witnesses Interruptions made against the principal party interrupt as to Cautionâ—rs and interruption as to a part interrupts the prescription of the whole so that if a man arrest the meals and duties of any part of a Barrony he interrupts prescription as to the whole Barrony Title VII Of Succession in Heritable Rights HAving formerly shewed how Rights whether Heritable or Moveable Real or Personal are constitute and how they are transmitted to singular Successours It remains now to consider how these Rights are transmitted by succession beginning first with Succession in Heritage An Heir is he that succeeds universally to all that belonged to the Defunct and is therefore in the construction of Law one and the same person with the Defunct Though the Executor be in effect the Heir in moveable Rights yet we call those only properly Heirs who succeed in Heritage and with us there are several kinds of Heirs distinguished by their several denominations The first and chief kind of Heirs are the Heirs of lyne who are so called because they succeed Lineally according to the right of Blood and they succeed thus First Descendants according to the proximity of their Degree in which the eldest Son is preferred to all his Brothers and all the Brothers to the Sisters and if there be onely Sisters they succeed all equally The next degree is Grand Children and their great Grand Children c. who succeed all in the same way If there be no Descendants then Collaterals succeed in which the first degree is Brothers and Sisters German for the whole blood excludes the half blood and Brothers the Sisters and Brothers by the Fathers side exclude Brothers by the Mothers side there being no Succession with us by the Mothers side Failing Descendants and Brothers and Sisters the Succession ascends and all the Ascendants succeed upward according to their degrees of Proximity as the Descendants did downward and thus the Father succeeds to his own Son and failing him the Grand Father Great-Grand Father c. and failing of Ascendants in the right â—ine the Collateral Ascendants succeed in the same way and thus the Fathers Brother or if there be no Brothers the Fathers Sister secludes the Grand Fathers Brothers or Sisters c. It is to be observed that in Heritage there is a Right of Representation whereby the Descendants exclude still the Collaterals though nearer by many Degrees to the Stock or comunis stipes And thus the great Grand-Child of the eldest Son secludes the second Brother because he comes in place of and so represents the elder Brother his great Grand-Father The Heir of Line has Right to the Heirship moveables and excludes all other Heirs therein Heirship moveables are the best of each kind of moveables which is given to the Heir because he is excluded from all other Moveables if there be pairs or dozens he gets the best pair or dozen but in others he gets onely one single thing None have right to Heirship moveables but the Heirs of Prelates under which are comprehended all Beneficeâ— Persons the Heirs of Barrons under which are comprehended all who are infeft in Lands or annual rents though not erected in a Barrny And the Heirs of Burgâ—sses by which are meaned actual Trading but not honorarie Burgesses If the Defunct had any Lands or Heritable Rights to which he could not succeed as Heir of Line then he who succeeds in these is called the Heir of Conquest and the Rule is that Heritage descends and conquest ascends so that if the midle of three brothers dyes his immediate elder brother would be his Heir of conquest and if a Son of a second Marriage dyes leaving three brothers of a former Marriage the youngest would succeed in his conquest lands and this I conceive was introduced for enriching the elder brothers whom Our Law still favours whereas heritage must descend according to the Law of Nature These Heirs of conquest have right to all lands annualrents heritable bands and others whereupon infeftment did or might follow but they have no right to tacks pensions moveable Heir-ship and all other rights having tractum futuri temporis and requiring no infeftment and so not competent to Executors all which belong to the Heir of line The Heir Male is the nearest Male who can succeed and all Heirs of Line are also called general Heirs because they succeed by a general service and represent the Defunct universally The Heir of tailzie is he to whom an Estate is tailzed so called because the legal Succession is cut off in his favours from the French word tailer to cut and the matter of tailzies may be Summond up in these few Conclusions Primo In tailzies the person first named needs not be served Heir as for instance If I take my land to my self which failing to Seius Seius needs not be served because there is no cognition requisite to clear that he is to succeed but if I take may lands to my self and my Heirs or to me and the Heirs of such a Marriage which failing to Caius then either Caius in the one case or the Heirs of such a Marriage in the other must be served because it is requisite to inquire Whether there were Heirs or who is Heir of that Marriage Secundo In all tailzies he on whom the last termination falls is Fiar as for instance If I take my lands to Seius and failing him to Caius and his Heirs Caius is Fiar and Seius is onely Liferenter Tertio Though the last termination fall on the Wifes Heirs the Husband remains Fiar because of the prerogative of the Sex as for instance If I take my land to my self and my Wife which failing to her heirs my heirs would be preferred except the estate belonged to my Wife as Fiar For then her heirs would be preferred Quarto Though in Conjunct-Fie Rights if I take my lands to my self and my Wife in Conjunct-fie which Failing to our Heirs my Heirs would be preferred as to heritable Rights but in substitutions to moveables the Right would divide betwixt her Heirs and mine Quinto The Heir of Tailzie has but a hope of succession and so the Fiar may dispone nor can the substitutes or remoter members of the Tailzie hinder him by Action Inhibition or otherwayes except there be a clause irritant and resolutive declaring that if the first Member dispone his Disposition shall be null in which case though generally the remoter member must be served Heir to the immediate prior who was infeft yet in that case the remoter member may be served Heir to the first Disponer Sexto If one oblige himself to make such a man his Heir of Tailzie that Obligation tyes him onely once to tailzie his estate but not that he shall not break that Tailzie except the Obligation be for an equivalent Onerous cause Or if a person oblige himself to do nothing contrare to his Tailzie he cannot
this casualitie lasts only till 14. years compleat because they may then marry husbands who may be able to serve the Superiour and this properly is called the Casuality of ward for Marriage is due in other holdings as shall be cleared in the next Title Feu holdings is that whereby the Vassal is obliged to pay to the Superiour a sum of money yearly in name of Feu-dutie nomine feudi firmae This holding has some Resemblance to the Emphyteosis in the Roman Law but is not the same with it for Emphyteosis was a perpetual Location containing a pension as the hyre which was granted for Improving and Cultivating Barren ground but our Feu-holding comes from the Feudal Law whereof there was no Vestige in the Civil Law and passes by Infeftment to Heirs Blench-Holding is that whereby the Vassal is to pay an Elusory duty meerly for acknowledgement as a penny or a pair of Gloves nomine albae firmae and ordinarly it bears si petatur tantum These Blench duties are not due whether they be of a yearly growth or not except they be required yearly by the Superiour as for instance if the Blench dutie be yearly Attendance at such a place or a Rose yearly the Superiour can seek nothing for his blench dutie except he required the same within the year Burgage-holding is that duty which Burghs Royal are obliged to pay the King by their Charters erecting them in a Burgh Royal and in this the Burgh is the Vassal and not the particular Burgesses and the Bailiffs of the Burgh are the Kings Bailiffs nor can Seasin in Burgage Lands be given by any other than the Bailly and Town Clerk if the Town have any and they must be Registrated in the Town Clerks Books Before the Reformation there was another kind of holding in Scotland which was of mortified Lands granted to the Church and the only Reddendo was prayers and supplications in behalf of the Mortifiers Title V. Of the Casualities due to the Superiour THe Feu being thus Stated by the Superiour in the person of his Vassal it will be fit in the next place to consider what right the Superior retains and what Right the Vassal acquires by this constitution of the Fie The Superiour retains still dominium directum in the Feu and the Vassal has only dominum utile and therefore the Superiour is still Infeft aswell as the Vassal but the King needs not be Infeft for he is Infeft jure Coronae that is to say his being King is equivalent to an Infeftment The Superiour has different advantages and Rights according to the different maner of holdings and there are some Rights and Casualities common to all holdings Ward-holdings gives the Superiour a Right to the meals and duties of his Vassal Lands during all the years that his Vassal is Minor and this is properly called the casualitie of ward but the Superiour or his donatar are obliged to entertain the Heir if he have no other Feu or Blench Lands and to uphold the house parks c. in as good condition as they found them and must find caution for that effect If the Vassal sells or dispones the half of his ward-lands to any except his appearand Heir who is alioque successionae without the consent of his Superiour the whole ward-Lands fall to the Superiour for ever and this we call Recognition which is introduced to punish the ingratitude of the Vassal who should not have disponed the Superiours Lands without his own consent and to shun this the Vassal in ward-Lands gets the Superiours confirmation before he takes infeftment for if he takes infeftment before he be confirmed the lands recognosce as said is except the seasin be null in it self since the Vassal showes sufficiently his ingratitude by the very taking of the Infeftment And though the Vassal at first did not sell the half without the Superiours consent yet if he thereafter sells as much as will extend to more than the half of the Feu the first huyer will likewise loose his Right if it was not Confirmed before he took infeftment Not onely a Confirmation or Novodamus if it express Recognition but the Superiours accepting service or pursuing for the casualities are a passing from the Recognition because they infer the Superiours acknowledgement of the Vassals Right Recognition takes place in taxt-ward as well as simpleward but in no other manner of holding except the same be expresly provided in the Vassals Charter for ward-holding is presumed to be the only proper Feudal Right If the Vassal denyeth the Superiour he losses his Feu and this is called disclamation but any probable ground of ignorance will take off this Forfeiture If the Vassal who holds Ward-Lands dyes having an Heir unmarried whether minor or major the Superiour gets the value of his Tocher though he offer him not a Woman to be his Wife but if the Superiour offer him his Equal for a Wise and he refuses to accept tho he never Marry any other person the superiour gets the double of his tocher and one of these casualities is called the single Avail of the Marriage and the other the double Avail of the Marriage but the modification of this is referred to the Lords of Session who consider still what was the Vassals free rent all debts deduced and the ordinarie modification is about two years rent of the Vassals free Estate even though the Heir was an Heretrix and though there were moe Heirs Portioners there will only one avail be due for them all Though this Casualitie of Marriage be still due in all ward-holdings yet they may be due by express paction in other holdings and there are many in Scotland who hold their Lands Feu cum maritagio and in both cases the Marriage is debitum fundi Though as to the casuality of ward every Superiour has Right to the ward Lands holding of himself where the Vassal holds ward-ward-Lands of moe Superiours Yet the casualitie of Marriage falls only to the eldest Superiour because there cannot be more Tochers than one and he is the eldest Superiour from whom the Vassal had the first Feu but the King is still presumed to be the eldest Superiour because all Feus originally flowed from him It is thought that the Reason why this Casualitie is due was because it was not just that the Vassal should bring in a stranger to be Mistress of the Feu without the Superiours consent for els he might choice a Wife out of a Family that were an enemy to the Superiour but I rather think that both ward and Marriage proceeded from an express paction betwixt King Malcome Kenmore and his Subjects when he first Feued out the whole Lands of Scotland amongst them as is to be seen in the first of his Statutes The special dutie arising to the Superiour in a Feu holding is that the Superiour gets a yearly Feu dutie payed to him and if no part of this Feu
thereafter make any voluntar gratuitous Right to the prejudice of that Tailzie But yet the lands tailzied may be comprised or adjudged for sums truely due and not dolose contracted to disappoint the tailzie Heirs of Provision are these who succeed by vertue of a particular provision in the infeftment such as are Heirs of a second Marriage and as to these Heirs of Marriages we may observe two things first That if a Father by his Contract of Marriage be obliged to employ a sum to himself and Wife in Conjunct-â—ie and the heirs of the Marriage he cannot in prejudice thereof do any fraudulent gratuitous deed tho he may provide a Ioynter for a second Wife or provisions for his Children of a second Marriage Secundo Though a Father may assign or dispone sums to Children when extant whereby they will be preferred to posterior Creditors becoming Fiars by the said Rights yet if the Father dispone to children to be procreat this will be considered only as a destination and so will not hinder the Father to make posterior Rights or even posterior Creditors to affect by Diligenâ—es what is so disponed Tertio Process will be sustained at the instance even of the appearand Heir of the Marriage against the Father to fulfill the special obligations therein or to purge any deeds already done by him in prejudice thereof Albeit where Heirs are not designed in any right the Heirs of Line exclude all other Heirs yet if a man take lands to himself and his Heirs Male tailzie or provision and thereafter acquire reversions or tacks of the same lands to himself and his Heirs these rights will accress to that special Heir to whom the land was provided for it is not presumable that a man would give the lands to one and the rights of them to another Heir When women succeed all these of one Degree succeed equally and because the estate is divided amongst them they are called heirs portioners the eldest not secluding the rest and having no advantage over him but where the Rights are indivisible such as Titles Iurisdictions Superiorities and all the casualities of these superiorities such as Ward Marriage Nonentrie Feu duties c. these fall to the eldest heir Female without division together with the Principle Messuage it being a Tower or Fortalice for other houses are divided equally All these Heirs are lyable in solidum if they once enter Heir except heirs portioners who are onely lyable pro rata and heirs substitute in a sum who are onely lyable to Creditors in the value of the sum to which they are substitute But they have in SCOTLAND a Priviledge which they call the benefit of Discussion whereby the Heirs of Line must be first pursued to fulfill the Defuncts deâ—ds or pay his debts And next to these the Heir of conquest the Heirs Male the Heir of tailzie and Heirs of provision but for fulfilling a deed relating to particular lands the Heir who succeeds in these particular lands must be first pursued without discussing and that which is meant by discussing is that the Creditor must proceed by horning caption and apprising against the Heir who is to be discussed before he can reach the other Heirs An Heir is said with us to be Heir active who is served Heir and may pursue whereas he whom the Law makes lyable to be Heir is said to be Heir passive As when the appearand Heir is infeft upon a precept of clare constat by the Superiour or otherwise medles with his Fathers Estate When the Predecessor dyes he who should be Heir and therefore is called appearand Heir has year and day allowed him to deliberate whether he will be Heir which is called annus deliberandi and which is indulged by the Law because if a man enter once Heir he is lyable to all the debts though far exceeding the estate and within that year he cannot be pursued nor obliged to enter but after the year is expyred the Creditor may charge him to enter Heir and if he resolve not to enter he must renounce any Right he has by a writ under his hand This year is compted from the defuncts death except in a posthum child who has a year allowed him after his Birth and not only during this year but after it expires the appearand heir without instructing any Title may pursue for exhibition of all Rights made to his Predecessors and of all rights made by his Predecssors to any in his own Family but not to Sirangers to the end he may deliberate whither he will enter Heir and the Liferenter is bound to aliment the appearand Heir not being able to entertain himself though he renounce vid. supra Part 2. Title 9. § Liferents If the appearand heir resolves to enter heir to his Predecessor he must raise Briefs from the Chancellarie which Brief is a command from the King to the Iudge ordinary where the lands ly to cause cite 15 sworn men to try whether the raiser of the Brief be nearest heir and this is executed or proclaimed at the mercat Cross where the lands lye and if at the day appointed these 15. sworn men find him to be the next person who should succeed they serve him heir by a paper which is called a service and which being returned be them to the Chancellarie there is a write given to the heir whereby he is declared heir and which is called the retour because it is their answer and return to the Chancellarie of the points contained in the brief and thereafter the person who is served heir is infeft by a precepts out of the Chancellarie and if the service was to any particular lands it is called a special service but if there was no land designed it is only called a general service and this general service is sufficient to establish a right to heritable Bands Dispositions Reversions Iurisdictions and all other rights whereupon the Defunct was not infeft nor needed to be infeft and a special service includes a general service but not E contra The general brief hath only two points or heads viz. if the Defunct dyed at the Kings peace and if the raiser of the brief be the next Heir but the special brief has seven viz. when the Defunct dyed Secundo If he dyed last vest and seased at the Kings peace Tertio That the raiser is next heir Quaerto Of whom the Lands are holden in capite Quinto By what manner of holding Sexto What is their old and new extent Septimo Whether the raiser be of lawful age and in whose hands the Lands are at present Sometimes likewise the Vassal without serving himself heir gets a precept of seasin from the Superiour wherein because the Superiour declares that it is known to him that such a man is heir to his Father it is therefore called a Precept of Clare constat which therefore makes the Obtainer lyable passive to all his Predecessors