the Disposition was accustomed to follow it not only as servitudes but even discontiguous parcels of Land which were not known as distincta tenementa or parts of any other Tenement except what the Law reserves or the express provision of the Superiour 60. The Law reserves all these things which are called regalia or Jura publica which the Law appropriateth to Princes and States and exempeth from privat use unless the same be expresly granted and Disponed by the King and if the Superiour be a Subject if he have any of these Regalia from the King they remain with his Superiority unless he expresly Dispone them to his Vassal the Superiour may have them from the King either expresly in any Tenement holden of the King or tacitly when Lands are erected by the King to him in a Barrony or any higher Dignity whereby many of these regalia are comprehended Barronia being nomen Universitatis yet that will not comprehend First Mines and Minerals of Gold or Silver or Lead of that fineness that three half-pennies of Silver may be fined out of the pound of Lead which Mines are declared to belong to the King wherever they can be found Par. 1424. cap. 12. But Mines of Iron Copper and Lead of less fineness belong to the Proprietar and are not accounted with us Regalia though in some other Countreys they be Secondly Neither do Treasures found in the Ground belong to the Kings Vassals though their Lands be erected in Barronies unless they were exprest A Treasure is Money hid in the Ground the owner whereof is not known Thirdly Though all Proprietars have the priviledge of Fowling within their own Ground yet Swans are peculiarly reserved to the King and therefore the priviledge to kill Swans is not carryed under the name of Barrony unless they were particularly exprest Fourthly Confiscat Goods are not carried even under the name of Barrony unless they be exprest 61. Yet there are other regalia which are carried under the name of Barrony though not exprest as Jurisdictions and Courts Fortalices Salmond Fishing Forrests and Hunting of Deer and Ports with their pettie Customs established by the Kings grant or long Possession for repairing and upholding these Ports which therein differ from Creiks or Stations which are natural but Ports are builded artificially and need reparation 62. Jurisdiction and Courts are comprehended in Barrony in so far as concerns Civil Jurisdiction and Blood-wits or lesser Crimes but will not reach to Capital Punishment unless the same be exprest as it uses to be when the Priviledge of Pit and Gallows are exprest or Out-sang and In-sang Thief which seems to extend to the punishing of no more Crimes but Theft and these who have only In-sang Theft can only punish Thieves taken in the Fact Though Courts be exprest they will extend to nothing Criminal no not to Blood-wits unless these be exprest but only to Civil Debates requisite for the Propriatar as to determine differences amongst his Tenents Neighbourhead Multars and smaller Matters or to constitute a Baily who may judge betwixt the Propriatar and his Tenents as to his Rents Duties and Services and also may determine differences amongst his Tenents But all Jurisdiction is Cumulative with and not Exclusive of the Superiors Jurisdiction so that there is place of Prevention The first Atatcher if he proceed is preferred and if the Superior and Vassall atatch together the Superior is preferred 63. The Courts of Vassals though they be Barrons and have the Priviledge of Capital Punishment are not of the same Extent and Importance as the Sentence of the Judges ordinary of the Kingdom such as Sheriffs Stewarts Bailiffs of Royaltie Regality and Burghs For first The extent of their Jurisdiction is not so ample Secondly The Jurisdiction of all Barrons and Free holders was of old subordinat to the Sheriffs and other Judges ordinary within whose Jurisdiction the Lands lay Par. 1503. cap. 95. And then there was place for falsing of Doom or appeal to the Sheriff-court who was to warn the Parties upon fifteen days and make the Suiters of the Sheriffdom Ward thereupon Whereby it appears that the Free-holders of the King who owed Suit to the Sheriff-court at least an Inquest of them were to concur with the Sheriff in discussing the appeal from the Baron or Free-holder But now these Appeals or falsing of Dooms from any Court to another have been antiquated and wholly in desuetude since the Introduction of Advocati ons which is a far more excellent remeed for thereby Causes are not stopped at the choice or humor of parties But the reasons of Advocation are specially considered by the Lords whether they be relevant and have such Instructions as can be expected before discussing and the Subjects are further secured by the late Act of Parliament that poinding cannot proceed without a charge
needs only take Infeftment of the greatest Interest 18. The first and most common Casuality of Superiority is Non-entry whereby the Fee being void and no Infeftment renewed thereof through the Vassals neglect being capable of Entry thereto the Profits thereof belong to the Superiour By the common Feudal Customs there was not only an Investiture requisite at the Constitution of the Fee but it behoved to be renewed either at the change of the Vassal or at the change of the Superiour Guidilinus de jure nov Pars 2. cap. 6. Zoesius de feudis cap. 12. But our Custom requires no Infeftment at the change of the Superiour but only at the change of the Vassal for we require no oaths of fidelity but fidelity it self is imported due without an oath But elsewhere that oath is required and being personal it ought to be renewed both at the change of the Vassal and of the Superiour but with us there being no Fee without Infeftment nulla sasina nusla terra therefore the Vassal must have the Infeftment renewed The renovation of Infeftment to Heirs in France and England is not requisite but 〈◊〉 sasit 〈◊〉 as they express it by which a special retour perfecteth the Heirs right in his Fee with a great deal of ease which is not consonant to the common Feudal Customes whereby if the Vassal within year and day after his predecessors death require not to be Entered by his Superiour and offer his fidelity he forefaults his Fee l. 2. Feudorum tit 24. which severity we use not for the Vassal loseth not his Fee by Non-entry nor the whole Fruits of it during that time But our Custome is such if by any means the Fee be void the Vassals right ceaseth during that time and the Fee is in the hands of the Superiour and therefore in retours to that Article of the Brieve It is answered that the Lands are in the hands of such a man Superiour And though the Infeftment of the Predecessor against others then the Superiour be sufficient to maintain the Right and Possession of the Vassal as to his Superiour it hath no effect at all after special Declarator till the Vassal Enter The Fee may be thus void first by the minority of the Heir whereby he cannot Enter by reason of Ward but this is exprest by the name of Ward and Non-entry though it may signifie the Fees being void whether necessarly or voluntarly yet it is appropriat to the latter and contra distinguished to Ward The Fee becomes void by the voluntary outlying of the Vassals Heir or by the vassals Resignation in the hands of his Superiour for new Infeftment to be given to himself or to any other for till that Infeftment be taken the Fee is also in Non-entry for in that case the Resignation putteth the Fee in the Superiours hand upon whom there is an obliegement to renew the Infeftment to the person in whose favours the Resignation was granted upon which he may be compelled by a personal action so to do and which is carried to that persons Heir by a general service as other personal Heretable Rights or Dispositions 19. Or by the Reduction or nullity of the Infeftment or retour of any person formerly Infeft which is more rigorous then the rest seing the vassal had thereby a colourable Title and was bonae fidei Possessor seing Reductions use not to be drawn back adpraeterita So reduction of retours was sustained at the Superiours instance to give him the benefit of Non-entry July 12. 1625. Lord Cathcart contra Laird of Kerse Februany last 1628. Earl of Nithisdail contra Westraw and therefore it must be considered what the nature of the Right will import If Non-entry had its rise from ingratitude or a penalty with us by the negligence of the Vassal it could hardly take place in this case for unless such infeftments had proceeded upon the Fraud or gross ignorance of the Vassal himself it could not be called voluntary Non-entry which stood upon some informality unknown to the Vassal or his Predecessor But seing the ground of this Non-entry is from the Nature of the Right which cannot consist without Infeftment therefore by such nullity it must follow that while there was no Infeftment or a null Infeftment the Vassal had no interest neither will there be hazard of rigour because it can but extend to the retoured Duties and is eleided by all the ways that other Non-entries are and specially by the Superiours Homologation of the Infeftment if the nullity were in prejudice of the Superiour as when Lands are retoured to less retour mail then the due or Feu-duties or other Duties in the reddenda are diminished for it is not rare that that which is null as to some persons and cases may be valid as to others from these nullities being injuries to the Superiour Non-entry wil follow if there be no valid Seasine then Non-entry will take place though Charter and Precept be granted voluntarly seing Seasine was not taken thereupon 20. Non-entry taketh place whenever the Fee is void whether it be holden Ward Blanch or Feu But that which is holden in Burgage or is mortified requireth no Renovation of the Infeftment because Societies and Incorporations die not which is extended to the particular Tenements within Burgh holden Burgage which are thereby holden of the King and the Magistrates of the Burgh give the Infeftment as his Bailies 21. The effect of Non-entry is attained by a Declarator of Non-entry the Style whereof beareth that the Tenement is void by the death of such a person who died last Infeft and ought to be so declared and that the fruits and profits thereof do belong to the Superiour by reason of Non-entry Yet because the case of the Vassal is favourable Decreet is only granted declaring the Non-entry and finding only the Feu-duties due in Lands holding Feu July 19. 1631. Earl of Kinghorn contra George Strang Or the retoured Males in Lands holding Ward or Blansh which have any such retour Or otherways the whole Duties of the Fee are carried the reason hereof is because Feues are Locations and the Feu-duty is the Rent or Pension and therefore in favorabilibus that is interpret to be the Rent So likewise in other Lands the retour was a valuation of the Lands as they were worth and payed at that time The first whereof was called the old Extent and it is exprest by Merk-lands or Pound-lands The other is the new retour which though it be different in divers Shires yet being once a Rent in this favourable case the general Declarator reacheth no further yea though there be no retour of the particular parcel of Land in question yet if there be a retour of the Tenement or Barrony whereof it is a part that common retour will be divided according to the present Rent and a proportion thereof stated upon this parcel as its retour as was found in the former case Earl of Kinghorn
exclude Non-entry while they were allowed by the Acts of Parliament as there is also shown neither is it excluded by Tacts set by the Vassal which though they stand as real Rights against Purchasers by Statute yet have no effect against Superiors in prejudice of their proper Casualities Neither is it elided by Charters or Precepts granted by the Superior though containing warrandice till Infeftment thereupon March 20. 1630. John Hay contra Laird of Achnames Neither was it excluded by Apprysing and Charge thereupon without offer of a years Rent of the Land or Annualrent of the Money Feb. 3. 1681. Hendry Keir contra Hendryson Neither is it excluded because the Vassal was not in mora being hindred by a Question of Bastardry against him Spots Non-entry 〈…〉 contra Naiper of Wrightshouses Nor doth the Vassals Minority stop Non-entry of Lands not being Ward nor restore the Minor as Lesed For as hath been now shown It is not the negligence of the Vassal but the nature of the right that infers Non-entry yet there is no doubt if it be by the Superiors fault it will be a personal Exclusion against him Non-entry is most favourable when extended as to the retoured duties But as to the full Rents it is capable of many other exceptions and doth not alwayes run from the Citation in the General Declarator as if a Superior raise his Declarator and also Reduction of the Vassals Seasine though he reduce the Seasine he will not have the full Rents till the Decreet of Reduction and Declarator Novemb. 26 1672. Earl of Argyle contra Laird of Macleud yea if the Superior do not insist but only use Citation which may be at the Vassals dwelling house and never come to knowledge or the Vassal being a Pupil without any Tutor it is not like the Lords would sustain the whole Duties from the Citation but from the time the Vassal becomes contumacious And Queensberry having interposed Kelhead betwixt him and his Vassals who thereupon pursued Declarator of Non-entry though the Infeftment was found null yet the Disposition was found to carry a Gift to the Casualities of the Superiority and the Vassals were only found lyable for the Rent after the Interloquitor sustaining the disposition as a gift of Non-entry and where a Tailzie was found to exclude a second Branch so long as there was hope of a former Branch the Lands were found in Non-entry as to the retoured Mail but not as to the full Rent seing the Heir did not forbear to enter through wilfulness but of necessity Julie 24. 1677. Lord Melvil and David Melvil his Son contra Sir William Bruce And where a Singular Successor to the Superior pursued Non-entry it was not sustained till he produced his progress from the acknowledged Superior the full duties were not found due from the Citation Julie 18. 1680. Earl of Queensberry contra Irwin of Cove And Craig relates that where the Defunct died in Battle for his Superior Non-entry should have no place We shall not here speak of common exceptions which extinguish all Rights as prescription homologation or the priviledge of these who are absent reipublicae causa As to the Question whether Non-entry Subsequent to Ward whereby the Superior or his Donatar is in possession requireth any Declarator Craig and Skeen upon the word Non-entry are for the negative and since Had. and Durie observe March 23. 1622. Lesly contra Pitcaple that the Lords found that where the Superior pursued both for the Ward and subsequent Non-entry that he or his Donatars not being in possession by the Ward behoved to declare the Non-entry which would only carry the retoured Mails till Declarator The next Casuality of the Superiority is the releef due by the Vassal to his Superior for his entering him in the Fie as the lawfull successor of the Vassal And though relees be only considerable in Ward-holdings and uses to be subjoyned to Ward yet all Fies which require Renovation are lyable to releef and therefore Releef is here immediatly subjoyned to Non-entry 26. Releef is generally treated upon by the Fewdists The Original whereof Cujace ascribeth to the constitution of the Emperor Leo extant in the Novels bearing it to be the custom of several places that the superior should have that years Rent in which he receives a new Vassal in his Clientel which therefore by most of the Feudal Customs is extended to the singular Successors of the Vassal who in some places pay for their Entry the fifth of the price of the Fie and a fifth of that fifth whereby if the price were 100. Crowns the composition for the Entry would be 24. Crowns 27. But by the Customs of England and France the Heir of the Vassal if he be Minor payes no releef but he and his Fie are in the hands of the Superior as in Ward or Custody whereby the Superior hath the whole profites more then is fit for the Education and Intertainment of the Minor Valsal which ceaseth with his Majority and there is no releef due But if the Vassals Heir at his Death be Major his Fie is lyable to his Superior for releef which distinction is mentioned in the English Magna Charta the quantity of the releef by Heirs in England is in Ward-holdings or Military Fies 100. Pounds Sterling for an Earldome 100. Merks for a Baronry and 100. Shillings for any other Military Fie which is oblieged to maintain one Souldier And if the Fie be less and lyable only for a share of the entertainment of a Souldier it is lyable Proportionally Relief by the custom of France is for a Barrony 100. Franks and for any other Military Fie 15. But if it answer not to the entertainment of one Souldier it payes for every Aiker 12. Deniers but if it be not a Military Fie but that which the English calls Sockage the Reddendo whereof is not Military service but some other payment or performance which is doubled the first year after the death of the Vassal the one half thereof is the releef which is a real burden for which the Superior may Poynd or distrenzie all goods upon the ground But as to singular Successors the most ancient Feudal Customs making them only to descend to the Issue of the first Vassal whose Collaterals had no right but were like our kindly Tenents by the propinquity of blood yet by the favour of the Superior they were oftimes admitted in the lie and were only lyable for relief If the Superior did receive a stranger upon the resignation of his Vassal he was to pay a relief which in some places was the fiftieth part of the Price And by the Custom of France it is the thirteenth part From the Original of Relief the reason of its name may be conjectured and these who appropriat it to Ward-holdings interpret it to be called relief from redeeming or Relieving the Fie out of the hands of the Superior But relief being a general Feudal name and many Nations not allowing the
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
of their Estate which ostentimes is disponed nomine dotis but only such a sum for them all as would have been modified for the Marriage of one man as was found in the case of the Heirs of Fairly and Thorniedikes and so was found June 14. 1673. Mr. George Gibson contra Janet Ramsay 43. But the Marriage of Heirs is debitum fundi and the Tennents Goods may be Poinded therefore for their Terms mail or otherways the Ground-right and Property may be Appryzed both being done after the Ward is ended which in men is at the age of twenty one compleat and in Women at the age of fourteen compleat This Appryzing or Adjudication will be drawn back to the time that the marriage was due and preferred to any legal diligence since that time as all Appryzings super debito fundi are December 17. 1673. Patrick Hadden contra John Moor. But it doth not affect the appearand Heir personally not being in Possession nor is the Tocher he got after his Predecessors death accounted as a part of his Estate being marriageable before that time but only the Estate he had when he married or was required to marry January 5. 1681. Laird of Dun contra Viscount of Arbuthnet 44. The value of the marriage is jus indivisibile and belongs not to every Superiour of whom the Vassal holds Ward-lands but to the most ancient Superiour 45. The King by his Royal Prerogative hath the Marriage of the Ward-vassal whensoever he becomes immediat Superiour if before the marriage fell due though the Lands holden of the King were Taxed to a small sum for the marriage July 19. 1672. Earl of Argile contra Mcleod And though the Vassal hold some Lands of the King simple Ward and others Taxed Ward the full value is due but the Taxed value is deduced as a part of it February 24. 1675. Kings Advocat contra Laird of Innernytie Yea a marriage was found due by a Vassal in the principality albeit he held Lands immediatly of the King Taxed Ward in respect of the non-existence of a Prince during which the King acts not as Administrator or Curator hareditatis jacentis of the Prince but proprio jure as Soveraign Prince and Stewart of Scotland Jan. 1680. Sir William Purves contra the Laird of Lus. 46. A marriage was found due by the Heir of an Appryzer who died Infeft albeit within the Legal unless the Appryzing were proven to be satisfied in the Defunct Vassals time July 13. 1680. Kings Advocat contra Zeaman of Dryburgh To come now to the exceptions exclusive of the value of marriage it was not found relevant that the Vassal died in the War by the Act of Parliament 1641. seing there was a pacification after that Act and it was not renewed thereafter July 9. 1672. Lord Hattoun contra Earl of Northesk Neither because the Vassal died in the Kings Service seing the Acts to that purpose were only temporary January 20. 1681. Captain Paterson contra Tweedie of Whitehaugh The next exception is the consent of the Superiour which was not inferred by the Superiours being present at the marriage as was found in the case of the Earl of Argile contra M`naughtoun Nor by receiving a Vassal upon Appryzing Neither by Entering the Vassals Heir though without reservation these being Acts to which the Superiour might be compelled by Charges of Horning upon Appryzings or on Precepts out of the Chanclery upon retours even though these were not actually used but that the Superiour gave Precept of clare constat yea his subscriving witness in the Vassals Contract of marriage after gifting of the same was not sustained Feb. 25. 1662. 〈◊〉 contra Keiths So that it seems no less then a consent as Superiour will exclude the marriage The most exceptions are upon the informalities of the Instrument of requisition But the most ordinary and material exception is disparagement which doth not consist in equality of Estate or Tocher but in the inequality of Blood wherein if a Zeaman be offered to a Burgess or a Burgess to a Barron it is commonly interpret disparagement but a Barron to any Superiour Dignity of a Subject imports no disparagement Or if there be great disparity in age or that the party offered hath any considerable defect as the want of a Member or have any loathsom or perpetual disease which are all the grounds of disparagement mentioned by Craig buthe thinks not Claudication to infer disparagement and it is like as to the single value the disparagement behoved to be very gross but as to the double value any just ground of aversion seems to be be sufficient as deformity even hardness of Favour or any vulgar reproach of Inchastity Insobriety or other Vice It will also be a temporal exception if requisition be made before the Vassal be mariageable which is the age of fourteen compleat in men and twelve compleat in women which may become an absolute exclusion if the party so required die unmarried and though the party marry to another it will but infer the single value The value of marriage is due to the Superiour if the Heir was not married at his Predecessors death whether minor or major marrying without consent of the Superiour or his Donatar or that being or becoming major and required they marry not at all 48. The last common Casuality of Superiours is the Liferent-escheat of the Vassal when the Vassal is denunced Rebel for disobedience of the Law which because it is intimate by three blasts of an Horn is called Horning if he continue so unrestored or unrelaxed year and day his Liferent is Escheat or foresaulted unto his several Superiours of whom he held his Fees this may seem a penalty for disobedience to Law and is so as to Fees holden of the King yet if it had no other ground the Liferent could not befall to the Superiour but to the King whose Command was disobeyed as Forefaulture and single Escheat do but the original of it is that Rebellion is like Capitis diminutio or Civitatis amissio amongst the Romans whereby such person cannot stand in Judgement and they are civiliter mortui and thereby their Fees become void and return to their Superiours and so is declared Parl. 1535. cap. 31. 49. Liferent-escheat carries the profit of all Fees and Liferents whether constitute by Conjunct-fee Infeftments Terce or Liferent-tack during the life of the Rebel having remained year and day at the Horn though thereafter he be relaxed during his natural life even though he be not infeft and entered as Heir the time of his denunciation July 3. 1624. Moor contra Hannay and the Earl of Galloway Yea though there be no Infeftment if by Contract or Disposition there be any heretable Right or Life-rent provided even though there were no Infeftment required as a Terce by paction without service or kenning Hope Horning Maxwel and Gordoun contra Lochinvar So Life-rent Tacks of Lands or Teinds fall under escheat without prejudice to these
fire and water within the same by being kilned and steeped and in some places brown within the same The quantity of the Multure if it be not determined by Write is determined by use of payment of the Barrony or Sucken though a part thereof in question payed less formerly which did only liberat them from bygones July 20. 1610. Neilson of Craigcaffie contra Tennents of Innermesson 21. Beside the Multures Thirlage is extended to Sequels which being expressed in Thirlage is understood to be the Knaveship Bannock or lock payable besides the Multures to the Milners and their Servants for their service according to the use of the several Milns though these be not exprest March 22. 1628. Adamson of Braco contra Tennents of Shallie The like before even where the Corns were abstracted Spots Milns March 22. 1628. And where the Thirlage is by use and custom these small Duties are accordingly due beside the Multure 22. Thirlage also carries service to the Miln as carrying home of Miln-stones upholding the Damns Watergates and of the Miln-house which are Services diverse and regulat according to the customs of the several Milns The Thirlage constitute by Infeftment of a Miln cum mutturis sequelis found to give right to the ordinary Miln Services to the Miln-damn and Miln-stones by paction or prescription the same were taken away February 27. 1668. Maitland contra Lesly In proving of the customs of these Duties to Milns there is no necessity to prove fourty years constant custom but diverse years custom in 〈◊〉 unless a contrary custom be proven by the Thirled Nicol. de servitute 〈◊〉 contra Ballachan But it was found that an Heretor of a Miln being Infeft and in possession of the Miln with the Multures of the Lands in question 〈◊〉 he hath the benefite of a possessory Judgement with seven years 〈◊〉 and so it will stand and be effectual till it be reduced notwithstanding an anterior Infeftment cum mollendinis June 28. 1636. Maxwel contra Maxwel 23. Thirlage also is esteemed by some to carry this priviledge that the Heretor of the Miln may brevi manu cast down any other Miln bigged within the Thirle But Craigs opinion is in the contrary in the forecited place and it was so found where the Miln so bigged had gone fifteen days Spots Husband and Wife Laird of Ludquharn contra Earl of Marischal But whether it may not be hindered while the new Miln is in building is not so clear at least it may be civily interrupted nunciatione novi operis In respect of the favour of going Milns these are not to be destroyed for the publick use of the Countrie from which ground it is that the Water-gang of a Miln passing thorow an Heretors Land was not suffered to be stopped though it was without consent or prescription not being to his prejudice Hope Milns Laird of Bass contra Laird of Balgown But though Milns may not be stopped brevi manu yet building a Miln within the Thirle on pretence to get Voluntary Multure and that the builder will still bring his own Corns to the other Miln is unwarrantable and contrary the common custom of destroying Querns which might have the same pretence nor could it be known what were Clandestinely grund at the new Miln within the old Thirle but Halyards being building a Miln near to Breast-miln who craved summarly to stop him by Supplication to the Lords they did refuse to stop because it was not clear that his Land were Thirled July 29. 1673. Thirlage hath also this effect in someplaces that when any person is apprehended abstracting Corn the Horse and Corn may be seazed upon braevi manu and the Corns confiscated to the Milner and Craig relates in the forecited place that it is the ordinary custom in France that Corns are Escheat to the Lord and may be seazed summarly It is related by Craig l. 2. Dieg. 8. out of the Statutes of King William that there ought to be a Master and two Servants in every Miln sworn to be faithful to the Master of the Ground and his men and that the common Multure not determined by Infeftment is the twentieth Grain and that all Grain that shall be set down upon the Ground of another Thirle shall pay Multure there and that when a Horse carrying Grain out of the Thirle is taken the Grain is escheat to the Miller and the Horse to the Master and that he who removes from the Thirle shall have his Seed Multure free These are most part over-ruled by custom as hath been before showen This far I find it amongst our customes that the Spuilzie of a Horse was elided because he was seazed upon taking Corns out of the Thirle to another Miln as was the custom of that place and that after carrying back thereof the Horse was offered that same night January 22. 1635. Menzies contra Mckie Thirlage omnium granorum crescentium upon such a Tenement found to extend not only to the Tennents but to the Mains July 29. 1673. Dundas of Breastmiln contra Skeen of Halyards 24. It remains that we confider how Thirlage being Constitute is destitute or taken off and that is in the like manner as it was constitute either by prescription whereby Liberty is recovered to the Thirled Lands which needs no positive Act to deny the Multures but simple forbearance to lift or seek them is enough or otherways by any Discharge or Renunciation without further solemnity for in that way also it is constitute but the most ordinary way of taking off Thirlage is by granting a Charter containing Milns and Multures in the tenendas which was not found good as to the Kings Feuars because past in Exchequer without notice as the common Style January 8. 1662. James Stuart contra Feuars of Aberledno which is more evident when Milns and Multures are in the dispositive Clause it hath the like effect when the Miln and Multure is disponed to one party and by a prior Disposition or Infeftment the same Lands which were of old of the Thirle are granted to the Vassals thereof cum molendanis multuris for thereby the posterior Infeftment of the Miln and Multures is a non habente potestatem and ineffectual Novemb 26. 1631. Mr. William Olephant contra Earl Marischal 25. In Thirlage there is only allowance or deduction of Seed and Horse-corn but nothing for Expenses of Labouring Jan. 14. 1662. Nicolson contra Feuars of Tillicoutrie 26. Thirlage by a Vassal was not found effectual against the Superiour when the Lands fell in his hands by Ward unless the Superiour had consented Decem. 11. 1666. Earl of Cassils contra Tennents of Dalmortoun Thirlage by a Vassals Charter found not to make him lyable for the Abstraction of his Tennents but only the Tennents themselves Decemb. 10. 1667. Earl of Cassils contra Sheriff of Galloway 27. If it be questioned whether Multure be due when the Miln is unable to work by Frost breaking of the
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-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
Cheislie Feb. 21. 1666. Lord Borthwick contra his Wodsetters Feb. 21. 1666. Ogilvie contra 10. But where in Wodsets there is a condition of the Neversion that a Tack should be granted for years after redemption that Tack was not found taken away by the Act Debitor and Creditor but that if it were in the terms of the old Act Par. 1449. cap. 19. far within the true avail it were usurary and null February 15. 1666. Lord Lie contra Porteous February 17. 1672. Douglass of Mortoun contra and Verner In which case the Tack was sustained if it were not much within the worth of the Land as it was the time of granting the Wodset albeit it were much within the worth the time of the redemption because there is a just design in such Tacks to incourage the Wodsetter to meliorat the Wodset Lands and be at expences therefore seing he will retain the same after the Redemption for the old rent they were worth when wodset and the rent exprest in the Tack will be presumed to be the true rent unless the contrary be proven But such a Wodset granted to a Brother for his Portion wherein the Wodsetter was excluded from possession during a Liferenters life the Tack was sustained Jan. 21. 1662. Laird of Polwart contra Home 11. But if there be a Back-tack of the Land granted by the Wodsetter to the Reverser or for his behove or a Provision to count for the profites of the Land or to hold the Land at such a Rent it is an improper Wodset 12. A publick Wodset which is holden of the constituents Superior requireth beside the reversion a regress which is an obliegement upon the Superior to receive and enter the reverser his vassal again upon the redemption The necessity whereof is because by the Infeftment though of Wodset the constituent is denuded and the Superior hath a new Vassal in whose place he is not oblieged to accept any other but by his own consent Craig lib. 2. dieges 6. moveth this question Whether a publick Wodset being redeemed and the Reverser re-seased therein it would be accounted Heretage or Conquest And though it seem Conquest because it is a new Infeftment and not the old yet he well resolveth that if it return to the person or heirs of him who was first infeft if it was Heretage before it remaineth so but if an Assigney to the Reversion and Regress be insest it is truly Conquest 13. It remaineth now to consider the destitution of Wodsets and how they cease and this is either by consent or by Law by consent either when the Reversion is discharged whereby the Infeftment becomes irredeemable and ceaseth to be a Wodset which Discharge of the reversion is not effectual against singular successors unless registrat conform to the said Act of Parl. 1617. cap. 16. Or otherwayes by voluntary redemption of the Wodset which must be registrat by the said Act or else it prejudgeth no singular successor yet it is not effectual to denude the Wodsetter unless if the Wodset were base there be a resignation ad remanentiam in the reversers hands as Superiour or if it be publick that the granter of the Wodset be re-seased and a renunciation without a new Infeftment is not sufficient Hope Alienations Kinross contra Durie November 23. 1627. Dumbar contra Wilson But if the reverser or his predecessor was infeft a renunciation may exclude the renucers Right but will not establish it in the person of the Reverser but he must brook by his own right Hope Alienation Hamiltoun contra Mcaddam where Wodsets are taken holden of the Superior Regresses are also taken from the Superior and new Infeftment thereupon to the granter of the Wodset But when Neversions are carried by Assignations Apprisings or Adjudications to these who were never infeft they must not only have a renunciation from the Wodseter but a Procuratory of Resignation that thereby they may be infeft in which case the Wodset-right is not extinct but conveyed and the Wodsetter is their Author and may not resuse Procuratories of Resignation or Charters for Confirmation upon the redemption And if the wodset-wodset-lands be not ward he must grnt Precept of Seasine for infefting the reverser holden of the Wodsetter and if Infeftments follow thereupon and the Seasine be registrate there is no necessity to registrate the renunciation or grant of redemption so that a renunciation or grant of redemption being registrate excluding posterior Deeds of the Wodsetters who yet continues in the Fee and the Casuality will fall by his Death or Deeds Voluntar Redemptions are not so safe being used against Pupils and Minors whose Tutors and Curators ought to proceed Legally in Infeftments So likewise in a Wodset to a man and his wife and their heirs A voluntar Redemption by the husband was not found sufficient to to prejudge the wife who consented not July 14. and 17. 1610. Lord Cathcart contra 〈◊〉 14. Wodsets are taken off Legally when the Reversion is Legally annulled as by declarator of expyring thereof for thereby the Infeftment becomes irredeemable but is chiefly by a Legal Redemption which doth require an Order of Redemption and a declarator thereupon which must be diversly used in Legal-reversions and in Conventional-reversions 15. The Order of Redemption of Apprizings and Adjudications by vertue of the Legal Reversion is valide by Premonition and Consignation and Instruments taken thereupon wherein there is not appointed a determinat time upon which the Premonition must be made or a determinate place where the Consignation must be made nor the person of the Consignator but the premonition may be upon any number of dayes sufficient for the Consignation Yea though it were the same day of the Premonition as Craig observes But if the Creditor be personally apprehended the Consignation must be in the way most to his advantage which therefore he may prescrive being either near the place of Premonition or the Lands Wodset or the Paroch Kirk where they lie which Craig accounteth competent places or if he choose any other more advantages to the Consigner it will be sufficient But if he choose none the Premonisher must either Consign that day where he finds the Creditor or if not that day Or if he used Premonition at his dwelling-house he must Consign either at the Appryzers dwelling-house or Paroch Kirk where the Lands lye as said is if the Creditor be out of the Countrey or have no certain abode Letters of Premonition will be obtained from the Lords periculo petentis for Premonition upon sixty days at the Cross of Edinburgh and for Consignation to be made in Edinburgh Yea the Order was sustained for redemption of an Appryzing near expyring albeit the Consignation was only at Edinburgh and not at the Paroch Kirk where the Lands lay or at the debitors dwelling-house he being out of the Countrey Feb. 22. 1631. Murray contra Lord Yester But where the party was in the Countrey this Order by summonds of
infers recognition WE are not here to speak of the common wayes of extinction of Infeftments and other rights as the extinction of the Subject matter Prescription Forefaulture Homologation or acceptance of incompatible Rights neither to these ways by which an infeftment is extinct as to one but is conveyed to another which falleth in consideration amongst conveyances of Rights But of these ways proper to extinguish Infeftments and make the right toceass and to return to the Superiours and these are two either by consent of the Vassal or by Law 1. Infeftments are extinct by consent by resignation made by the Vassal who stands Infeft in the Lands to his Superiour ad perpetuam remanentiam to which there is necessarly required as a solemnity thereof an Instrument of resignation in the hands of a Nottar in the same way that their constitution was perfected by an Instrument of Seasine their distitution is consumate by an Instrument of resignation which no other write nor acknowledgement of the Vassal of the being thereof will supply much less will the deeds done otherways prove and as in Seasines there must be a tradition or delivery of Possession by some Token or Symbol as by Earth and Stone c. So in the Instrument of Refignation there must be a re-delivery of the Possession by an accustomed Symbol which ordinarly is by delivery of Staff and Bastoun yet in this they differ that the delivery of the Seasine must be upon the ground of the 〈◊〉 naturally or by union but the Resignation may be any where And as Seasine may be given either to the Vassal or his Procurator so may the Resignation be either to the Superiour himself or to his Commissioners authorized to that effect 2. And though Instruments of Resignation use to be by Procurators warranted by a Procuratory of Resignation Yet as there may be Seasines given by the Superiour propriis manibus so may there be Resignations by the Vassal 3. But in both the Instrument of Resignation alone is not sufficient as being but the assertion of a Nottar but they must have for their warrand a Disposition or other Adminicle and therefore it is Statute Par. 1563. cap. 81. That where such Resignations are by Procurators the Procuratories be subscribed by the party or Nottars and if the Resignation be propriis manibus that the Instrument be so subscribed otherways to be null because the subscription of the Instrument is in that case the only probation of the Warrand thereof But if there be a Disposition or Obliegement to Infeft the Instrument of Resignation though not subscribed by the resigner will be sufficient as warranted by the Disposition or Obliegement But Seasines and Resignations did formerly differ in this that Seasines must be registrate within sixty dayes after dates Par. 1617. cap. 16. 4. But so needed not Instruments of Resignation ad Remanentiam for though by that Statute Renunciations of Wodsets are to be registrat it was not extended to Renunciations of irredeemable Rights ad remanentiam these being either omitted by inadvertency or of purpose in the favours of Superiours that Rights may be taken with their consent Yet in so far that excellent Statute was defective till the late Act of Par. 1669. cap. 3. whereby Instruments of Resignation are null if not registrat within sixty dayes By which and others to that purpose purchasers in Scotland may better know the condition of these with whom they contract about Infeftments and be more secure of lurking rights then any where so far as I can learn in the World 5. By this Resignation so made the property is consolidate as it was the time of the Resignation and is affected with all real burdens or debita fundi that validly affected it before as Feues Tacks Annualrents Servitudes For though all such burdens as are not warranted by the Superiours consent or by Law cease when the Fee returns to the Superiour either for a time by Ward Non-entry c. or for ever by Recognition yet when it returns thus by consent it comes cum suo onere which is very just and fit seing else such securities might easily be evacuat by voluntar Resignations in the Superiours hand There is another Resignation which is called in favorem being for new Infeftment to the resigner or some other but thereby the Fee is not extinct but either renewed or transferred and therefore it shall be considered hereafter 6. Craig upon this head very fitly moveth and solveth this question Whether the Vassal may renunce and resign his Fee to the Superior though he be unwilling and instances in two cases First in a Vassals holding a very inconsiderable parcel of Land Ward and did thereby become obnoxious to his Superiour for the value his Tocher having relation to the whole Estate which Tocher did much exceed the worth of the Tenement And yet a resignation thereof being judicially offered the Superior was suffered to refuse it unless the value of the Marriage were first payed The other of a Burgess offering to renunce his Burgesship for shunning a great Taxation put upon him and therefore solveth the case upon the common Axiom Cuique licet renunciare favori pro se introducto And therefore the Fee of its nature being gratuitous in favours of the Vassal may be renunced but that will not prejudge the Superiour of any casuality befalling to him before the renunciation but will have only effect ad futura and therefore a Vassal judicially disclaiming his Superior was not admitted so to do to exclude the Life-rent already fallen March 26. 1628. John Stewart contra Laird of Wedderburne No Contract Obligation or personal Right nor any less then an Instrument of Refignation will take away Infeftment for though these may be sufficient against the granters thereof by a personal objection whereby they cannot come against their own deed Yet truly the real right stands in them and they are not denuded thereby and so a Renunciation without the solemnity of an Instrument of Resignation will not suffice to obliterat an irredeemable Fee though it may be sufficient to evacuat any personal right as Servitude not requiring Infeftment yea or a Liferent though constitute by Infeftment because it is communicable to no other persons by Infeftment and therefore passeth by Assignation or Resignation The reason hereof is because by the common custom of Nations real Rights cannot pass by sole consent without artaining possession in the way prescribed by Law and therefore this symbolical possession which alone the Law alloweth as sufficient either in the constitution or destitution of Fees must be adhibite and the real possession of the Tenement it self will not suffice in either case as is before instanced in Seasines by several decisions So a Renunciation without a formal Resignation was not found relevant to take away the Infeftment renunced against a singular successor November 23. 1627. Dumbar contra Wilson Resignation cannot be effectual if the resigner be not infeft
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
Customs rule ordinarly according to the Feudal-books The doubt remaineth which may be cleared thus First Though in some cases alienation be extended to Location yet it is not so by the common feudal Customs Secondly If the Subfeu-dation be a real Feu-ferm whereby the Feu-duty is considerable and competent to intertain the Vassal such Sub-feudation is thereby accounted only Lacation Nor doth it infer recognition being in effect no more then a perpetual Location whereby the Antinomy in the Feudal Law is sufficiently reconciled that such Sub-feudations are not alienations But if the Sub-feudation be Ward Blensh or in Mortification or though it be under the name of Emphyteosis yet for an elusory or an inconsiderable and unproportionable Feu-duty which by no estimation can be correspodent to the profite of the Fee but within the half of the true worth in these cases the Sub-feudation is alienation inferreth recognition 14. As to our own Customs in this point they do agree to the common Feudal Customs as to Subaltern Infeftments Blensh Ward or in mortification or Elusory or unprofitable Feus But as to Feues by which the major part of the profite of the Ward or Fee is not taken away though such cases have not occurred to be contraverted they seem not to infer recognition for if the major part be not alienate Subaltern Infeudations though Blensh or in Mortification infer not recognition when these rights are disjunctim of parts of the Fee There appears no reason that the Subfeudation of the whole with a Feu-duty equivalent to the half of the true Rent whereby in effect the half is not alienate seing the dominium directum of the whole and the profite of the half is retained should infer recognition especially now when generally Fees are granted for Causes Onerous 15. And by the Statute allowing Feues Par. 1457. cap. 72. It is provided that the Feu be set to a competent avail which by the said Statute is cleared to be without diminution of the Rental and which is commonly interpret the retoure duty because it was the publick valuation and rate at that time And by the said statute such Feues are confirmed and declared not to be prejudged by the Ward without mention of the hazard of recognition as not being consequent upon such Feues But this Statute being abrogate as to the Leiges Par. 18. Ja. 6. cap. 12. All Sub-feues of Ward-lands holden of Subjects without the Superiours consent are declared null and void But there is no mention of recognition to be incurred thereby And Feues are only prohibited as being in prejudice of the Over-lords who are not prejudged if the major part be not alienate seing all Subaltern Infeftments not exceeding the half are allowed by Law And albeit the Narrative of the Act respect Feues preceeding it yet the Statutory part is only as to Feues granted thereafter And the like prohibition is appointed for the King and Princes Vassals Par. 1633. cap. 16. The effect of this Act as to the Vassals of the King and Prince was suspended till the next meeting of Parliament and the Vassals exempted therefrom in the interim Par. 1640. cap. 36. And the said Act was wholly repealed Par. 1641. cap. 58. And so remained until all these Parliaments were Rescinded seing the private rights of parties acquired thereby by the general Act Rescissory Par. 1661. cap. 15. But it hath been found that alienations during these Acts now rescinded and during the usurpation when Wards were discharged did infer recognition seing the Vassal did not seek Confirmation after the Kings return December 15. 1669. Maitland of Pittrichy contra Gordoun of Gight The like was found in the recognition at the instance of Sir George Kinard contra the Vassals of the Lord Gray The like though the base Infeftment inferring recognitien was in Anno 1643. when there was a Statute then standing allowing such Infeftments seing after rescinding that Statute no application was made to the King for Confirmation January 7. 1676. Cockburn of Riselaw conira Cockburn of Chouslie But recognition was excluded where the Vassal required the Superiour to confirm the subaltern right debito tempore or did purge the same by procuring resignations ad remanentiam to himself from the Sub-vassals February 12. 1674. Viscount of Kilsyth contra Hamiltoun of Bardowie But recognition was not found against a Pupil upon his Tutors taking Infeftment for him during the Usurpation July 15. 1669. Jack contra Jack Whereby it is clear that Feues have no effect against the Superiour as to the Ward Non-entry more then Tacks 16. Whether the alienation be by Infeftment holden from or of the Vassal there is no recognition with us except in Ward-holdings yea if the holding be dubious and soa probable ground of error of the Vassal as being a payment of Money in the Reddendo with Service used and wont which though truly Ward yet because the payment of Money may render it dubious Craig holdeth in the said Dieg. l. 3. that it would not infer recognition yet this will not give ground to think that alienation of Lands taxt-Taxt-ward would excuse from recognition because Ward is more clear and expressed nominatim in that case in it self for the Casualities thereof being Taxed as the Marriage and Ward-duties Which 〈◊〉 is but a Liquidation or Location of these casualities when they occur and no alteration of the nature of the Fee and therefore in the said pursuit at the instance of the Lady Carnagie contra the Lord Cranburn it was not found relevant to exclude the recognition that the Ward was Taxed 17. It is also clear that alienation whether by Infeftment holden of or from the Vassal not exceeding the half of the Fee inferreth not recognition so much being indulged to the vassals for his conveniency or necessity but if together or by parcels or by Annualrent the major part be alienat not only that which then was in the vassals person falls under recognition But as Craig holdeth in the forecited place Dieg. 3. l. 3. even the whole Fee So that parcels alienat validly but without the Superiours consent before become void and return But though the vassal grant Infeftments exceeding the half of the fee yet if some of them were extinct before others were granted so that there was at no time rights standing together exceeding the half of the see recognition is not incurred February 23. 1681. Iohn Hay contra Creditors of Muirie But Deeds done by Predecessors and their Heirs or Authors and their Successors were in that case conjoyned Upon the same ground an Infeftment of the see in Liferent would not infer recognition because it exceeds not the half of the value Yea recognition was found not incurred by granting an Infeftment in Warrandice for Warrandice is but a hazard in case of Eviction not equivalent to the half of the worth of the Lands granted in warrandice unless the right of the principal Lands were manifeftly defective Feb. 21. 1623. Cathcart contra
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 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
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
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
in the Superiours hands but if within the half they are not null as to the Vassal but are null as to the Superiour and exclude him from no Casualities of his Superiority as Ward c. But as the half may be sub-sett so any other right less then the value of the half is sustained as an Infeftment of warrandice March 6. 1611. Cathcart contra Campbel The like holds of Infeftments of Liferent but if the Disposition or Infeftment be granted to the Vassals appearand Heir in linea recta it infers not Recognition be-because the Superiour is not prejudged by change of his Vassal but recognition was found incurred by a Disposition and Infeftment to the Vassals Brother though his appearand Heir for the time seing there remained hope of issue in the Disponer and so his Brother was not alioqui successurus Spots recognition Advocat and his Son contra the Earl of Cassils and Collane Feus of Ward-lands granted by the Kings Ward-vassals after the Act of Parliament 1457. and before the Act of Parliament 1633. were found not only to be free from the ward-liferent-escheat or recognition of the Kings Vassals but also that the Sub-vassals Feu did not fall by his Superiour the Kings Vassals forefaulture because the Act of Parliament expresseth a Confirmation of such Feus which therefore needs not be past in Exchequer without which there is no doubt but Ward and Non-entry are excluded And by a Confirmation in Exchequer Forefaulture would be excluded without question even after the Act of Parliament 1633. and therefore the ratification and approbation of Feus by the Act 1457. when it was in vigour must also secure against Forefaulture of the granter of the Feu as was found February 12. 1674. and January 23. 1680. Marquess of Huntly contra Gordoun of Cairnborrow whose Feu being granted after the Act of Parliament 1457. and before the Act 1606. was sustained against a Donatar of his Superiours Forefaulture The like though the Feu was renewed upon Resignation in favorem not being ad remanentiam November 16. 1680. Campbel of Silver-craigs contra Laird of Achinbreck and Earl of Argyle 33. Infeftments blensh are such whose reddendo is a small elusory Rent as being rather an acknowledgement of then prosite to the Superiour and therefore ordinarily it beareth si petatur tantum as a Rose penny Money or the like and these are not counted blensh Rights unless they bear in name of blensh Ferm or if they bear not si petatur or if it be a yearly growth or service it is not due and may not be demanded at any time unless it be demanded within the year at the Term as a Stone of Wax or a Pound of Pepper February 16. 1627. Lord Semple contra Blair Where the like is observed to have been before June 18. 1611. Bishop of St. Andrews contra Galloway The like found where the reddendo bore si petatur tantum June 15. 1611. Bishop of St. Andrews contra Tersons So Blensh Duties of Lands holden of the King or Prince are declared only due if they be asked yearly and no price can be put thereupon by the Exchequer Parliament 1606. cap. 14. Yet seing by Act of Parliament the King is not to be prejudged by neglect of his Officers who ought yearly to call for his Blensh Duties whereof many are considerable therefore the Exchequer continues to exact the Kings Blensh Duties though not demanded within the year There is another part of the Act excluding all Liquidations of Blensh Duties in specie which therefore should be so exacted though not within the year unless the Vassals voluntarly offer a price in these Blensh Ferms there is no ward and marriage befalling to the Superiour in which it differs mainly from ward 34. Infeftments Feu are like to the Emphyteosis in the Civil Law which was a kind of Location having in it a pension as the hyre with a condition of Planting and Pollicy for such were commonly granted of Barren Grounds and therefore it retains still that name also and is accounted and called an Assidation or Location in our Law But because such cannot be Hereditary and perpetual all Rentals and Tacks necessarly requiring an Ish therefore these Feu-holdings partake both of Infeftments as passing by Seasing to Heirs for ever and of Locations as having a Pension or Rent for their reddendo and are allowed to be perpetual for the increase of Planting and Pollicy 35. In what cases Feus are allowed of Ward-lands hath been now shown in other cases they are ordinarly allowed where they are not prohibit so we shall only need to speak of cases wherein they are prohibit and void and that is first In the Patrimony of the Crown which is annexed thereto and cannot be set Feu by the King without consent of Parliament by their Act of Dissolution bearing great seen and reasonable Causes of the Realm by Sentence and Decreet of the whole Parliament But Ratifications which pass of course in Parliament without report from the Articles will not supply the dissolution of the annexed property or validat Infeftments thereof even though the Ratification bear a Dissolution Upon which ground the Earl of Mortouns Right to the Earledome of Orkney was reduced February 25. 1670. Kings Advocat contra Earl of Mortoun Neither can the annexed property be disponed by the King but only in Feu after the Act of Parliament 1597. cap. 234. And all Infeftments Tacks Pensions Gifts Discharges granted before lawful Dissolution in Parliament or after Dissolution yet contrary to any of the conditions of the same are declared null of the Law by Action or Exception as well as to by gones as in time coming Par. 1597. cap. 236. Par. 1455. cap. 41. which is confirmed and extended to Feus not only to be granted of Lands but to Feus granted of the Feu-Ferm-Duties which was a device invented to elude the Law Par. 1597. cap. 239. 36. Secondly Feus of the annexed property after Dissolution may not be set with diminution of the Rental the Feu-duty not being within the new retoured Duty Par 1584. cap. 6. And that it may appear whether the Rental be diminished or not before they pass the Seals they must be presented to the Thesaurer and Comptroller and registrate in his Register and the Signature subscribed by him otherways they are null Par. 1592. cap. 127. And such Feus set without consent of the Comptroller by his subscription Registrat in his Register are again declared null Par. 1593. cap. 171. The Comptrollers Office hath been of a long time adjoyned to and in the same Commission with the Thesaurers Office or Commission of the Thesaury What Lands and others are annexed to the Crown appeareth by the several Acts of Parliament made thereanent consisting mainly of forefaulted Estates and Kirklands after the abolishing of the Popish Clergy which because they were presumed to have been most part mortified by the Kings of Scotland therefore the intent of their granting ceassing by