in Fee in certain Lands if the Sons Relict be no otherwayes provided she may claim a Terce of these Lands though the Father did not perform his obliegement which may be construed as fraudulent and in her prejudice 17. Terce is excluded by all wayes whereby the Marriage was dissolved upon adultery or desertion or by the death of either party within year and day without Children or may be found null of which formerly amongst Conjugal Interests Tit. 4. And also by whatsoever way the Husband is sine frande divested the Terce is excluded as by a Crime inferring Forefaulture or Recognition by the Husband or his Superiour though not declared before his death or by the Ward and Non-entry of his immediat Superiour There was one decision observed by Spotswood and Hope betwixt the Relict of John Cranstoun and Crichtonn That an Apprising without Infeftment did exclude a Relict from her Terce it were hard to sustain that in all cases even though there were a Charge against the Superiour upon the Apprising which as it would not exclude the Superiour from the Ward Non-entry or Relief So neither should it exclude a Relict from her Terce unless she had a Conjunct-fee or Life-rent by consent equivalent to a tertia rationabilis And though our custom hath far deborded from the ancient design of Terces whereby a reasonable Terce was appointed and if any voluntary Liferent were granted Craig observes that it was ever understood to be no more but for clearing and securing the Tercer against the trouble and difficulty of recovering possession by a Service and therefore was alwayes retrenched unto the Terce Yet now not only real voluntary Provisions are sustained though of the Husbands whole Estate and Conquest albeit granted in aestu amoris with this temperament only That if the Heir have no other Estate the Liferenter must intertain and educat him according to his quality by Act of Parliament which is more extensive then a simple aliment but she is also lyable super jure Naturae to aliment her other Children if they have no provisions But Custom hath so far proceeded as not only to allow voluntary provisions how great soever but therewith to add a Terce of any other distinct Tenement unless the voluntary Liferent were accepted in satisfaction of the Terce which indeed were reasonable in many cases The voluntary Liferent being oftimes small and suitable to the Estate the parties have when they Marry but cannot make a rationabilis tertia if by Conquest their Estate should grow great neither is it reasonable that though the voluntary provision be never so great that a Terce should be given though litle remained to the Heir only because by Ignorance or negligence the clause in satisfaction were not adjected Which satisfaction may not only be proved by Write but by Presumption from the design of parties in the Contracts of Marriage which are uberrimae fidei For suppose which is ordinary enough that a Liferent of Lands are provided by the Contract of Marriage yet some Lands are not mentioned but there is a Clause adjected for the Liferent of the whole Conquest were it rationabilis terlia to give the Wife a third of that which is omitted though she had a particular Liferent of more and the whole Conquest though never so considerable Yea it came lately to be 〈◊〉 whether a Liferenter Infeft in an Annualrent out of her Husbands Estate consisting of one Tenement lying Contigue the Annualrent being two thirds of the Rent thereof because it bore not in satisfaction of a Terce The Relict did also claim a Terce out of that same one Tenement which is yet sub judice But so far as I can understand by former Decisions it hath not yet been determined whether Relicts should have a reasonable Terce according to the Terms of the ancient Law inducing Terces Or whether she should have a Terce proportionable or suiteable or not though she be already suitably provided if she have not expresly accepted her former provision in satisfaction of her Terce Which Terce is most favourable when suitable and therefore takes place in the two cases before mentioned even beyond the Letter of the Law and therefore if it were unproportionable to the quality of the Husband and Wife who might have a great Estate in Money and little Land a voluntary Provision out of any Tenement should not exclude a Terce out of the remanent of the same Tenement or of any other Tenement unless the Relict were sufficiently provided before There is one Interloquter betwixt Jean Crightoun and Kirkhouse her Son wherein it was alledged that she was sufficiently provided to more then a Terce of her Husbands Estate which was repelled but the Case was in possessorio where the Relict was already served and kenned to a Terce and was pursuing the Tennents so that the Service and Kenning being a standing Sentence doth not determine what might be done in petiterio Neither was that allegeance proponed and offered to be proven but only alledged informative whereas the Defence proponed was that the Relicts provision was but a minut of Contract bearing to be extended with all Clauses requisite whereof there was a Process of Extension depending including the acceptance in satisfaction of the Terce as being ordinary but it was replyed that that Clause was omitted in the full Contract already extended But now by the late Act of Par. 1681. cap. 1. there is no place for a Terce where there is a provision for the wife of liferent unless a Terce be expresly reserved Craig proposeth another case whether the 〈◊〉 would have a Terce of Lands competent in Fee to her Husband and so possest by him though by fraud or neglegence he never Infeft himself which he says is the opinion of Litletoun and it is not without much ground though it hath not come to be decided with us voluntary Liferents in satisfaction being so ordinary for though the appearand Heir not entering cannot burden the Fee with his debt yet his jus apparentiae gives him or his Executors right to the Fruits during all his life whereunto it would be suitable enough that though his voluntary provisions to his Wife could not affect the Fee yet the legal provision of a reasonable Terce might By the Custome of England Relicts loose their Terces by falling in publick and atrocious Crimes as Treason Murder Witchcraft although they be restored by the King by way of grace because thereby the memory of their husbands and fame of their Children are disgraced I know no such Point to have been drawn in question with us Craig in the forecited place holds that if the Fiar Transact for his own or his Superiours Forefaulture or Recognition or obtain a Gift thereof it should accress to the Tercer whose provision is onerous importing Warrandice and therefore might be effectuall against the Fiar if he represent the Husband and in all distresses Relief doth import what the party distressed truly payed
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
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
Chancery 29 To whom those Brieves are directed 30 The manner of citing the Inquest and proclaiming the Brieve 31 Exceptions competent against Members of Inquest 32 The apparent Heir's Claim 33 Exceptions against the Claim 34 First Head of the Brieve 35 The second Head of the Brieve 36 The third Head of the Brieve 37 The fourth Head of the Brieve 38 The fifth Head of the Brieve 39 The sixth Head of the Brieve 40 The seventh Head of the Brieve 41 The Service 42 The Retour 43 Reduction of Retours by a Great Inquest 44 Reduction thereof otherwise 45 Reduction of Retours how competent 46 Precepts out of the Chancery to Superiors 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 Defunct's Deceass may be entered where a nearer is in spt 51 Who are Feers of Conjunct-Fees or Provisions substitute 52 The Interest of Heirs of Provision and import of Clauses of Conquest in Contracts of Mariage TITLE XXVIII Behaving as Heir 1 GEstio pro baerede described 2 The time when this passive Title was introduced 3 The Reasons of introducing it 4 The latitude used in this Title 5 This Title not competent after the Intrometters Death or where there was any colourable Title 6 Behaving as Heirs by Intromission with Heirship only competent against Heirs of Line 7 Intromission of Tutors or Curators infer not gestionem against the Pupils or Minors 8 Cases inferring gestion by Intromission with the Heirship-moveables 9 Exceptions against this member of the Title As first the Pursuer must instruct that the Defunct was either Baron Prelat or Burgess by Infeftments of Lands or Annualrents 10 The 2. Defense against Intromission with Heirship Moveables and vitious Intromission That the Defunct died Rebel and his Escheat gifted before intenting the Creditor's Pursuit 11 The 3. Defense That the apparent Heir Intrometted by a Gift to himself or to his behoose 12 The 4. When Moveables belonging to a Defunct remain in his House whereunto his apparent Heir hath Right by Infeftment 13 Gestion by intrometting with Lands Teinds or Tacks wherein the Intrometter might be Heir 14 Defenses against this member 15 Gestion by intrometting with the Defunct's Charter Chest. 16 Item by intromission with Sums due to the Desunct or doing any Deed that may transmit the Defunct's Right 17 This passive Title excluded unless established in the Behaver's Lifetime 18 How far Heirs Portioners behaving as Heirs are lyable and whether behaving as Heir excludes the benefit of Discussion and Relief competent to Heirs actually entering TITLE XXIX Lucrative Successors 1 THe rise of this passive Title 2 It takes place though the Disposition bear Cause onerous unless it be otherwise instructed 3 It is extended to Dispositions in Contracts of Marriage in some Cases 4 Lucrative Dispositions of any part of the Heritage infer this passive Title 5 This Title is extended to Dispositions made to Oyes though then not immediat apparent Heirs but not to Brothers though none then nearer 6 Whether it sufficeth to infer this Title that the Infeftment was after the Debt or if the Disposition whereon the Infeftment proceeds must also be after 7 Cases in which this Title takes no place TITLE XXX Executory where of Testaments Codicills Legacies Relict`s part Bairns part Dead 's part Confirmations and Office of Executory 1 THe Romans carefulness to preserve the freedom of Testing 2 The ancient form of Testing amongst the Romans 3 The modern form of Roman solemn Testaments 4 Their nuncupative Testaments 5 Their military Testaments 6 Requisits for Roman Testaments 7 How far Sons in familia could Test. 8 Persons who could not Test 9 Persons who could not be institute or substitute 10 Restriction of the freedom of Testing in favour of Children 11 The Legittimes of Children 12 The Falcidian Portion 13 The difference of the Legittime and Falcidian 14 The Trebellianica 15 Fideicommissa 16 Codicills 17 Institution of Heirs 18 Substitution 19 Substitutions vulgar and pupillar 20 Legacies 21 Legacies are void if the Legatar die before the Testator or if the Testament be void unless there be therein a codicillar Clause 22 The Kinds and Effects of conditional Legacies or 〈◊〉 23 Special Legacies 24 Conditions adjected to Legacies in 〈◊〉 25 The Inventary 26 Collation 27 Jus accrescendi 28 The Power of Testing with us may be restricted by Contract or Paction 29 It is restricted to Moveables and extends to no heritable Right 30 Wherein the Office of Executors consists 31 The nearest Agnats are Successors in Moveables to the Intestat 32 The line of Succession in Moveables 33 The Nomination of Executors and Codicills 34 Solemnities requisit in Testaments with us 35 The Effects of Testaments made abroad 36 Verbal Legacies 37 The power of Testing is competent to Minors having Curators without their Consents and to Wives without their Husbands Consent but not to Pupills Idiots or surious Persons 38 Legacies with us 39 Legacies and Donations mortis 〈◊〉 are proportionally abated if they exceed Dead 's part 40 Whether special Legacies will be so abated 41 The Effect of Legacies of things not in the power of the Testator 42 The Effect of Legacies left severally 43 The Relict's part of the Executory 44 The Bairns part 45 What Forisfamiliation is 46 Collation by our Custom 47 Sums bearing Annualrent without Clause of Inseftment fall in Executory as to the Defunct and his Children but not as to the Relict 48 Heirs have no benfit of the Bairns part except they renounce in favour of the remanent Bairns 49 If there be but one Child unforisfamiliat the same is both Heir and Executor and has the full Bairns part 50 The Executory is divided as it was at the Desunct's Death and the time of the Confirmation 51 The interest of the nearest of Kin. 52 Dead's part 53 The interest of Executors nominat and Dative 54 The Order of confirming Executors 55 How Executors nominat in England are admitted here 56 Licences to pursue 57 Executors interest as to the Rent the year the Defunct's died 58 Executors have Right to Steelbow Goods 59 Co-executors and their power 60 The Effect of Executors Assignations before Sentence 61 Executors ad non executa 62 Executors ad omissa malè appretiata 63 Executors Creditors 64 How far Executors are lyable passivè and of their Diligence 65 The Relief 〈◊〉 Heirs and Executors 66 How Executors may safely pay Creditors 67 What time Executors have to do Diligence before they be lyable to Creditors 68 All Executors and Creditors doing Diligence within six months of the Defunct's Death come in pari passu 69 After six months Creditors come in according to the priority of their Diligence 70 Executors paying Relicts Bairns and Legatars after six months and before Citation of Creditors are secure and the
to which it was estimate all the other Goods of the Wife were Paraphernalia whereof she had the sole Power and Right The Customs of most Nations even where the Roman Law hath much weight in this matter have returned to the natural course as is observed by Cassaneus ad consuetudines Burgundiae tit 4. And Duarenus tit ff de nupt in relation to the Custome of France Wessenbecius in parat ad tit ff de ritu nuptiarum And Covaruvias Epitt. lib. 4. Decretal part 2. cap. 7. In reference to the Customs of the Germans Spaniards and most part of the Nations of Europe Gudelinus de Jure Noviss sheweth the same to be the Custome of the Netherlands in which they do almost in every thing agree with our Customs to which we return By the Custome of Scotland the Wife is in the power of the Husband and therefore First The Husband is Tutor and Curator to his Wife and during her Minority no other Tutor or Curator need to be conveened or concur to Authorize So it was decided French contra French and Cranstoun hop tit de minoribus But on the contrair the Wife is in no case conveenable without calling the Husband and though she be Married during the dependance the Husband must be cited upon Supplication and the Process continued against him for his interest Spots Husband and Wife Margaeret Bailie contra Janet Robertson And likewise a Wife being charged upon her Bond given before Marriage but the Letters not being raised against her Husband for his interest they were found null by way of exception Nic. Reverentia Maritalis Relict of Robert Young contra Wachup yet a Wife was found con veenable without calling the Husband he being twenty years out of the Countrey and she repute Widow June 19. 1663. Euphan Hay contra Elizabeth Corstorphin Yea a Wifes Escheat or Liferent falls not upon any Horning execute against her during the Marriage because being then under the power of her Husband she hath no power of her self to pursue suspend or relaxe Dury February 16. 1633. Stuart contra Banner man and this was found though the Decreet was an ejection committed both by man and Wife yet where the Horning is upon a deed proper to the Wife as to divide the Conjunct-fee Lands Horning is valide Nic. Reverentia Maritalis Duff contra Edmonstoun or where the Horning was upon a Delinquence as on Laborrows Hope Husband and Wife Lord Roxburgh contra Lady Orknay In like manner a Wife cannot pursue or charge without concourse of her Husband and so Letters not raised at his instance were reduced though he concurred thereafter Dury July 27. 1631. Robert Hay contra Mr. John Rollo The like Spots Husband and Wife Napeir contra Mr. Robert Kinloch and Agnes Lial The like in a Reduction of an Heritable Right done by the Wifes Father on death bed which was not sustained unless the Husband had concurred or had been called in which case if he refused concourse without just reason the Lords would authorize the Wife to insist July 8. 1673. Christian Hacket contra Gordoun of Chapeltoun But we must except from this Rule if the Husband were Inhabilitat or forefaulted Had. the 26. of March 1622. William Hamiltoun contra Stuart or the Wife authorized by the Lords upon special consideration the Husband refusing to concur Dury the 9. of January 1623. Marshel contra Marshel Or that she were pursuing her Husband himself against whom ordinarily she hath no Action except in singular cases ut si vergat ad inopiam or in case he had diverted from her Dury December 21. 1626. Lady Foules contra her Husband Or if a Wife with concourse of her Friends at whose instance Execution was provided by her Contract were pursuing reduction of a deed done by her Husband in prejudice thereof during her life February 12. 1663. Lockie contra Patoun or that the Obligation in its own nature require execution in the Husbands life as an obliegement to Infeft the Wife in particular Lands but if it be a general Obliegement to imploy Money for her or to Infeft her c. which the Husband may at any time of his life perform the Wife will have no Action against him neither will she get Inhibition upon supplication unless the Lords grant the same upon knowledge that the Husband is becoming in a worse condition or that the Wife hath quite a present Infeftment for an Obligation of an other in which case the Lords granted Inhibition July 13. 1638. Lady Glenbervy contra her Husband This delay where a Term is not exprest is upon consideration of Merchants who ordinarily having no other means than the Stock with which they trade it would ruine them if they were necessitate to imploy it on security so soon as they are married It is a Priviledge of Women amongst the Romans per Senatus consultum velleianum that the Obligations by which they became surety or interceeded for others were void But our Custome hath inlarged that Priviledge so far that a Wifes Obligation for Debt or personal Obliegement contracted during the Marriage is null even though the Bond were granted by her and her Husband containing an Obliegement to Infeft the Creditor in an Annualrent out of their Lands and in this case the Bond as to the Wife and an Apprising thereon as to her Life-rent of these Lands was found null But here there was no special Obliegement of Annualrent or Wodset of the Wifes Life rent Lands but generally out of both their Lands Dury March 24. 1626. Greenlaw contra Gulloway The like Hope Husband and Wife Archibald Douglas of Tofts contra Mr. Robert Elphingstoun and Susanna Hamiltoun The like Dury January 30. 1635. Mitchelson contra Moubray in which case the Bond being granted by the Man and Wife and thereupon Apprising deduced though she did Judicially ratifie it upon Oath never to come in the contrair yet the Bond and Infeftment as to her Life-rent was found null seing there was nothing to instruct her Ratification but the Act of an inferiour Court whereof the warrand was not produced But a Wifes Obligation with her Husband conjunctly and severally oblieging them to pay and also to Infeft in an Annualrent out of either of their Lands found null as to the Wife in the Obliegement to Pay but not as to the Obliegement to Infeft December 15. 1665. Master John Ellies contra Keith Neither was a Wife found lyable for furnishing to the House in her Husbands absence furth of the Countrey which did only affect her Husband Spots Husband and Wife John Loury contra Lady Louristoun The like January 29. 1631. Porter contra Law The like though the cause of the Bond was Money advanced for the Wifes necessar Aliment for which no Process was granted against her till her Husband was first discussed December 22. 1629. Mr. David Artoun contra Lady Hackertoun And also a Wifes Obligation without consent of her Husband found not to affect her but him
in gratification or preference of one Creditor to another who hath done more timeous Diligence by Inhibition Horning Arrestment Compryzing or other lawful mean duly to affect the Dyvers Lands or Goods or Price thereof the meaning is that when these Diligences are not compleat but Inchoat and the Creditor is in cursu diligentiae the Debitor or his Trustee cannot prevent the course of that Diligence by preferring another Creditor doing less Diligence For if the meaning were of Appryzing perfected by Infeftment or Arrestment by Decreet to make forthcoming there needed not this remeid for these Diligences being compleat would exclude any other posterior Disposition or Diligence Yea Inhibition if the Executions were compleat and Registrat would of it self be effectual to Reduce ex capite inhibitionis But if these Diligences be only Inchoat as if the Inhibitor had begun his Execution but had not compleated it at all the Mercat Crosses requisite any Disposition Infeftment or other real Right made to another Creditor medio tempore less vigilent is anullable thereby December 15. 1665. and February 27. 1667. Mr. John Eleis contra Keith and Wishart Or if Lands be Denunced to be Appryzed or Summonds of Adjudication be execute Rights thereafter made to other Creditors doing less Diligence in cursu diligentiae with the first are thereby reducible although done before the Decreet of Apprysing or Infeftment But Inhibition Apprysing or Adjudication Inchoat have no effect as to Moveable Rights not being as the Statute requires Diligences duely to affect that subject Neither doth the laying on of Arrestment affect Heretable Rights and so cannot hinder the Debitor to Dispone these to lawful Creditors doing less Diligence But Horning is a Diligence relating both to the Moveable Estate by single Escheat and the Heretable Estate by Liferent Escheat and therefore after the Charge of Horning it is effectual February 12. 1675. Veach contra the Executors of Ker and Pallat. July 18. 1677. Murray of Kilor contra Drummond of Machany January 25. 1681. Bathgate contra Bogil It hath not been yet cleared by practice if insisting in Processes for constituting Debts be comprehended under other lawful means duely to affect the Debitors Lands or Goods But this Statute will not 〈◊〉 Dispositions or other Rights made in favours of these persons who have used the most effectual Diligence duely to affect the Subject because this prevents Expences prejudicial both to the Debitor and Con-creditors and is not contrary this Statute Neither will Dispositions or other Rights for equivalent Causes Onerous made to Creditors be anulled if not done in cursu diligentiae but if the Con-creditor insist not in his Inchoat Dillgence till it be compleat he hath not the benefit of the Statute vigilantibus non dormientibus jura subveniunt and therefore a Disposition was not Reduced at the Instance of a Creditor who had Appryzed before the Disposition but for several years had neither obtained Infeftment nor charged the Superior February 8. 1681. John Neilson contra Ross of Pittendreich But how long this negligence must be to exclude it must necessarily be in arbitrio judicis But this Clause of the Statute will not anull Dispositions made to buyers for a just price payed where the price was not an anterior Debt due to the buyer for there there is not preference of one Creditor to another but a lawful Bargain in Commerce where the buyer neither doth nor can know Inchoat Diligences but only such as are compleat and Registrat except in the case where the Subject becomes Litigious which is not to be extended to every diligence in prejudice of Puchasers of Lands whereby Rights would become very uncertain especially when Irredeemable Rights are purchased but against the purchasing of Bonds Annualrents or Wodsets it may be more extended as in the former case February 8. 1681. Neilson contra Ross of Pittendreich This Defence was also sustained that the Disposition was for a price payed and for no anterior Debt And in the former case Bathgate contra Bogil the Disposition after Horning though it was in the terms of sale was only anulled because it was granted for anterior Debts due to the buyer Fraud is no vitium reale affecting the Subject but only the committer of the Fraud and these who are partakers of the Fraud as is clear by this Statute bearing an exception of lawful Purchasers not partakers of the Fraud But where the Right purchased hath evidence of Fraud in it self the Purchaser though for a just price payed is thereby partaker of the Fraud and so may be excluded as if the Right acquired bore for love and favour or if it be betwixt conjunct persons the Purchaser must instruct the Cause Onerous as when the Right purchased was from one Brother to another December 28. 1679. Gordoun of 〈◊〉 contra Ferguson of Keroch January 24. 1680. Andrew Crawford contra James Ker. Eightly Though the manner of Probation by this Statute be by the Oath of the Purchaser or Write Yet the Narrative of such Rights being betwixt conjunct Persons albeit it bear Causes Onerous must be otherways astructed wherein Witnesses and other Exidences will be received which is not only sustained As to Dispositions by Parents to Children but by Brothers and Sisters to Brothers or to Good-Brothers and Good-Sisters yet not to two persons Marrying two Sisters or two Brothers where there is but affinitas affinitatis It hath also been extended to Uncle and Nephew where other Circumstances concurred January 18. 1678. Kinloch of Gourdy contra Mr. George Blair December 18. 1673. Creditors of Tarsapy contra Laird of Kinsans The like effect is in Rights acquired in name of Children in the Family who have no visible Estate for these are held fraudulent and may be affected for the Fathers Debt as hath been frequently decided This Case only remains whither a notour Bankrupt may prefer one Creditor to another though neither have done Diligence The Tenor of the Statute favours the Negative annulling Alienations by Bankrupts not being for an equivalent and necessar Cause and therefore it is not safe to purchase from such even by buying 16. Spuilzie is the taking away of Moveables without consent of the Owner or Order of Law oblieging to Restitution of the things taken away with all possible profits or Reparation thereof according to the estimation of the Injured made by his juramentum in litem Thus things Stollen or Robbed though they might be Criminally pursued as Thest or Robbery Yet may they be civily pursued as a Spuilzie Spuilzie inurit labem realem whereby the Goods may be recovered from Purchasers bona fide November 21. 1677. James Key contra Leonard Carnagy and others The profit of things Spuilzied are called violent profits because they are not such ordinary profits as the Persons Spuilzied used to make of the Goods but such as he might have made thereof Where the things Spuilzied have profits as Horse Oxen or other Cattel and Instruments or other
Our Decisions have been exceeding various in this matter for clearing whereof several cases must be distinguished First In the case of the Contracters themselves and in that either the mutual obliegements are conceived conditionally that the one part being performed or upon the performance thereof the other part shall be performed or where the obliegements are not conceived conditionally yet they are properly mutual Causes each of other The obliegement to deliver the Ware and to pay the price in permutation the things exchanged and mutual obliegements for delivery thereof are the mutual causes each of other in Location the use of that which is set for hire and the hire are the mutual Causes and so are the Obligations hinc inde otherways the Obliegements are not the proper Causes each of other but either wholly different matters which are frequently accumulate in the same Contracts or the one but the occasion and motive and not the proper cause of the other The case of Assignays must be considered in all these For the first The Civil Law is for the Negative that in reciprocal Contracts neither party can have effectual Action except he perform the whole Contract on his part As to the first member of the first case there is no question but when the mutual obliegements are conceived conditionally he that demands the one part must perform the other As to the other member when the Obliegments are mutual causes each of other expresly when the Contract bears for the which causes or when by the nature of the thing appeareth so to be It is most consonant to reason to the Civil Law an our Practice that neither party should obtain implement of the obliegement to him till he fulfil the obliegements by him it was so found July 27. 〈◊〉 Laird of Keirs contra Mr. James Marjoribanks Leidingtoun November 〈◊〉 1565. James Crichtoun contra Marion Crichtoun July 1581. Lord 〈◊〉 contra Provost of Lincluden where the reason is rendered because it is 〈◊〉 data non sequuta till he who craves implement fulfil his own part 〈◊〉 though it be ordinarly understood when the cause of the Obligationaltogether faileth yet upon the same ground so long as the cause is suspended or delayed on the one part the effect is also to be delayed on the other But in Contracts wherein the Obliegements are not the proper Causes each of other the one part hath effect before the other be fulfilled and the same is only reserved or declared not to be prejudged by way of Action or Charge Sinclar February 19. 1548. Laird of Ker contra Panter December 1563. Earl of Glencairn contra Commendator of Kilwinning As to the second case whether an Assignay Charging or Pursuing upon a mutual Contract be in any better case then the Cedent or can crave implement till the Cedents part be performed the difficulty is here that if Assiggnays be cloged with the obliegements of the Cedent it will marr Commerce and render such Contracts ineffectual as to summar execution and so Obliegements therein for Liquid sums of Money might not be Poinded or Apprized for nor any Execution valid thereupon but this will not follow for though these Executions be summarly used they will stand valide only the effect will be suspended till the other part be performed But the Assignay having no title whereby to compel his Cedent to perform his part therefore the other Contracter must either be decerned to assign his part of the Contract to the Assignay to the other part that thereupon he may insist for performance and that before the Extract of his Decreet or rather execution may be sisted except as to Adjudication for his security till he procure implement of his Cedents part or otherways that he find Caution that the other Contracter using diligence against his Cedent for performance that the Assignay shall make up what shall be wanting to him as was done in the case betwixt William Cunningham contra John Ross wherein an Assignay Charging upon a Contract for the price of Lands by which Contract his Cedent was oblieged to cause the Tennants pay certain bygone Ferms therefore the Assignay was ordained to find Caution for satisfying of these Ferms against the Cedent February 15. 1627. William Cunninghame contra John Ross. Hope Contracts Laird of Rentoun contra Robert Dowglas And though a Donatar was found to have Right to the price of Lands due by a Contract though the Rebel had not performed his part of the Contract Hope Cessio bonorum Balfour contra Futhy there was nothing alledged of the insolvency of the Cedent But a Donatar pursuing for the price of Fews the Fewers were assoilzied from the Declarator till the Donatar obtained the Fews to be perfected here it was known the Donatar was in trust for the Rebel who was in power to perform January 28. 1673. Lord Lyon contra Arthur Forbes But there can be no reason that the one part of the mutual Cause should be effectual without the other for if the Cedents Back-bond apart would affect the Assignay much more when it is in the same Contract yea though the matter proceed not by way of Contract but by Bonds apart if thereby it appear that these Bonds are mutual Causes one of another the effect should be the same and though there be no more to prove that they are mutual Causes but that they are of the same date and before the same Witnesses the Lords will readily examine the Witnesses insert ex officio whether they be mutual Causes each of other and therefore where a Bond apart did bear that the Creditor should ratifie a Disposition of the same date at his Majority under a great penalty A Bond granted apart to that party of that same date being Assigned the Assignay was found to have no power to lift the principal sum till the Cedent ratified at his Majority or were past his anni utiles without Reduction November 14. 1628. Cunninghame contra Cunninghame The like was found as to Writes of the same date with a Contract anent the same matter though not mentioned in the Contract Hope Contract Duncrub contra Chapman But if in Contracts or mutual Bonds the mutual obliegements have different terms of performance a pursuit upon the one part will not be stoped by not performance of the other part while the term agreed for the performance is not come November 28. 1676. Sir David Carmichael of Basmedy contra Dempster of Pitliver 17. To come now to particulars according to the order proposed Loan comprehendeth both the Contracts in the Law called mutuum and commodatum by the former a thing Fungible is freely given for the like to be restored in the same kind and quantity though not the same individual A Fungible is that which is estimate according to the quantity and is not easily decernable nor noticed in the individual or particular body but only in the like quantity of the same kind the chief of
that no hurt followed and that he was willing to make it up February 14. 1665. Town of Edinburgh contra Sir William Thomson But an Office of a Sheriff Clerk was not found extinct by his being at the Horn for a Debt or being sometimes out of the Countrey having power of Deputation February 6. 1666. Arch-Bishop of Glasgow contra Commissar Clerk of Dumsreis The Office of a Commissar doth also import as a necessary condition that the Commissar be qualified to discharge the Office in his own person though he have Deputs seing he must answer for and over-rule his Deputs February 14. 1666. Arch. Bishop of Glasgow contra Commissar of Glasgow Where it was also found that by the Commissars instructions they must reside in the place of the Commissariot under the pain of Deprivation notwithstanding the common Custome in the contrary which only excuseth from bygone Faults 45. Trust is also amongst Mandats or Commissions though it may be referred to Depositation seing the Right is in custody of the person intrusted Mandatars in the Law could not obliege the Mandator or directly acquire to him but they could only obliege themselves and acquire to themselves and thereafter transmit to the Mandators and that because in most Contracts thereby the person Contracter behoved immediatly to Act and no person interposed which our Customes regardeth not and therefore Mandatars may act in their own names In which case the Right whether real or personal standeth in their person as he who by Commission acquireth Lands or Goods in his own name the real Right thereof is in his Person and there lies an Obligation upon him if he was Commissionat to transmit them to his Constituent but he may also Acquire Transact or Contract in name of the Constituent In which case the real Rights stands immediatly in the Person of the Mandator and the Obligation constitutes him Creditor and there is no Obligation betwixt the Mandatar and the third Party Nor is the Mandatar oblieged to instruct that he had Commission but that is upon his hazard who acted with him unless the contrary be proven by his Oath or Write and therefore a Servant though by a Ticket he acknowledged he had taken off such Furniture for his Masters use was not found oblieged to pay or to instruct his Warrand especially after his Masters death but the Warrand was presumed as known to the Merchand November 17. 1665. Howison contra Cockburn Trust in the Right of Lands Sums or Goods to the behove of another doth frequently occur and because Fraud is ordinarly in it it is not only probable by Write or Oath of the Trustié but Witnesses are examined ex officio to find out the Truth February 22. 1665. Viscount of Kingstoun conira Collonel Fullertoun February 6. 1669. Rule contra Rule February 24. 1669. Earl of Annandale contra Young June 19. 1669. Scot contra Langtoun And Trust was found probable by presumptions only January 12. 1666. Executors of William Stevinson contra James Crawford January 22. 1673. Janet Watson contra Mr. 〈◊〉 Bruce But it was not found proven by a Declaration upon Death-bed in prejudice of the Heir November 26. 1674. William 〈◊〉 contra Stirling of Airdoch But a person intrusted in a Disposition of Lands having componed for the Intrusters Debts was found to have no Interest to burden the Intruster with more then what he truely payed out November 15. 1667. James Maxwel contra Adam Maxwel Neither was a person intrusted for payment of the Intrusters Creditors found to have power to prefer them to the more timeous Diligence of others by Inhibition or Apprizing though only done against the Intruster July 24. 1669. Crawford contra Anderson And a person receiving Money to buy Goods for another but having bought and received them in his own name without mention of the Truster the property thereof was found to be in the person intrusted and his Creditors Arresting were preferred January 24. 〈◊〉 〈◊〉 contra Robertson and Fleming Yet Trust in Sums or Personal Rights after the death of the Person intrusted was found not necessary to be Confirmed as in bonis 〈◊〉 of the Intrusted Person but that the Trust might be proven against the Debitor and the nearest of Kin of the Person Intrusted June 9. 1669. William Streit contra Home of Bruntfield But Trust in an Infeftment of Annualrent found not to make the Person Intrusted lyable for omission but only for Intromission December 18. 1666. Charles Cass contra Mr. John Wat. The like in an Assignation in Trust which was not found to infer an obliegment to do Diligence if the Assignay was not required either to do diligence or denude But he having transferred without Warrand was found lyable for the sum albeit he offered to procure a Reposition July 18. 1672. Janet Watson contra Mr. Walter Bruce And an Assignay in Trust that the sum might be included in his Appryzing giving Back-Bond to be comptable in case of payment having disponed the Appryzing without reservation was found lyable for so much of the sum intrusted as might have been recovered January 5. 1575. Earl of Northesk contra Laird of Pitarro Trust was inferred by a Grand-Fathers delivering of a Disposition conceived in favours of his Grand-Child the Disponer at the delivery having not exprest the terms of the Trust or his design and having recalled and received back the Disposition and Disponed the half of the Lands therein to another it was thence found that the Disposition was not absolute and irrevockable but was intrusted to that third Party to be recalled if the Disponer pleased or otherways to be delivered to the Oye January 25. 1677. Janet Ker contra Niman Ker. When Trust is referred to parties Oath whether such a Right standing in their person be in Trust to the behove of another they use commonly to Depone that it is to their own behove which being found dubious and fallacious what the meaning of such words were special Interrogators are allowed to expiscat the truth And parties use to Reexamined thereupon as whether the Deponents meaning by these words that the Right was to his own behove and not to anothers was only that he gave no Promise or Back-Bond to apply the Right or Benefite thereof in whole or in part to another Or whether the true meaning of the design was that the other put him upon acquiring that Right being a Gift of Non-entry of Lands bought by that other so that the whole benefite should not be applyed to the acquirer himself for it was not presumable that he would put another upon taking Gift of Non-entry of the Lands himself had bought to be made use of to the full extent which being so acknowledged the Gift was found so far to the behove of the buyer that the seller by the warrandice should pay no more for the Non-entry then the acquirer of the Non-entry gave truly for it seing the buyer had communed with the Superior and brought the Non-entry to
far the partners may gift or educat and provide their Children so that the rest are oblieged or understood to concur But such Societies being altogether unaccustomed here it shall be vain to debate the properties of them 85. These be the several kinds of Pactions and Contracts there be other distinctions of them not from their nature but from their adjuncts or circumstancee of which this is the chief that Contracts may be celebrate either immediatly or mediatly by the interposition of other persons as Mandatars or Commissioners concerning which it hath been showen before that as there is a Contract betwixt the Mandant and Mandatar so ofttimes there is a Contract ingaged betwixt the Mandant and a third party who hath acted with the Mandatar according to his warrand in which case ordinarly there is no Contract or Obliegement betwixt the Mandatar and the third party as he who buyes Land in name and to the use of another by his warrand the Lands are acquired to him who gave the warrand and he is oblieged to pay the price to the seller but not his Mandatar so the seller is oblieged to deliver and warrand to him and not to the Mandatar To all manner of Promises and Contracts Caution and Oaths may be accessory with which therefore it shall not be improper to sum up this Title Caution or Surety is the Promise or Contracts of any not for himself but for another and therefore this being a gratuitous ingagement having no equivalent cause onerous as to the Cautioner it required a stipulation among the Romans to make it effectual though it was sometime by Mandats or Constitution but now every promise and paction according to the Law of Nature being effectual it is valid without Stipulation 86. Caution is interposed any way by which the consent is truely given and it may be either by Mandat or Commission when the Mandator giveth order or warrand to Contract with any other party to that parties behove for then that party is the principal Debitor and the Mandator is Cautioner or it may be by taking on the Debt of another freely This Cautioner in the Law is called Expromissor but is more improperly a Cautioner seing himself is principal having but an obligation of relief as Mandatar or Negotiator But the most proper and ordinary Cautioner is he who is oblieged with and for the Principal Debitor and is called ad promissor or fide jussor because upon his Faith or Trust the Creditor contracteth These Cautionary Promises or Contracts are of the same kind or nature with these of which we have now spoken yet have they something peculiar which we shall shortly touch which resolve in these Questions First Whether Cautioners are lyable and conveenable simply or in so far as the principal Debitor is not solvendo or after discussing of him Secondly Whether Cautioners are lyable in solidum or pro rata 87. As to the first the nature and intent of Surety is that the Creditor may be secure of his Debt and therefore Cautioners are not ordinarly decerned till the Creditor assign the Debt and all security they have for it from the Principal if they have not a distinct interest to retain the security January 10. 1665. Lesly contra Gilbert Hay July 10. 1666. Dam Margaret Hay contra Crawford of Kerse 88. Cautioners cannot be pursued till the principal Debitor be discust unless it be otherways Contracted or provided by the Custom or Law of the place It was cotrary by the ancient Roman Law l. jure nov C. de fidei juss which was corrected by the Authentick Constitution Coll. 1. Tit. 4. With us Cautioners are frequently bound for and with the Principal as full Debitors conjunctly and severally and thereby ex pacto the Question ceaseth But otherways the Cautioner is understood to be oblieged for the Principal Debitors performance and so is lyable only subsidiarie after the Principal is discust and specially where the performance is a Trust or Deed proper to the Principal Creditor thus Cautioners for Executors are only lyable after the Executors are discust at least by Horning execute June 27. 1610. John Sorogy contra Constable of Dundee The like though the Executor was alledged to be Bankrupt July 24. 1662. Birsbane contra Monteith But a Cautioner for an Executor was discerned with him superceding execution against the Cautioner till the Executor were first discust December 2. 1662. Dowglas contra Lady Ormistoun And Executors were not holden discust by Horning till Poynding were essayed and search made for his Moveables though none was condescended on February 12. 1623. Arnot contra Patrick Abernethy The like that search behoved to be made both for Moveables and Lands and they Appryzed if any were and that Horning and Caption sufficed not Hope Executors Robert Stuart contra Thomas Fisher. But there is no necessity in that discussing to call the Cautioners December 5. 1623. Ruchead contra Manderson So the Diligence for discussing must be according to the Estate of the Principal Debitor if he have Moveables these must be Poynded if Lands these must be Appryzed if Debts they must be Arrested and made forthcoming 89. Cautioners for Curators are not lyable till they be discust yet they were decerned for constituting the Debt with this quality that before execution against the Cautioners the Curators should be discust in his Person Goods and Lands November 20. 1627. Jean Rollock contra Corsbie 90. Cautioners for the Factors in Camphire to the Burrows found not 〈◊〉 till the Factors were discust July 8. 1626. Smith contra But Cautioners for these Factors were not found lyable for the Goods sent to a Factor after he was known to the pursuer to be Bankrupt March 4. 1630. Richee contra Paterson Cautioners in suspensions are only lyable after discuscussing the suspenders and because by the Tenor of their Act or Bond they are bound to pay what shall be decerned against the suspender if the Decreet suspended be turned into a Lybel they are free or if the reason of suspension was relevant and instructed though it were elided by an answer emergent after the suspension Spots suspension John Weir contra John Bailie And because of the tenor of the Bond and the unfavourableness of the matter it was so strictly interpret that if the suspender dyed before he were discust the Cautioner was free Yet by Act of Sederunt Anno 1649 all Cautioners were declared lyable though the suspender dyed if the Charge being transferred against his Heir or Executors if the Letters were found orderly proceeded which is in use whensoever the Creditor insists in the suspended Decreet and obtains Sentence in which the Cautioners uses to be called A Cautioner in a suspension of a real Action of Poynding the ground was not found lyable to pay the Annualrent suspended but to warrand it February 18. 1623. Blackburn contra Drysdail A Cautioner in a suspension was found lyable though his Bond of Cautionry contained a clause of Relief
found in a Charge to the Cautioners behove against the Co-cautioner July 27. 1672. Joseph Brodie contra Alexander Keith June 28. 1665. Monteith contra Anderson A Cautioner in a Suspension of a Bond wherein there were five Cautioners being distrest and having payed and obtained Assignation from the Creditor was found to have access against the first four Cautioners allowing only his own fifth part Febr. 23. 1671. Arnold of Barncaple against Gordoun of Holm 97. As Caution so Oaths are accessory to all Promises Pactions and Contracts not these declaratory Oaths which are ordinary in the discussing of Rights whereby all persons are bound to declare the truth upon oath as witnesses or as parties against themselves in civil Causes but promissory Oaths whereby they promise to observe or fulfill any thing active or passive never to quarrel it concerning which Oaths there is no small matter of debate among Lawyers what effect they have all do agree that in so far as any promise can be effectual a promissory oath is valid and hath this much of advantage that the Creditor is the more secure because he may justly expect the Debitor will be more observant of his oath then of his ordinary paction seing the penalty of the violation of an oath deserves a more attrocious judgement than any other God being called as a Witness and Judge which effect it hath though adhibit to that which by the matter hath an anterior obligation as obligations betwixt Husband and Wife Parents and Children in these things in which they are mutually oblieged or where there hath preceded or is conjoined an obligator Contract which of it self is binding without an oath 2. All do also agree that Oaths interposed in things unlawful not only as to the manner but as to the matter are not obligator so no man justifieth Herod for taking John Baptists head without cause upon pretence of his oath 3. All do agree that in matters free and in our own power as Contracts are obligator so also are Oaths The question then remains Whether in acts civiliter inefficacious the interposition of an Oath can give efficacy or whether that which is done in debito modo becomes valid by an Oath to perform it or not to impunge it and if that efficacy will not only extend to the swearer but to his heirs or successors Of this there are multitudes of cases and examples debated among Civilians by the Civil Law naked Pactions are not efficacious to ground any Action upon quaeritur whether if the Paction be with an Oath the Creditor may not effectually pursue thereupon By Law likewayes the deeds of Minors having Curators not consenting are null but if the Minor swear not to quarrel them quid juris Minors laesed have by Law the benefit of restitution but if they do the deed upon oath to perform it or not to quarrel it whether if they pursue to reduce it will they be excluded by their Oath or if a Wife be oblieged personally for debt and swear to perform it or never to come in the contrair Whether yet she may defend her self with her priviledge or if a womans Land given her for security of her Tocher donatione propter nuptias be sold by her Husband with her consent which the Law declareth null Whether her oath interposed will validate it or if pactum Legis Commissoriae in pignoribus confirmed with an oath will be valid or if an oath for performance will exclude the common exceptions of fear force or fraud And innumerable such cases whereby positive Law prohibiteth any act to be done or declareth it void simply or void if it be not done in such a manner and with such solemnities For clearing of these and the like cases we are chiefly to consider quae sunt partes Judicis or what is the Judge his duty in deciding cases wherein oaths are interposed rather than what concerns the parties and the obligations upon their conscience by these oaths in foro poli and therefore we shall take up the matter distinctly in these ensuing points First if an Action be pursued upon a ground ineffectual in Law albeit the Defender hath interposed an oath never to come in the contrair yet that which would not be sustained by the Judge though the Defender should not appear or object which is ineffectual of it self in that case the interposition of an oath hath no effect as if by the Civil Law an Action were intented upon a promise or a naked paction with an oath interposed the Action would not be sustained albeit the Defender should not appear or appearing should not object that it were a naked paction Or if a Declarator should be intented to declare pactum legis commissoriae in pignoribus to be valid and effectual though it were lybelled that the other party did swear never to come in the contrair yet the Judge could not sustain such an Action nor generally can sustain any Action which is unjust or irrelevant albeit it should not be opposed but consented to simply or with an oath never to quarrel it because in such cases pactis privatorum non derogatur juri communi The consent or oath of no party can make that just which is unjust nor can make that sufficient or effectual that is deficient in its essentials as if any party should grant a Disposition of Lands or Annual-rents and declare that it should be effectual for poinding the ground without Infeftment and should swear never to come in the contrair thereof if thereupon the obtainer should pursue poinding of the ground the same could not be sustained because these Rights are defective in their essentials wanting Infeftment and yet in these cases if the party should object or any way hinder the effect of their oath they contraveen the same But the Judge not sustaining the same doth no wrong because his not sustaining proceeds upon a defect of an essential requisite and not because of any exception or objection of the party from this ground it is that if a Wife be pursued or charged upon a Bond for Debt subscribed by her bearing expresly her to be designed a Wife though it were condescended on that she made faith never to come in the contrair the Lords would not sustain the pursute or Charge because by the very Action it self it appeareth that the Summonds or Charges are irrelevant and contrair to Law which declareth a Wifes Bond for Debt ipso jure null and therefore though she may be faulty in suspending or hindering the performance of the ingagement of her oath the Lords do justly reject such an irrelevant Libel or Charge as they did in the case betwixt and Catharine Douglas Feb. 18. 1663. where her Band was suspended simpliciter as being expresly granted by a wife though she judicially made faith never to come in the contrair or if the husband should suspend and alledge that such an Obligation or Oath could not be effectual against his Goods or the person
last case whether Oaths be only personal oblieging the swearer and so inherent to their persons that they bind not their Heirs wherein some are for the affirmative that even Heirs are oblieged as being fictione juris eadem persona cum defuncto which is also fortified by the punishment in the Successors of Israel in the days of Saul but I rather incline to the Negative that Heirs are not oblieged but only the persons who swear which is the more common opinion of Lawers Civilians and Canonist's nor doth the instance infer the contrary because Oaths by Societies and Incorporations continue not as to their Heirs but because the Society dieth not and is ever the same especially in Contracts betwixt Nations where the parties intend not to obliege particular persons then living but the Nation neither doth the fiction of Law operate in this case for no position or fiction of Law can either extend or abriege the obligation of an Oath which is alterius superioris juris There remains yet this Objection that if Oaths be so effectual great inconveniencies will follow a door being opened to Force and Fraud for the same facility that parties are induced to act they will be induced to confirm it by an Oath It is answered in commodum non solvit argumentum which therefore was not regarded in the case of Agnes Grant contra Balvaird but there may be a remeid by severe punishment upon parties who shall induce others to swear to their own hurt which the Prince may inflict and repair the damnage of the laesed it is true if the fear be such as stupifieth and takes away the act of reason there is nothing done because there can no Contract in its substantials consist without the knowledge and reason of the party or if the deceit be in substantialibus as if a man should by mistake Marry one woman for another there is nothing done but when an act of reason is exercised But upon motives by fear error or mistake the deed is in it self valid but annullable by the Fear or Fraud which are excluded by the Oath against which they cannot be alledged by the party who hath sworn but may be proponed by his Heirs Executors or Cautioners or any other having interest Having now spoken of the several kinds of Obligations before we go over to real Rights it is fit to touch the common considerations that fall into all or most Obligations as to the implement or performance thereof viz. delay interest profite time place and manner of performance 98. Delay or mora is not that time which by the adjection of a day or condition or by Law is allowed to perform but that time which runs after lawful delay is past and is the Debitors fault in not performing his Obligation so that it seldom makes any part of the Contract whereupon the Obligation ariseth except penalties be adjected in case of delay or an estimation made of the interest Delay is incurred in pure Obligation by interpellation or requisition for when no term is prefixed the option of the Debitor is the time of performance and though requisition be most clear and secure by Instrument of a Nottar and therefore verbal requisition by a Merchant to a Skipper to loose after the Ship was loadened was not found sufficient without an Instrument where the Charter party had no definite term but to do diligence to transport the Fraught February 14. 1678. David Calderwood contra James Angus Yet in some cases that is not necessar but being only emission of words it will only be probable by the Debitors Oath or Write In Obligations to a day delay is incurred by the passing of the term nam dies interpellat pro homine In Obligations Conditional delay connot be till the condition be purified and even then either requisition or a term is requisite for it is frequent in Obligations Conditional to add a term also so that the existence of the condition makes the Conditional Obligation to become pure and so requisition is to be used before delay if no term be exprest but if there be no party who can require or be required delay is incurred if performance be not made so soon as it can be as is in the case of the Restitution of things found or come in the hands of others without Contract which is seldom known to the owner So also in Obligations due to Pupils delay is incurred without requisition l. 1. § ult de ujuris And in Obligations by Delinquence delay is without requisition and runneth from the first time performance can be made Till delay legal execution is not competent ordinarly because none should be pursued till he have failed Yet in some cases the Debitor may be pursued before the term to pay at the Term as si vergat adinopiam Yea in removing it seems very expedient to pursue the party warned even before the Term to remove at the Term otherways the Lands cannot be safely set the Tennent not knowing if others will remove willingly and may not be uncertain in that point which is a publick Interest for setting Land and preventing wast but upon all Obligations which are truely contracted the legal diligences of Arrestment or Inhibition may be used even before requisition or the term of performance The ordinar effect of delay is that when the Obligation is to give or deliver any thing if it perish even without the Debitors fault it perisheth to the Debitor and must be made good to the Creditor unless it appear that it would have so perished with the Creditor which seldom can be made appear because it is ordinarly presumed that if the thing had been delivered the Creditor would have disposed of it and so been free of the hazard especially if it be a thing for sale not for keeping and if an occasion was offered to have disposed thereof 99. The next effect of delay is the interest or damnage of the Creditor for if the Obligation be performed within the due time and in due manner there is no interest if not after the delay incurred by requisition or term it is in the Creditors option to pursue for performance or for damnage and interest But in some cases delay may be purged which is much in arbitrio judicis and is always granted in things penal where the penalty is great and exceeds the true interest as in non-payment of Few Duties which infers loss of the Few And in Clauses irritant in Wodsets When delay is purged the hazard returns upon the Creditor and the Debitor is free if the thing to be delivered perish but if the Creditor do again equire after the former delay is purged delay is again incurred by that new requisition This is a general rule 〈◊〉 factiimprestabilis subit damnum interesse yet in some cases if the delay be wilful or fraudulent that the thing might become imprestable all personal execution by escheat and Caption will proceed Interest may either be
Water rising in Fountains there drying of Nets erecting of Tents and the like Yet doth the Shoar remain proper not only as to Jurisdiction but as to Houses or Works built thereupon and as to Minerals Coals or the like found there and so is not in whole common but some uses thereof only Nor doth it follow that these uses are not common to all men because they are denyed to enemies for as for these we may take away that which is in their power in some cases so much more may we detain from them that which is ours and as we pursue their Persons and Goods in their own much more in our bounds The Shoar in the civil Law is defined to be so far as the greatest Winter Tides do run Inst. de rerum divisione § 11. which must be understood of ordinary Tides and not of extraordinary spring Tides But the use of the Banks of the Sea or Rivers to cast Anchors or lay Goods thereon or to tye Cables to Trees growing thereon or the use of Ports which are industrial or Stations made by Art or fortified for security are not common to all men but publick to their own people or allowed to others freely for commerce or in some cases are granted for a reasonable satisfaction of Anchorage Portage or other Shoar dues which oftimes belong to private persons by their proper right or custom or by publick grant So also Ways or Passages in the Land are common to all and may not be justly refused by one Nation to another and being refused have always been accompted lawful to be forced as Plutarch relates of Simon who going to Lacedemon forced his passage through Corinth And Agesilaus returning from Asia craved passage through Macedon and while they craved time to consult of an answer he conceiving delay to be a denyal said consult you but I will pass but to take away all questions whether these were by might or right we have a divine Example of Moses Numbers 20. Verses 17 and 19. where Israel in their way to Canaan craved passage of Edom by the high ways and offered payment even for their Water which was to be understood of their standing Water as Wells which were rare and precious there and did the like with the Ammonites and upon refusal forced it by War There is also in Property implyed an Obligation of Commerce or Exchange in case of necessity for without this property could not consist seing by the division inferred there through every man cannot have actually all necessars without Exchange which being denyed in cases of necessity or where there is no common Authority may be taken by force as these who pass through the Territories of others if by their opposition or otherways they be short of provision they may lawfully take the same for Money as is implyed in Moses offer to Edom yea there is implyed in property an Obligation to give in cases of necessity to these who have not wherewith to exchange and cannot otherways preserve their life but with the Obligation of Recompence when they are able for humane necessity doth also infer this but it must be a real and not a pretended and feigned necessity So David being hungry eat the Shew-bread though appropriat to God And the Disciples being hungry eat the Ears of Corn and this is the ground of the Obligation to aliment the poor which though it also floweth from the Obligation of Charity yet as hath been spoken before that Obligation hath no determinat bounds but is left to the discretion of the giver not of the demander and so can be no warrand for taking by force and without consent 7. The Community that is of Grass and Fruits growing upon the high-ways followeth the Community of the ways themselves But the common use of natural Fruits brought forth without industry even in proper Fields as of Nutts Berries or the like Or the promiscuous use of Pasturage in the Winter time accustomed in many places of Scotland are no part of this Community but are for the most part permitted as of little moment or disadvantage and therefore may be denyed without injury 8. The second step of real Rights is Possession which as it is the way to property and in 〈◊〉 cases doth fully accomplish it so it hath in it a distinct lesser Right then property which hath no other name then Possession though it be more facti then juris And seing Possession is a common precognit to the most of real Rights it fitly falleth in here to be considered both as it is a Fact and as it is a Right for as it is a Fact it is not only requisite to constitute real Rights but is also an effect thereof when constitute 9. Possession hath its name from its special kind for it is as much as positio sedium expressing the way of Possession of the Earth at first common by Families Nations or Persons by fixing or settling their Seats or Habitations there evidencing their affection and purpose to appropriat these Seats which therefore was not understood by their passing through it but by fixing in it and therefore Territories of old were called Possessions That we may take up aright the nature of Possession wherein it doth consist and how it is begun continued interrupted and lost we must first distinguish the several kinds of Possession And secondly collect the common nature wherein they agree And thirdly the point of Right thence arising As to the First The reason why the kinds and distinction of Possession are so much multiplied is because by positive Law and the custom of Nations Property and Servitude cannot be constitute but by Possession though it be not natural or necessary to these Rights but by the will and constitution of men therefore it receives diversification at their pleasure 10. So what men think fit to call or esteem Possession is enough to constitute Property seing without any thing such it may be constitute as afterward appears Hence ariseth the distinction of Possession in Natural and Civil the former being that which is and the latter that which is holden or repute such under which there are degrees as it cometh nearer to the natural Possession we shall proceed in order from the more plenary and plain Possession to these which are less clear 11. First then the clearest Possession is of Moveables and it is the first possession that was amongst men for so did the Fruits of things become proper and thereafter Ornaments Cloathes Instruments and Cattel become proper the possession whereof is simple and plain holding and detaining them for our proper use and debarring others from them either by detaining them in our hands or upon our bodies or keeping them under our view or power and making use of them or having them in fast places to which others had no easie access This possession of Moveables was so begun and continued and by contrary Acts interrupted and lost when others exercised the same
granted after the Liferent Escheat fell in prejudice of the Superiour and Donatar July 3. 1624. Moor contra Hannay and the Earl of Galloway And extended to a Tack or Few of Ward-Lands not Confirmed by the Superiour in prejudice of his Donatar of the Ward March 13. 1627. Laird of Ley contra Blair And extended to the profits of a Procurator-Fiscals place wherein the incumbent served three years without interruption though his Right was reduced thereafter and declared null ab initio February 17. 1624. Thomson contra Law It was also extended to one who having a posterior Right of Reversion first redeemed and possessed thereby as to bygones before the Citation though he had not possest so long as to give him the benefite of a possessory Judgement November 18. 1664. Guthrie contra Laird of Sornbeg It was also sustained against a Minor reducing upon Minority and Lesion yet the possessor by vertue of his Contract was secure as to bygons before Citation here there was a probable cause of contracting for an onerous consideration though not fully equivalent February 16. 1666. Earl of Wintoun contra Countess of Wintoun Upon this Title a Tennent was liberat from removing upon a warning by a Fiar after the death of his Father the Liferenter in respect he set the Tack without mention of his Liferent and was reputed Fiar and therefore the Son was put to a new warning February 16. 1669. Hamiltoun contra Harper Possession bona fide was found to Liberat an Appryzer from being countable to the other Appryzers within year and day July 17. 1675. Bailzie Baird contra Bailzie Johnstoun It was also sustained against the Donatar of forefaulture January 28. 1679. Laird of Blair contra Lady Heslehead It was also sustained upon an Infeftment for relief whereby the rents were to be imputed in satisfaction both of the Principal and Annual February 8. 1676. Margaret Scrimzour contra the Earl of Northesk Yea it was sustained though the possessors Title was forged he being a singular Successor not accessory to or conscious of the forgery even after improbation of his Title was proponed by exception but not sustained but reserved by way of Action in which the Title was found false yet the bona fides was extended to the rents spent till he was put in mala fide by probation of the forgery but he was found lyable in quantum lucratus for getting more price for the Land in question then he payed to his Author therefore December 10. 1677. Dick of Grange contra Sir Laurance Oliphant But no unlawful Possession is valid in this case if it be vitious violent clandestine or momentany But it is not so evident when a possession is accounted momentany sure little time will suffice in Moveables but in Lands more time is required a year or term or less time may suffice This Right is different from the possessory Judgement competent upon Infeftments which require longer time and because it is an effect of Infeftments Tacks or the like we shall speak thereof in that place If the Possession bona fide be by vertue of a colourable Title though perhaps null in it self upon informalities in the Law requisite or upon Inhibition interdiction or want of power in the granter it is effectual Yet when by a common or known Law the Title is void materially in this case the possessor is not esteemed to possess bona fide it being so evident ignorantia juris non excusat As if a Relict should possess Lands or others the Marriage being dissolved by her Husbands death within year and day November 16. 1633. Grant contra Grant Hereby it is evident that possession hath much in it dictinct and several from Fact and therefore it stands in place of a Title in Ejections and Spuilzies 25. By the Canon Law allowed by our Custom possessor decennalis triennalis non tenetur docere de titulo etiam in causa salsi whereupon Prebendars were assoilzied from production in an improbation of their provisions Hope Improb Bishop of Galloway contra the Prebendars of the Chappel-royal But this holds not in Reductions where the Title is supposed but craved to be reduced upon a better Right as when the debate is who hath the right of Patronage Earl of Wigtoun contra Drummellier July 24. 1622. Earl of Wigtoun contra Bishop of Glasgow for in these cases an Ecclesiastical persons Title was to be reduced in consequentiam with the Patrons Title which hath not this priviledge But this possession must be as being holden and repute a part of a Benefice and must be proven by Witnesses and therefore the possession of Lands by tollerance was found probable by Witnesses to elide thirteen years possession thereof by a Minister who pretended to it as a part of his Glibe Ministers of contra Duke of Bucleugh And if the Church-mens Title can be found their possession will be ascribed thereto and regulate thereby And therefore the Bishop of Dumblain as Dean of the Chapel-Royal having long possest ten Chalders of Victual as a part of his Benefice there being found a Mortification of that Victual by the King bearing the King to have had right by Disposition from another and that others right being produced did bear Reversion in the body thereof for seven thousand Merks which being payed to the King when the Bishops were supprest and his grant of Redemption thereupon voluntarly without an Order or Sentence The Church-mens possession more then thirteen years before the Redemption and thirteen years after the Redemption was elided by the reverse Right and Redemption Neither did the Act of Sederunt after the Reformation declaring ten years possession of Kirk Lands before the Reformation and thirty years after to import a right sustain this Church-mans possession That Act being only for Fews granted by Church-men not for rights granted to Church-men July 7. 1676. Bishop of Dumblain contra Francis Kinloch And it was found that thirteen years possession of Viccarage by a Minister did not prefer him to a Tacksman where the Ministers Title was a Decreet of Locality produced and not containing the Teinds in question February 24. 1681 Doctor Lesly contra the Minister of Glenmuck This right in favours of Church-men is by a rule of Chancelary of Rome which hath been continued after Reformation as being convenient that less time and Title should give right to the Church Benefices whose Mortifications may be easilier lost or supprest then other Rights There is also another rule in the Chancelary that triennalis pacificus possessor beneficii est inde securus this rule gives not right to the Church but prefers one Church-man to another if he continue to possess three years without interruption though he could not defend by his Right There is a third Benefite by Possession of Benefices and Stipends by seven years peaceable possession whereby they have the benefit of a possessory Judgement and cannot be called in question but by Reduction or Declarator and
the Precept and exponing it if it be in Latine and then the words of the Precept should be Ingrossed Seventhly It bears the Superiour or the Bailzies delivering of Earth and Stone of the Land to the Vassal or to his Aucturney bearer of the Precept Or delivery of any other accustomed Symbol as a penny for an Annualrent a Net for Fishing a Clap for a Miln Eighthly It bears the Aucturneys requiring Instruments Ninthly It must bear that these things were done upon the ground of the Land or other Hereditament and the hour of the day before two Witnesses at the least required thereto And last The attest of the Nottar bearing the auctority of his Creation and that he was present with the Witnesses vidi scivi audivi that the things contained in the Instrument were so done as is exprest therein and that he took a Note thereof and thereupon drew a formal Instrument and insert the same in his Protocol whereunto are adjoyned his Sign his Motto contained in his Commission relating to his faithfulness and trust and his name or the initial Letters thereof 18. If any of these be omitted the Nottar may be exauctorat and punished by the Lords but the essentials are much sewer Yet the Seasine must contain the delivery of symbolical Posession by the Superior or his Bailzie to the Vassal or his Acturney upon the Ground of the Land or other Tenement in presence of the Nottar and Witnesses with the date and subscription of the Nottar But the delivery of the symbol of an Office having no particular place or ground is sufficient any where as a Batton for a Military Office or a scrol Book or Cape for a Civil Office But where the Fee hath a particular ground or place there it must be taken upon the ground and it will not be sufficient to be in view of the ground yet Law or Custom may otherways order in case of necessity As the Infeftments of Lands in Nova Scotia were appointed to be taken at the Castle-hill of Edinburgh And when Lands are rightly Unite or Erected in Barronries Seasine taken upon any part thereof sufficeth for the whole and without Union Seasine taken upon any part of the Lands will serve for all the Lands in the Infeftment lying contigue Craig relates that a Seasine was found null and false where it bore These things were done upon the ground of the Land albeit the parties had put of the ground of the Land on which they stood within their Shooes but were not upon the fixed ground thereof The Instrument of Seasine must be taken by a publick Nottar lawfully authorized at the least so holden and repute for though the Nottar be deprived it will not vitiat his Instruments taken bona fide by persons who knew not his deprivation till it be commonly known or Letters of publication intimat at the Mercat Cross. A Seasine was also found null because it wanted these words vidi scivi audivi Hope Seasine Primrose contra In ancient Rights or where there is not a more Solemn Infeftment Seasines have been sustained though with considerable defects as where the Seasine bore not delivery of Earth and Stone but only actual and real Seasine June 17. 1630. Earl of Wigtoun contra Earl of Cassils But not where the Seasine wanted delivery of Earth and Stone and the name of the Aucturney Hope Seasine Laird of Lie contra Earl of Callender A Seasine was sustained though it did not repeat the Precept and did not bear delivery of Earth and Stone but only of the ground of the Land yet was preferred to a posterior formal Seasine taken after the matter was Litigious October 23. 1680. Lady Lambertoun contra Laird of Polwart And a Seasine being the Title in a Reduction was sustained to infer Certification though it bore not delivery of Earth and Stone nor Instruments taken nor the hour nor being conform to the warrand but bearing only according to the custome in such cases but the defender thereafter having made a production of his Right certification was not granted contra non producta March 20. 1632. Laird of Lie and Stuart contra Earl of Lunderdail Aand Seasine of Land and a Miln was sustained bearing delivery of Earth and Stone of the Land and Milne with all solemnities requisite March 15. 1631. Laird of Swintoun contra Vassals of Dumfermling 19. Seasines being but the assertions of a Nottar do not prove or instruct a real Right unless they be astructed by a Warrant or Adminicle in write except that it be against Tenents at the instance of their Master who is known to be in Possession or that Prescription hath run by one or more subsequent Seasines and 40 years peaceable Possession And albeit the most ordinar warrant of Seasines be the Superiors Precept Ingrossed or related to in the Seasine yet after 40 years Possession there is no necessity to produce Precepts of Seasine Procuratories or Instruments of Resignation even in the Case of Reductions of Infeftments for want of these Parliament 1495 cap. 214. In which there is not required peaceable possession neither yet continued possession as is required in the Act of Prescription so that Interruptions as to this point will not alter the case but there is no necessity to produce any more for instructing an Infeftment but the Seasine and a warrant thereof such as a precept of Clare Constat a precept out of the Chanclery a disposition or contract of Alienation according as the Seasine doth relate to the one or the other As if the Seasine bear to proceed upon a precept contained in a Charter ter Disposition or Contract of Alienation these must be produced specifice as they are related not only passive to defend in Reductions but active as Titles of Reductions Declarators and all other Processes except against Tenents or naked Possessors or where prescription hath run because the Charwhen it is related to is a part of the Investiture making up the real Right and therefore as hath been now shown § 14. there is no necessity to produce a Disposition Contract of Alienation or Bond though the Charter relate thereto But if the Seasinebear to proceed upon a Precept contained in a Disposition Contract of Alienation or Bond then these are parts of the Infeftment and make up the real Right and so must be produced that the Defender may except or defend upon any clause therein contained in favours of himself his predecessors or authors unless the Infeftments be ancient and clede with long possession in which case it is like the Lords would extend the foresaid Statute and would sustain a Disposition Contract or Bond as a sufficient Adminicle of the Seasine though it related not thereto And albeit this Statute mentions only that Charter and Seasine shall be sufficient under which a disposition or Contract of Alienation must be comprehended when the Seasine is immediatly taken thereupon and not upon a formal Charter for then they
the witnesses insert make a strong probation To return to Seasines propriis manibus by Husbands to Wives without warrand or adminicle in write they are not generally probative except in such cases as have been now exprest Hope Seasine Bell and Morison contra Thomson Laird of Coldingknows contra Dam Helen Hereis 20. But for the further securing of Infeftments and Land-rights that excellent Statute which before was attempted was at last perfected Par. 1617. cap. 16. whereby all Seasines Reversions Regresses Bonds or Writes for making of Reversions and Regresses Assignations thereto and Discharges thereof Renunciations of Wodsets and grants of redemption not being Registrat in a peculiar Register appointed for that end or in case of Consigning Renunciations and grants of redemption in Process within 60 dayes next after the Decreet ordaining the same to be given up to the parties having right thereto or at least within 60 dayes after Seasing taken of the Lands or Rights to which the reversions relate It is declared that the saids Seasines and other Writes shall make no faith in Judgement by Action or Exception in prejudice of a third Party who had acquired a perfect and lawful right to the saids Lands and Heritage without prejudice to make use of these rights against the granter and his Heirs But there are excepted Reversions contained in the body of the Infeftment and all Seasines Reversions c. Of Tenements within Burgh 21. And to make Land-rights yet more secure because the former Act did not require Registration of Instruments of Resignation in the Superiors hands adremanentiam whereby purchasers were not secure but that the Lands acquired by them might have been resigned or renounced to the Superior whereby their Authors Fie became Extinct without necessity of new Infeftment being consolidat with the Superiority whereby the Superiors Infeftment carryed both Superiority and Property Therefore Instruments of resignation not being Registrat are declared null yet with exception of Tenements holding Burgage And therefore a Seasine within Burgh was sustained though not found in the Towns books June 30. 1668. Mr. Robert Burnet contra Swan February 11. 1681. Francis Irwing contra Corsan Upon Consideration of this Case the Lords by act of Sederunt ordained the Burrows to take sufficient Caution oftheir Town Clerks present and to come to insert in their books all Seasines given by them of the Tenements within Burgh and all reversions or Bonds for granting reversions assignations thereto and discharges thereof renunciations and grants of redemption and that within 60. dayes after the giving of Seasine or presenting to them of the reversions or others foresaids and that under the pain of the damnage of any Party acquiring bona fide for onerous Causes by such Latent rights though prior declaring that they will hold all such Seasines reversions c. to be given hereafter and not insert in the Towns books in manner foresaid to be Latent and Fraudulent keeped up of design to insnare lawful purchasers But there is now an Act of Parliament requiring the inserting of Seasines within Burgh in the Town-Clerks Books in the same manner and under the same certifications as is required to the Registration of Seasines without Burgh 22. And for the further security of Land-rights because Apprysing or Adjudication with a Charge of Horning thereupon against the Superior maketh for some time a real right Therefore an abbreviat of Apprysings contained in the allowance thereof written on the back of the same and signed by two of the Lords was ordained to be Registrat in a particular Register for that purpose within 60. dayes after the date of the Apprysing with certification that any other Apprysing though posterior in date yet first allowed and registrat shall be preferred Parliament 1661. cap. 31. which is extended to Adjudications Parliament 1672. cap. 19. But this relates only to the new form of Adjudications then introduced in place of Apprysing But for the old Adjudications upon there nunciations of Heirs or implement of Dispositions neither Statute nor Custom have yet cleared whether these will be effectual against singular Successors from their Dates or from the Charge against the Superior or only from the Seasines thereupon which as all other Seasines must be registrat And if the Lords do sustain these from the Charge it will make a defect in the security of Land-rights till it be supplied by act of Parliament And for further security of Land-rights because they might be reduced upon Inhibition or Interdictions Therefore these if not registrat are also null And in respect Horning continuing unrelaxed year and day after the denunciation the Superior hath the Fee during the life of the Vassal denunced therefore horning if not registrat is also null and the act of Prescription excludes all prior rights preceeding 40. years unless they have obtained Possession or done digence therefore by interruptions which must be repeated every five years or else they are null and must also be execute by a Messenger so that where before a Citation made interruption which continued for forty years which might much insecure Purchasers they can now last but five years in which short time the noise thereof may readily reach purchasers so that if purchasers get a progress of Infeftment for fourty years he may by the Registers know it there be any real Right that can affect the Fee within that time and hath no more to enquire but as to interruptions within five years which if the Lords appoint to pass only upon Bills it may be found at the Signet So that upon the whole matter no Nation hath so much security of irredeemable Land-rights as we have It is true redeemable rights are not so secure because they may be evacuat by order of redemption which proceed by Instruments of premonition and Consignation which require no registration and therefore purchasers of Appryzings or Adjudications during the legal reversion are in hazard of any order of Redemption or Summonds for Count and Reckoning and likewise these who purchase Wodsets or Infeftments of property or annualrent for security of sums run the hazard of satisfaction and payment of these sums by intromission or otherways wherein there is little inconveniency for no man should purchase a redeemable right without consent of the reverser but upon his hazard or if there be any reversion reservation or real burden in his authors right sibi imputet it is his fault and negligence if he did not see it and secure himself against it The Question may occur here if the Keper of the Register of Seasines do according to the Custom mark the Seasine Registrat and attest the same by his subscription and yet by negligence or fraud shall not insert it in the Register whether in that case a purchaser bona fide for causes onerous though Infeft thereafter will be excluded by that prior Infeftment marked by the Clerk not recorded though nothing hath been observed in this case If Seasines marked Registrat
possession as a base Infeftment by Fathers to their Children was not sustained by the Fathers possession whose Liferent was reserved therein June 26. 1634. Dury contra Bruce But a posterior base Infeftment to the Wife was preferred in this case as being cled with the Husbands possession though common author to both the Son and Wife The like of a base Infeftment granted by a Goodsire to his Oy reserving the Goodsires Liferent July 3. 1624. Earl of Annandale contra Johnstoun And an Infeftment by a Father to his Son was not found cled with possession by the Fathers possession though he had a Factory from the Son but it was not alledged that the Father had granted Discharges expresly relating to the Factory July 10. 1669. Gardner contra Colvil Yet in the competition of two base Infeftments the former being granted to a stranger for relief of Caution and the latter granted to a Son and appearand Heir for relief of his Caution exceeding the value of the Lands the Sons base Infeftment though posterior having first attained possession and being without all suspition of Simulation was preferred And it was not found that Infeftments for relief were in the same case with Warrandice Lands where the possession of the principal Lands is fictione juris a possession of the Warrandice Lands These Infeftments being less subject to fraud or uncertainty then Infeftments for relief which relate to personal debts and oftimes generally to all debts or Cautionries contracted or to be contracted which debts may be retired and keeped up and made use of by the Infeftment for relief June 26. 1677. Mr. John Inglis contra Tennents of Eastbarns Infeftments base to Wives not being upon their Contracts of Marriage or in place thereof are not holden as cled with Possession by the Husbands Possession 28. Infeftments by Confirmation do not only require a Charter from the Disponer bearing the Lands to be holden of the Superiour and Seasine thereupon but require also the Superiours Confirmation till which it is no real Right but null but whensoever the Confirmation is added the Right becomes valid from the date of the Infeftment Confirmed as to the right of property and as to the Superiours Casualities and therefore an Infeftment ase not confirmed was found null by exception though cled with some years possession December 4. 1623. Patton contra Stuart and found null though the Confirmation was past the Privy Seal Hope Confirmation Hunter contra Dalgleish And also found null in an Annualrent holden from the Disponer not Confirmed Hope Confirmation Lord Balmerino contra Coatfield But if there were any mid impediment betwixt the Charter Confirmed and the Confirmation it excludeth the Confirmation and whole right as an Appryzing and Infeftment But Confirmation of a right not bearing to be holden of the Superiour but of the Vastal makes it not a publick Infeftment nor takes it away the Superiours ordinary Casualities as Ward but only Recognition and Forefaulture Hope Confirmation Lady Cathcart contra Vassals of Cathcart November 17. 1627. Laird of Clackmannan contra Balnamoon Hence it is that because Confirmation constitutes Rights holden of the Superiour that the first Confirmation makes the first Right though it confirm a posterior Infeftment from the Vassal as is clearly determined in the case of double Confirmations holden of the King Par. 1578. cap. 66. which is not introduced but declared by that Act and holdeth alike in other Confirmations It doth of times fall to be doubtful whether a Confirmation makes an Infeftment publick or not when Seasine is taken upon a precept of Seasine in a Disposition Which Disposition contains obliegments for Infeftment de se ase by Confirmation But the precept of Seasine relates not specially to either obliegement and Seasine is taken thereupon and is afterward confirmed The question comes whether this be only a Confirmation of a base Infeftment to exclude Forefaulture or Recognition or if it doth make the Infeftment publick it is generally constructed as a publick Infeftment as was found July 5. 1680. Bishop of Aberdeen contra Viscount of Kenmure 29. Infeftments upon Appryzing or Adjudication when formally perfected do require Charters to be granted by the Superiours of the Appryzed Lands or other real Rights the Tenor whereof is already set down in this Title and Precepts and Seasines thereupon which have little peculiar differing from other Infeftments as to their Tenors and Effects but that their reddendo is ordinarly general when the Appryzer or Adjudger cannot prove or instruct the Tenor of his authors Right and therefore do bear such duties and services as were contained in the Authors Rights which the Superiour may be charged to renew and make special so soon as the Authors Rights are produced and if they be not so renewed they are understood as Ward-holdings But for Renovation thereof the Appryzer or Adjudger will get Letters of Horning summarly upon the allowance of the Appryzing or Adjudication which will not be excluded although the Superiour have already granted Infeftments in general terms as aforesaid but he must renew the same according to the special Tenor of the Authors Right produced and that without any new composition yea the Appryzers Heirs upon supplication will obtain Letters of Horning summarly for renewing the same and so will his singular Successors but they must pay a years Rent for their Entry whether their Title be Appryzing or Adjudication against the former Appryzer or Adjudger in wich case he may make use of Letters of Horning upon the allowance of his own Appryzing and though his Title be a voluntary Disposition he will get Letters of Horning as succeeding in the place of the former Appryzer or Adjudger to renew and make special the former Infeftment to his Author upon payment of a years duty But Appryzing and Adjudications being legal Dispositions and conveyances of the Authors Infeftment we shall say no further of them in this place but leave them to the Title twenty four where they are considered amongst Dispositions We shall only add here that before the year 1624. Appryzings were left at the great Seal by warrant from the Lords whence Precepts were issued thereupon against the Superiours to Infeft which if they obeyed not Charters were granted by the King to supply their Vice but since they are retained by the Appryzer and he may have Letters of Horning summarly Charging the Superiours to grant Charters and Precepts of Seasine as is aforesaid 30. This also is singular in Appryzings and Adjudications that a real Right of Fee is constitute thereby by a Charge of Horning against the Superiour without Charter or Seasine For such Appryzings or Adjudications are declared effectual by the Act of Parliament 1661. cap. 62. ordering the payment of debts betwixt Creditor and Debitor For after that Charge no Infeftment upon voluntary Disposition or upon any other Appryzing or Adjudication can be granted by the Superiour prefering any other Vassal to the Appryzer or Adjudger whom he
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-Ward-lands hath been now shown in other cases they are ordinarly allowed where they are not prohibit so we shall only need to speak of cases wherein they are prohibit and void and that is first In the Patrimony of the Crown which is annexed thereto and cannot be set Feu by the King without consent of Parliament by their Act of Dissolution bearing great seen and reasonable Causes of the Realm by Sentence and Decreet of the whole Parliament But Ratifications which pass of course in Parliament without report from the Articles will not supply the dissolution of the annexed property or validat Infeftments thereof even though the Ratification bear a Dissolution Upon which ground the Earl of Mortouns Right to the Earledome of Orkney was reduced February 25. 1670. Kings Advocat contra Earl of Mortoun Neither can the annexed property be disponed by the King but only in Feu after the Act of Parliament 1597. cap. 234. And all Infeftments Tacks Pensions Gifts Discharges granted before lawful Dissolution in Parliament or after Dissolution yet contrary to any of the conditions of the same are declared null of the Law by Action or Exception as well as to by gones as in time coming Par. 1597. cap. 236. Par. 1455. cap. 41. which is confirmed and extended to Feus not only to be granted of Lands but to Feus granted of the Feu-Ferm-Duties which was a device invented to elude the Law Par. 1597. cap. 239. 36. Secondly Feus of the annexed property after Dissolution may not be set with diminution of the Rental the Feu-duty not being within the new retoured Duty Par 1584. cap. 6. And that it may appear whether the Rental be diminished or not before they pass the Seals they must be presented to the Thesaurer and Comptroller and registrate in his Register and the Signature subscribed by him otherways they are null Par. 1592. cap. 127. And such Feus set without consent of the Comptroller by his subscription Registrat in his Register are again declared null Par. 1593. cap. 171. The Comptrollers Office hath been of a long time adjoyned to and in the same Commission with the Thesaurers Office or Commission of the Thesaury What Lands and others are annexed to the Crown appeareth by the several Acts of Parliament made thereanent consisting mainly of forefaulted Estates and Kirklands after the abolishing of the Popish Clergy which because they were presumed to have been most part mortified by the Kings of Scotland therefore the intent of their granting ceassing by
the abolishing of Popery they return to the Crown as the Narrative of the Act of annexation of the temporality of Benefices Par. 1587. cap. 29. bears and therefore Benefices of Laick Patronage as having proceeded from these Patrons are excepted by the said Act and though after the restitution of Bishops and their Chapters the Act of Annexation in so far as concerned their Lands was rescinded Par. 1606. cap. 6. Yet Bishops being abolished Par. 1640. cap. 6. their Lands were again annexed to the Crown Par. 1649. cap. whereby all Erection of Kirk-lands in temporal Barronies or Lordships by which the King interposeth any person betwixt himself and these who were formerly Vassals of Kirkmen are prohibit and declared null this Act is rescinded in the general Act rescissory 1661. cap. 15. The annexed property after Dissolution may not be granted in ward or blensh except upon Excambion for as good Lands Par. 1597. cap. 234. 37. Feus of Kirk lands by Prelats or other beneficed persons being granted by consent of their Chapters with all requisite Solemnities were esteemed Legal Securities without any particular Confirmation by the King or Pope there being no Statute nor Constitution obliging the Subjects thereto and in case any Confirmation had been requisite the consent of the Prince under his proper Seal and Subscription was sufficient Par. 1593. cap. 187. Yet it was the Custome that the Kings or Popes Authority was interposed to all Feus of kirk-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
Solemnities requisite in Infeftments there uses to be many Clauses insert therein all which we cannot follow but shall insist in the most ordinar and and important These are Union Erection Warrandice Reservations Provisions Conditions and Clauses irritant 44. Union is the Conjunction or Incorporation of Lands or Tenements lying discontigue or several kindes unto one Tenement that one Seasine may suffice for them all in which there is sometimes exprest a special place where Seasine should be taken and when that is not Seasine upon any part is sufficient for the whole Lands lying contiguous are naturally Unite and needs no Union so that Seasine taken upon any of them extendeth to the whole But where they ly discontiguous other Tenements being interjected there must be Seasine taken upon every discontiguous Tenement which must be all particularly so exprest in the Instrument of Seasin whereof one will serve for all the Tenements or otherways when they are Tenements of several kinds as Lands Milns Fortalices and Fishing all which are several kinds of Tenements and require several Seasines and pass by several symbols or tokens as Lands by Earth and Stone Milns by the Clap Fortalices by the Entry at the Gates and inclosing the person possest and excluding the granter of the Possession solemnly conform to the Charter or Precept Union can be Constitute originally by no other then the Soveraign Authority conceding the same January 16. 1623. Mr. Hendry Aikin contra Greenlaw Or Confirming the same January 16. 1623. Aikin contra Stuart And therefore Union being Constitute by a Subject not having the same from the King was found null by Exception at the instance of the Possessors though pretending no Right December 16. 1628. Lady Borthwick contra Scot of Goldylands And when there is a place for the Seasine of the Union a Seasine taken elsewhere reacheth none of the Lands lying discontigue March 19. 1636. Lady Dunipace contra Laird of But if the Lands united by the King be Disponed wholly together by the Vassal to others Subalternly Infeft the Union stands valid July 12. 1626. Stuart and Dowglas contra Cranstoun Home repeated Jan. 5. 1627. which for the same reason ought to be extended to Subaltern Infeftments of an annualrent of a Barrony or United Tenement which was found to extend to a Miln and to Lands lying discontigue though not taken in the place designed in the Union Spots Executors Lady Ednem contra Tennents of Ednem 45. Erection is when Lands are not only Unite in one Tenement but are Erected into the dignity of a Barrony which comprehendeth Lordship Earldom c. All which are more noble Titles of a Barrony having the like seudal Effects and whensoever the Tenements are granted as a Barrony Union is comprehended as the lesser Degree though not exprest and therefore one Seasine carryeth the whole Barrony and all Milns and Fortalices thereupon and fishing adjacent thereto Erections can be only granted by the Soveraign Authority and are not Communicable by the Subaltern Infeftments though the Union implyed therein may be Communicat Erection was found to be instructed by the Kings Confirmation of a Charter Designing the Lands a Barrony though it was not a Barrony before but the half of a Barrony wherein the Barron Infeft his Son in Libera Baronia which Infeftment being Confirmed by the King did Constitute it a full Barrony whereby an Infeftment of annualrent taken upon a part of the Land affected the whole November 16. 1630. Laird of Clackmanan contra Alardice Erections of Kirklands in Temporal Barronies or Lordships whereby the Lords of Erection were interjected betwixt the King and the Feuars are prohibite Par. 1592. cap. 119. and Par. 1594. cap. 195. for all these Lands are annexed to the Crown Par. 1587. cap. 29. and Par. 1633. cap. 10. The Reason whereof is evident that such Erections are prejudicial both to the King who loseth his Casualities of the Feuars and to the People who must accept another Superiour in stead of the King and though they had formerly but Subjects to their Superiours yet Church-men were much more easy then secular persons as requiring little service and being ashamed to demand rigorous Rates but any man may obtain the Lands he hath in property holden mediatly of the King which were Kirk-lands Erected in any dignity the King pleaseth to grant There are many exceptions in the Acts of Annexation of the Temporality of Kirk-lands and in the Acts against Erections by which the Kirk-land excepted are validly Erected and all the Erections are so far allowed as to give the Lords of Erection right to the feu-duties or fruits of the property of Kirk-lands feued till they be redeemed by payment of ten per cent and the Infeftments granted to the Vassals medio tempore are valid but the Casualities ought still to belong to the King It hath been sometimes questioned whether the Union and Erection of Lands be dissolved and lost by an Infeftment of a part thereof from the Vassal holden of the Superiour by Resignation or Confirmation Craig l. 2. Dieges 7. is for the affirmative confirmed by the resemblance of a Sheaf of Arrows bound with one Ligament for if one Arrow be pulled out all become louse and so the Union of the whole is dissolved unless the Superiour give the new Infeftment but prejudice of the rest But though such cases frequently occur whereby Infeftments of discontiguous Lands would only be valid as to the contiguous Lands upon which they were taken yet in no competition or other Process hath it been observed by any to be drawn in question or decided so that we have ever rested in the Negative and the consequence from that resemblance is not sufficient But on the contrary he who unites many Discontiguous Lands unites every part of them to every part so that the taking off of one part dissolves only it self the rest remaining unite But Union or Erection doth not change the Jurisdiction of the Lands unite as to the Shires and Bailziries where they naturally ly Vide Tit. Confiscatione § Horning Barronies and United Tenements when they are originally granted ought to express the several Tenements according to their proper Designations and so expresly Unite them But when these are acknowledged to have been Baronies or otherways Unite or are named or defigned as such by these who have power to Unite then the common Name of the United Barony or Tenement is sufficient to carry all that is holden and repute as part and pertinents thereof which was extended to Lands as parts of a common Designation though some particulars were named and the Lands in question had also proper names and were exprest in the ancient Infeftments the right in question being an Appryzing March 23. 1622. Gallowsheils contra Lord Borthwick Union and Erection are as qualities of the real Right and pass unto singular Successors as is before exprest 46. Warrandice is either real when Infeftments is given of one Tenement in security of
another or personal when the Superiour obliegeth himself to warrand the Infeftment as to the warrandice by Disposition and Resignation it is unquestionably personal and cometh not within the Infeftment but though it be granted by the Superiour in the Infeftment yet it is but a personal obligation no ways co-hering nor carried with the real Right and therefore the singular Successor of the Superiour or Author is not oblieged in the Warrandice neither doth the Disposition or Infeftment from the Vassal carry to his singular Successor the right of the Warrandice unless it be assigned specially or generally in the Assignation of the Rights and Evidents Warrandice is a common obliegement both in Infeftments and other Rights and it is sometimes exprest and then it is regulat according to the Tenor of it whether it be absolute Warrandice or from fact and deed or from future or voluntary fact and deed But oftimes when Warrandice is not exprest it is implyed as Rights are to be warranted which are granted for an Equivalent Cause onerous But in that Case where the Disposition was only of all right the Disponer had the Clause inferred not absolute Warrandice but only from the Disponers future voluntary Deed Hope Warrandice Lord Sinclar contra Creighton Absolute Warrandice is also implyed where the Disposition or Infeftment bears Vendidit because that imports an equivalent Price Spotss Warrandice John Stewart contra Fivie But not so if it were exprest under the terms of Alienation which is common to both gratuitous and onerous Dispositions Warrandice from the future fact and deed of the Disponer and his Heirs is implyed in pure Donations Hope Warrandice Veatch contra Dauling Mr. Partrick Schaw contra Sir James Durham and was extended to a Legacy rei alienae scienter legatae June 16. 1664. Murray contra the Executors of Rutherfoord But ought not to be extended to future necessar deeds preceeding the gratuitous Disposition which the Disponer is or may be compelled to fulfil neither upon any anterior deed because he who disponeth freely is presumed but to dispone such right as he hath but posterior deeds are fraudulent It is Craig's opinion in the forecited place that though Warrandice from fact and deed be exprest that it doth not extend to prior deeds And that in any Case if the Cause of the Disposition be for service done for gratitude or merit that Warrandice is implyed much more if for future Service or for a feu Duty or Rent Yet if beside these there be not an Anterior Cause in Money or Value such Dispositions cannot be accounted onerous for former merit or gratitude infer no civil Obligation and so no burden which could receive Legal compulsion And as to annual Prestation in Services Feu-duties or Tack-duties if they bear no Money received or equivalent Value they are presumed to be gratuitous in favours of the receiver who may reject or renounce them when he pleaseth if they be not by mutual Contract And when they are evicted the Vassal is free of these Duties and hath no loss and therefore they ought to import no more Warrandice but from future voluntary fact and deed But whatever Warrandice be exprest must be accordingly observed But Craig's opinion being that naked Pactions were not effectual with us and that a Charter was but a naked Paction so Warrandice in an Innominat Contract such as a Fee could be but a naked Paction importing no further then what would arise from the nature of the Right But our constant Custome allowing all Pactions and Promises to be effectual doth both make Charters without Seasine effectual against the granter and likewise Warrandice and all other Clauses-therein yea the paction that nothing should be demanded in case of Eviction is for the same Cause effectual that the Money payed for the Right evicted cannot be recovered Yet Craig doth there report a Decision of the Lords betwixt Samuel Cockburn and Sandielands of Calder that a Charter without Seasine and not delivered in the Granters Life but recovered out of the Charter-chest of Torphichen was found effectual to make the Granters Heir perfite the same with Seasine but it did not remain in the hands of the Granter and thereby it appears that the Lords did not then look upon Charters as naked Pactions The Effect of Warrandice is the upmaking of what is warranted in so far as it is evicted and the ordinar procedure in it is when any Sute is moved whereon Eviction may follow Intimation is made to the Warrand of the Plea that he may defend And if Eviction follow and distress thereby Declarator of distress and action of Warrandice for relief is competent Also it is effectual for decerning the Warrand to free the thing warranted of that which will undoubtedly infer a distress though it hath not actually done it In this case Execution was superceeded for a time that therein the ground of the distress might be purged July 1. 1624. Laird of Frendraught contra Balvenie The like upon a Production of a Seasine of the Lands warranted granted by the warrands Author before the Right and Inhibition though there was no distress Nicol. de evictione Fisher contra Fleeming The like July 17. 1666. Alexander Burnet contra Johnstoun February 17. 1672. Smith of Braco contra Ross of Balnagoun Warrandice had also effect upon production of a Decreet of removing against the Buyer and Seller Nicol. de evictione Johnstoun contra Johnstoun Yea Warrandice will take effect where there is an unquestionable ground of distress though the Fiar transacted voluntarly to prevent the distress Intimation of a Plea is sufficient without an Instrument it being proven by the Warrands Oath that the copy of the Citation was delivered to him as an Intimation Nicol. de evictione Lyme contra Dunlop But though no Intimation be made yet the Warrandice taketh effect unless the Warrand had a relevant defence and could instruct the same Nicol. de evictione Boyd contra Stark But in that case the Warrandice hath no effect ibidem Cairncorss contra Murray Glendinning contra Gordon Warrandice hath no further effect then what the Party warranted trulie payed for the Right whereby he was or might be distrest though less then the value of the Right warranted July 1. 1634. Robert Glendinning contra Barnbarroch The like upon repayment of the sum given out and the Annulrent thereof Hope Warrandice Laird of Craicklaw contra Lord Herris January 26. 1669. Boil of Kelburn contra Mr. John Wilkie February 28. 1672. Earl of Argyl contra Laird of Aitoun This will not hold in Warrandice of Lands as to which Lands of equal value or the whole worth of what is evicted as it is the time of the Eviction is inferred because the Buyer had the Lands with the hazard of becoming better or worse or the rising or falling of Rates and therefore is not oblieged to take the Price he gave Neither is Warrandice a full security being but a personal Obliegment and many times the Price
Horn these occurring after the Disposition will be upon the hazard of the Acquirer and not the Authour Disponer But if the Warrandice be in the Superiours Charter burdening himself it will be extended to all subsequent Distresses through his fault and so to Recognition Liferent-escheat or Non-entry but it will not extend to the Forefaulture or Recognition or other fault of the Superiours Superiour Neither will it extend to the Ward or the avail of the Marriage of the Superiour bound in Warrandice failing thereafter unless it be so exprest for no provident man is presumed to guard against these unless it be so exprest and therefore there is little advantage by special Clauses of Warrandice For the general Clauses reaches all Evictions from anteriour Causes yea the effect is the same though there were no Clause of Warrandice exprest if the Right warranted be for Causes onerous viz. sums of Money or equivalent value unless by the special Warrandice future deeds inferring eviction or which would not infer it ex natura rei be exprest Warrandice is never inferred from Infeftments from the King as Supream Superiour and though they were exprest would have no effect neither are the Warrandices of Infeftments by Church-men effectual against their Successors in Office yea express Warrandices of Feus or Tacks of Kirk-lands thereafter annexed to the Crown after the said Warrandice doth neither reach the granters thereof nor their Successors Par. 1587. cap. 29. and cap. 110. The reason whereof is there rendered because the Church-lands were annexed to the Crown by subsequent Laws Infeftments do frequently bear Conditions Reservations Provisions and Exceptions which give great ground of debate which therefore must here be cleared There is no question but Infeftments may either be pure or conditional some conditions are implyed from the Nature of the Right and are effectual though they be not exprest 47. As in Ward-holdings the Vassal cannot alienate without his Superiours is consent which an effectual resolutive condition whereby if the major part of the fee be alienate the whole becomes extinct returns to the Superiour as he gave it 48. Infeftments of Warrandice imply this condition that they should take no effect but in the case of Eviction of the principal Lands Infeftments for relief of Cautionry implys this condition that they shal have no effect till distress and that they shall ceass by relief Infeftments for satisfaction of sums imply this condition that the sums being satisfied they are extinct and the Authors Infeftment revives and stands valid without necessity of Renovation 49. Infeftment given for a particular Office and bear not Assigneys or Substitutes as to be an Ensign-bearer Advocat or Chaplain with Lands and Annual rents annexed does imply this condition that the Heir be capable to exerce these Offices and therefore by his inability they ceass unless they be granted to Assigneys with power of substitution in which case they may be performed by another 50. Infeftments by Excambion do imply this tacit condition that if the one Tenement Excambed be evicted there is recourse to the other Tenement with which it was Excambed for therein Excambion or Permutation differs from Sale this recourse is effectual not only to the Heirs but to the singular Successors of both parties whether by voluntar or Judicial Rights and therefore regress was sustained against an Appryzing prior to the Eviction without necessity to instruct that the Excamber had right when he changed it being presumed that he delivered his Rights to the other party and therefore an old Charter from the King bearing the Lands to have been Disponed in Excambion for the other parties Lands and expressing Regress but without mention of Assigneys yet was found effectual to a singular Successor July 14. 1629. Laird of Wairdess contra Laird of Balcomie In this Process it was found that no person needed to be cited but the present Proprietar of the Lands Excambed and the Heir or appear and Heir of the maker of the Excambion July 2. 1629. inter eosdem and that Regress was effectual against an Appryzer of the Excambed Lands it was so decided December 21. 1623. Earl of Montrose contra Sir George Ker. 51. The Law doth also introduce Conditions in Infeftments which do not arise from their Nature as in Feus by the common Feudal Law and by special Statute with us whereby if the Feu-duty be not payed by the space of two years hail and together that the Feu shall be extinct and lost Parl. 1597. cap. 〈◊〉 It is therefore beyond doubt that such Clauses are effectual whether exprest or not exprest in the Infeftment 52. It is also incontroverted that Liferents one or more may be effectually reserved in Infeftments which will pass therewith as a real burden to all singular Successors and needs no other Infeftment 53. Infeftments are also sometimes burdened with the Exception of other Infeftments which Exceptions if they be in the Dispositive Clause as a burden upon the Infeftment they are effectual against singular Successors 54. Infeftments are also frequently burdened with Faculties or Powers to affect or burden the Lands or others Disponed and that either absolutely at the Disponers pleasure for such sums to Children or Creditors which Clauses are frequent in the Dispositions by Fathers to their eldest Son and are very amply Interpret against them and their Heirs though the way of burdening might have been defective as by a base Infeftment not cled with Possession or by Bonds of Provision though no Infeftment follow as was found in the case of the Relict of Robert Earl of Carnwath contra Gavin Earl of Carnwath And a Disposition by a Father to his Son witha power to burden with such a sum a Bond granted thereafter to his Daughter without mention of that power was found effectual against the Son in so far as was not satisfied with the Fathers Moveables June 24. 1677. Margaret Hopringle contra George Hopringle though these might be more strictly Interpret in the case of singular Successors acquiring for onerous Causes And in the case of the Creditors of Mouswal contra the Children of Mouswal who having Disponed his estate to his eldest Son by his Contract of Marriage reserving a power to himself to burden it with such a sum to his Bairns having given them Bonds of Provision with a base Infeftment the same was preferred without Possession by vertue of the reservation to the posterior publick Infeftments of the Creditors for prior Debts seing he had then an Estate sufficient for all his Debts and his Bairns Portions It is no less certain that all the Clauses contained in Infeftments are not real burdens affecting singular Successors such as Warrandice which only obliegeth the Warrand and his Heirs and is meerly personal so then the difficulty remains what Clauses insert in Infeftments are real burdens effectual against singular Successors First then If the Infeftment bear a provision that the person Infeft shall pay such a sum or do such
the first Branch and therefore though there were no Clause irritant they might reduce alienations meerly gratuitous or fraudulent especially when done not by the Heirs of Line or Heirs Male of him who constitute the Tailzie for these are always in every Tailzie in the first place and while the Fee continues in them it is rather a simple Fee then Tailzied as it becomes again when all the Branches of the Tailzie fail The perpetuities of Estates where they have been long accustomed have 〈◊〉 〈◊〉 their Inconvenience therefore divices have been found out to 〈◊〉 them ineffectual Only the Majoratus of Spain hath been most 〈◊〉 〈◊〉 and 〈◊〉 that the King Nobilitating a Person of Merit and 〈◊〉 either by the Kings Gift or his own Right that Estate can neither be alienate or burdened but remains alimentary for preservation of the Dignity of that Family But these perpetuities in England are now easily evacuat First by Warrands to sell purchased in Parliament which pass without much difficulty and if they become frequent with us it is like we will find the same remeid they are also evacuat by a simulat Action of fine and recovery whereby the purchaser pretends that he is unwarrantably dispossest of such Lands by the present Fiar who coludes and is silent having received a Price or other consideration so that these Sentences though Collusive must be irrevocable In Tailzies the Heirs Male or Heirs of Line of every Branch being the Issue of the Stipes of that Branch do succeed and therefore there is a good Caution by the Law of England that after the possibility of Issue is extinct the present Fiar can do no more as to the Fee but what a Liferenter could do The next Branch being ordinarly altogether strangers to that Fiar little care will be taken to preserve the Fee In the Tailzie of Stormount the whole Estate was not comprehended and it was distinctly provided that in case any of the Heirs of Tailzie for the time should contraveen that the Right should be divolved on that person who would succeed if the contraveener were dead But in such Tailzies formerly it was not so clearly ordered being only provided that the contraveener should lose his Right and the next Heir of Tailzie should have place whereby it remained dubious whether the next Branch of the Tailzie were meaned so that the contraveener losed his own Interest and all descending of him Or whether he losed the Interest of all descending of that Branch Or whether he losed only his own personal Interest wherein the design of the Constituter of the Tailzie might be dubious enough 59. To sum up this important Subject of Tailzies let us consider the effects thereof according to the several ordinary Tenors of the same and how far the Fiar or his Heirs of tailzie is bound up thereby we must then distinguish betwixt Tailzies having Clauses not to alter burden or alienat And these that are simple without any express restrictive Clause Secondly Betwixt Tailzies made freely and these that are made for onerous Causes Thirdly Betwixt these that have Clauses resolutive or irritant and these that have only such Clauses by way of Obligation Provision or Condition As to the first Case It is a general Rule that quisque est rei suae moderator arbiter every man may dispose of his own at his pleasure either to take effect in his life or after his death and so may provide his Lands to what Heirs he pleaseth and may change the Succession as oft as he will which will be compleated by Resigning from himself and his Heirs in the Fee in favours of himself and such other Heirs as he pleaseth to name in the Procuratory whereupon Resignation being accepted by a Superiour and new Infeftment granted accordingly the Succession is effectually altered yea any obliegement to take his Lands so holden will obliege the former heirs to enter and to denude themselves for Implement of that obliegement in favours of the heirs therein exprest and if the Superiour refuse to accept the Resignation altering the Succession a Bond of borrowed Money though granted only upon design to alter the Succession will be the ground of Adjudication of the Land and being assigned to the Fiar himself and to such heirs as he pleaseth the Superiour will be forced to receive him accordingly so that the first constituter of a Tailzie or any heir succeeding to him may change it at their pleasure unless the Tailzie be for an onerous Cause as when Tailzies are mutual then the first constitutors of the mutual Tailzies cannot alter the same although their Debts may affect the same yet no fraudulent or gratuitous deed can alter or evacuat such Tailzies and therefore a mutual Contract betwixt two brethren oblieging them that what Lands they should succeed to or acquire should be taken to the Heirs of their body whilks failzing to the Brother and the heirs of his Body c. though thereafter either Brother took their Lands otherways to their heirs whatsomever whereby Sisters having succeeded to one of these brothers they were decerned to denude themselves in favours of the other Brother January 14. 1631. Mr. John Sharp contra Helen Sharp But if the Cause onerous be of less import then to grant and continue a Tailzie it will import no more then once perfecting the Infeftment by such a Tailzie whereby the hope of Succession ariseth to these parties in whose favours the fiar is oblieged to take the Tailzy but he was not found oblieged to continue the same but that he might alter it thereafter without refounding the Money he got for granting it being but of that value as was equal only to the hope of Succession which behoved to be understood of alteration sine dolo July 15. 1636. Mr. David Drummond contra Drummond Heirs of Provision by Contracts of Marriage are in part ouerous being granted for a Tocher and the interest of the Wife concerned therefore they cannot be alterred by the Husband at his pleasure but do exclude all fraudulent or meerly gratuitous alterations as hath been shown Section fourty three But if there bean express Obliegement not to alter the Tailzie albeit that will not give Title to the Heirs of Blood of the present Fiar to quarrel his deed or alteration yet it will give interest to any other Branch of the Tailzie whether to the person nominat or his heirs to quarrel and reduce such alterations though it will not exclude alterations by Appryzing or Adjudication for debts truly borrowed by the Fiar and therefore a Tailzie of a sum of Money lent in thir terms to be payed to the Creditor and the heirs of his Body whilks failing to the Father and the heirs of hsi Body whilks failing to a person named and his heirs and assigneys whatsomever with a provision that the Creditor and his heirs should do no deed hurtful to the Tailzie nor the Debitor should not pay without consent of the heir
all such Fortalices than in other things This consequence is not good for that which infers Treason is the holding out of the House and denying access to the King by armed Force which will be treasonable in any House whether it have Battlements or Turrets or not but cannot infer that all Houses with Battlements or Turrets were built for publick defence and did once belong to the King which recent Custom doth further clear there being nothing more ordinary then to build Houses with Turrets or Rounds upon the Angles without Warrand Quarrel or Suspition these being rather for Ornament then for Strength 67. Forrests are likewise inter Regalia being places destinat for Deer for the Kings use and pleasure in Hunting which cannot be extended generally to Woods but only to such where Deer have been keeped for certainly Woods are partes fundi privati and are not inter Regalia in any Nation but Forrests for keeping of Deer remain inteir Regalia altho the Wood should fail And wherever Deer are keeped as proper and others debarred from Hunting there it is presumed to have been a Forrest proper to the King And though the Lands being in Baronia may carry the Priviledge and Office of Forrestry which gives the Baron right to hunt kill and make use of the Deer Yet he will be but held as Keeper or Forrester which will not exclude the King to hunt and kill the Deer for his own proper use for the property of the Forrest will never be understood if it be not very expresly granted Forrests have great Priviledges and peculiar Customs for whereas no man is oblieged to herd his Cattel off other mens ground or Corns or to be answerable for the Skaith they do longer then in hayning time while the Corns are upon the Ground And if any man have a minde to keep his neighbours goods off his Ground he may do it But he must herd his Ground and may turn off his neighbours Goods without wronging them but cannot put them in Pondfold Yet if any mans Goods be found in Forrests they become escheat and are confiscat two thirds to the King and one third to the Forrester And if any Baron or Landed-man have hained Woods or Forrests of their own they may escheat all Goods that bees found therein to their own use Par. 1535. cap. 12. Where privat Forrests of Subjects are only understood such as are inclosed with a sufficient Dyke The words of the Statute bears Hained Woods or Forrests which cannot be hained without inclosure but the Kings Forrests are large tracts of Ground which neither have been nor can be inclosed and therefore all the neighbouring Heretors and Possessors must either herd their Goods off these Forrests or loss them Upon this account it was that the King having by a Signature under his hand grantend a Forrestry to the Laird of Fascally the Exchequer before passing thereof desired the Lords of Session to consider and report what by Law was the Priviledge Conveniency or Inconveniency of Forrests and they having heard the Obtainer of the Forrest and the neighbouring Heretors did declare the Priviledge of a Forrest to be as aforesaid June 21. 1680. Whereupon the Exchequer did represent to the King the Inconveniency to grant new Forrests The Comptroller had the Inspection of the Kings Parks and Forrests and it was lawful to the Comptroller or any having the Kings Warand to intromet with all Goods in the Kings Forrest not put in by the Comptroler or these having power from him and to apply the whole to the Kings use Par. 1592. cap. 198. And by the former Statute the Forrester or Keeper is prohibite to put any Cattel in the Forrest belonging to himself So that if the Keeper first seize upon Goods in the Forrest he hath the third but if the Comptroller or these having Warrand from the King does 〈◊〉 seize the Keeper hath no share There are many more Customes and Priviledges of the Kings Forrests and Chaces in England where the Forrester or Keeper hath only the Branches of Trees and the Bark thereof and such as are fallen or decayed and as Skeen observes that he may take a Tree as high as his head but our heretable Keepers have much more Priviledge and may make use of the Wood and Deer so as not to destroy either and with a reservation for the Kings proper use 68 The hunting or killing of Deer seems to be inter Regalia with us except these who have them within proper inclosures for otherways the Kings Forrest having no inclosure the Dear by straying abroad would easily be destroyed and therefore though every man may hunt them off his Ground by which they will be forced back to some Forrest yet they may not kill them 69. Salmond Fishing is also inter regalia and therefore passeth not ordinarly as pertinent and ought to be exprest in the Infeftment yet in some cases Salmond-fishing hath been found constitute without special expression but only by the common Clause cum piscationibus and long Possession June 29. 1593. Lesly of Creik contra Forbes of Thainstoun in which case it was found that Salmond-fishing is only inter regalia as it is a Casuality fluminis publici such as are Navigable Rivers wherein there is a common use of Passage and Transportation in like manner where Lands are Erected in a Barrony or any other dignity Salmond-fishing may be carryed by the the common clause cum piscationibus as when it bears Fishing in salt and fresh water though without mention of Salmond-fishing Hope Fshing Laird of Glenurchy contra Alexander Cambel So an Infeftment to a Burgh-royal bearing cum piscationibus piscariis with immemorial Possession was found to give them right to Salmond-fishing and Cruives though none of them were exprest January 26. 1665. Heretors of Don contra the Town of Aberdene January 13. 1681. Brown of Nuntoun contra the Town of Kirkcudbright It was also found constitute by the Infeftment of a Sheriffship and fourty years Possession though the Infeftments bore only Emoluments in general December 13. 1677. Earl of Murray contra the Feuers upon the Water of Ness Marquess of Huntly and Town of Inverness It was also found Constitute by a Bishops Charter of Londs cum piscariis bearing a reeddendo of Salmond though th Bishops right from the King was not produced but presumed and being a Dignity prefected by long Possession of his Vassal January 13. 1680. Brown of Nuntoun contra the Town of Kirkcudbright And likewise long Possession by the space of fourty years was found to give right to a Salmond-fishing upon both sides of the Water and drawing the same upon both sides though the Infeftment bore but fishing upon one side Hope fishing Lady Monymusk contra Forbes of Barns A Clause cum piscationibus was found to be a Title for Prescription in Baronia and that fourty years uninterrupted possession constitutes the right of Salmond-fishing February 7. 1672. Fullurtoun contra Earl of Eglintoun It is more dubious
Superiours must be called 73. All other interest of Fees are carried as part and pertinent though they be not exprest and albeit Woods and Lochs use oft to be exprest yet they are comprehended under parts and pertinents and therefore the Master of the Ground hath not only right to the Water in Lochs but to the Ground thereof and may Drain the same unless servitudes be fixed to Water-gangs of Milns or other Works and the Ground of the Loch and all that is upon it or under it is a part of the Fee But if the Loch be not wholly within the Fee but partly within or adjacent to the Fee of another then unless the Loch be exprest it will be divided amongst the Fiars whose Lands front therupon The parts of Fees are only exprest in bounding Charters but in all others the parts are only known by the common reputation of the Neighbour-hood what they comprehend under the Designations exprest in the Infeftments and by Possession as part and pertinent of the Lands Designed in the Infeftment whether they have but one common Designation as such a Barrony or Tenement or if there be an enumeration of their parts by distinct Names which doth not exclude other parts though belonging to none of the parts enumerat there is only this difference that expresse Infeftments are preferable to these which alledge but part and pertinent much more if it be alledged to be separatum tenementum requiring a distinct Infeftment and yet prescription as part and pertinent will exclude an Infeftment as a separat Tenement But where there are March-stones set it is a great convenience to preserve peaceable Possession and though it cannot be proven when these Marchs were set yet their being repute as March-stones will be sufficient to defend at any time within prescription But Lands are oftimes so large comprehending Mures and Mountains that March-stones cannot be set for remeid whereof the Lords of Session by an Act of Sederunt 1580. Ratified in Par. 1587. cap. 42. Ordained all Molestations in Property or Commonty in possessorso to be before Sheriffs Bailies of Regalitie and other inferior ordinar Judges where the Lands ly and for that effect the Lords will direct Letters of Cognition to proceed upon fifteen days warning by an Inquest of persons who best know the Matter the most part thereof being Landed-men having at least four Ploughs of Land or three hundred merks of irredeemable Rent and the rest substantious famous Zeamans of the same Paroch and failing thereof of the Paroch nearest adjacent and if both parties have Cognitions raised before Litiscontestation on either the half of the Assyzers shall be taken of these summoned for either party or in case there be not a sufficient number of them habile the Judge shall supplie the same and the odd man to be chosen by lot which Inquest shall visit the ground and shall return their verdict upon oath both upon the Clames and exceptions of the parties and in case the Judge ordinar be suspect or that the Lands ly in divers Jurisdictions the Lords are to appoint unsuspect Judges to be past under the quarter Seal There are only excepted the actions belonging to the members of the Colledge of Justice which are to be before the Lords yet the Lords are accustomed to grant Commissions to some of their own number where questions arise concerning the parts or Marches of Tenements to visit the Ground and there to receive witnesses hinc inde both as to Possession and Interruption which the Lords do advise and determine without an Inquest Parts of Tenements in possessorio are sustained by the present peaceable Possession for some time for seven years peaceable Possession will sustain the Right of the whole till Reduction And fourty years Possession as part and pertinent is sufficient in petitorio for the point of Right and will exclude an Infeftment express yea though it be an Infeftment as distinctum tenementum November 14. 1671. Walter Young contra William Carmichael But if there be interruptions and that either party hath had some Possession the express Infeftment will be preferable and any lawful Interruption will preserve an Infeftment of a separate Tenement but if neither party be expresly Infeft in the Lands in question interruption by either party will not exclude prescription because there is not a prior special Right valid of it self without Possession and therefore if both parties have had mutual or promiscuous Possession each Possessing when they could and turning off the other that part of the Land so possest will continue as a promiscuous Commonty which frequently falls out about the Marches of large Tenements and was so determined betwixt the Lord Strathoord and Sir Thomas Stuart of Gairntully if neither party have an express or several Infeftment Discontiguity will not exclude part and pertinent though if the question be with him to whom the Land is Contiguous less Probation will prefer him Craig l. 2. Dieges 3. relates a case in his time betwixt the Earl of Angus and Hoom of Polwart where Discontiguity did not exclude part and pertinent not being known as a distinct Tenement Pertinents comprehends all the Natural Fruits for Corns are accounted as Moveable and as no part of the Ground as hath been shown in the former Title Section second And also all servitudes so a servitude of a Pasturage in another Heretors Wood was sustained as a Pertinent by long Possession Spots Servitude Laird of Knockdolian contra Tennents of Partick And Part and Pertinent being exprest in a minute of Sale it was found to carry common Pasturage in a Mure which was a Commonty to a Barrony whereof the Lands sold was a part February 14. 1668. William Borthwick contra Lord Borthwick And in the case betwixt the Laird of Haining and Town of Selkirk decided February 15. 1668. A Barrony of the Kings cum pertinentibus cum pascuis pasturis was found to carry common Pasturage in the Mure of the Barrony and that the last fourty years Possession did presume the like Possession in the Feuars from the obtaining their Feues and that interruptions by the Town whose Infeftment was but general cum communiis did not exclude the Pasturage of the Feuers who had also made interruptions against the Town 74. Craig l. 2. Dieges 8. Debates this question whether Wood and Coal be parts of the Ground or only Pertinent as Fruit thereof for if these be parts of the Ground Conjunct-feers or Liferenters will have no share thereof nor Donatars of Ward Non-entry or Liferent-escheat so that the question is very important wherein he relates two Decisions one betwixt the Lord Seatoun and his Mother who being served to a Terce was found to have right to the third of a Coal-work constantly going for sale in the Defuncts time and another betwixt Ramsay of Dalhousie and Mary Ballantine his Predecessors Relict in relation to a Wood which the Fiar was found to have the only Right to Sell and
falls by Reduction or nullity of Infeftments or retours 20. Burgage falls not in Non-entrie as to the Burgh or particular persons 21. The effect of the general Declarator of Non-entry 22. The effect of Non-entrie after Citation in the general Declarator 23. Exceptions against Non-entry as to the Feu-dutie or retoured mail 24. Exceptions against Non-entrie as to the full Rent 25. Whether Non-entrie after Ward requires Declarator 26. The Original of Relief 27. The Custom of England and France as to Relief 28. The quantitie of Relief with us 29. Whether Relief be due during Non-entrie 30. Whether Relief is due when the heir is entered whether the Fee be burdened with Conjunct-fee or Liferent 31. Relief stops not the heirs Seasine 32. Compositions for the Entrie of Appryzers or Adjudgers 33. The Original of Ward 34. The effect of Ward as to the heirs person 35. The effect of Ward as to the fee. 36. The restrictions of Ward 37. The value of the Marriage of heirs of Ward-vassals 38. The true interest of Superiours in the Marriage of their Vassals 39. The single value of Marriage not penal but favourable 40. Double value penal and unfavourable with the exceptions against it 41. Single value found due where the heir was Married before his Predecessor died by precipitation 42. The quantity of the single value in heirs male or female 43. Marriage is debitum fundi 44. It belongs to the eldest Superiour 45. The Royal Prerogative prefers the King to all others as to the Marriage of the Vassal 46. Marriage is due by the heirs of Appryzers 47. Exceptions against the value of marriage 48. The rise of Liferent-escheat 49. It extends to all kinds of Liferents 50. Liferents of fees not having Infeftment or not owing fidelity to a Subject belong to the King 51. Liferent escheat of sub-vassals to whom they belong 52. Liferent Escheat is not excluded by voluntary Infeftments after Denunciation not being for implement of a special Obliegement to Infeft before Denunciation 53. Liferent Escheat is excluded by Appryzing for debts anterior to the Rebellion there being Infeftments or Charge in cursu rebellionis 54. Liferent Esche it extends not to Burgage or mortification 55. But extends to Ministers Stipends 56. Liferent Escheat is made Effectual by Declarator HAVING now shown what is the interest of the Vassal in the Fee it will be the more easie to find out what the Superiours Right of the Superiority retaineth for what is proper to the Fee and is not Disponed to the Vassal is reserved to the Superiour and it is either Constitute as belonging to the Superiour constantly or casually 1. The constant Right of the Superiour standeth mainly in these particulars First Superiority it self is dominium directum as the Tenentry is but dominium utile as before is shown and therefore the Superiour must be Infeft as well as the Vassal and that in the Lands and Tenement it self without mention of the Superiority which followeth but upon the Concession of the Fee in Tenentry though sometimes through the ignorance of Writers Infeftments bear expresly to be of the Superiority 2. Only the Soveraign Authority as the common Fountain of all Rights of the Ground needs no Infeftment but hath his Right founded in jure communi and is not Feudal but Allodial and when the Right of Lands fall to the King by the Casuality of his Superiority as Forefaulture Recognition Bastardry or last heir if the Lands be holden immediatly of the King they are ipso facto consolidat with the Superiority and the Declarators required thereanent do not Constitute but declare the Kings Right without prejudice of what is consumed bona fide But where they are not holden immediatly of the King the Right thereof is perfected by Gift and Presentation whereby the immediat Superiour is oblieged to receive the Donatar by Infeftment like to that of his former Vassal yet the Kings Right by the Casuality though it be not perfected is real and effectual against all singular Successours whereby deeds of Treason and Recognition being in Facts ordinarly proven by Witnesses Purchasers cannot be secured by any Register and therefore must secure themselves by the Kings Confirmation novo damus But where the King succeeds in any Fee to a Subject as to Property or Superiority before he can alienat the same he must be served Heir in special thereunto so King CHARLES the first was served Heir to Queen Ann his Mother in the Lordship of Dumfermling in which King James Infeft her in Fee to her and her Heirs by a Morning-gift the first day after his Marriage with her and King Charles the second was served Heir to Charles Duke of Lennox in the Earldom of Lennox In which Service the Chancellour and fourteen of the Lords of Session were the Inquest the youngest Lord being left out because there could be no more but fifteen But the King needs no Infeftment upon such Retours but if he acquire any Lands holden immediatly of himself the Instrument of Resignation must be Registrat and if holden of a Subject there ariseth no real Right to a Donatar till he be Infeft upon the Kings Presentation and his Seasine Registrat by both which the certainty of Land-rights is preserved 3. Secondly Superiority carrieth a Right to all Actions following the Land against any other then the Vassal for seing Superiours are Infeft in the Lands they can only be repelled from such Actions by the Rights granted to their Vassals but by no others and so may remove Possessors who can show no Right this was found though the Superiours Infeftment bore him only to be Infeft in the Superiority of the Lands November 19. 1624. Lag contra his Tennents 4. If a Superiour become Fiar by Succession or Acquisition for Establishing the Property in his Person he may either be Infeft upon his own Precept or the Kings November 26. 1668. Daughters of Mr. Robert Mortoun 5. But a Superiour cannot interpose betwixt himself and his Vassals by Infefting another in the Lands to be holden of himself Such infeftment was found null by Exception January 30. 1671. Dowglas of Kelhead contra Vassals Superiours must receive and Infeft their Sub-vassals upon the refusal or incapacity of the Vassal and may at any time after receive the immediat Vassal or his Successour or another if the immediat Vassals Right be extinct or acquired by the Superiour which is no unwarrantable Interposition which is repelled as contrary to the Nature of the Feudal Contract and Right it being inconsistent that the Superiour should both give his Superiority to another and claim it himself Dans retinens nihil dat And if that were allowed interposed Vassals might be infinitely multiplied November 26. 1672. Earl of Argyle contra Mcleod in which case the late Marquess of Argyle being forefault Mcleod who was Argyles Vassal was retoured and Infeft in the Lands as holden immediatly of the King which did not hinder the King to Interpose this
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
most frequently Blensh for a Penny but if no holding be exprest it is held to be Ward and therefore the Casualities of the Superiority befall to the Superiour according to the kind of the holding as in Property so that being Ward or Blensh it falleth in Non-entry in the hands of the Superiour without Declarator and so ceasseth during that time even though the constituent as Debitor be Superiour though he may be lyable personally upon any personal obliegement for paying thereof March 23. 1631. Somervel contra Somervel Annualrents may be either base or publick by Resignation or Confirmation as to the requisits to accomplish it when base it is fully shown before Title 13. § Base Infeftments 5. So likewise annualrent falling in Liferent escheat belongs to the Superiour during the annualrenters Life and if it be redeemed the Profite of the Money comes in place thereof as followeth a pari from a Wodsett redeemed which was fallen in Liferent-escheat and therefore the Money was ordained to be imployed upon annualrent for the Superiour during the Life of the Wodsetter June 29. 1661. Tailziefer contra Maxtoun and Cunninghame 6. The English distinguish Rent in Rent-Service Rent-Charge and Rent-Seck Rent-service is that which is due by the reddendo of an Infeftment of property as a Feu or Blensh duty this is a part of the Infeftment of Property but hath the same effect by poinding of the Ground as other Annualrents Rent-charge is that which not being by reddendo yet is so Constitute that the Annualrenter may brevi manu his Terms being past poind the Ground therefore we have no such Annualrent for we admit of no distress without publick Authority but all execution must proceed by Decreet and Precept Rent-seck is so called as reditus siccus because it is dry having no effect without Sentence such are our Annualrents 7. There is a distinction of Annualrents mentioned Par. 1551. c. 10. in feu Annuals Ground-annuals and Top-annuals which Craig thinketh to quadrat with the English distinction of Rents But the consideration of that Act and Ordinance in relation to the Articles there exprest will make it appear that the case being there of Tennents within Burgh the Feu Annual is that which is due by the reddendo of the Property either of the Ground before the House was built or the Ground and House together Ground-annuals is a distinct several annualrent Constitute upon the Ground before the House was built and the Top-annualrent is out of the House which is the more clear that when such Tenements were destroyed the least abatement was of the Feu-annual or Feu-duty and therefore the Proprietar repairing the Tenement was to pay the Feu-annuals with abatement of a sixth part and the Ground-annual as being more ancient then the Top-annual suffered an abatement of a fifth part and the Top-annual of a fourth part 8. The chief effect of Annualrents either by reddendo in Property or several Infeftments is by poinding of the Ground upon which the Annualrent is constitute and that by an ordinary Action whereby the Annualrenter pursueth upon Letters to Poind and Appryze all Goods upon the Ground for payment of his Annualrent and also for Poinding and Appryzing the Ground-right and Property it self As to the first member the English Custom extendeth it to all goods that shall happen to be upon the Ground at the Term if they have but lain down thereupon And our ancient custom extendeth it to all Goods of the Possessors invecta illata by them without retrinching it to what the Tennent is due to the Proprietar Constituent of the Annualrent and the Poinding in this case was extended to purge a Spuilzie November 21. 1628. Watson contra Reid June 26. 1628. Laird of Ednem contra Tennents of Ednem where the pursuit was rather declaratory to establish the pursuers Right then for present Possession or Execution But thereafter the Lords have been accustomed to interpose with Chargers upon Decreets of Poinding of the Ground to restrict the same in favours of Tennents to their Terms mails from the Statute 1469. cap. 36. bearing that the Cattel of poor men Inhabitants of the Ground shall not be poinded for the Landlords debt where the Mail extends not to the avail thereof and though the Act seemeth Correctory of an evil Custom to poind the Tennents Goods for the Masters debt yet the same reason equity and favour of their Rusticity craves the Extension of it to these debita fundi and therefore it was so restricted the Tennents producing their Tacks or offering to depone upon their Rent summarly without taking a Term but it was not found requisite that the Annualrenter should either lybel or prove the quantity of the Rent February 14. 1674. Lady Pitfoddels contra the Laird of Pitfoddels and Tennents In which case it was found that if the Tennents the time of the poinding had compeared and produced their Tacks or had offered to make Faith what the Rent was if more had been poinded for then equivalent to their Rent it would have been a Spuilzie but they should not only depone what their Rent is but what is resting of it for the poinding of the Ground or the Brieve of distress is only restricted by the Act of Parliament for remeid of that inconvenience that was sometime in use that where sums are to be payed by the Brieve or Distress against the Lord owner of the Ground the Goods and Cattel of poor men Inhabitants of the Ground were taken and distrenzied for the Lords debt where the Mail extends not to the avail of the debt and therefore it is ordained that the Tennent shall not be distrenzied for the Lords debt where the Mail exetnds not to the avail of the debt further then his Terms Mail extends to And therefore in so far as the Tennents Mails are resting the poinding may proceed And likewise for the current Terms though not yet come that is if the Rent be Victual payable all at one Term the poinding may proceed for the value of the victual according to the Rate of the Victual communibus annis in the several places of the Countrey as men use to buy or Wodset or by the feirs of that place Neither cantacks absolutely secure the tenents if they be posterior to the Infeftment of Annualrent in which case if they be within the true value of the Land the 〈◊〉 or others poinding pro debitis fundi cannot be prejudged by Collusive Tacks or such as are granted with considerable diminution of the true worth So that the poinding may proceed for one year or Terms Mail as the Lands are worth the time of the poinding But in this case the poinding cannot proceed summarly till it be cognosced by Declarator or Reduction of the Tacks which may frequently occur Tennents being oft accustomed to suspend in Decreets for poinding the Ground Poinding of the Ground was found to take no effect against Corns standing upon the Ground having been
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-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
9. Servitudes of Prospect or Light 10. Wayes 11. Watering 12. Watergang 13. Feualling 14. Pasturage 15. Thirleage 16. Several ways of Constituting Thirlage 17. Several Cases in which Thirlage is not Constitute 18. The effect and extent of Thirlage 19. The import of several Clauses of Thirlage 20. Invecta illata or tholing Fire and Water 21. Sequels 22. Miln Service 23. Priviledge of Milns 24. How Thirlage becomes extinct 25. In Multure Seed or Horse Corn are to be deduced but no other expence of Labouring 26. Thirlage Constitute by a Vassal not effectual against the Superiour 27. Deductions for insufficiency of the Miln breaking down of the Damn or Frost SERVITUDES are distinguished in Real and Personal though neither of them be personal Rights yet these Servitudes whereby one Tenement is subservient to another Tenement and to persons only as having Right to and for the use of that Tenement are called real Servitudes as not being subservient directly to persons but to things And the other are called Personal because thereby the Tenement is subservient directly to Persons and not with respect to any other thing as Liferents c. Before we come to the particular kinds of these real Servitudes it will be fit to enquire how such Servitudes are Constitute and next how they are Destitute and Ceass 1. As to the first these Servitudes require no Infeftment though they may be Constitute by Infeftments yet there is no necessity of Infeftment to their Constitution Secondly Real Servitudes cannot be Constitute by any personal Right as by Contract Paction Testament or Legacy neither by Disposition or Assignation alone the reason is because they are real Rights and cannot be Constitute by any personal Right which though they be oftimes the remote cause of real Rights yet there is more requisite to their Constitution and therefore though such personal Rights may be sufficient against the granters thereof by a personal Objection whereby they cannot come against their own deed yet they are not sufficient against singular Successors neither do they affect the Ground Thirdly All real Servitudes are Constitute by Possession or Use for things corporeal are said only to be Possest therefore Incorporeal Rights as Servitudes have rather use then Possession to Consumate them which though it be the last requisite to accomplish Servitudes yet is not sufficient alone but must have another Title either by the express consent of the Proprietar or by Prescription there is no difference in what way the consent be adhibite so it be in Write and the Obliegement to grant any Servitude with Possession is equivalent to the formal Disposition or grant thereof as it is in the most of these Rights which do essentially require nothing else but Consent alone or Consent with Possession and not any other Solemnity as Obliegements to grant Assignations Discharges Renunciations are equivalent to these Rights themselves when formally made 2. The Civilians debate much whether Servitudes can be introduced by prescription and whether in that case there be requisite a Title and the Proprietars Knowledge wherein we need not insist seing our Prescription being only by Statute upon the course of fourty years in most cases presumeth both a Title and Knowledge but theirs being upon ten years against those who are present may require more yet many even of the learnedest of them account Prescription sufficient without Title or any other then presumed Knowledge With us the Servitude of a way to the Kirk was not found Constitute by Possession thirty years but by immemorial Possession going and coming that way uninterrupted without any Write for here the way was claimed at the nearest to the Kirk whether the Desenders Lands were under Cropt or not For though a way to the Kirk be due to all parties in the Paroch without Consent or Prescription yet it must be with the least detriment to the interjacent Lands and so cannot always be the nearest way but must go about Corns and though thirty or fourty years Alternative was not sustained to Constitute a way thorow Lands even under 〈◊〉 yet fourty years is equivalent and always 〈◊〉 to immemorial Possession in the same case 〈◊〉 gtoun observes That a convement way to the Kirk without going through Corns was sustained without prescription And the like would be sustained for Passage to Mercat Towns or 〈◊〉 Ports A servitude of laying over a Miln Damn upon another Heretors Land was found Constitute by Possession fourty years whereby the Heretor of the Miln was found to have Right that when the Water did wash away the Ground from the end of the Damn to lengthen the same upon the Servient Tenement so that it might be made effectual with the least detriment and that he was not lyable for any damage by washing away the ground of the Servient Tenement by occasion of his Damn July 20. 1677. Laird of Gairletoun contra Laird of Smeatoun June 27. 1623. Gilbert Neilson contra Sheriff of Galloway It must be adverted that when such Servitudes are said to be Constitute by sole prescription without Write it is to be understood without Write from the Proprietar of the Servient Tenement for ordinarly there is this much Title in Write for these Servitudes that the party having Right thereto is Infeft in the Tenement with the Pertinents under which Servitudes are comprehended Or with common 〈◊〉 trage by which he hath not only such Pasturage as he hath been long in Possession of upon the Lands of his Superiour or Author but fourty years Possession therewith is sufficient against any other who can be said in no case to have done any deed for the Constituting of the Servitude and it was so found in the case of the Town of Pearth concerning the Isle of Sleiples But this long Possession is not estimat by deeds done by the Proprietar of the Servient Tenement as he who brings his Grain to another mans 〈◊〉 for 〈◊〉 so many years these deeds of his do not Constitute a Thirleage upon his Lands unless he suffer the Proprietar or Tennent of the Miln to cause him or his Tennents either to bring their Grain by Process or otherways And he who opens a Window in his Dyke or Wall whereby his neighbour hath a Prospect doth not thereby put himself under a Servitude But if he suffer his neighbour to break a Window in his Wall and enjoy it till prescription be run his suffering introduceth that Servitude 3. As to these who can impose Servitude when they are Constitute by express consent They cannot be Constitute without consent of the 〈◊〉 and if the Superiour consent not they will not be effectual against him if the 〈◊〉 be open and return to him by Right of Superiority for a time or for 〈◊〉 Liferenters cannot Constitute a Servitude to have a real Right against singular Successors or beyond the endurance of that Liferent or Wodset much less can Tennents yet both can begin or continue to make up
power 〈◊〉 detain the whole Fruits of the Benefice in his own hands as is clear in the said last Act Par. 1592. cap. 115. Thirdly Patrons are Tutors and Guardians to their Church without whose consent the Incumbent can set no Tack longer then for three years Par. 1594. Cap. 200. Patrons had also an indirect interest in their own Benefices where the Ministers had an ordinary Stipend settled to them by long custom or modification yet far within the worth of the Benefice The Patrons used to present them to the Benefice but withal took Tack of them to confident persons to their own behove carrying the superplus of the profite of the Benefice over and above the accustomed Stipend of their predecessors which hath not been quarrelled as a Symoniacal Paction or Dilapidation It seems also that Patrons for resemblance of personal Patronages ought to be Alimented out of the Benefice if they come to necessity according as their Benefice may bear though there hath occurred no occasion to question or try this point but by the Act of Par. July 23. 1644. Session 1. c. 20. The power of disposing of the vacant Benefice or Stipend was taken from the Patron and Stated in the Presbytrie and Paroch to be disposed upon for pious uses and by Act of par 1949. c. 39. The power of presentation is also taken away yet thetitle 〈◊〉 unsitly design that Act an abolution of patronage for there is no more there taken away but the power of presentation but on the contrary where the patron could have no Interest in the Benefice of Teinds but indirectly as aforesaid that declares the Heretable Right of the Teinds over and above the Stipend to be in the Patron but with necessity to dispone the same to the Heretors for six years purchase but these Acts are now Rescinded and patrons returned to their ancient Rights but they are excluded from the Fruits in the Vacancie which are applyed to pious uses for seven years and thereafter during his Majesties pleasure par 1661. cap. 52. and the Vacancies for seven years after the year 1672. are applyed to Universities par 1672. cap. 20. Ecclesiastical Benefices were so ordinarly patronat that there were scarce any free but all were presumed o be patronat and where the right of patronage did not appear to be established in any other the Pope was presumed patron before the Reformation and after the Reformation the King is presumed patron jure Corona where the right of another patron appeareth not There are other patronages belong to the King jure privato as when the King or his predecessors acquired any rights of patronages from any private person or when the King or his predecessors founded or doted the Benefice or when any Lands or Baronies fall in the Kings hand as Superiour by recognition or forefaulture all such having annexed thereto or comprehended therein the Advocation Donation and Right of patronage of any Kirk the King doth thereby become patron all those patronages are at the Kings dispose and transmissible to any Subject by the Kings proper deed either annexing or incorporating the same in Baronies or Lordships or by distinct Gifts for the patronage doth ordinarly pass as annexed to Lands Charters of Burghs Baronies or Lordships yet they may pass without Infeftments as jura incorporalia But there are other patronages which by Act of Parliament are annexed to the Crown either expresly or when Baronies Lordships or Benefices are annexed to the Crown if therein patronages of any Benefice were comprehended they are annexed though not exprest for Barony or Benefice are nomina universitatis being united and erected and therefore the Barony or Benefice without expressing Patronage do carry the same by Resignation Appryzing Adjudication Recognition or-Forefaulture as well as Salmond fishing or Milns But these Patronages being a part of the annexed Patrimony of the Crown cannot be disposed by the King without a publick Law or by a special Act of Dissolution for particular reasons of publick good anterior to the Kings Gift and Ratifications in Parliament which pass of course and are accounted but private Rights which will not establish the same though in the Ratification there be a Clause of Dissolution which is always understood to be as a private Right and not a publick Law The Patronages of all Bishopricks belong to the King who designs the person to be Bishop and though the Chapter may use the formality of Election they do not refuse the Kings Designation The order of this Election is prescrived Parliament 1617. cap. 1. where the Dean and Chapter are ordained to choose the person whom the King pleases to nominat and recommend he always being an uctual Minister of the Kirk who being Elected hath sufficient right to the Spirituality of his Benefice but not to the Temporality till he have a Charter from the King and do homage and swear obedience to him but the Arch-bishop of Saint Andrews is to be elected by the Bishops of Dunkel Aberdene Brichen Dumblane Ross Murray Orknay Caithness the Principal of Saint Leanards Colledge the Arch-Dean of Saint Andrews the Viccars of Saint Andrews Leuchers and Couper or most part of them Parliament 1617. cap. 2. And by the same Act the Arch-Bishop of Glasgow is to be Elected by the Bishop of Galloway Argile and Isles and the ordinar Chapter of Glasgow or most of them the Bishop of Galloway being Conveener of the Electors and now the Bishop of Edinburgh since that Bishoprick was Erected is by the Erection made an Elector and Conveener The King is also Patron of many Laick Patronages and there are several other Laick Patronages belonging to Subjects Ecclesiastick Patronages belong now only to the Bishops to whom some Kirks are patrimonial or Mensal the Fruits whereof are a part of the Bishops Benefice and the several Paroch Kirks are not distinct Benefices but partes beneficii but most be served by the Bishop himself or a Minister who is a Stipendiary and by the 19. Act Parl. 1633. all Ministers are appointed to be provided with sufficient Stipends being eight Chalders of Victual or eight hundereth Merks at least except in singular cases referred to the Commissioners for plantation of Kirks who are authorized as Commissioners of Parliament to value Teinds modifie Stipends and grant Localities for fixing thereof upon particular Lands The Bishops have the Patronage of some Kirks without their Diocies and do present to the Bishop of that Diocie but if the Bishop should acquire any patronage of a Kirk within his own Diocie that Kirk cannot be Patronat but becomes free and is conferred by the Bishop pleno jure for he cannot present to himself yet by the Collation the person Collated is not a Stipendiar but is Parson or Viccar and hath the full benefite of the Fruits except in so far as they are restricted by Tacks set lawfully by them or their Predecessors The common Kirks which were to be provided by the Bishops and their
Chapters in common were not properly Patronat by Presentations but by Nominations and Collations yet the Incumbents were not Stipendiaries but enjoyed these Kirks as Benefices But after the Reformation when Bishops and Chapters were supprest these common Kirks were declared to be of the same nature with other Parsonages and Viccarages and to be conferred by Presentations of the lawful Patrons and Collation whereby they become then Patronate the King or these to whom he gave right being Patrons but after the Restitution of Bishops and Chapters Parliament 1617. cap. 2. these common Kirks were restored to their ancient condition Colledge Kirks were Benefices whereof the King was Patron except some few which belonged to Subjects Chaplainries and Altarages were under Patronage of the Founders or their Successors Before the Reformation there were but few inferior benefices below Prelacies viz. Collegiat and common Kirks Parsonage and Viccarages which are but very few and many be found by the Stent Rolls whereby eveny Parsonage and Viccarage are Taxed apart as distinct Benefices the far greater part of all the Teinds of Scotland did belong to Prelacies such as Bishopricks and Abbacies and all the paroch Kirks which belong to them are not distinct benefices but a part of their patrimony and were served by themselves their Viccars or their Substitutes without any fixed maintenance but ad placitum so that there was no patronages of all these Kirks and the ordinar provision thereof was the Viccarage or small Teind and sometimes Viccar pensions out of the parsonage Teinds After the Reformation all monasteries being supprest they return to the King jure Coronae as to their whole benefices both the Teinds or Spitituality and Lands and Baronies or other Temporal Rights but the King gifted the most part of these benefices both Spirituality and Temporality to the Nobility and Gentry and Erected the same in Temporal Baronies and Lordships but with burden of competent provisions to the Ministers of all the Kirks which were parts of the patrimony of the saids great benefices whereby the Lords of Erection coming in place of these Monasteries had right to all the Teinds of the Kirks which were the patrimony thereof and the Abbots and Priors did nominate their Viccars in these Kirks so the Lords of Erection did nominate the Ministers to the same and presented them to the Church-men to be tryed and admitted and thereupon assumed the Title of patrons though properly they were not such because the Ministers had no benefices but were Stipendaries having no Rights to the Fruits till the year 1587. when the Temporalities of all benefices belonging to Arch-bishops Bishops Priors Prioresses or whatsomever Ecclesiastical benefite belonging to any Abbay Cloister Friers Monks Channons Common-kirks and Collegiat kirks were annexed unto the Crown with several exceptions Act 29. par 1587. and though that Act seem only to annex the Temporality then belonging to these Church-men and not to extend to the Temporalities already Erected to secular persons yet by the exceptions of the many Erections therein contained it hath been ever held as an Annexation of all the Temporalities that did belong to these benefices but the Spirituality or Teinds are declared not to be annexed but by the Act 115 Parliament 1592. Erections either of kirk-lands or Teinds in Temporal Lordships after the said Act of Annexation are declared null except such parts and portions of the kirk-lands already erected in Temporal Lordships to such persons as since the Act of Annexation have received the honours of Lords of parliament and have sitten and votted in parliament as Temporal Lords whence the question ariseth whether that exception derogates only from this Act or also from the said general Act of Annexation but by the 195. Act parliament 1594. all Erections since the said general Act of Annexation not excepted in the said Act are declared null which doth also leave a doubt as to to the Erections preceeding the said Act of Annexation and by the second Act parliament 1606. Restoring bishops it is declared for the better satisfaction of His Majesties Subjects and faithful Servants whom His Majesty hath rewarded with Erections Feues patronages Teinds and Confirmations of Teinds patronages and other Rights of Abbacies and that they may not be put in mistrust therefore ratifies the hail Erections Infeftments Confirmations Patronages Tacks and other securities of Benefices not being Bishopricks given disponed and confirmed by His Majesty during the Parliament 1587. before or sinsine agreeable to the saids Laws and Acts of Parliament and faithfully promits in verbo principis never to quarrel the same which seems to give further ground to Erections though qualified with that provision that the saids Erections be conform to the Acts of Annexation and Laws made sinsine whereby the same might only extend to the Erections excepted and warranted in the said Act of Annexation which excepts several Erections formerly made and leaves some Kirk-lands to the Kings dispose by subsequent Erection In this case did King James leave the condition of kirk-Kirk-lands Teinds and Patronages King Charles the first coming to the Crown and being informed of the great Benefite His Father might have made by suppressing of Popery and the Popish Benefices if He had not gifted them away before He consider did resolve to recover the same to the Crown and therefore made a very ample Revocation of all Deeds done in prejudice of the Crown or any of His Royal Progenitors and in the year 1627. there was a Reduction intended of all Erections of Kirk-lands Teinds Patronages which did pertain to whatsomever Abbacy Priory or other Benefice and Acts of Parliament Ratifying the same with all Infeftments of Heretable Offices or Regalities Which Revocation and Process having made a great noise the King gave Commission to several Noblemen and others to endeavour an agreement with these who had right to Erections or any right to Kirklands or Teinds whereupon there was a Submission made by many persons who had right to Kirk-lands and Teinds containing a Procuratory of Resignation in the Kings hands ad perpetuam remanentiam of the Superiority of all Lands and other Temporal Rights pertaining to whatsomever Erection of the Temporality of Benefices reserving and excepting the Property of all the saids Lands and others whereunto they had right before or after the saids Erections paying the ancient Feu-duties to His Majesty that were payable to Kirk-men and that such demains and mensal Lands of the saids Benefices as were never set in Feu or Rental by the ancient Titulars before the Act of Annexation nor by the King and were then possessed by any of the Lords of Erection should be Feued to them and no others for such Feu-duties as His Majesties Commissioners should appoint they did thereby also submit to His Majesty what satisfaction He should give them for the Feu-duties and other constant Rent of the Superiorities Resigned and all rights of Teithes that they had that His Majesty might appoint the quantity rate and
Baltersaw in the case of an Apprizer whose Appryzing was before the Warning it was found valide though the Infeftment was after against the Debitor from whom the Lands were Apprized but to take effect at Whitsonday thereafter and without violent Profites December 18. 1632. Dalrimple contra Douglas And removing was sustained at the instance of an Heir Retoured and Infeft pursued upon a warning used by his Predecessor though his Infeftment was after the Term July 28. 1637. Earl of Hadingtoun contra his Tennents It was also sustained at the instance of a Fiar upon a Warning made by a Liferenter and Fiar joyntly November 27. 1629. Ramsay contra Hoom. But a removing was not sustained upon a warning made by the Fiar before the Liferenters death no not to take effect at the next Whitsonday without a new warning June 30. 1669. Agnew contra Tennents of Dronlaw Though Infeftment be the best Title for removing yet it must be limited First It takes no place being upon Infeftment proceeding upon a Precept of Clare constat Hope hic Stevinson contra Stevinson and that in respect this Precept is but the Assertion of the granter Yet if either the Predecessour of that Heir was in Possession or the Superiour himself it would suffice Secondly It holds not in base Infeftments not cled with Possession unless the Authors Right be instructed or acknowledged if the Defender have any Title Thirdly A Tercers Service and Kenning to her Terce is a sufficient Title in removing Fourthlie The Courtesie of Scotland is a good Title for removing after a Wifes death without any Seasine or Solemnity or the Husbands jus mariti before her death which will be effectual though she die before Sentence or Process to the effect that the Husband may get the benefite of the violent profites for the time preceeding her death though he cannot attain the Possession Fifthly An Executor may insist for a removing upon a warning used by the Defunct to the effect he may obtain the violent profites due before the Defuncts death Sixthly a tack is a sufficient Title for removing if it contain expressely the power to out-put and in-put Tennents or if it be a Liferent-tack or for nineteen years or above as hath been now shown amongst the effects of Tacks but this must proceed either upon the setters Right or a Possessory judgement in the setter or Tacks-man Removing is not sustainable upon an incompleat right as upon an Appryzing though the Superiour be charged and the Letters have been found orderly proceeded against him to infeft the Apprizer and the objection only proponed by Tennents pretending no right March 25. 1628. Bar Lockhart contra his Tennents Yea though the removing was against the Debitor himself February 20. 1629. Mr. John Galloway contra 〈◊〉 Though it hath been now shown that an Appryzer being Infeft obtained removing from an House against his Debitor without warning The like holds in Adjudications and in the case of the Superiours pursuing upon the Vassals Liferent-escheat it not being declared Hope hic Patrick Butter contra Andrew Harvie And so consequently in all other rights of Superiority where Declarator is required and though the Superiour needs show no Title unless the Vassal disclaim him yet his Donatar pursuing upon a Liferent-escheat was not admitted till the Superiours Seasine was produced Hope hic David M'call contra Tennents And it is so in all cases wherein the Superiour or the Vassal are singular successors and so have ground to doubt and cannot be put to disclaim 42. We come now to the Exceptions against removing to speak nothing here of common Exceptions or of thr pursuers want of a sufficient Title which are rather objections then exceptions and are sufficiently cleared by what we have said upon the Titles of Removing It must be adverted that before the Defender can have any exception admitted to his probation he must find Caution for the violent profites if he succumb And that by the said Statute 1555. Cap. 39. justly introduced in respect of the contentiousness of parties to keep possession yet this will not hinder objections against the Titles or the like being instantly verified and not making delay that being the motive of that Act to prevent delays 43. These exceptions though they be many may be thus Martialled they are first against the order and warning Secondly Upon deeds done by the Pursuer Thirdly Upon the interest of the Defenders Master Fourthly Upon the Defenders own interest Fifthly Upon obedience For the first every point of the warning now related is so necessary that the omitting of any one affoordeth a sufficient defence yer a warning was not found null though made at a Kirk-door where there were no divine service accustomed being in the time that divine service used to be performed and the Kirk being known a distinct Kirk Nicolson hic Hoom contra Removing may be excluded by deeds done by the pursuer either by any personal obliegement not to remove or any deed importing the same as a Disposition or Obliegement to Infeft which are sufficient against him but not against his singular Successors or if he renunce or pass from the warning or action either directly or by deeds importing the same as taking Rents before the hand or taking a Herezeld as to the year ensuing March 20. 1629. Auchinleck contra Mathie Or by accepting the old accustomed Mails for Terms after the warning Nicolson de migrando Irving contra French Hope hic Carnousie contra Or by receipt of Taxation for Terms since the Decreet of removing ibid. Or by accepting services contained in the Tack for the Terms after the warning but this is not relevant if the same be at the command of the pursuers Factor or Grieve without special order March 5. 1629. Laird of Lie younger contra Kirkwood Neither by accepting presents though accustomed not being special in the Tack these being interpret gratuitous as before is shown Removing is also elided by prescription upon three years forbearance to pursue And that by the Statute 1579. cap. 82. for thereby the pursuer is presumed to pass from his warning but these three years are not accounted anni continui but anni utiles from the warning without accounting the time betwixt the warning and Term but from the Term to which the warning was made because none can be said to delay to pursue before he be necessitate to pursue which is not till after the Term it was so decided February 6. 1629. Lady Borthwick contra Scot of Goldilands But removing may be sustained before the Term that it may take effect precisely at the Term Otherways many Tennents may be disappointed who take upon the warning of other Tennents their Rooms and renunce their own or are warned therefrom and so removing was sustained before the Term to take effect then November 21. 1671. James Riddel contra Charles Zinsan But the process being once intended it continues till the great prescription of fourty years except such as
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
away the real right of Wodset so the Money came to be in the Property of the Wodsetter as moveable and fell to his Executor which till a Declarator was not so seing the Order might be passed from December 19. 1629. 〈◊〉 contra Miller where it was found that the Consignatar was oblieged to re-deliver the Consigned Money to the Consigner his Heirs or Assigneys passing from the Order though the Wodsetter to whose use it was Consigned was not called The like was found that till Declarator the congned sums remain in the Property of the Consigner and belong not to the Executor of the Wodsetter but to his heir or where Declarator of Redemption was after the Wodsetters death January 21. 1673. Thomas Nicol contra Lourie Iune 18. 1675. Laird of Lie contra Forbes of Blacktoun Upon Declarator of redemption Letters will be obtained summarly against the Consignatar to re-produce the Consigned Money December 7 1631. 1631. Grierson contra Gordoun But though the Instrument of Consignation will instruct the Consignation against the Wodsetter yet it will not prove against the Consignatar without his oath or write subscribed by his own hand Ianuary 14. 1630. Lausree contra Miller 21. Redemption was not elided by a singular Successor obtaining Infeftment of the Wodset Landsafter the Order or at least the Infeftment being base not cled with Possession till after the Order though it was cled with seven years Possession before Declarator Hope Confirmation Earl of Errol contra Tennents and Lady Seaforth 22. Wodsets are also taken off by Premonition or requisition requiring the sums upon which the Wodset is granted which makes the sums moveable and the Infeftment of Wodset void yet so that the requirer may pass from his requisition and the Infeftment revives January 29. 1635. James Hamiltoun contra Tennents of Calder The Requisition may be also past from indireclty by uplifting the Duties of the Wodset Lands for Terms after the requisition Hope Usury Thomas Waliace contra Laird of Edzel or taking posterior Terms of Annualrent from Principal or Cautioner Requisition requires also the same solemnities that Premonition requires and therefore it was not sustained where the Procurator designed no time nor place to pay the Money required and the Instrument was mended at the Bar as to the reading of the Procuratory and the truth of it referred to the defenders oath which the Lords admitted not the Instrument being otherways produced in Judgement this was in expyring of a Reversion for not payment upon requisition The like when the requisition bore that February 7. 1628. Maxwel contra Laird of Innerweek The like where the requisition mentioned not the production or the Procuratory though it bore not it to be called November 13. 1622. Laird of Bass contra Wauchop This was in a requisition only to validat a Charge the contrary was found where it bore that the Procurators power was known to him and the witness Ianuary 18. 1665. Stuart contra Stuart Here there was an Apprising deduced upon the requisition The like where the Procuratory was not called for and was in the Procurators hand June 28. 1671. Hellen Home contra Lord Justice Clerk 23. Declarators of redemption or renunciations or grants of redemption do ordinarly bear that the Wodsetter renunceth all right to the Wodset Lands and albeit he have a distinct right it will not stop the Declarator nor obliege the redeemer to debate thereanent in that Proces Nor will it stop the entering the redeemer in the Possession in which he entered by the Wodset but that right will only be reserved November 22. 1677. Sir Archibald Stuart of Castlemilk contra Duke of Hamiltoun And if the Wodsetter condescend upon and give evidence of any other right beside the Wodset it will be particularly reserved or the renunciation will only bear all right by vertue of the Wodset Hope Confirmation Baikie contra Iuly 2. 1623. Earl of Errol contra Bukie And in the case of redemption of an Appryzing the renunciation was restricted to the right in question February 22. 1631. Murray contra Lord Yester Declarators of redemption do descern the Wodsetter to renunce and resign all right to the Wodset Lands unless a right distinct from the Wodset could be instructed which will be excepted or an evidence given of such a right which thereupon will be reserved But a general reservation of other rights was not sustained but a Declarator of redemption was found a species of Declarator of right after which no right competent and omitted will be sustained which was then known February 2. 1676. Duke of Lauderdail contra Lord and Lady Yester 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 warrand in write 4. Resignations ad remanentiam were valide without Registration till the year 1669. 5. Resignations imply all burdens 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 Superiours 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 Vassalls 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 feues exceeding the half of the full rent may subsist without recognition 15. In what cases other feues of ward-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 alienate 18. Recognition is not incurred by alienations to the Vassals appearand heir 19. Whether recognition be incurred by alienations on condition that the Superiour consent 20. Inhibition excludes not recognition 21. Recognition is not excluded by the Vassals drunkeness when he alienat 22. How the Superiours consent may be adhibite 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 Vassals deed without the Superiours 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 declarator of recognition 29. Disclamation how incurred 30. Purpresture how incurred 31. Feudal Delinquences adduced by the Feudists for resolving fees 32. Attrocious deeds against Vassals fidelity to their Superiours resolving their fees 33. How far the ignorance or weakness of the Vassal excuses with other exception for the Vassal 34. Whether the delinquence of the Sub-vassal
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
Customs rule ordinarly according to the Feudal-books The doubt remaineth which may be cleared thus First Though in some cases alienation be extended to Location yet it is not so by the common feudal Customs Secondly If the Subfeu-dation be a real Feu-ferm whereby the Feu-duty is considerable and competent to intertain the Vassal such Sub-feudation is thereby accounted only Lacation Nor doth it infer recognition being in effect no more then a perpetual Location whereby the Antinomy in the Feudal Law is sufficiently reconciled that such Sub-feudations are not alienations But if the Sub-feudation be Ward Blensh or in Mortification or though it be under the name of Emphyteosis yet for an elusory or an inconsiderable and unproportionable Feu-duty which by no estimation can be correspodent to the profite of the Fee but within the half of the true worth in these cases the Sub-feudation is alienation inferreth recognition 14. As to our own Customs in this point they do agree to the common Feudal Customs as to Subaltern Infeftments Blensh Ward or in mortification or Elusory or unprofitable Feus But as to Feues by which the major part of the profite of the Ward or Fee is not taken away though such cases have not occurred to be contraverted they seem not to infer recognition for if the major part be not alienate Subaltern Infeudations though Blensh or in Mortification infer not recognition when these rights are disjunctim of parts of the Fee There appears no reason that the Subfeudation of the whole with a Feu-duty equivalent to the half of the true Rent whereby in effect the half is not alienate seing the dominium directum of the whole and the profite of the half is retained should infer recognition especially now when generally Fees are granted for Causes Onerous 15. And by the Statute allowing Feues Par. 1457. cap. 72. It is provided that the Feu be set to a competent avail which by the said Statute is cleared to be without diminution of the Rental and which is commonly interpret the retoure duty because it was the publick valuation and rate at that time And by the said statute such Feues are confirmed and declared not to be prejudged by the Ward without mention of the hazard of recognition as not being consequent upon such Feues But this Statute being abrogate as to the Leiges Par. 18. Ja. 6. cap. 12. All Sub-feues of Ward-lands holden of Subjects without the Superiours consent are declared null and void But there is no mention of recognition to be incurred thereby And Feues are only prohibited as being in prejudice of the Over-lords who are not prejudged if the major part be not alienate seing all Subaltern Infeftments not exceeding the half are allowed by Law And albeit the Narrative of the Act respect Feues preceeding it yet the Statutory part is only as to Feues granted thereafter And the like prohibition is appointed for the King and Princes Vassals Par. 1633. cap. 16. The effect of this Act as to the Vassals of the King and Prince was suspended till the next meeting of Parliament and the Vassals exempted therefrom in the interim Par. 1640. cap. 36. And the said Act was wholly repealed Par. 1641. cap. 58. And so remained until all these Parliaments were Rescinded seing the private rights of parties acquired thereby by the general Act Rescissory Par. 1661. cap. 15. But it hath been found that alienations during these Acts now rescinded and during the usurpation when Wards were discharged did infer recognition seing the Vassal did not seek Confirmation after the Kings return December 15. 1669. Maitland of Pittrichy contra Gordoun of Gight The like was found in the recognition at the instance of Sir George Kinard contra the Vassals of the Lord Gray The like though the base Infeftment inferring recognitien was in Anno 1643. when there was a Statute then standing allowing such Infeftments seing after rescinding that Statute no application was made to the King for Confirmation January 7. 1676. Cockburn of Riselaw conira Cockburn of Chouslie But recognition was excluded where the Vassal required the Superiour to confirm the subaltern right debito tempore or did purge the same by procuring resignations ad remanentiam to himself from the Sub-vassals February 12. 1674. Viscount of Kilsyth contra Hamiltoun of Bardowie But recognition was not found against a Pupil upon his Tutors taking Infeftment for him during the Usurpation July 15. 1669. Jack contra Jack Whereby it is clear that Feues have no effect against the Superiour as to the Ward Non-entry more then Tacks 16. Whether the alienation be by Infeftment holden from or of the Vassal there is no recognition with us except in Ward-holdings yea if the holding be dubious and soa probable ground of error of the Vassal as being a payment of Money in the Reddendo with Service used and wont which though truly Ward yet because the payment of Money may render it dubious Craig holdeth in the said Dieg. l. 3. that it would not infer recognition yet this will not give ground to think that alienation of Lands Taxt-ward would excuse from recognition because Ward is more clear and expressed nominatim in that case in it self for the Casualities thereof being Taxed as the Marriage and Ward-duties Which 〈◊〉 is but a Liquidation or Location of these casualities when they occur and no alteration of the nature of the Fee and therefore in the said pursuit at the instance of the Lady Carnagie contra the Lord Cranburn it was not found relevant to exclude the recognition that the Ward was Taxed 17. It is also clear that alienation whether by Infeftment holden of or from the Vassal not exceeding the half of the Fee inferreth not recognition so much being indulged to the vassals for his conveniency or necessity but if together or by parcels or by Annualrent the major part be alienat not only that which then was in the vassals person falls under recognition But as Craig holdeth in the forecited place Dieg. 3. l. 3. even the whole Fee So that parcels alienat validly but without the Superiours consent before become void and return But though the vassal grant Infeftments exceeding the half of the fee yet if some of them were extinct before others were granted so that there was at no time rights standing together exceeding the half of the see recognition is not incurred February 23. 1681. Iohn Hay contra Creditors of Muirie But Deeds done by Predecessors and their Heirs or Authors and their Successors were in that case conjoyned Upon the same ground an Infeftment of the see in Liferent would not infer recognition because it exceeds not the half of the value Yea recognition was found not incurred by granting an Infeftment in Warrandice for Warrandice is but a hazard in case of Eviction not equivalent to the half of the worth of the Lands granted in warrandice unless the right of the principal Lands were manifeftly defective Feb. 21. 1623. Cathcart contra
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
fourty years though no Feu Blensh or other Duty or Casuality be demanded by the Superiour because the Vassals Right acknowledgeth the Superiours Right and his possession is also the Superiours possession Yet all Duties and Casualities thereupon not pursued within fourty years prescrive without prejudice to these due within fourty years of the pursuit December 15. 1638. Sir William Stuart of Gairntullie contra Commissar of St. Andrews 17. Which holdeth in Tack-duties which prescrive as to the years preceeding fourty before the pursute but no other March 10. 1627. betwixt two Glasgow Men Spots Prescription Stuart contra Fleeming Yet Prescription by possessing fourty years as part and pertinent by an Infeftment was not Elided because before these fourty years the Possessors Author had a Tack of the Lands in question February 20. 1675. Countess of Murray contra Mr. Robert Weyms though in this case the Land in question was separatum Tenementum by a distinct infeftment but became part and pertinent by being so brooked fourty years By this Statute Prescription of Heretable Rights doth not only exclude other Infeftments in Property but also Annualrents Pensions and all other Rights and so an Heretor possessing fourty years was found free thereof July 22. 1634. Margaret Forrester contra Possessors of Bothkennel where the Office of Forrester and Fees thereof were found prescrived 18. From this Prescription there are excepted the Rights of Pupils and Minors against whom the Prescription runs not during their Minority so that they need not seek Restitution in integrum as in the Civil Law which exception is particularly exprest in the foresaid Statute and is extended to all other Prescriptions of personal Rights or others Spots Prescription Duke of Lennox contra the Executors of Alexander Beatoun But there is no exception of Rights mortified to pioususes as Bead-men June 30. 1671. Bead-men of Magdillan-Chapel contra Gavin Drysdale 19. In neither of the Statutes introducing long prescription by fourty years is there any mention or provision concerning the manner of the entry in possession whether it was bona fide peaceable or lawful but only that it have a Title and be continued without interruption 20. The Title in heretable Rights being ground-rights of Lands or Annualrents is very well distinguished by the last Statute betwixt Conquest and Heretage for Heretage which hath descended by succession from a predecessor is content with a more slender Title viz. Seasines without the Warrands or Adminicles but only bearing that they proceed upon Retoures or Precepts of Clare constat providing that the possession hath been by vertue of these Seasines So that not only there must be possession for fourty years together but Seasines consecutive proper to the several possessors during that time But purchasers must not only have for their Title a Seasine preceeding the fourty years prescription but if they found upon their proper right they must also produce a Charter preceeding the fourty years And therefore though a purchaser should possess fourty years and show his Seasine anterior thereto yet would it not be a Title for prescription unless he produce a Charter before that time where by Charter must not be understood a solemn Charter as it is distinguished from a Disposition or Precept but as it comprehends these for many valid Infeftments have no Charter but Seasine proceeds upon the Precept of Seasine contained in the Disposition And though a Precept of Seasine were only shown as the warrand of the Seasine the same with fourty years possession by vertue thereof would perfect Prescription for the Seasines of themselves without Warrand or Adminicle are but the assertions of Nottars and not probative yet they are sufficiently probative not only by the immediat Warrand or Precept whereupon they proceed but upon the mediat Warrand as if a Seasine be produced with a Bond or Obliegement to grant an Infeftment conform to that Seasine vide Tit. 3. § 19. But purchasers may well conjoin their own Title and their Authors So that if he can show in his Authors persons consecutive Seasines for fourty years upon Retoures or Precepts of Clare constat and possession conform it will be sufficient or if they cannot show such Seasines and Possession in their Authors for the whole fourty years yet if they show the accomplishment of fourty years by their own Seasines and Warrands thereof and possession conform these may compleat the Prescription 21. This Statute doth not only secure Rights and Lands and Annualrents by fourty years peaceable possession cum titulo but also other heretable Rights such as Wodsets for Registrat or incorporat Reversions being exprest as exceptions Wodsets must be comprehended in the Rule and all Infeftments for Security or Relief which do imply a Reversion incorporat It will also extend to Infeftments of Teinds for though Teinds be separatum Tenementum from the Stock yet both are ground-rights or Infeftments of the Land yea Infeftments of Life-rent if possessed and unquarrelled for fourty years showing their Seasine and the Warrand or Adminicle thereof the same would make the Liferent-right irreducible or might perfect Prescription being joined to their Authors Rights yea this Statute hath been extended to long Tacks of Lands Teinds or others 22. A right to Teinds may be prescribed as well as other Rights by fourty years possession but a right to by-gone Teinds being founded in publick Law prescribes not except as to the by-gones before fourty years and the possessor cannot prescribe an absolute immunity and freedom from payment within the fourty years and in time coming seing all Lands in Scotland by Law are lyable in Teind but such as never payed any being cum decimis inclusis or belonging to the Cystertian Order Templers and Hospitallers or Gleibs February 7. 1666. Earl of Panmure contra Parochioners of 23. This Statute is also extended unto rights of Patronage or Offices which are heretable rights though they be not alwayes constitute or continued by Infeftment yet fourty years possession by the original right in the first acquirer or by the continuation in their successors does establish their rights against all quarrelling by Reduction or Declarator Yea this Statue is extended to long Tacks which if cled with fourty years peaceable possession either in the Tacksman or his Assigneys or their Heirs who need no service cannot be quarrelled but stand valid not only for these fourty years but for all subsequent years unexpired As was found in a Tack of Teinds though set without consent of the Patron and the Bolls liquidate to ten shilling July 7. 1677. the Parson of Prestounhaugh contra his Parochioners 24. It is also extended to Thirlage and Multures with any antecedent adminicle as by inrollment of Court and generally to all servitudes though there be no more antecedent Title but part and pertinent of the dominant Tenement either exprest or implyed as was found in the case of a pasturage and sheilling albeit there was produced an old Tack bearing to be granted to
appryzing was found effectual against his Successors by translation July 6. 1676. Sir Lodovick Gordoun contra Skeen and Crawford But the Back-bond of an assigney to a Disposition of Land not drawn in question till the assigneys singular Successor was Infeft upon his translation was not found effectual against the singular Successor June 20. 1676. Brown contra Smith For if assignations Back-ponds or even Discharges or Renunciations of redeemable Dispositions of Lands were effectual against singular Successors in these Lands after the Rights were perfected in their own persons or their authors by Infeftment it might in a great part disappoint the design of these excellent Statutes for Registration of Land rights therefore unless Inhibition were used or the matter made Litigious upon these personal Rights before Infeftment they are not habile to affect a real right or a singular Successor therein but because appryzings within the legal may be taken away in the same manner as personal rights therefore the assignations discharges and back bonds by these who have right to the appryzing being made within the legal are effectual if thereupon the matter be made litigious before the expyry of the Legal Reversion or Inhibition used thereupon they will be effectual against the singular successors even after the Legal is expyred but after expyry of the Legal Infeftments upon appryzings are in the same case as Infeftments upon Irredeemable Dispositions for they are the foundation of the rights of most Lands in the Kingdom and if personal Rights should make them insecure after the expyry of the legal it would be of great inconvenience 22. Assigneys by Tutors to their Pupils Bonds will have no execution till the Tutors counts be made by the Cedent Decem. 2. 1679. James Cleiland contra Bailzie of Lamingtoun 23. It is more dubious and hath been diversly decided when the exceptions are personal against the Cedent in mutual Contracts the Contracter himself can have no action unless he fulfil his part but whether his assigney will be in the like case is the question which is at large cleared Tit. 10. § 16. and therefore shall not be here repeated Judicial assignations are oftwo sorts according to the matter conveyed thereby which if it be moveable is conveyed from the debitor to his Creditor by arrestment and decreet for making the arrested sums and goods forthcoming and if it be Heretable by appryzing or adjudication As to the first that the progress upon arrestment may be clearly taken up we shall first consider the arrestment it self Secondly The lousing of it Thirdly The action for making forthcoming Arrestment is a precept or command of a Judge ordaining the thing arrested to remain in the same case it is when arrested till such things be done as are prescribed in the precept or Letters of arrestment It is sometimes extended to any preparatory Precept of a Judge antecedent unto any further process so the first Citation or securing of persons till tryal were made or surety found it s called an arrestment or attatchment as appears in the force of the Crowners arreftments of Delinquents Par. 1487. cap. 99. Par. 1528. cap. 5. But arrestment proceeds most ordinarly upon an Interlocutor sentence as when parties are contending for Peats Turffs or Corn upon debateable Land these use to be arrested till the mater be decided whereby the thing arrested becomes litigious and any thing done to the contrary hath the effect of breach of arrestment and is of the Nature of innovatalite dependente which therefore must be summarly restored and put in statu quo and brings no advantage but loss to the actor 24. But arrestment which we are now about is Precept or Letters of arrestment arresting Debts or Goods in the hands of any party haver thereof at the instance of the Creditor of him to whom the Debts or Goods belong to remain under arrestment untill the debt whereupon the arrestment proceeds be secured or satisfied therefore arrestments may be granted by all Judges ordinar Superior or Inferior but the arrestment of an Inferior Judge was only found effectual in Process before himself and before no other Inferiour Judge March 8. 1634. Smith contra Miller But upon occasion of this debate most of the Lords thought an Inferiour Judge might proceed upon the Lords arrestment passing in the Kings name and there is not wanting ground to think that an Inferiour Judge may proceed upon the arrestment of another seing all of them proceed alone upon the Kings authority as if the defender change his Domicile An arrestment made by the Inferiour Judge where hedwelt before ought not to be ineffectual nor he necessitate to pursue before the Lords as was found in an arrestment before the Admiral March 22 1637. 〈◊〉 contra Gray Yet an arrestment upon the Precept of an Inferiour Judge was found null because execute without the Jurisdiction of that Judge although the party in whose hands it was made dw eltwithin the Jurisdiction Decem. 5. 1671. Mr. Andrew Miller contra Orsburn Crawford and the Laird of Bishoptoun The reason hereof was no execution is valid Extra tertitorium Judicis which doth not conclude against the arrestment of an Inferiour Judge made within his own Jurisdiction but that it would be sustained against that party in any Process before the Lords or any Superiour having cumulative Jurisdiction or even before a Co-ordinat or Inferiour Jurisdiction in which if any question were made the Lords by Letters of supplement would readily auctorize the same Arrestment requires no other solemnity but the execution thereof by him to whom the Letters are directed which requires the like requisites as other executions do of which hereafter 25. There hath been an extraordinary form of arrestment sometime used and sustained whereby Creditors did arrest the Goods of their Debitors in the Debitors own hand and thereupon did pursue such as bought from them whereof there is an instance observed by Dury Jan. 10. 1624. betwixt the Laird of Innerweek John Wilkie and the Lady Bothwel wherein Innerweek having arrested a parcel of Wool in the Lady Botwels hand upon a debt owing by her to him and she having thereafter sold the Wool to John Wilkie who payed the price he was decerned to make forthcoming the true worth of the Wool to Innerweek although nothing appears instructed that there was any Collusion betwixt the Lady Bothwel and Wilkie but what may be conjectured from the Lords allowing the price of the Wool This kind of arrestment hath not been drawn in example for I have found no instance of it observed by any since that time and as the instance observed is but the arrestment of one particular if it were to be allowed it might be extended to more particulars even to all the moveable Goods and Means of the debitor and certainly it would be ordinarly so used as straitning the debitor more that he could dispose of nothing but to the use of the arresting Creditor and so it would become
contra Fleming The like found of a Liferent which carried the Right of a Reversion quo ad the Liferenters life Decem. 5. 1665. Beg contra Beg. 2. There is no question of this accression when the disponer disponeth for all Right he hath had or shall acquire which is a general assignation or disposition of any Right superveening if the debate fall betwixt the disponer and successor there is also little question if the Right disponed have exprest or implyed absolute Warrandice as being for a Cause Onerous In which case if the question be betwixt the disponer and successor he who disponed for an equivalent Cause importing his acknowledgement of having an absolute Right cannot cloath himself with any posterior Right which would infer warrandice against him if it were in another person and therefore that personal objection excludes him it being in his own person Neither is it questionable that if the Disposition or Assignation be limited as being only to a particular Title or generally for any Right the Disponer hath or bearing warrandice from his own Fact and Deed then if he acquire a posterior Right he may make use thereof against that person to whom he disponed much more may any singular Successor of his and therefore in the case decided July 19. 1664. betwixt Dam Elizabeth Dowglas and Sir Robert Sinclar her Spouse contra the Laird of Wedderburn anent the Teinds of Kello and Kimmergem whereof the Earl of Home common author gave a Tack to Wedderburns predecessor with warrandice from his own deed and any right the Earl then had being reduced he did thereafter acquire a new Right from Coldinghame and thereupon granted a Right to William Dowglas of Evla to whom the said Dam Elizabeth Dowglas is heir which supperveening Right was found not to accresce to Wedderburn to defend his Tack seing he had not absolute warrandice but from his own deed only But the main question is when the contraversie is not betwixt the author and the party to whom he dispones but betwixt the singular Successor of that author and that party to whom he had disponed before in which case the personal objection upon the warrandice hath no place and oftimes the right superveening requireth special solemnities and cannot be transmitted without these as Resignation Confirmation Seasine yet even in these cases reason and the Lords Decision extended the rule so that the superveening Right ipso facto accresces without any new solemnities but if the necessar solemnities have preceeded when there was no right whensoever the Right superveens it is drawn back as if it had been in the time of the former solemnities fictione juris and so if a Superiour acquire the Right of Forefaultry of his Superiour the same ipso facto accresceth to the sub-vassals and cannot be made use of against them Spots Conjunctfees Malcolm Crawford contra Mordistoun The like was found Feb. 15. 16. 1665. Boid of Penkil contra Vassals of Carsluth In which case the Vassals were ordained to pay their share of the Composition of a Ward But where the superveening Right befell to the Authors appearand Heir and was by him disponed to another before he was entered Heir in that case the Authors appearand Heir obtaining gift of the Liferent-escheat of Lands disponed to Vassals the said Liferent was not found to accresce to the Vassals because the appearand Heir was denuded thereof in favours of another before he was Heir July 5. 1611. James Skeen contra Vassals of Athol this Rule was so far extended that a supervenient Right by Decreet of Reduction and Improbation acquired by Swintown having right to the Lands of Brimstoun was found to accresce to the Earl of Lauderdail being restored July 13. 1664. Earl of Lauderdale contra Heretor of Wolmet But where a person having a disposition of Lands did Insest another in Liferent himself never being Infeft did assign the Disposition to a third partie who was thereupon Infeft that Disposition was not found to accresce to the Annualrenter because his Author was never Infeft thereupon June 29. 1676. James Brown contra Smith It is the common opinion that if a party grant Infeftment before he be infeft himself and he thereafter Infeft it accresceth to that party whom he Infeft before if the question be betwixt them but I have not observed it directly decided quid juris in these 〈◊〉 if a person not infeft do give Right to two parties and thereafter be Infeft to which of the two his superveening Infeftment will accresce Or if he Infeft one when he is not Infeft and thereafter another when he is Infeft which of these will have right but it seems the first Infeftment in both cases will be preferred because she common Authors Right accresceth ipso facto Yet if the common Authors Infeftment proceed upon the diligence of any party it may seem the same will only accresce to him who is the procurer of it yet even in that case it was found to accress to the first Right with absolute warrandice June 21 1671. John Nielson contra Menzies of Enoch But now to return to what is special in Dispositions 3. A Disposition is the transmission or conveyance of real Rights from the Disponer to his singular Successor not in contemplation of the Disponers Death for such are comprehended among successions from the dead as Legacies Donations mortis causa c. A Disposition is said to be a conveyance and so it is taken not for the Dispositive act of the Will only but whatsoever else is requisite to compleat the conveyance as Tradition Resignation Possession though a Disposition is oftimes taken as distinct from these for the more clear uptaking of conveyances of real Rights Consider first what is requifite to transmit them by the Law of Nature without any positive Law or Custom and next what by these is requisite to transmit the several Rights As to the first it hath been shown in the Title real Rights how far Dominion and Property is competent by the Law of rational Nature and it cannot be doubted but that though there were no positive Law nor Custom that the rational Creature is naturally instructed how to Dispone and Alienate his own the power of Disposal being the Characteristick of Dominion which is natural to man being created Lord of the Creatures The question then is by what act men may naturally exercise the power of Disposal which can be no act of the Understanding that being only contemplative and nothing active nor operative for Constituting or Transmitting of Rights but it must needs be an act of the Will for by it Rights are both acquired Relinquished and alienate There may be three acts of the Will about the Disposal of Rights a resolution to Dispone a Paction Contract or Obligation to Dispone and a present will or consent that that which is the Disponers be the Acquirers Resolution terminats within the Resolver and may be dissolved by a contrary resolution
and so transmits no Right Paction does only Constitute or transmit a personal Right or Obligation whereby the person oblieged may be compelled to transmit the real Right It must needs then be the present dispositive will of the Owner which conveyeth the right to any other which is exprest by such words de presenti Titius Disponeth Alienateth or Annualzeth Gifteth Granteth Selleth c. which connot properly import an Obligation having its effect in the future though there may be Obligations consequent as to delivery warrandice c. But these Terms do expresse something presently done and not ingaged to be done and so can be nothing else but Alienation or Transmission of the Right itself That the Dispositive will of the owner alone without any further is sufficient to alienate his Right without Delivery or Possession is evident in personal Rights wherein the Dispositive Clause of Assignations or Translations is sufficient Intimation or Possession being introduced for expediency in some cases by our Custom that the dispositive will is also sufficient to transmit real Rights it appeareth because the will alone is sufficient to retain not only Rights but even Possession it self though there be no Corporeal act exercised therein and therefore the act of the will alone as it retaineth so may it relinquish that Right or Possession whereby it ceasseth to be the former Owners and therefore if the Will be not simply to Relinquish but to remit or transmit the Right to any other hoc ipso that other doth become dominus Dominion being the power of disposal which is a Faculty and no Corporeal thing and may be fitly Constitute in the Acquirer by the will of the Disponer unlels the Acquirer reject it for the Disponer before having the only power of disposal and remitting that power to the Acquirer the thing cannot be said to be nullius as being relinquished and therefore the Dominion or disposal of it must either be in the Disponer or the Acquirer not in the Disponer because by his will which is sufficient to Relinquish or quite it he hath remitted it and therefore that power must be in the Purchaser unless he reject it This is the more evident that Positive Law and Custom which requireth Delivery or Possession resteth in symbolical or imaginary Possession as by delivery ofEarth and Stone for Land of a Penny for Annualrent and in some cases requireth no Possession so the Fisk acquireth real Right without Possession and the right ofLegacies and others from the dead are transmitted without possession 5. But for Utilities sake not only the Romans but almost all Nations require some kind of Possession to accomplish real Rights that thereby the will of the Owner may sensibly touch the thing disponed and thereby be more manifest and sure so the Law saith Traditionibus Usucapionibus non nudis pact is dominia 〈◊〉 transferuntur with which our Custom accordeth It useth here to be debated whether Possession it self be sufficient to accomplish Dispositions or if there must be Tradition or delivery of that Possession by the disponer to the acquirer the forecited Law seems to require tradition or at least Usucapion or Prescription which doubtless are the most proper ways to accomplish dispositions yet Utiliter and Equivalenter Possession lawfully attained by vertue of the Disposition although not delivered by the Disponer will be sufficient as if the disponer were not in Possession himself and so cannot deliver it yet the Acquirer may recover it from the detainer or the acquirer might have been in Possession before by any other Title as by Custody Conduction c. In which case none require delivery yea it is more questionable whether the Possession would not Consumate the disposition though unlawfully attained as if the disponer not being in Possession the acquirer attained the Possession from a third party vi aut clam though he might be oblieged to restore that Possession to the third party yet whether it would not exclude a posteriour disposition though more Legal Possession It is a Question as probable in the Affirmative as in the Negative It remaineth then that Possession is the accomplishment of the Disposition of real Rights so that not the first Disposition but the first Possession by vertue thereof preferreth This Possession is not alike in all cases for in some real in others symbolical Possession is requisite which cannot be supplied by real Possesson it self as in Propertie of Lands or Annualrents by Infeftment wherein the disposition and natural Possession makes no real Right without Seasine July 12. 1628. Bennet contra Turnbul Novem. 25. 1628. Mitchel contra Wright Possession is requisite not only to the conveyance of the Property of Moveable Goods but also of Liferent-rights Tacks and Rentals Servitudes Pledges which Tacks though they be truely personal Rights of Location and constitute only as real Rights by Statute yet Intimation will not transmit them but there is necessity of Possession and though Liferents be more properly real Rights because Constitute by Infeftment yet seing a Liferenter cannot Infeft another as a Fiar can Assignation or Disposition is sufficient but it must be cled with Possession But Reversions though they be accounted as real Rights by Statute require no Possession for Transmitting them but an Assignation duely Registrate according to the Act of Par. 1617. is sufficient as a publick Intimation In Moveables Possession is of such efficacy that it doth not only consumate the disposition thereof but thereupon the disposition is presumed without any necessity to prove the same which was found sufficient to inctruct the Property of a Ship from Possession without vendition in Write July 26. 1623. Captain Hamilloun contra the Master of the Ship Stetine And the property of Money was inferred from having the Key of the Chist in which the Money was found sealed unless a contrary probation were adduced June 18. 1675. Tailzior contra Rankine And so a Creditor having poynded Goods from his debitor was preferred thereunto to a third party who offered to prove these goods to be his own proper goods bred upon his own ground and set a grassing to that debitor the poynder instructing that the goods were milked wrought and the off-spring thereof enjoyed by the debitor for two years without any possession by the other party during that space which so far presumed his right that the Lords admitted not the contrary probation Nevem 24. 1624. Turnbul of Symontoun contra Ker of Cavers The like upon two years possession June 17. 1625. Brown contra Hunterstoun But restitution of a Horse was not excluded because the possessour offered to prove he bought him from one who then had him in possession in respect the pursuer then offered to prove that immediatly before he had set the Horse in hyre for a Journey to that person who sold him Novem. 18. 1680. William Forsyth Stabler contra Hugh Kilpatrick So that it will not be sufficient to any claiming right to moveable goods
thereto as Dury observes but expresses not the parties July 22. 1626. As to the contrair Decision observed by Craig it saith nothing seing the first Infeftment upon the last Resignation was in favours of the resigners Son and so inter 〈◊〉 〈◊〉 was fraudulent which would not hold so if that Son had been a stranger acquiring bona fide for a cause onerous so then the Resignation in 〈◊〉 doth not denude the resigner of the real right but is incompleat till Infeftment follow and therefore a personal renunciation of him in whose favour it was will fully evacuat the Resignation and make the resigners Infeftment as intire as at first which could not be without a new Infeftment if the resigner had been divested as in the case of a Resignation ad remanentiam the Superiours simple renunciation or discharge thereof could not revive the Vassalsprior Infeftment but he behoved to be Infeft de 〈◊〉 and though after the Resignation till it be past from or Infeftment follow the Lands be in Non-entry it will not conclude that the resigner is denuded and the Fee is in the Superiour more then other Non-entries which give not the Superiour the property but a Casuality of the Fee In what case Dispositions of Moveables or Lands are holden to be simulate or fraudulent hath been shown before Title Reparation upon Circumvention or Fraud wherein retention of Possession in Moveables is a main ground for presuming simulation especially in gifts of Escheat yet if the Disposition of Moveables bear expresly to take effect after the Disponers death retention of Possession will not annul it neither will it be esteemed as a Legacy or donatio mortis causa if death be the Term and not the consideration of it and it was not found ptejudged by the Disponers universal Legacy March 8. 1626. Traquair contra Traquair 13. So much for Conventional Conveyances of real Rights Judicial Conveyances of real Rights are competent not by the nature of the right which cannot be alienate without consent of the owner and in the case of Infeftments holden of the Superiour without his consent who is not oblieged to receive any to be his Vassal but the Heirs and Successors of the first Vassal provided in the first Investiture and though the Investiture bear also the Vassals Heirs and Assigneys yet the Superiour cannot thereupon be compelled directly to receive a singular Successor Assigneys being only meaned such Assigneys to whom the Dispositions should be assigned before Infeftment thereon as was found in the case of recognition Lady Carnagy contra Cranburn February 5. 1663. But Law hath introduced in favours of Creditors Judicial Conveyances requiring no consent but authority of Law which hath also its Foundation in natural equity by which as Obligations are effectual for exaction of what is thereby due So is there were no positive Law norCustom the Creditor might exact either what is due in specie or the equivalent and therefore reprysals betwixt Nations not governed by one common Authority are lawful And by the custom of Nations extended not only against the party injurer who is oblieged to repair but against all the Subjects of his Soveraign if he do not cause reparation to be made The Judicial transmission of Moveables is by poynding which being a legal execution we shall leave it to that place Arrestment and the action for making for the coming do also transmit moveables but is rather proper to personal rights and so is competent against the havers of Moveables by reason of that personal obligation of restitution which is upon the haver to the owner beside his own property Of old alienations of Lands for money were very rare in Scotland or the contracting of considerable debts for the Nobility and Gentry did then live in a plain and sober way contenting themselves with that which their own Estates did afford And there was then known no legal execution for Debt against Lands or Heretable Rights but only against Moveables by the brieff of distress or Poynding by which not only the Moveables of the Debitor were poynded for his debt but all the Moveables upon his Lands belonging to his Tennents as appeareth from Act 36. Par. 1469. bearing this Title That the poor Tennents shall pay no further then their Terms Mail for their Lords Debt by the Brieff of distress which is correctory of the former custom whereby the goods and cattel of the Inhabitants of the Ground were distrenzied for their Lords debts though their Mails extended not to the avail of the debt and that not only for real debts affecting the ground by Infeftments of Annualrent Feu-duties or Casualities of Superiority or other debita fundi for which the Moveables of the Tennents and Possessors may yet be poynded for the Lords debt not exceeding their Terms Mail which is ordinarly in their hand or if payed may be allowed in the next Term but for the Heritors personal debt for by the Act the Debitors moveables in that or any other Barony or Shire are appointed to be poynded for satisfying of the Debt but debita fundi can only reach the Moveables of the Barony or Tenement affected therewith and though that this Act by its Tenor would yet extend to poynding of Tennents Moveables for their Masters personal debt custom hath restricted it only to real debts and it is intirely in desuetude as to personal debts which cannot burden Tennents but upon arrestment in so far as they are then debitors to their Masters Before this Statute in the year 1469. there is no mention in our Law or Customes of Appryzing or Adjudication But Appryzing was thereby introduced in this manner that where the debitor has not Moveable Goods but Lands the Sheriff shall cause sell the Lands to the avail of the debt and pay the Creditor which shall be redeemable by the debitor within seven years and if he cannot find a buyer he shall appryze the debitors Lands by thirteen persons of the best and worthiest in the 〈◊〉 least suspect to either party and assign to the Creditors Lands to the avail of the sum and the superiour shall receive the Creditor or any othe buyer for a years Rent as the Land is set for the time or otherways shall take the Land to himself and undergo the debt According to this Act Appryzings did proceed by Sheriffs and Baihes who for satisfying of debts Liquidat by Decreets issued Precepts for denuncing such Lands to be appryzed upon fifteen days warning conform to the act of Parliament which denunciation was publickly read upon the ground of the Land before witnesses and a Copy thereof left fixed thereupon and also at the Mercat Cross of the head Burgh of the Jurisdiction where the Lands ly and to the debitor whose Lands were to be appryzed expressing the Creditor sum day and place of appryzing that all parties interested might appear persons of Inquest and Witnesses were also summond to the same dyet and ordinarly the place was upon the ground of
would be thereby preferable to all other Rights after the Registration thereof June 8. 1665. 25. There are many debates which arise concerning the Entry betwixt appryzers and Superiours as whether the Superiour can be compelled to receive the appryzer without instructing that the Vassal from whom he hath appryzed was Infeft or specially Charged which hath been several times decided Negative fifty years since But now of a long time Charges against Superiours for Infefting appryzers salvo jure ejuslibet suo have been still sustained because it is unusual and difficult for the appryzer to get his debitors Evidents unless it were the Extract of his Seasine and the Superiours receiving him upon obedience cannot prejudge him and therefore the Superiour was ordained to receive the appryzer though himself was in possession by vertue of a Right March 5. 1634. Black contra Pitmedden The like whatever Right the Superiour might pretend March 11. 2636. Margaret Scot contra Gilbert Eliot 26. The quantity of the years Rent by the Act of Par. 1469. cap. 36. is exprest to be a years Mail as the Land is set for the time wherein consideration is had of such real burdens affecting the Land as are taken one with the Superiours consent But in the case of a Liferent so taken on the years Rent was modified full but delayed to be payed till the Liferenters death July 18. 1633. Branden Baird contra Consideration is also had of Feus set by the debitor before the appryzing which while warranted by Law the Superiour will only get a years Feu-duty for receiving the appryzer in the Superiority Feb. 15. 1634. Munktoun contra Lord Yester Spots appryzing Walter Cowan contra Master of Elphingstoun But the Superiour will not be oblieged to receive the appryzer for a years Rent of the Money appryzed for but of the Lands appryzed March 23. 1622. Mr. Simeon Ramsay contra Laird of Corstoun March 30. 1637. Thomas Peterson contra Walter Murray Yet in this last case the Lords modified the Rent far within the worth of the Lands for the Rent being worth 800. Merks was modified to 300. Merks A Superiour must not only receive the first Appryzer but all others who Charge though one was Infeft before any other Charged March 11. 1628. Ferguson contra Couper And if more Charge he must accept a years Rent for all providing that he who should be preferred refound to the rest the proportions payed by them to the Superiour July 22. 1628. Lord Borthwick and Walter Hay contra Haistoun and Smith 27. If the Superiour be contumacious and will not enter the appryzer upon diligence Craig lib. 2. dieg 2. Prescrives that the Superiour may be thrice required and if he refuse Letters may be obtained from the Lords to Charge his Superiour to receive the appryzer supplying his place and so from Superiour to Superiour till he come to the King who refuseth none by which the Superiour would loose the Casualities of his Superiority during his Life as is ordinary in the Entry of heirs upon retour 28. As to the next Point Infeftment following upon appryzing doth Constitute a real Right but under Reversion of seven years being before the Act debitor and creditor Par. 1661. cap. 62. or since of ten years which is counted from the date of the Appryzing and not from the allowance or Infeftment November 11. 1630. Laird of Limpitlaw contra Mr. James Aikenhead 29. Yet it remains but as a security which the appryzer may renunce or make use of other securities till he be satisfied March 15. 1628. Lord Blantyre contra Parochioners of Bothwel The like though after the Legal was expyred Decem. 7. 1631. Scarlet contra Paterson But here the appryzer had attained no Possession 30. Remains the last Point proposed how appryzings become extinct and are taken off and that is first when the appryzing is declared null thorow defect of any essential Solemnity Secondly When the sum whereupon it is deduced is not due as when the half thereof was payed Hope appryzing Samuel Blackburn contra James Lamb. James Lamb contra Hepburn of Smeatoun Or being deduced for a Terms Rent which was not due till after the appryzing albeit it was an assigney who appryzed seing it was to the behove of the Cedent it was found relevan to reduce the appryzing in totum June 20. 1678. Scot of Burnfoot contra Sir John Falconer and James Edmonston Jan. 31. 1679. Francis Irving contra contra Laird of Drum The like where a part of the sum was Poinded for and yet the appryzing was for the whole Nicol qui potiores in pignore John Steven contra Maxwels Or where the denunciation was before the Term of payment though the appryzing was after Nov. 28. 1623. Mr. Robert Craig contra Wilson And an appryzing for two Sums instead thereof as to one of which sums the decreet was loosed turnedin a Lybel before the appryzing was deduced Yet the appryzers intromission thereby before Citation was not found to be repealed as being consumed bonafide upon a colourable Title Nov. 23. 1677. Boid and Graham contra Malloch And an appryzing was reduced because one of the sums appryzed for was Registrat a non suo judice July 20. 1678. Moreis contra Orrock of Balram In which case the Lords would have sustained the appryzing as a security for the true sums resting if the appryzer would have past by the Termly failzie for the Lords do frequently Supply defects in appryzings or adjudications in so far as they may stand as securities of true debt and real expence especially when the question is betwixt the debitor and the appryzer but not in competition with more formal Rights and they are most strict against appryzings or adjudications when they are insisted upon as expired or for penalties Sheriff-fees and the annualrents thereof and therefore a posterior appryzing being solemn and formal according to the Custome then in use was preferred to a prior not being so formal July 15. 1670. Lady Lucia Hamiltoun contra Boyd of Pitcon And likeways an appryzing being led for Penalties and termly Failzies was reduced as to these because a part of the sum was not due at the date of the appryzing though it was deduced at the instance of an assigney But if it were proven to the Cedents behove it was also found reducible quo ad the accumulation of the annualrents and making them and penalties Principal sums But seing the appryzer declared it redeemable though the Legal Reversion was expyred it was sustained as a security of the first principal sum and current annualrents thereof Jan. 31. 1679. Francis lrving contra Laird of Drum And appryzing was sustained upon a Bond bearing a long Term of payment with a Clause irritant that if two Terms annualrent run together unpayed the whole principal and annual should be payable without abiding the first Term though there was no Declarator of the irritancy it not being penal but taking away the favour of the
Creditor to the debitor by delay of the term June 20. 1678. Scot of Burn-foot contra Falconer and Edmistoun 31. Albeit the Lords do not ordinarly modifie Penalties after appryzing yet if they be exorbitant they do modifie the same and all Termly Failzies as they did in the said case of Orrock of Balram and Francis Irvin 32. Appryzing was sustained upon a sum payable without Requisition albeit there was no Charge preceeding the appryzing July 21. 1666. Mr. John Thomson contra Mcgutrig The like though the Bond bore annualrent before 1641. seing there was no Infeftment thereupon or Requisition therein Jan. 14. 1679. Farquhar of Finian contra Robert Stuart 33. And an appryzing was sustained though the Lands appryzed were not filled up in the Letters of appryzing or special Charge nor in the Executions because the Messenger who execute was Judge in the Appryzing which relating the Denunciation of the Lands particularly and Charging the appearand heir to Enter thereto in special was found a more solemn Execution then any Execution a-part Jan. 16. 1680. John Brown contra Nicol. 34. An appryzing was sustained without producing the Letters of appryzing being in anno 1636. But the Instructions of the debt was found necessary to be produced being within Prescription February 11. 1681. James Kenuay contra Thomas Crawford Yea an appryzing was sustained upon a Bond payable upon Requisition though the appryzing made no mention of the Requisition the Instrument of Requisition being produced 35. And though the Dispensation to appryze was neither at Edinburgh nor the head Burgh of the Shire but a place upon the open Fields and upon a count of a great rain the Messenger did not appryze that day but adjurned the Court of appryzing til the next day July 12. 1671. the heirs Mr. Thomas Lundie contra the Earl of Southesk 36. And an appryzing of the ground-right of Lands and all other right belonging to his debititor the Superiour being Charged thereupon was preferred to a posteriour appryzer who appryzed particularly an annualrent out of the Lands which was the only Right of the common debitor November 21. 1673. Mr. John Fairholm contra Rentoun and the Countess of Levin 37. Appryzings are elided by satisfaction or payment without necessity of Renunciation Resignation or Reduction as in the case of other Infeftment July 25. 1626. Lord Lovat contra Frazer The reason is because appryzing being but a legal diligence for security of the sum which ceassing it falleth without other solemnities and the dobitors own Infeftment stands valid without Renovation which with the Infeftment upon the Appryzing stood but as a paralel Right for security so that all returned adpristinum statum and amongst the rest the Casualities of the Superiority if they were taken off by the appryzing and therefore an heir not entering but being Chargeed if he satisfie and redeem the appryzing he will be in non-entry till he be received of new 38. Appryzings are excluded and qualified with the Back-bonds and obliegements of the appryzer as in personal Rights which are valid against singular Successors as a back-bond that an apprysing should not be prejudicial to anothers parties Right was found relevant against the appryzers singular Successor the Kings Donatar of the appryzers forefaulture July 31. 1666. the Earl of Southesk contra Marquess of Huntly The last and most ordinary Exstintcion of appryzing is by Intromission with the Mails and Duties of the appryzed Land over and above the annualrent for these are imputed in the principal Sum by the Statute Par. 1621. cap. 6. which is also extended to Minors having the priviledge after the ordinary legal of seven year But it was not provided for in the said Statute that the appryzer should be countable for his Intromission thereafter which is therefore provided for Par. 1641. cap. 67. which though it was neglected and not revived Par. 1661. yet the Lords sustained the same as now in Custom twenty years and more Feb. 18. 1663. John Ross contra Mckenzie But the Tenor of the said first Statute being that the quantities of the Mails and Duties shall extend to as much as will satisfie the whole principal sum and annualrents thereof composition to the Superiour and annualrent thereof and expenses in deducing the appryzing In that case the appryzing is declared to expyre ipso facto So that if any part thereof remain and the debitor be so negligent as not to use an Order and count and reckoning within the legal but suffer it to expire the appryzing will stand valid and carry the Right of the whole Lands and will not be extinct in so far as satisfied proportionally Hope Confirmation Doctor kincaid contra Halyburtoun which was so found where a part of the sum was satisfied by payment Novem. 28. 1623. Mr. Robert Craig contra Wilson But if the remainer be very small the Lords may be the more strict in modifying pryces and if that be not sufficient a small remainder will not take away the Right de minimis non curat Lex Intromission is not only extended to the Rents and Profits of the appryzed Lands but to the pryce of any part thereof sold by the appryzer within the Legal Jan. 14. 1669. Mckenzie contra Ross. And ansappryzing was also found extinct by the Intromission of him to whom the appryzer granted Back-bond declaring the appryzing to be to his behove and that against a singular Successor who thereafter was Infeft upon the appryzers Resignation July 12. 1670. Kennedy contra Cunninghame and Wallace Yea An appryzing was found excluded as being satisfied by the debitor and retired by him with a blank Assignation thereto lying by him at his death though his Son thereafter filled up his name therein which was instructed by the sons oath and witnesses ex officio Feb. 27. 1666. Creditors of the Lord Gray contra the Lord Gray But an appryzing was not found extinct by Intromission where the appryzer payed to his debitor the superplus of the rent above his annualrent before the leading of any other appryzing yet where any order of Redemption is used before the expyrie of the legal the appryzing was found extinct by intromission after the course of the legal July 7. 1676. John Edgar contra Patrick Milu The like was found in respect of an order used by a second appryzer and was sustained though the first appryzer had acquired right to an order of Redemption by a third appryzer used against the second appryzer which was not found to hinder the second appryzer to declare the first appryzing satisfied by Intromission during the legal or the order but prejudice to the third appryzer or to the first appryzer having Right from the third appryzer to Redeem the Lands from the second appryzer by satisfaction of the sums due to him July 18. 1676. Gordoun of Seatoun contra Watson Yea an appryzing being both against the Principal and Cautioners Estates an order of Redemption used by the principal debitor was found to keep the appryzing
it did so much appear that the Parliament of purpose had omitted it yet in the said case Greirson contra Closburn upon the 21. of July 1636. they did forbear to intimate their Decision and desired the parties to agree And no Composition was found due by an Adjudger having Charged before the late Act of Parliament December 23. 1669. whereby like Compositions are appointed for Adjudication as for appryzing July 10. 1671. Scot of Thirlestain contra Lord Drumlanrig In which case it was found that the Superiour might refuse to enter the Adjudger if he payed his debt but that he was to have nothing for Composition if he did so in the same way as in appryzing by the old Act of Par. 1469. cap. 36. by which that option is given to the Superiour 49. Craig observeth that it was doubtful in his time whether there were a Legal Reversion competent to any renuncing and afterward returning to Redeem Adjudications or Appryzings wherein he favoureth the affirmative but the said Statute Par. 1621. cap. 7. determineth the case and granteth a legal Reversion in favours of these who have posterior Adjudications within the space of seven years or ten years since the Act of Par. 1661 betwixt Debitor and Creditor which is also competent to any Renuncing in their Minority and being restored against the said Renunciation but it is not competent to any other Heir renuncing yet if the Heir though Major find that he hath prejudged himself by renuncing a profitable Heritage he may grant a Bond and thereupon cause within the legal adjudge and redeem the former Adjudications which though to his own behove will be effectual there being so much equity and favour upon his part being willing to satisfie the whole debts 50. It is clear by the said Statute the Lands or Heretage of a Defunct may be Adjudged the heirs renuncing not only for satisfaction of the Defuncts debt but of the heirs own proper debt 51. Adjudications are taken off and extinguished in the same manner as appryzings are by intrometting with the Mails and Duties of the Lands adjudged as is clear from the said Statute And though cases be not so frequent in Adjudications as in appryzings to clear the other ways of their extinction Yet the reason being the same in both there is no doubt but the determination will also be the same 52. The other manner of Adjudications is for making effectual Dispositions or obliegements to Infeft whereupon when the acquirer hath used all diligence competent in Law against the disponer to fulfil the same by obtaining Decreets and Horning Registrat thereupon either against the Disponer or his Heir Law being there defective and cannot make the Disposition or Obliegement effectual the Lords have allowed Adjudications of the Lands disponed whether in Fee or Liferent July 19. 1611. Lord Johnstoun contra Lord Carmichael Spots hic contra Bruce of Airth And thereupon the Superiour will be discerned to receive the Adjudger as was found in the case of an Obliegement to Infeft a Woman in Liferent holden of the Superiour wherein she having used Horning the Superiour was decerned to receive her July 10. 1628. Harris and Cunningham contra Lindsay Feb. 24. 1675. Marion Hamiltoun contra Mr William Chiefly The like in the case of an Heretable Disposition whereupon the acquirer having obtained Decreeet against the disponers heir for Infefting him and used Horning thereupon The Director of the Chancelary was decerned to Infeft the acquirer Decemb 16 1657 Ross contra Laird of May. This manner of Adjudication is extended no further then to the thing disponed and hath no Reversion It requires no Charge to enter heir or renunciation but the adjudger must instruct his Authors right June 24. 1669. Mr. Dowgal contra Glenurchie These Adjudications do not come in pari passu with other Adjudications within the year nor any other with them July 16. 1675. Campbel of Riddoch contra Stuart of Ardvorlick Decemb. 2. 1676. Lady Frazer contra Creditors of the Lord Frazer and Lady Marr. 53. By the late Act of Pavliament anent adjudications there are introduced two new forms of Adjudications the one special of Lands effeirand to the sum and a fifth part more in case the debitor produce his Rights and put the adjudger in his Possession of his particular Lands adjudged But if he do not adjudications are to proceed as appryzings did generally of all the debitors Lands or real rights periculo petentis redeemable within ten years These Adjudications are come in place of appryzings especially the general adjudications which are declared to be in the same condition in all points as appryzings were by the Act of Par. 1661. cap. 62. Except as to the lengthening of a Reversion from seven to ten years So that what hath been said of Appryzings will have the same effect as to general Adjudications but special Adjudications being equitable and favourable will not meet with such strictness This Statute hath taken away the greatest Reproach upon our Law which for every debt indefinitely appryzed every Estate great or smal which had no excuse but that the debitor might redeem in seven years But all debitors being necessitat to appryze within a year or to have no more then the legal Reversion paying the whole debts the power of Redemption came to be of little effect few being able to pay all their debt in one day But now if any debitor complain that his whole Estate is adjudged and no proportion keeped betwixt the debt and his Estate it is altogether his own fault seing he might offer a proportional part and liberat all the rest of his Estate which part is Redeemable also in five years And though a fifth part be added it is no more then the ordinary penalty being an 100. Pounds for a 1000 Merks and 50. Merks for the Sheriff-fee makes 200. Merks being the fifth part of a 1000. Merks and which was sustained in the most favourable cases of Appryzings from the beginning and the Reversion was for seven years Adjudications being executive Decreet the Lords allow them the greatest dispatch and to prevent Collusion whereby some debitors might be postponed by debate and probation till the year pass which would excludethem Therefore the Lords do not suffer Co-creditors to stop Adjudications that they might see for their entress and put the pursuer to abide the course of the Roll unless they produce an Entress upon which the Ordinar will hear them immediatly without going to the Roll Jan. 22. 1681. Earl of Dundonald contra Dunlop and his Creditors Neither is the Superiour suffered to propone defences Jan. 13. 1675. Kinloch of Gourdie contra Mr. James Blair and James Strachan Yea the Lords sustained the establishment of the debt in the same Lybel with the Adjudication July 26. 1676. Alexander Boyd contra Boyd of Pinkill But if the debitor himself appear the Cause goes to the Roll and if there be prior adjudgers defences proponed against the debt or adjudication
they be done before year and day expire being after the Rebellion And so Arrestments or Assignations even though before Rebellion have no effect after year and day is run because these being but Personal and Liferent-escheat a reall Right flowing from the Superiority whereby the Vassal is denuded of the Liferent Therefore the effect of these Personal rights ceaseth But all reall rights flowing from the Vassal before the Rebellion as Fews Annualrents Tacks Appryzings and Adjudications whereupon there was a Charge are effectual and not excluded by Liferent-escheat though these are excluded by Ward which is a Casuality following the nature of Fewdal Rights Whereas Liferent-escheat ariseth not from the Nature of Fies but is introduced by Law or Custom and therefore the Fie falls in the hands of the Superior as it was in the hands of the Vassal with all the Real burdens he had fixed upon it Neither does Posterior voluntary Infeftments though for debts prior to the Rebellion and granted before Declarator exclude the Liferent-escheat Jannuary 18. 1611. Samuel Ord contra the Laird of Craigkeith The like where the Infeftment was granted after Rebellion but within year and day January 23. 1627. James Wallace contra Thomas Porteous Where there is an exception insinuat unless there had been an prior obliegment before the Rebellion to grant thelnfeftment as if in that case though in cursu Rebellionis it would be sufficient to exclude the Liferent The like was found that Infeftments upon a voluntary Disposition made in cursu Rebellionis within the year and for a debt due before Rebellion excluded not the Liferent-escheat March 19. 1628. Mr James Rae contra Buckie Hope Horning Laird of Frendraught contra Meldrum Gordon of 〈◊〉 contra Gordon of Haddo But Infeftments in cursu Rebellionis upon special obliegments to grant the same before Denuneiation are valid vide Tit. 14. § 53. As to Legal Diligences of Creditors whither Appryzing and Infeftment thereupon being after Rebellion will exclude the Liferent-escheat was declared the last Title in the second effect of Appryzings the sum whereof is that they are thus far preferablé to voluntary Dispositions That being done in Cursu Rebellionis for a debt before Rebellion There being Infeftment or Charge in cursu Rebellionis they exclude the Liferent Secondly Single-escheats require general and special Declarator Liferent-escheats require but one Declarator for all wherein the Title is the Horning the Gift and the Superiors Seasine without farder instructing the Superiors Right and without Continuation July 2. 1622. Carmichael contra Lermont March 6. 1624. Dowglas contra Eastnesbit June 23. 1625. Viscount of Stormont contra And there is no necessity to instruct the Lands holden of that Superior by the Defender The reason is because that is presumed unless the Defender disclame or that the Superior be a Singlar Successor never acknowledged by the Vassal or his Predecessors 27. Shipwrack and Wath Goods or Treasures in the ground whose owner appeareth not are Confiscat as Caduciarie whereby the owners are presumed to Relinquish or loose the same And so a jure sup cadunt and the things become nullius and yet belong not to the first Possessor as things relinquished do by the Common Law but do belong to the King by his Royal Prerogative or to others having Right from him We have spoken of these before in the Title Real Rights And shall only add this that by that just and Noble Statute Par. 1429. cap. 124. It is declared that where Ships break in this Countrey the Ship and Goods shall be escheat to the King if they belong to such Countries as use the like Law anent Ship-wrack in there own Land otherwayes they shall have the same favour as they keep to Ships of this Land broken with them It is also declared amongst the Statutes of King Alexander the Second cap. 25. That if any Living Man or Beast as Dog Cat c. come quick out of the Vessel the same shall not be accounted Ship-wrack but shall be preserved to the Owner claming and instructing his Right within year and day Or otherwayes it shall belong to the King So was it found where an ox escaped alive out of the Ship and the Admirals Decreet finding the same Escheatable as Shipwrack was Suspended Simpliciter December 12. 1622. Hamilton contra Cochran In which case nothing was alleiged but this old Statute the genuine meaning whereof seems only to be where any person came to Land the Ship and Goods should not be confiscat as Wrack but the posterior Act Par. 1429. cap. 124. Repeats not that provision but regulats the matter according to the custom of other Nations to do to them as they do to us without any other Limitation And therefore where some Persons came to Land the Ship being broken the same with the Goods dispersed were Confiscat If Confiscation in the like case should be proven to be the Law or Custom of that place to which the Ship belonged January 20. 1674. Jacobson contra Earl of Crawfoord 28. Forefaulture is the great Confiscation comprehending all other Penal Confiscations It is extended to the taking away of Life Lands and Goods Par. 1424. cap. 3. For it is the Penaltie of the highest Crime to wit Treason which at first and by its native Signification it expresseth Crymes against the Life of any partie under Trust So the Slaughter of any person under Trust Credit or power of the Slayer is declared Treason Par. 1587. cap. 51. 29. Thence it is also called Treachery and the Committers thereof Traitors And because of that Trust betwixt the King and all the Leiges as their Superiour and Soveraign The chief point of Treason is against the Kings Person as appeareth by the Act last Cited These also who without cause wilfully raise a fray in the Kings Host commit Treason Par. 1455. cap. 54. Upon the same ground because of the Trust betwixt the Superiour and his Vassal such Crimes against the Superiour is also called Treason and thereby the committer Looseth for ever all Lands and Heritage he held of that Sùperiour quoniam Atachiamenta cap. 19. But this Treason infers not a Simple Forfaulture but only is a ground of Recognition But as now the Terms are take Treason and Forefalture of Life Lands and Goods are adequat and wherever the one is exprest in any Act of Parliament the other is understood for the Stryking or Slaying of any person within the Parliament House during the time of Parliament within the Kings Inner-Chamber Cabinet or Chamber of Peace the King being within his Palace or within the Inner-tolbooth the time of Session sitting or within the Privy Council-House the time of the Council sitting or in his Majesties Presence any where is declared Treason Par. 1593. cap. 173. Impugning the Dignity or Authority of the three Estates of Parliament or procuring any Innovation or Diminution of there Power is prohibit under pain of Treason Par. 1584. cap. 139. And also declyning the King and
before Yea Citation before the 5. years and Inhibition in the 5. years with a subsequent Security was found sufficient to take off the benifite of this Act July 23. 1666. Earl of Southesk contra Marques of Huntlie This priviledge is not competent by Exception or Reply offering to prove 5. years possession but by a reture upon a Commission served by an Inquest July 13. 1666. Sr. Henrie Hoom contra Sr. Alexander Hoom. In this Statute it is also provided that where there were Tacks or possessions of Lands or Teinds possessed by the forefault Person in respect that the rights thereof might also be abstracted that the King and his Donatar should continue in that same possession for sive years without any accompt for the profits thereof and longer if a Right be instructed of the forefault person And if a Fewer be forefault the Land is not lyable for the Feu dutie preceeding the Forefaulture because the discharges thereof might have been abstracted Possession for feuer then 5. years by the Forefaulted person was found sufficient to continue for 5 years though no Tack was instructed Jannuary 24. 1667. Sr. Henrie Hoom contra Sr. Alexander Hoom. 36. It is also declared in this Statute that the Forefaultur of the appearand Heir carries therewith the right of the Lands to which he might succeed though he were never entred Heir nor Infeft whereof Craig mentions a case Lib. 2. Dieg. 8. That the Daughters of the Laird of Laisindrum were excluded from their Succession to their Goodsir because their Father was forefault though he was never received nor infeft in these Lands 37. Craig in the forecited place moveth but determineth not this question whether the Forefaulture inserreth a Corruption of the Blood of all the Descendents of the Forefault Persons whereby till they be restored they are incapable of any Succession though descending to them by the Maternal Lyne This Corruption of the Blood is frequently in Fngland where persons are specially attainted and convict of Treason And sometimes with us it is called dishabilitation and is a part of the Doom or Sentence that the Successors of the Person convict shall be incapable of Lands Estate Honour or Office Yea then Fame and Memorie is sometimes condemned and their Surname abolished as was done in the Forefalture of the Earl of Gourie But it is not consonant to our Customs that Forefaulture in other cases should infer this Corruption of Blood First because of the Multiplication of cases to which Forefaulture is now extended as to Thest on 〈◊〉 men and false Coyn. 2. If none of the Descendents of 〈◊〉 persons were Capable of Succession to any person that could not be by reason of any speciality in the matter of Succession but of something in their person by reason of the Forefaulture excluding them thence which would not only take place in Heritage but in Moveables Yea the Oye or farther Off-spring of the Forefaulted person could not succeed to their ownimmediat Parents which would inferr that they could be capable of no Goods or Means but the same would be instantly Confiscat 3. Though Forefaultures in Scotland have been very frequent the off-pring of such have ordinarily acquired Lands and Goods and their Children Succeeded them therein without obtaining Restitution of their Blood So that this Corruption of the Blood is rather to be thought a Speciality in some Attrocious Treasons by the tenor of the Doom of Forefaulture then a general consequence thereof 38. But whereas it hath been said that the appearand Heir being Forefaulted the King hath right to the Heritage to which he might succeed It may be Questioned whether that my be extended to the appearand Heir if he be Forefaulted during his Predicessors Life Or if it be only in the case that the Heir apparent is forefaulted after the death of his Predecessor Where de presenti he may be Heir there is no doubt if the person forefaulted should be fugitive and survive his Predecessor But the Heritage accresing to him wherein he might de presenti infeft would fall under forefaulture though he were not actually infeft And it seems no less clear that being forefaulted if he should die before his Predecessor that his brother or Collaterals might succeed to their Father or any other to whom the forefaulted person if he had survived them would have succeeded It is more doubtfull whether his descendents could if any were for these would Exclude the Collateralls And there seems no reason to exclude them from their Grandfathers Heritage not being dishabilitat And seing I have not found it extended further I conceive it more favourable that the Heir appearand dieing before his Predecessor should not hinder his Descendents to succeed to that predecessor But unless the forefaulture did incapacitat the Predecessor to dispose upon his own estate the forefaulture in that case would be improfitable Yet seing we have no complaints of exhaeredatione in Scotland But that Parents may freely dispose of their Estates at their pleasure it would be hard to bind up the Parent more in Relation to the Fisk then tohis own Child unless fraud to prevent the effect of the forefaulture without a rationall cause do appear 39. For the further Security of the King and his Denatar it is provyded Par. 1594. cap. 202. That no Letter of Pension Factory Band or Assignation granted by any forefault person shall be valid unless it be confirmed by the King or authorized by Decreet of an ordinary Judge obtained before citation in the Process of Forefaulture which seems to insinuate that Creditors should be satisfied out of the forefault Estate but it will reach no further then the Moveables fallen by forefaultnre which seems to be affected in the same way as falling by Single-escheat the full Dominion in both being the Kings but with the burden of admitting the diligence of Lawful Creditors before Declarator but I have not observed this practiced in moveables of forefault persons The reason of this Statute appeareth by the Act immediately preceeding whereby a former Act of Parliament in favours of the Vassal of forefault persons is resoinded and appointed to be delet out of the Books of Parliament which rescinded Act though it be not Extant but delet as aforesaid hath affected forefault Estates with the debts of the forefault person and with the subaltern Infeftments granted by forefault persons not confirmed And therefore such Rights being Constitute by a Law then standing could not be derogat by a subsequent Law And therefore it was 〈◊〉 to Caution by the foresaid Act 202. That Simulat or antedated Rights might not affect Estates Forefaulted before the said rescissory Act. 40. Sentence of Forefaulture being pronunced is declared Irreducible upon any nullitie in the process upon which it proceeded till the 〈◊〉 be remitted by the King or the partie tryed and acquite thereof But restitution shall only be granted by way of Grace to the parties forefaulted or their Posteritie Par. 1584.
was lyable to fulfill the Bastards back-band June 20. 1671. Alexander Alexander contra Lord Saltoun 47. Ultimus Haeres may seem to be a Succession from the dead and to come in amongst other Heirs yet though it hath the resemblance of an Heir because it hath effect when there is no other Heir and makes the Heritagelyable to pay the Defuncts debts it is only a caduciarie Confiscation of the Defuncts-Estate with the burden of his Debt but no proper Succession to him therein which appeareth thus The Heir is one person in Law and is therefore personally obleiged for all the Defuncts debts so is not the Fisk against whom or the Donatar there lyeth no Personal Action for payment but for Restitution if he have intrometted and of Real Action contra Haereditatem jacentem which is most proper by Adjudication being the Supplement of ordinary Actions or Executions competent by Law For there being no partie to represent the Defunct debitor there can be no Decreet but cognitionis causa and Adjudication following thereupon in which the Fisk or Donatar is to be called passive as the party having Interest to see that the Debt be due which will affect the Defuncts caduciarie Heritage to the detrement of the Fisk or Donatar So then ultimus Haeres and Bastardrie are of the like Nature which being caduciarie Confiscations fall to the Fisk because no other can have right there may be this difference betwixt them That in the case of the last Heir Creditors for their satisfaction may confirm the Defuncts Moveables and so recover the same for their own Satisfaction in which case they would be lyable as other Executors to the remanent Creditors of the Defunct and to the Fisk or Donatar for the superplus As in the place of nearest of Kin to the Relict also for her part but this being only for obtaining their own Satisfaction and for shunning a more extraordinary way by Adjudication which also they may use at their option they ought not in prejudice of the Fisk to have the third part of the Defuncts part as other Executors but in the cases of Bastardry Confirmation of Executors is not competent because the Bastard being excluded from the power of making Testament can have no Executor Concerning last Heir the greatest doubt is who they are and in what Cases they take place As to the first Craig lib. 2. Dieg. 17. is not positive whether Superiours be last Heirs of the Defunct in the Fies held of them or if the King be the last Heir for all And according to the antient Feudal Customs there is no doubt the Feus return to the several Superiours for thereby none could succeed without Express provision in the contrary but the lawful Issue of the Descendent of the first Vassal whose Person and Race was peculiarly chosen and confided in by the Superiour But now Fies not being gratuitous as at first but for onerous causes besides the reddendo service and ordinarly granted to the Vassal and his Heirs whatsomever Which failzing the King by his Prerogative Royal excludeth all other Superiours who are presumed to retain no right nor expectation of Succession unless by express provision of the Investiture the Fies be provided to Heirs Male or of Tailzie which failzing to return to the Superior In which he is proper Heir of Provision As to the other Doubt in what case the King is last Heir Craig in the forenamed place relateth that some were of opinion That if the Defunct had no Heirs within the 7th degree the King taketh place as last Heir And that others thought it to hold in Collateral Successions but his own opinion is in the contrary That any Heir of what degree soever hath Right which suiteth with the ground now laid that the King hath right as last Heir to the Heritage become caduciarie Because no other partie can be instructed lawful Heir So he reporteth it was found in the case of the Earl of Marr who was served Heir to Lady Elizabeth Dowglas Countess of Marr beyond the tenth degree And that the Lord Seatoun that he might have a Title to the Redemption of the Lands of Longnidrie against Forrester served himself Heir to the granter of the Wodsett beyond the 7th degree whereof several degrees were Collateral And the French King Henrie the 4th Succeeded to Henrie the 3. though not within the 15. degree The gift or right of ultimus haeres hath no effect till Decreet of Declarator be obtained thereupon in the same way as in Bastardry July 20. 1662. Laird of Balnagoun contra Dingwal July 31. 1666. Thomas Crawford contra Town of Edinburgh TITLE XXVI Succession 1. Whether in equity there be a Rule in Succession 2. That Rule is the expresse will or presumed will of the Defunct 3. The first degree of Succession by the presumed will of Defuncts 4. Whether in equity there be right of representation 5. Failing descendents ascendents succeed in equity 6. Failing both brothers and sisters succed 7. Failing these the nearest Agnat succeeds 8. The succession of Cognats 9. The Jewish succession whereby all the sons succeed and exclude the daughters and the eldest son hath a double portion 10. Fathers could not prejudge the primogenitur of their eldest Sons 11. By the Jewish succession failing descendents the inheritance passeth to Brethren and these failing to Fathers Brethren and failing these to the nearest Kinsman 12. Whether in the Jewish Succession there be right of representation 13. Why no Femals but daughters succeed among the Jews 14. Why Parents Succeed not amongst the Jews 15. Succession amongst the Romans was first by Testament 16. If there was no Heirs institute by Testament the antient Roman Law called all the Children of the Family unforisfamiliat male female not excepting adopted Children to Succeed 17. These failing the nearest Agnats but no Parents thereby Succeed 18. The Romans Succession be the pretorian Law 19. Their Succession by Justinians novel constitution 20. In Feudal Succession the first Rule is the expresse will of the partie by the investitur 21. The nixt Rule is the conjectured will according to the nature of the Fee 22. Primo-geniture now established by common custom in Feudal Rights 23. Succession in Scotland is wholly different in moveables and immoveables 24. The several degrees of Succession in moveables 25. Succession in Heritable Rights 26. The difference betwixt the two successions 27. The priviledge of Heirs not to be prejudged by their predicessors deedes on Death-bed 28. What is estimate Death-bed 29. Against what rights Death-bed is extended 30. Death-bed annulls no deeds for causes onerous 31. Dispositions in Testaments are as on Death-bed 32. Annus deliberandi 33. Kinds if Heirs in Scotland 34. No place for Adopted or Cognats in succession with us 35. Parents Succeed to their Children exclude the Parents Collaterals or these representing the Colaterals SUCCESSION to Defuncts is the most Important Title in Law for thereby the Rights of all
Succession 9. The Judicial Law in the case of the Daughters of Zelophehad Num. 6. 27. Determineth the order of Succession in Lands or Immoveables to stand as a perpetual Statute to the Children of Israel Thus the first degree of Succession is of all the Sons whereby the Daughters and their Descendents are excluded but the Sons do not Succeed equally For the first born had a double Portion of all that the Father had Deut. 21. 17. By which the eldest Son had twice as much as the other Sons So that the Heritage being divided in one Portion more then there were Sons of these the eldest had two and each of the rest one As if there be two Sons it divides in three whereof the elder hath two third parts and the younger one third part If there be three the Heritage divides in four parts whereof the eldest hath two fourth parts which is the half and each of the rest hath one fourth part 10. This Right of primogeniture was so secured that the Father could not preser any other Son thereto Deut. 24. v. 16. Failling Sons the inheritance passes to the Daughters equally For though the Text expresseth it to passe to the Daughter in the singular number Yet it is cleared by the context that all the Daughters are therein included for the Daughters of Zelophehad though more in number are found to have the said Right and to get an Inheritance among their Fathers Brethren by which it appeareth that the Right of Representation had place there for all the Daughters of Zelophehad were but to have that share which their Father would have had if he had been alive among his Brethren for they claiming the Right of their Father whom they show not to have been in the company of Corah thereby forefaulting his right So then right of Representation must take place amongst all descendents So that the Children of the Sons though these Sons survive not their Father would exclude the surviving Daughters or would come in with the surviving Sons not equally and in capita but in stirpes whereby they would succeed to the shares of their pre-deceased Fathers by Right of Representation 11. The third degree of Jewish Succession is failing Descendents the inheritance passeth to the Defuncts Brethren and these failing to his Fathers Brethren and these failing to the nearest Kinsman of his Familie that is the nearest Agnats on his Fathers side where all the male Agnats of the same degree are understood It doth not appear whether in this Collateral 〈◊〉 there be place for Representation and though there be no mention of the Succession of Women or their Issue but only of Daughters Some have thought from the paritie of Reason in everie degree failing the Males the Females are to Succeed and to exclude further degrees of Males as if there be no Brothers but Sisters these should exclude the Fathers Brother It may be also thought strange that in all this course of Succession there is no mention of the Succession of Parents 12. In answer to these doubts as to the first I conceive that in Collateral Succession there is also place for Representation so that the Brothers Sons as representing the Defunct Brother their Father would exclude the Fathers Brethren And so of the rest because it is said if there be no Brethren the Inheritance shall passe unto the Fathers Brethren which 〈◊〉 unto the nearest Kins-man and if there be no Right of Representation the Cousin-german or Father Brothers Son would exclude the Nephew or Brothers Son for Uncle and Nephew are never understood by the name of Cousins or Kinsmen but have that special nominate relation of Uncle and Nephew or Father and Brother Son and therefore the Brothers Son as representing the Brother must succeed and exclude the Fathers Brother 2. Cateris paribus Succession will certainly descend to the Brothers Son and not ascend to the Fathers Brother 13. As to the second doubt Ihold that only Daughters and their Issue do succeed and no other Females or their Issue the reason is First from the Text where failling Sons Daughters are exprest but failling Brothers Sisters are not substitute but Uncles 2. The Division and Succession and the Land of Canaan was Typical and was not to passe from Tribe to Tribe and therefore Daughters succeeding are appointed to Marry in their own Tribe because ordinarily they were to be Married when their Fathers succession did probably appear but this could not have been if Fathers Sisters and these of further degree had succeeded 14. As to the third concerning Succession of Parents it is sure Mothers and all Cognats by the Mother side being ordinarily of other Tribes and Families were for the reason now adduced excluded from the Succession The Text is clear that only Kins-men in the Family that is on the Fathers side succeed But the reason why there is no mention of Fathers c. May be because the Land of Canaan being Typical is fixed to Tribes and Families it uses not to passe by Testament or provision or to be acquired further then by Wodset to return at the Jubile Therefore among the Jewes Lands passed by the ordinar course of Legittime Succession and so came from the Fathers to the Children which presupposes the Father to have been pre-deceased and could not succeed By this Tract of the Jewish Succession it is clear that GOD by his Positive Law altered the effect of Equitie and of his Moral Law in succession For it hath been now shown from that place if Children then Heirs That all Children must needs be Heirs not by the Judicial Law but by Equity And yet by the Judicial Law not all Children are Heirs but Sons exclude Daughters and Females are excluded by Males of a far distant degree which necessarily infers that for expedience the course of Succession may be altered The like must also be in other effects of Equity which are in our power 15. The order of Succession in the Civil Law did exceedingly varie being in many points different in the Ancient Law of the twelve Tables in Honorarie Law introduced by the Edicts and Customs of the Pretors who had Authority to Supply and Correct the Ancient Law and in the Imperial Constitutions especially in the Novel Constitutions of Justinian they did all agree in this that the chief mean of Succession is the Will or Testament of the Defunct which they held so Sacred That all Pactions or Provisio s which might any way hinder the Free Liberty of Testing or any Act whereby Defuncts might be Restrained or Constrained in the free Disposal of their Estates were not only null but exclusive of such Persons from having any interest in the Defuncts Inheritance Yet were the Romans so sensible of the Natural Obligation of Parents to provide their Children that their midle Laws necessitat Fathers either to institute ther Children or expresly to exhaeridat or disherish them expressing their delinquencie of Ingratitude the kinds
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
Redeemable to that Partie during his Life as it is ordinarily adjected when that is meaned January 9. 1662. Earl of Murray contra Laird of Grant The like of an Annualrent though it bore only to be payed yearly and not perpetually or heritably or to heirs Feb. 2. 1667. pourie contra Dykes And a Substitution mentioning only a Person substitute without mention of Heirs was found competent to that Persons Heirs January 7. 1670. Innis contra Innis 6. Heirs have the benefit of heritable Rights not only whereupon Infeftment hath followed or which by Destination are heritable or requiring Infeftment to their accomplishment as heritable Bands bearing Clause of Infeftment for these bearing only Clause of Annualrent are declared Moveable by and since the Act of Parliament 1641. cap. 57. Revived Par. 1661. cap. 32. Of which in the last Title So also are Reversions Pensions Tacks without necessity of being entered Heir June 17. 1671. John Boyd contra Hugh Sinclair July 9. 1675. Hoom contra Johnston of Oldwells And all Rights having a Tract or Course of time after the Defuncts Death In these Cases where the Defuncts Right is Temporary and runneth out by a certain Course of Time that time runneth whether the Defuncts Heir be entered or do Possesse or not as Tacks Pensions or Annuell Prestations during so many Years And therefore these require not Service or Solemnitie but that Person who might be Served may continue or recover the Defuncts Possession and his Possessing makes him lyable passive as Representing the Defunct Neither needs there any Service of Children nominatim substitute immediately to their Parents but if they be Substitute in the Second place a Service must be used to instruct that the Heirs appointed in the first place did fail July 21. 1676. 〈◊〉 of Drumelzier contra the Earl of Tweddel What Rights are heritable and what moveable vide Title Real Rights 7. Heirs have also Right to Moveable Heirships and to all Obleigments though the matter be in moveable Rights if Executors be expresly secluded otherways if the matter be moveable and Heirs only be exprest but not Executors yet Executors will not be Excluded because Heir is a General Term comprehending Exectors Hope Ejection Sr. Lewis 〈◊〉 contra Tenents The special Interest of Heirs are according to their several kinds viz. Heirs of Line and of Conquest heirs Portioners heirs Male and heirs of Tailzie and Provision 8. The Interest of heirs of Line is that they are heirs Generally not only because they may be Served by a General Service but chiefly because they must Generally represent the Defunct So that what cannot be claimed by a special Title either as being Conquest or Specially provided by the Tenor of the Infeftment befalleth to the heirs of Lyne And therefore in dubious cases what doth not appear to belong to other Heirs appertaineth to these in respect of whom heirs Male and of Tailzie and provision are accounted as Strangers and may come against the Defuncts Deeds in favours of the Heirs of Line But the Heirs of Lyne cannot come against such Deeds in favours of others because as heirs of Line they are reputed as one Person with the Defunct and so are obleiged to maintain and fulfil his Deeds not done on Death-bed It was so found in the Case of an heir of Tailzie against an heir of Line Spots Earl of Hoom contra And as heirs of Line have generally the Benefit so they have more effectually the Burden of the Defuncts debts which ordinarily reach them in the first place So that oft-times the heirs of Line have little or nothing free We shall not need to be Special what befalleth the heirs of Line being to show particularly what befalleth to the other heirs For what remaineth belongeth to the heirs of Line only Heirships moveable belong only to heir of Line and not to heirs of Tailzie January 27. 1668. Collonel Montgomrie contra Stewart 9. Heirship moveable is the best of every kind of moveables belonging to the Defunct which the heirs of Line may draw from the Executors whereof there is an ordinary list The reason of this Heirship moveable is because by our Law by primo geniture excludeth the Defnncts other nearest of Kin in Heritage wherethe nearest of Kin Succeeds alone in moveables and as they have no share with the heir in heritable Rights so most sitly the heir hath no share with them in moveables but hath only the best of every kind which therefore is called heirship moveable In which the Defunct cannot in his Testament or any other Deed done on Death-bed prejudge his heir as was shown last Title but if the nearest of Kin be all Femals they are both heirs 〈◊〉 Executors or if but one Male he is both heir and Executor in which cases there is no heirship moveable drawn Heirship Moveable is established by the Act of Parliament 1474. cap. 53. Ordaining the Heirs of Prelats Barons and Burgesses to have the best of every kind according to the Burrow Lands and so was found not to belong to the Heir of a Defunct who had only heritable Bands being neither Prelat Baron nor Burgess Hope de haered Todorig contra 〈◊〉 But the heirs of Prelats was Extended to other Beneficed Persons as was found in the heirs of the of Person of Dingwal Novem. 28. 1623. William Rig contra Mckenzie And likewise the heirs of Barons was extended to any Persons heirs dying in Fee of Lands though not erected in a Barrony Hope de haered Keith contra Mckenzie Todoirg contra Purdie heirship Moveable was found competent to the heir of a Person who died only Infeft in an Annualrent July 19. 1664. Elizabeth Scrimzeor contra Executors of Mr. John Murray But heirs of a Burgess was found not to extend to an honorarie Burgess who died not Trading or Working in the Burgh Spots heirs James Leslie contra Hugh Dumbar Heirship Moveable is not always a single thing but goeth sometimes by Pairs and sometimes by Dozens as in Spoons So the heirship of Oxen was found to be a Yoke and not a single Ox Nicol. de haereditatis petitione July 20. 1610. Black contra Kincaid And heirship taketh place only in corporibus but not in quantitatibus as in Money Cloath Mettal c. And so the Shell of a Salt-pan which was out of use was accounted but Iron and not to fall under heirship Moveable Had. January 19. 1611. Reid contra Thomson 10. Heirs of Conquest though they be also heirs of Line as befalling by the Course of Law and not by the tenor of the Infeftment and therefore were set down as Lineal Successors in the preceeding Title Yet because heirs of Conquest have only place where there is an Elder and Younger Brother or an Elder and Younger Father Brother c. and their Issue to succeed In which case the Law alloweth two heirs the immediat Elder succeedeth in Conquest and the immediat Younger in the heritage Therefore the one is specially called the
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
Male or of Tailzie or Provision in Lands or Annualrents and thereafter acquire Reversion Apprisings Tacks or others further or better security of the same Lands to himself and his Heirs whatsoever these will accress to his Heirs Male or of Tailzie or Provision whether the Infeftment in their favours be anterior or posterior which is the more dubious Case for it cannot be thought that the Defunct having before provided such Lands or Annualrents to his special Heirs doth by acquiring new Rights mean to set his Heirs by the Ears to debate upon their several Rights Neither can his posterior Deeds be repute an alteration of the former Provision which can only be done by Resignation unless the Defunct debarred expressly his former special Heirs and obtained his Heirs whatsoever Infeft And though Heirs whatsoever do ordinarily signifie Heirs of Line who are heirs general and take place when the Right of no special heir appeareth yet the adequat signification thereof is not heirs general but heirs generally whether of Line Male Tailzie or Provision as is more clear passivè in the Defuncts Obliegment as if he oblieged himself and his heirs whatsoever By heirs whatsoever will be understood all kind of heirs in their order yea in some Cases only his special heirs if the Obliegment relate to Lands or others so provided as will shortly appear And therefore heirs Male or of Tailzie and Provision in respect of the heirs of Line are as Strangers and may come against their Predecessors Deeds in favours of his heirs of Line as if any person provide any Lands or Annualrents to his heirs Male or of Tailzie and thereafter dispone the same to his heirs apparent of Line his heirs Male or of Tailzie will in several Cases not be oblieged to fulfil that Provision and if such express Provisions be ineffectual to the heir of Line it seems a general taking a new Right in favours of heirs whatsoever should be less effectual But the difficulty is how special heirs can be served heirs in such Rights supervenient conceived in favours of heirs whatsoever which will be loosed if the heirs special may be comprehended and so served under the common Title of heirs whatsoever How far heirs of Tailzie or Provision may alter the Tailzie of the Fee or affect or burden the same is largely considered Title 13. § 58. which therefore needs not here be repeated 13. The common Interest of heirs passivè is that they are lyable for their Predecessors Debts for they are repute in Law as one Person with their Predecessors and so represent them not only active in their Estates and Goods but also passive in their Debts and Burdens Quem sequuntur commoda eundem incommoda sequuntur and this is common also to Executors as being heirs in the Moveables but as the Executors succeed only in Moveable Rights active so they succeed only in Moveable Debts passive yet the Creditor hath his option to pursue either or both of them whether the Debt be heretable or moveable and the heir hath relief against the Executor in so far as he is distressed for Moveable Debts so hath the Executor releif against the heir of the heretable Debts March 7. 1629. Falconer contra Blair Spots Executors Laird of Carnousie contra Meldrum But heirs and Executors differ in this that the Executor is only lyable secundum vires inventarli according to the Inventar of the confirmed Testament unless he disorderly intromet with more but the heirs are lyable in solidum though the Debt far exceed the value of the Estate Heirs are lyable for their Predecessors Debts but not all the same way First Heirs portioners though jointly they be lyable for their Predecessors Debts in solidum without benefit of Inventary yet severally each Heir-portioner is regularly lyable but pro rata parte though the proportion whereunto they succeed be more then the whole Debt February 7. 1632. Hoom contra Hoom. Spots Improbation Laird of Laars contra Dunbars John Duncan and the heirs of John Ogilvy 14. Yet one Heir-portioner was found lyable in solidum as Successors in his whole Estate by disposition post contractum debitum though there were other two Sisters the one of whom being called renounced the Pursuer condescending upon nothing unto which she could Succeed and the other having no means but being called passive Feb. 15. 1634. Peter Orr contra Elizabeth 〈◊〉 Neither did it avail that the other Sisters had received portions of money near to the value of the Estate by the Father in his Life but Action of Relief was reserved against them as accords March 21. 1634. Inter eosdem The reason thereof adduced is that the getting Portions in Money could be no 〈◊〉 〈◊〉 and so could not make the Receivers Lucrative Successors 〈◊〉 contractum debitum as the Disposition of the Lands doth Yea an heir portioner being convened without the other was found lyable in solidum because the other was found not solvendo and had disponed all right to the Defender January 29. 1642. Scot contra Hart. But here the matter was but of small moment and this was a doubt in the first Decision in this Case if some of the heirs Portioners should be insolvendo whether or no recourse might be had against them that were solvendo at the least to the value of their proportion which though it seem Equitable and is favoured by this last Decision yet it is not decyded in the former neither have I observed it decided since but in the pursuit Decem. 23. 1665. at the instance of Dam Rachel Burnet now Lady Preston contra Sisters of her first husband The Lords only discerned against the heirs portioners pro rata but with Reservation to the Pursuer to Insist and Dispute her Right against any of them for more if any of them proved insolvent But it seems the Portion of the insolvent would not reach the solvent above the value of their Succession Because the only ground they could be lyable on for more then their part would be in quantum lucrantur For as heirs they could not be lyable in solidum neither by our Law nor the Civil Law And if the Creditors Taciturnitie whereby the other heirs became insolvent did appear it would prejudge the silent Creditor and not the heir who did not know the debt and so could not prevent the others Dilapidation 15. There is a case occurreth oft-times amongst heirs Portioners when Several Obligations and Provisions are granted in their Favours by the Defunct whereby after his Decease they become mutual Debitors and Creditors and sometimes these Provisions exceed the Estate quid juris whether do these Obligations evanish and become extinct confusione because the same Persons become Debitors and Creditors or whether they do all stand and in that Case whether the first in Order will be preferred or if they all will be abated proportionally to the value of the heritage Thus Maitland observes December 20. 1550. That a Father Infeft
himself and the heirs of the first Marriage and thereafter resigned and Infeft himself and the heirs Male of the second Marriage which failling his nearest heirs whatsomever these heirs Male the second Marriage failled And therefore not the Daughter of the first Marriage only but she and the Daughters of a third Marriage Succeeded by the second Infeftment as his heirs whatsomever substitute to be his heirs of the second Marriage Craig hath the Case but otherways observed lib. 2. dieg 14. Where a person had provided his Lands to the heirs of three several Marriages of each whereof there survived a Daughter The question was which of the Daughters should succeed Whether the first as having the first Provision or the last having the last Provision The parties were three Sisters Aikmans In which the Lords admitted all the three Sisters as heirs Portioners and so confounded the Provisions being all equal and about the same thing which must be the Reason and not that which is there rendered Because the Defunct notwithstanding of these Provisions in Favours of heirs might have Disponed effectual to a Stranger And so likewise to his own Children of another Marriage For that Reason would have excluded the Daughters of the first Marriage and preferred the Daughter of the last Marriage And as hath been shown Tailzies of Provisions upon an anticedent onerous obligation Such as is Marriage hinder the Fiar to dispone or provide the same to his heirs of Lyne representing him simplie and must fulfil his Obliegment Albeit his Disposition to Strangers not so representing him will be effectual And therefore Craig in that same place observeth in the case of Isobel Barron who being heir to her Father of his first Marriage by which it was provided that the heirs of the Marriage should Succeed to all Lands conquest during the Marriage And thereafter having a Son of the second Marriage who was his Fathers heir of Lyne to whom his Father Disponed or provided a Tenement acquired during the first Marriage Yet the said Isobel as heir of that Marriage recovered that Tenement from her Brother as heir of Lyne But the main difficultie remaineth when the obliegment in favours of the heirs portioners are un-equal for when they are equal whether they become extinct by confusion or not it is alike But if they be so extinct when they are un-equal there will not be an equal suffering or abatement but the greatest obliegment will be extinct as well as the least Neither can such obligations be wholly extinct by confusion but only pro rata So that if there be three heirs Portioners for example the obliegment granted to every one of them can only be extinct for a thirdpart because they are but heirs in a third part and as to two third parts each two of them are debitors to the third And if the obligation exceed the value of the heritage such of them as find themselves losers if they enter heirs may abstain and renounce and they or their Assigneys may pursue any of the rest that shal enter for fulfilling of the Defuncts obliegments but if they be considerat when all the obligations joyntly exceed the value of the Estate they will all Renounce and Assigne there obliegments and their Assigneys will be preferred according to their dilignece without consideration of the priority or posteriority of the obliegments but if they happen to enter or when their provisions are not Personal to themselves nominatim but as they are heirs of Provision and therefore necessarily require that they must be heirs before they can obtain their Provisions then the obliegments or Provisions of each Portioner are extinct as to their own proportion but they have like Action against the others heirs portioners for there proportion as other Creditors have the point will be clear by example if three Sisters were provided by the Father to un-equal Portions The first to 15000. Merks the second to 12000. Merks the third to 6000. Merks and the Defuncts whole Estate had only been worth 18000. Merks All of them entering the case would be thus The eldest would succeed to 6000. Merks of the heritage for her part and the second would be lyable to her for 5000. Merks as the third of the her provision to whom she would also be lyable for 4000. Merks as the third of the seconds Provision which being compensed the second would be lyable to the first in an 1000. Merks dc claro In like manner the first would be lyable to the third in 2000. Merks and the third would be lyable to the first in 5000. Merks which being ballanced the third would be debitor de claro to the first in 3000. Merks So the Interest of the first would be 6000. Merks as her own portion and one out of the Second and Three out of the Thirds Portion being in all a 10000. The second falleth 6000. as her share out of which she is lyable in 1000. Merks to the eldest and the youngest is due to her de claro 2000. Merks whereby her interest will be 7000. Merks the youngest Portion will be 6000. Merks out of which she is due to the eldest 3000. Merks and to the second 2000. So there will remain only free to her 1000. Merks This may clear the case as to liquid Sums and as to Dispositions or Provisions of Lands or other obliegments in facto These or the Interest or Value will be the same way effectual amongst the Heirs Portioners as if they had been made to Strangers Except where the same Disposition or Provision is made to divers of them For then either being equally oblieged to others as representing the Defunct the same become void and in-effectual protanto As was found in the case of the Sisters Aikmans But since the Act of Parliament 1621. against fraudulent Dispositions the first Disposition or Provision constituting that Party Creditor may give ground to Reduce a posterior Disposition of the same thing to another of the Heirs Portioners as being without a Cause onerous after contractiong of the first debt but that will not hold in Bands for Sums of Money all which will have their effect as is before said Neither will it hold when the Provision of Lands provideth the Party provided to be Heir for thereby the party cannot Quarrel that Predecessors Deed Otherwayes the first Obliegment or Disposition to any of the Heirs Portioners nominatim may Reduce any posterior Disposition to others of the Heirs Portioners Two Daughters being served both Heirs Portioners to their Father in some Teinds but one of them Succeeding to her Brother who was Infeft as Heir to his Father in Lands excluding the other Sister who was not Sister German to her Brother by both Bloods and both being pursued for their Fathers Debt they were not found lyable equally but proportionally according to the Interest they Succeeded to the one being only immediat Heir to her Father in a Right of Tiends wherein her Brother was not served
and Infeft the other being equally and Immediately Heir to her Father in these Teinds and mediatly Heir to her Father by being Heir to her Brother who was Heir to his Father being Infeft in the Lands by precept of Clare Constat without Service June 10. 1673. Christian White contra Janet White 16. Other heirs not being Heirs-portioners are lyable for the Defuncts Debt in solidum except heirs substitute in Bands who are only lyable quoad valorem in the sums in these Bonds July 3. 1666. Fleeming contra Fleeming 17. Heirs are not conveenable at the Creditors option as in the case of heirs and Executors but they have the benefit of an order of discussing Thus first Debts and Obliegments relating to any particular Lands or Rights and no other do in the first place affect the heirs who may succeed in these Lands or Rights before the heir general So an Obliegment oblieging the Defuncts heir of Line or Tailzie so soon as he should come to his Estate was found to affect the heir of Tailzie who came to that Estate without discussing the heir of Line Hope de Haeredibus Lyon contra Sir Robert Scot. Nicol. de haereditariis actionibus inter eosdem So an Obliegment oblieging a Debitor and his heirs Male succeeding in such an Estate and not all other heirs was found to burden the heir Male before the heir of Line or Executors July 22. 1662. Margaret Anderson contra Andersons So likewise an Obliegment to infeft a Party in an Annualrent out of Lands designed was found to affect the heir of Provision in these Lands without discussing the heir of Line Nicol ibid. Edmonstoun contra Edmonstoun This was also the opinion of the Lords though there was no decision in it February 19. 1611. Laird of Blair contra Fairlie And in these Cases the heir of Tailzie or Provision will have no Relief against the heir of Line or other nearer heirs of Blood who otherwise and also Executors must be discuss'd before heirs of Provision or Tailzie General Obliegments not relating to particular Lands do first affect the heirs of Line who are heirs general 2. The heirs of Conquest July 21. 1630. Fairlie contra Fairlie 3. Heirs Male must be discuss'd before heirs of Tailzie or Provision not being so near of Blood Hope de haered Dunbar contra Hay of Murkill the like must follow as to heirs of Marriages who are also heirs of Blood and must be discuss'd before other heirs of Provision or Tailzie who therefore are only lyable in the last place the rest being discuss'd unless they become oblieged to relieve the heir of Line November 22. 1665. Lawrence Scot contra Boswel of Auchinleck 18. But an heir of Tailzie was not found to represent the Defunct in Obligations contrary to the terms of the Tailzie as to which heirs of Tailzie are as Creditors and Strangers as when the security of a Sum was by way of Tailzie payable to the Creditor and the heirs of his Body which failing to a Person named his heirs and Assigneys whatsoever the Creditor being oblieged to do no Deed hurtful to the Tailzie and the Debitor oblieged not to pay without the consent of the Person named that Person was found to have Interest to obtain Declarator that the sum was unwarrantably payed by the Debitor without his consent or order of Law by consigning it to be imployed in the same terms and therefore the Debitor was ordained to make up the Security again as at first reserving to Creditors how far they could affect this Sum for the first Fiars Debt or whether the terms of the Tailzie would exclude the Fiars Debts or Deeds for his necessary use or only unnecessary and voluntary Deeds Feb. 3 1674 Drummond contra Drummond And in like manner a Father having granted two Bonds of Provision to his two Daughters payable to them and the heirs of their Body which failing to return to the Father and his heirs the one of them having died without heirs of her Body but having assigned her Bond to her Sister the Assignation was found ineffectual as being done on design to disappoint the Tailzie made by the Father of the return of the Provision in case the Daughters had no Heirs of their Bodies and so was done without any onerous Cause or just Consideration January 31. 1679. Jean Drummond contra Drummond of Rickertoun 19. And likewise heirs of Marriage are heirs of Provision and partly Creditors and therefore may quarrel Deeds fraudulent or meerly gratuitous done by the Defunct whom they represent in prejudice of their Provisions as was found in the forementioned Case of Isobel Baron observed by Craig who being heir of a Marriage to whom all Lands conquest during the Marriage were provided the Father having disponed a Tenement acquired during that Marriage to his eldest Son by another Marriage yet that heir of the Marriage did recover the same from that Son albeit the heir of the Marriage did represent her Father and yet not simply but according to the provision by the Contract of Marriage which being an onerous Contract uberrimae fidei the Father Contracter can do no Deed contrary thereto but upon an onerous Cause or just Consideration and therefore if he sell any thing falling within such Provisions the heir of Provision cannot quarrel that Stranger but is oblieged to fulfil to him but might quarrel the same if it were meerly gratuitous much more might heirs of a Marriage quarrel Deeds prejudicial to their Provision in favours of the Children of other Marriages without which the great trust of these Contracts would be eluded whereupon Parties rely and make Matches and give Tochers and therefore take Provisions to the heirs of the Marriage either of definite Sums or of all or a part that the Contracters have or shall acquire during the Marriage by which the whole Estates of Citizens are ordinarily conveyed or otherwise Contracts of Marriage bear particular Lands or Sums to be provided to the heirs or Bairns of the Marriage and also the conquest during the Marriage which clause of Conquest will reach only to what the Father had more at his Death then the time of the Contract and is ordinary both in the Contracts of Citizens and others which therefore should not be elusory but effectual according to the true meaning of the Parties which is not to bind up the Father that he cannot do Deeds for Causes onerous or rational Considerations but that he can do no other Deeds meerly gratuitous and arbitrary in prejudice of such Provisions for though by such Provisions when fulfilled he himself must become Fiar and so may dispone yet he is also Debitor and so cannot effectually dispone against the import and meaning of the Provision And therefore a Father by his Contract of Marriage having provided certain Tenements to himself and his future Spouse in Conjunct-fee and to the Bairns of the Marriage c. and the Wife having restricted her self to the half of the
it was free to the Heir as well to renounce when he pleased as to enter when he pleased July 10. 1631. Blair contra Broun but it is like the posterior Creditor hath been negligent otherwise that prae natura diligentia of pursuing and renouncing within the Year would have been accounted collusive and fraudulent and so would not prejudge the other Creditor doing diligence in the ordinary way General charges to enter Heir do evanish as incompleat diligences if the Party charged die before Litiscontestation or Sentence and though the fourty days be expired before the death of the Party charged yet the Charge useth not to be transferred or made use of against any subsequent Heir apparant but it is not consequent that if the Charger die before Litiscontestation or Sentence that the same should also become void because the Charger doth not necessitate the Party charged to enter or renounce in favours of the Chargers heirs but of himself And it was found that an Assigny might insist upon a Charge at the Cedents instance after the Cedents death though nothing followed thereupon during his life June 18. 1631. Prior of Archattan concra Captain of Clanronnald 23. A special Charge to enter Heir differeth from the general Charge in this That the general Charge is in lieu of the general Service for thereby the Creditor reacheth the Person of the apparant heir of his Debitor and his Estate or Goods established in his person unless he renounce and so the general Charge is the ground of Process and Decreet for Payment But thereby the Creditor cannot reach the Lands and Annualrents which are not as yet established in the Person of the apparant heir he not being specially served thereto or infeft therein And therefore that the Creditor may reach these he must use a special Charge which supplieth the special Service and Eutry This special Charge though it proceedeth upon Supplication without Citation yet it must be upon production of a Decreet at the Creditors instance not only cognitiònis causâ but for performance And it is competent in two Cases First upon the proper Debt of the Party to be charged For if the Debitor be unentered to some of his Predecessors and so their Rights not established in his Person in that Case the Creditor must charge his own Debitor specially to enter heir in the Rights competent to him by that Predecessor with certification if he enter not the Creditor shall have such Process and Execution against that Land and heretage to which he might enter as if he were actually entered therein whereupon Apprising doth proceed In this Case there is no necessity of an antecedent general Charge which only is used to the effect that the Debt may be established in the Person of the Debitors apparant heir passivè by a Decreet upon the general Charge The other Case is when the Debt is not the proper Debt of the Party charged but of some Predecessor to whom he may be heir in which Case the Debt must first be 〈◊〉 against him passive and then followeth the special Charge In this Case the special Charge cannot be till after Year and day because it presupposeth not only the Summons but also the Sentence upon the general Charge both which must be after Year and Day When the Debt is the proper Debt of the Party charged if the special Charge may not be at any time even within Year and Day or if it must be after the annus deliberandi This makes for the Negative That it needs not abide the Year of Deliberation because the intent of the Deliberation is not so much whether the Party charged will be heir as whether he will personally subject himself to the ground of that Charge For albeit he renounce not it will not make him lyable to any of the Defuncts Debts except it be by his fraud and collusion with one Creditor in prejudice of another And therefore seing he cannot deliberate whether he will be subject to his own Debt he ought not to have the benefite ofYear and Day before the special Charge be effectual Yet before the late Act preferring the diligence of the Defuncts Creditors to the heirs proper Creditors there was no reason to allow special Charges for the apparant heirs own Debt but more summar Execution than other Charges so to prefer the apparent heirs proper Creditors to be Heir The Act of Parliament which is the ground of the Charge to enter Heir and is only the rise of the special Charge insinuates an Exception if the heir be major But the custom of the Lords hath introduced the general Charge to constitute the Debt and allows both Charges against minors There is no necessity either of a general or special Charge as to real Actions which may proceed against apparant heirs as poynding of the Ground January 2. 1667. Oliphant contra Hamilton Neither in Declarators or Reductions 24. The remedy against both Charges to be heir is a Renounciation to be heir whereby the Renouncers Person and his proper Estate will not be lyable for his Predecessors Debt but only his Predecessors heretage This Renounciation useth to be offered by way of Exception in the Process upon the general Charge and if the Defender be not absent it is not ordinarily admitted by Suspension except in favour of Minors who though being apparant heirs they take a day to Renounce and fail therein yet they will be restored against the same by Suspension without Reduction January 25. 1628. Kennedy contra Mackdougal Spots Minors Nisbet contra Nisbet But if the Minority were controverse and not instantly verefied it must be by Reduction Spots Minors Mr. Thomas Craig Advocat contra Cockburn Renounciation to be Heir was admitted rebus integris though the Decreet and Charge were six years before July 20. 1626. Harvie contra Baron Yea it was admitted though there was an Adjudication and the Decreet supsended which was declared to stand and the apparant heirs Person and proper Estate were only freed Spots Restitution in integrim John Oliphant contra Mr. William Blackburn A Renounciation to be heir was not admitted with this quality Excepting to the Renouncer certain Lands whereinto he was appointed to be infeft by his Fathers Contract of Marriage and whereupon Inhibition was used before contracting of the Chargers Debt to the effect he might enter heir to those Lands January 23. 1627. Lady Ogilvy contra Lord Ogilvy But in the like Case Hope Inhibition Donald Thorntoun contra Bailzie June 15. 1615. and the like November 30. 1620. Adamson contra Hamiltoun the apparant heir was suffered to renounce to be heir to his Goodsire except as to those Lands which his Goodsire had disponed to his Father in his Contract of Marriage whereupon Inhibition was used which the Lords found a singular Title consistent with a Renounciation of the heretage ex titulo universali The Exception upon Renounciation to be heir is elided If the Defuncts Estate be burthened with the heirs
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
served without delay otherways they could never be served there being ever possibility of the Issue of Men. Yet if they should not be entered before the superveniency even though but in the Womb the same would take place but if the Ascendent be actually entered the Law affordeth no remedy Reversion or Restitution Neither can this difficultie be a Reason against the Succcession ofAscendents because the question is only betwixt them and their own Children and nothing operats in favour of their Brothers and Sisters or their Descendents As to the other Case in the instance proposed it seems the Succeession ought to have depended till the event of the lawful Issue of Marion Weir First because that had a determined time by the Course of Nature viz. the fifteth or fiftieth two year of her Age at which time the Issue of Women is repute extinct which is not so in the case of Men. Secondly in Tailzies upon Contracts and for onerous causes respect is to be had to the meaning and interest of the Parties contracters and in dubio pars mitior est sequenda And that sense is to be imbraced by which the provisions can have some effect and not that by which they can have none Whereby it may seem that it was Blackwood's meaning that the Succession of his own Natural Daughter should be substitute in the second member to the Heirs betwixt the Major and her and that while these were possibe his Heirs should have no place Otherways the second membet had been elusory For if by sailling the Heirs of the Major with the said Marion at the time of the said Major's Decease Marions Heirs by another lawful Husband should take place her other Heirs could never take place For she could not have another lawful Husband at the time of the Majors her first Husband's Death Yet the Reasons on the contrary are no lesse pregnant and that in this Case as in the Case of Heirs ascendent the Heirs nearest at the time of the Feer's Death should have Rights immediatly to Succeed because the Fee necessarly must belong to some Person and it cannot hang in the Air on a future possibility Which is a principle whereof mention and use hath been made frequently before Secondly if that were the meaning then at the time of the Major's Death the Lands were truely nullius and so as caduciary behoved to sall to the KING as ultimus Haeres But if it had been so exprest That no place should be to the Heirs of the Major's other Heirs till there were no possibility of Heirs of Marion Weir the defficulty seems the same that the Fee should be pendent and nullius It may be answered That even in that other Case the Major's other Heirs would succeed notwithstanding that provision which doth but resolve in aPersonalObligation to those Heirs to forebear Yet they were Heirs and if contrary the provision they should enter it would give interest to the Heirs of Marion Weir to compel the Major's Heirs having entered to denude themselves in their favour But there was no such thing in this Case And as to the Reasons upon the contrary though it may seem Black-wood's interest that the Heirs of his Natural Daughter should be in the second Place yet non fuit habilis modus to make the Fee pendent and nullius But to that which is the main Reason Otherways the second member behoved to be elusory it is answerd That it is not elusory because the most ordinary and hoped Case was That there should have been Heirs betwixt the Major and Marion who if they had died without Issue the Lands would have fallen to Marions Heirs by another lawful Husband and not to the Major's other Heirs So that the case which fell out that there was no Children procreat betwixt the Major and Marion was not feared and so not provided for as it oft-times fares in such cases Therefore we conceive it more probable that in all cases that Person who at the time of the Defunct's Death is in being born or unborn may be Heir and immediately enter so soon as by the birth it appears who may be Served There hath a later Case occurred and been determined on that occasion The late Earl of Leven tailzied his Estate and Dignitie to the Heirs Male of his Body Which failling to the eldest Heir Female without Division Which failling to the second Son of the Earl of Rothess Which failling to the second Son of the Lord Melvil who had Married the Earl of Levens Sister Which failling to the second Son of the Earl of Weemes who had married his Mother Leven left three Daughters after him who died all un-entered Rothess having no second Son David Melvil second Son to the Lord Melvil took a Brieve out of the Chancery to serve himself Heir of Tailzie to the Earl of Leven The Earl of Rothess took a Gift of the Non-entry in the name of Sr. William Bruce who raised an Advocation of the Brieve with a Declarator That while there was no hope of a second Son of the Earl of Rothess's Body David Melvil nor no Son of a subsequent Branch could be entered Or declaring That the Lands were in Non-entrie Both members of the said Declarator the Lords did sustain and stopped the Service albeit many inconveniences were represented thence arising As that there could be no active Title for pursuing the Rights of the Familie or for receiving Vassals nor any Accesse to the Estate passivè by Creditors But the Lords did reserve to the special Declarator how far the Non-entry would reach whether to the retoured Duties only or to the full Rents But many of the Lordswerc of opinion that David Melvil should enter as Heir of Tilzie Yet so that if the Chancelor had a second Son he or his Issue would succeed as Heir of Tailzie to David Melvil and neither his own Heirs of Line nor the Earl of Weemes's second Son Because at the time of David Melvils Death the Chancelor's second Son would be a nearer Heir of Tailzie to David than his own Son as being of a prior Branch of the Tailzie Feb. 22. 1677. Sr. William Bruce contra David Melvil But the Lords found that the Non-entrie by the special Declarator could not reach to the full Rents but only to the Retoured Duety Seing the apparent Heir was neither in culpa nor mora Which doth only infer the full Duties And therefore found the Donatar had right to the retoured Duties and that the remainder continued in haereditate jacente to be managed by the Lord Malvil as Curator datus bonis of the Estate of Leven by the King having power to manage the Affairs of that Estate as a Tutor or as if an Heir had been entred July 24. 1677. inter eosdem 51. It cometh oft-times to pass that through the unclear conception of Clauses of Provision it becomes dubious who is thereby constitut Feer and who Liferenter as is ordinary when Sums of
January 29. 1673. Stewart contra Stewart But Conquest is only understood of what the Husband acquired more after his Contract of Marriage than what he had before And therefore if he acquired Lands Annualrents Sums or Goods if he instruct That he had as much or a part thereof before as he sold the superplus will only be counted Conquest And though he have not disponed on any thing he had before 〈◊〉 〈◊〉 he contract Debt for purchasing the Conquest it will be burthered with the Annualrent of the Debt as was found in the former cases And the like December 20. 1665. Lady Kilbocho contra Laird of Kilbocho June 27. 1676. Earl of Dumfermling contra Earl of Callender The like was found in a Provision of Conquest of all the Husband 's Goods and Geer acquired during the Marriage to the Wife for her Liferent use which was found to be with the burthen of the Husband's Debt contracted before or after and so to import only Liferent of the free Geer December 23. 1660 Jane Smith contra Margaret Muire And where a Husband was obliged to imploy a definite Sum for himself his Wife and Bairns of the Marriage and also his Conquest and having acquired a Tenement during the Marriage to himself and his Heirs whatsoever that Tenement was applyed to the definite Sum primo loco and the superplus as a Conquest January 4. 1672. Beaty contra Roxburgh So much for the Being and Interest of Heirs As for the proving and instructing who are Heirs the most ordinary by way of Retour or Infefment as Heirs or by a Service though not Retoured but those Instructions must be repeted in every several Process For so an Heir active was found not to be instructed by a Decreet at his instance as Heir against the same Defender and in the same Matter without reproduction of the Instructions Feb. 22. 1629. Stewart contra Wilson neither was it instructed passivè by a Decreet of the Comissars by production of the Defender's Seisine without 〈◊〉 thereof Had. Neither was it instructed passivè by the Kings gratuitous Restitution of the apparant Heir of a forefault Person which made him capable of his Father's Rights but not Heir nor Successor to him Hope forefaliure Halyburton contra Lord Balmerino Neither by a Bond wherein the Party designed himself Heir or at least apparant Heir which relateth nothing to the benefit of Succession January 24. 1626. Laird of Glenkindie contra Crawfoord Neither by an Award of a Town Court recognoscing a Burgess Heir to his Predecessor Spotswood Heirs Gudelet contra John Adamson TITLE XXVIII Behaving as Heir 1. Gestio pro Haerede described 2. The time when this passive Title was introduced 3. The reasons of introducing it 4. The latitude used in this Title 5. This Title not competent after the Intromette's Death or where there was any colour able Title 6. Behaving as Heirs by Intromission with Heirship only competent against Heirs of Line 7. Intromission of Tutors or Curator's infer not gestionem against the Pupills or Minors 8. Cases inferring gestion by Intromission with the Heirship moveables 9. Exceptions against this member of the Title As first The Pursuer must instruct that the Defunct was either Barron Prelat or Burgess by Infeftments of Lands or 〈◊〉 10. The 2. Defence against Intromission with Heirship Moveables and vitious Intromission That the Defunct died Rebel and his Escheat gifted before intenting the Creditor's pursuit 11. The 3. Defense That the apparant Heir intrometted by a Gift to himself or to his behoofe 12. The 4. When Moveables belonging to a Defunct remain in his House whereunto his apparant Heir hath right by Infeftment 13. Gestion by intrometting with Lands Tiends or Tacks wherein the Intrometter might be Heir 14. Defenses against this member 15. Gestion by intrometting with the Defunct's Charter Chest. 16. Item by intromission with Sums due to the Defunct or doing any Deed that may transmit the Defunct's Right 17. This passiive Title excluded unless established in the behavers in the behavers life-time 18. How far Heirs Portioners behaveing as Heirs are lyable and whether behaving as Heir excluds the benefit of 〈◊〉 and relief competent to Heirs actually entering GESTIO PRO HAEREDE is the apparant Heirs disorderly Entry and immixing himself with the Heritage without order of Law and therefore it gives him no Right nor Active Title as Heir but makes him only Heir 〈◊〉 whereby he represents the Defunct in all his Debts and Burthens and is lyable for them all 2. This passive Title as Spots observes was but introduced by the Lords of Session and was not before the institution of the Colledge of Justice the apparant Heir being only lyable for restitution of the single value formerly As was found in the case of an Heir's Intromission with the Heirship moveable November 14. 1546. Janet Seatoun Lady Dirlton contra Anna 〈◊〉 3. The reason of introducing this passive Title is in favour of Creditors that they be not un-satisfied or shifted by the heirs of the defunct Debitors who if they might continue possession of their Predecessors Means and Estate and be but countable would rarely enter and hundle up their Intromission and with time ascribe it to singular Titles abstracting their Predecessors Rights And therefore it is an expedient Custom that they should either enter legally and for good and all or that they should wholly abstain Especially seing the Law allows them a year to enquire into the condition of the Desunct's heretage whether it will afford them losse or gain during which time they may deliberat and if they abstain can be troubled by none So that though it may seem rigourous for a small Intromission to make the Intrometter lyable for all the Defunct's Debts how great soever Yet it being so easie to abstain and the hazard known the Expediency and Favour of the Creditor proponderateth the wilfull Disadvantage of the Debitors Heir 4. In this Title the Lords have always taken great Latitude and sometimes have found smal Intromission not relevant to infer this Title in odions 〈◊〉 November 6. 1622. Laird of Dundas contra Hamilton of Peill Where a Decreet of Spulzie of Tiends being obtained against Peill's 〈◊〉 and never insisted in till in his time he was convened as Heir to his Father who had behaved himself as Heir to the Good-sire in so far as he had entred and dwelt in the house of Peill and there being in the house the Goodsire's best Board standing Bed and brewing Caldron he used the same by eating at the Board lying in the Bed and brewing in the Caldron and desivered the Good sire's Beiff Pot to a Flesher for Flesh furnished to the Defender's Father the Defenders Mother having keeped possession of these Heirship Goods for five years before 5. Yet this Condescendence was not found relevant in this Case The passive Title was not established before the Defender's Father's Death As the Lords lately found That these passive Titles quae sapiunt
delictum should not be competent after the Intrometter's Death It was also thought by the whole Lords after dispute in presentia upon this Title That it takes only place where there appeared the apparant Heir's animus immiscendi adeundi haereditatem and not where he hath any probable or colourable Title Spots Heirship Corser contra Durie Yet in favourable cases a smal Intromission was sustained as making use of the Defnuct's chief Bed and Board though standing in the Defunct's House seing the Heir entred the House before he obtained Inventary of the Moveables made by authority of a Judge though the House belonged to himself proprio jure March 8. 1610. John Bailzie contra Hoom of Bassenden Or by Intromission with a Mazer Cup of the Defunct's and drinking therein entering in the House when he died lying in his Bed and bed Cloaths standing there and wearing his Silk Stockings though all these were undisposed upon and that the Defunct's Mother who had given them to her Son had medled therewith who died in a Chamber belonging to his Mother and his name was upon the Mazer January 15. 1630. Cleghorn contra Fairly 6. There are two Cases of Behaving as Heir viz. Intromission with the moveable Heirship and Intromission with the Lands Teinds Tacks or other Rights which might have belonged to the Intromitter as Heir In both which cases the Intromission will not infer this passive Title unlesse the Intrometter might succeed in the same particulars And therefore the apparant Heir of Line and no other can be lyable by Intromission with Heirship moveable because the same can only belong to the Heir of Line So the Intromission with Rents of Lands Tiends or Tack will not infer gestionem unless by the apparant Heir who would succeed therein according as they are provided to Heirs of Line of Conquest Heirs male or of Tailzie or Provision Neither will any other Intromission be relevant but what is immediat or by express Warrant Command or Ratihabition 7. A Tutor or Curator's Intromission will not infer gestionem upon his Pupil unless he accept the same from the Tutor in his Accompts Nor the Intromission of one having a general Commission as Factor c. It was so found in the Case of a Tutor's Intromission with the Rents of the Pupil's Predecessor's Lands for the restitution whereof he was only found lyable Nevember 3. 1665. David Boyd contra Tailzfair 8. Behaving as Heir by Intromission with the moveable Heirship is most unquestionable when the said moveable is chosen drawn and separat by the Heir from the remanent moveables In which case the apparant Heir will not be admitted to alledge that the Defunct could not have an Heir or Heirship moveable when he formerly drew the same July 13. 1631. Laird of of Gadgirth contra Laird of Auchinleck But it seems very hard where the apparant Heir's choice of such particulars as the best of every Kind for her Heirship doth not evidently appear for that must be accounted the best which is such in the opinion of the apparant Heir And yet in favourable Cases Intromission with any Kind of moveables out of which Heirship may be drawn will be found sufficient and repute as the Heir's choice As the apparant Heir's making use of his Fathers Board lying in his Bed though he disposed not thereof and though the same were standing in a House disponed to him by his Father before contracting of the Debt pursued on seing he continued two years in possesion and got no Warrant from the Lords or made any Inventary thereof July 14. 1626. Gilbert Johnston and Masson his Spouse contra Masson The like by making use of the Defunct's Bassin Silver Spoons Timber Beds and Boards without alienation thereof though the beginning of the Intromission was when the Intrometter was not apparant Heir himself but was Tutor to another Heir who was Idiot seing he continued five years after the Idiot's Death himself being then apparant Heir January 17. 1627. Frazer contra Monimusk Yet the contrary was found where the Intromission began before the Intrometter was apparant Heir there being a nearer apparant Heir though it continued after that nearer apparant Heir's Death when the Intrometter was apparant Heir July 〈◊〉 1629. Mr. Robert Cuuingham contra Moultry Yea Behaving as Heir was sustained by Intromission with certain Goods of the Defunct which might have been Heirship though they were confirmed promiscously by an Executor and bought from him by the apparant Heir But this Executor was his own domestick Servant and confirmed to his own behoof December 16. 1630. Weir contra Ker of Cavers The like where the Heirship Goods were sold to the apparant Heir by a stranger seing they were not delivered to that stranger but possest by the Defunct till his Decease but his possession continued by the apparant Heir Nicol. Plus valet quod agitur Feb. 9. 1621. Melvil contra Melvil But the contrary was found the Goods being disponed by the Defunct to the apparant Heir albeit not delivered before his death otherways than that the Defunct being un-married came to his Son's House and lived with him till his death January 30. 1630. Calderwood contra Porteous Neither was the same inferred by a Disposition of the Defunct to his apparant Heir of certain moveables in satisfaction of his Heirship moveables whereunto he might succeed Feb. 24. 1636. Meidhope contra Hepburn 9. The ordinary Objections and Exceptions against Behaving as Heir by Intromission with the Heirship moveable are First That the Defunct was neither Prelat Baron nor Burgess to whose Heirs only Heirship moveable is competent by the Act of Parliament the extent whereof is shown in the former Title And therefore the Pursuer must condescend and instruct that the Defunct was either Baron Prelat or Burgess which would besufficiently instructed by the Defunct's Infeftments of Lands or Annualrents at any time for thence it would be presumed that he continued undenuded till his death semel baro semper baro presumptivè And this will be elided by this Exception That the Defunct was denuded before his Death For though some have been of opinion that semel baro semper baro is meant that though a Person once infeft were denuded yet his Heir would have Heirship as a Baron For which I find neither Reason nor Decision But it is most reasonable that he who is once proven to be a Baron should be presumed so to continue unless the contrary were proven that he was denuded It was so found January 27. 1636. Straiton contra Chirnside But if the Legal was not expired at the Defunct's Death he is not esteemed denuded and therefore his Heir hath Heirship Feb. 26. 1663. Cuthbert of Drakies contra Monro of Foulis July 8. 1628. Dumbar contra Lesly Neither will it be sufficient that the Defunct was once Burgess but itmust be proven that when he died he was acting as a Burgess So that neither the Heirs of honorary Burgesses nor they who once were
doth remain and both are compatible Hope Successor Lucrative Gray contra William Burgh 2. This passive Title is not only extended to Dispositions of Lands bearing expressly a lucrative Title as for Love and Favour c. but though the Narrative thereof bear expressly a Cause onerous which being betwixt the Disponer and his apparant heir proves not and therefore the Cause onerous must be proven aliunde Vide Title Reparation upon Circumvention where the Narrative of Writs amongst conjunct and confident Persons proves not the Cause to be onerous And though there be a Cause onerous instructed it will not be sufficient unless it be equivalent to the worth of the Lands to substain it against Reduction but if the Cause onerous be considerable the heir will not be lyable simply or personally but the Right may be reduced and the heir may be lyble in quantum est lucratus And therefore an apparant heir having accepted the benefit of a Disposition and Infeftment granted by his Predecessor to a third Party but to the apparant 〈◊〉 behoofe the Lords before answer ordained the Cause onerous of the Disposition to be instructed reserving to their consideration how far the apparant heir should be lyable personally thereby January 14. 1662. Nichol Harper contra Hume of Planergest The like of a Disposition of Lands by a Mother to her apparant Heir though it did bear a Sum of Money which did not prove betwixt Mother and Son February 15. 1676. Patrick Hadden contra George 〈◊〉 The like was found of a Disposition by a Father to his Son and apparant heir though the Son offered to prove it was for equivalent onerous Cause seing the Disposition it self did bear for love and favour and other good Considerations November 22. 1671. Beaty contra Roxlurgh But Bonds of Provision by Parents to Children infer no passive Title though the Children be Heirs apparant As when the Bonds are granted to the eldest Son or Bonds of Provision or a Tocher to Daughters when there are no Sons though in that Case the Daughters might be esteemed heirs apparant although truly they be not for a man is ever understood to be capable of having a Son and therefore Daughters are little more heirs apparant than Brothers Yet Bonds of Provision or Tochers are reducible by anterior Creditors if the Defunct had not a visible Estate sufficient for these Portions and his whole anterior Debts And therefore accepting a Tocher did not make a Daughter lyable as lucrative Successor though there was no Son yet the Daughter and her Husband were found lyble to the Father's anterior Creditors for what was above a competent Tocher suteable to the Parties December 23. 1665. Dame Rachel Burnet contra Lepers Neither will taking Bonds in the name of the Daughters or assigning Bonds to them make them lyable as lucrative Successors And yet the accepting of Assignations to heretable Bonds by a Father to his eldest Son in which the Son would succeed as Heir may inferre this passive Title December 2. 1665. Edgar contra Colvil But where the Father in his Contract of Marriage provided his Son to several Bonds which before any Creditor pursued were payed and cancelled and it did not appear by the Contract whether they were heretable or moveable the Lords did not sustain the passive Title but found the Son lyable in quantum 〈◊〉 and did presume the Bonds to be heretable unless they were proven to be moveable January 7. 1679. Hamilton of Burdowie contra Mr. Andrew Hay But a Disposition of Lands to the eldest Son was found to make him lucrative Successor although by his Father's Contract of Marriage with his Mother his second Wife the Father was obliged to infeft the eldest Son of the Marriage in the said Lands which did import a Succession seing the Obligement contained no determinate time and so might be performed by the Father any time in his life November 29. 1678. Hagens contra Maxwell The like was found in a Disposition of Lands or Annualrents to the eldest Son of the Marriage seing these were provided to the Heir of the Marriage February 22. 1681. Grizel More contra Ferguson The Disponer's Bairns Portions are not a Cause onerous being granted after the Creditors Debts albeit undertaken and secured by the apparant Heir bona fide before any Diligence at the Creditors instance not being payed before the Pursuit ibid. because the Heir may suspend upon double Poynding and will not be made to pay both the Bairns and Creditors 3. This Title is extended to Dispositions granted in the apparant Heirs Contracts of Marriage which in many respects is accounted a Cause onerous July 8. 1625. Gray contra William Burgh Where the Son was not liberat though he offered to renounce the Lands he had by Contract And it was found that Lands being disponed and resigned by the Father in favour of the Son by his Contract of Marriage though they were for the present wadset and disponed with that burthen and thereafter redeemed by the Son by his own means so that there remained nothing in the Father but the Superiority and the 〈◊〉 yet the Contract of Marriage was found onerous as to the Wife 's Luerent And in respect the Son was Minor and presently revoked the Disposition and renounced all other Rights except that of the Wadset which he had redeemed he was liberat of the passive Title and the Lands declared redeemable by any Creditor anterior to the Contract January 14. 1634. Mr. David Courtney Minister contra Weems of Lothoker In the like Case where Lands were disponed by a Father to the Son in his Contract of Marriage for a Tocher payed to the Father for some Debts and Bairns Portions far within the worth of the Land the Son was not found lyable in solidum as lucrative Successor nor yet the Pursuer put to a Reduction but the Son was in hoc processu put to compt and pay the superplus of the true price of the Land June 17. 1664. Lyon of Murask contra Bannerman 4. This Title takes place not only in universal Dispositions of the Predecessor's whole Estate but a Disposition of any part thereof is sufficient seing the least as well as the most is praeceptio haereditatis 5. This Title is extended also not only to Dispositions made to and accepted by the immediate apparant Heir but also to the mediate apparant Heir so that he be alioqui successurus by the course of Law necessarly as what is granted to the eldest Son of the apparant Heir Because the ground of this Title being to prevent Deeds in favour of the Disponer's Successors prejudicial to the Disponer's Creditors whose Debts are anterior the reason holds as much where he dispones to his Oye who by the course of Law is to succeed to him as to his Son 2. It is Praeceptio haereditatis in the Oye aswell as in the Son And therefore the Rule in this Title is not that the Accepter be that Person who
receive him 12. Terce is the third of the Tenements in which the Husband died infeft as of Fee provided to his Wife surviving by Law or Custom though there be no provision or paction for that purpose The original hereof as hath been shown before amongst the interest of Marriage is from that obligation upon the Husband to provide for his Wife which therefore positive Law hath determined to a third of his Moveables if there be Children in the Family and if there be none to a half but in either case she hath a third of his Tenements And though as Craig observeth by our ancient custom Terce extended only to a third of the Tenements a Husband had the time of the Marriage yet since it extends to a third of those he stands infeft in as of fee the time of his death and so when he is denuded before his death the Terce is excluded Yea a base Infeftment without possession granted by a Husband to his Creditor was found to exclude his Wife from a Terce of that Land January 27. 1669. Bell of Belford contra Lady Rutherford This provision of Law is more equitable and proportionable then ordinarly are their provision by Contract of the Husband who being carried with affection doth oft-times provide his Wife to the prejudice of their Children and ruine of their Estate which this Terce keepeth alwayes proportionable and maketh the Wife sharer of the Industry and Fortune of the man and therefore more careful over it and upon the contrary giving out but small Provisions to their Wives at their Marriage when oft-times they do but begin to have Estates which they increase not according to the increase of their Fortune but the Law doth more fitly order the Wifes Provision to be increased or decreased according to the condition of the man 13. The Terce taketh place ordinarly where the Husband died infeft as of Fee and it hath no effect till the Widow take Brieves out of the Chancelery directed to Sheriffs or Bailies to call an Inquest of fifteen sworn men and thereby to serve the Brieve which hath two Heads the one That the bearer was lawful wife to the defunct the other that he died in fee of such Tenemnts This is a pleadable Brieve and hath no retour but Service alone is sufficient enough to give the Wife interest that other Liferenters have It was specially statute That where the Marriage was not questioned in the Husbands life and the Widow was holden and repute his lawful Wife in his Time no exception in the contrary shall be sustained in the service of the Brieve but she shall be served and injoy the Terce till it be declared in a petitory judgement That she was not lawful Wife Par. 1503. cap. 77. 14. The Brieve being thus served the Sheriff or Bailiff must also if it be demanded ken the Relict to her Terce which is ordinarly done by the Sun or the Shade That is whether the division shall begin at the east or the west and so the division of the Tenements proceed by Aikers two befalling to the Heir and one to the Relict wherein there ought to be Marches set and Instruments taken thereupon which is as a Seasine but this division being most inconvenient except the whole interest were used to be set in Aikerdale it is not exclusive of other divisions by the worth of the Lands or the Rent so many Rooms being designed for the Tercer the rest remaining for the Fiar This way of kenning would be valid and much better but it is not necessary to divide at serving the Brieve to constitute the Terce for the Service giveth sufficient Title to the third of the Mails and Duties of every Room March 5. 1632. Relick of Veatch of Dawick contra 15. But that thereby she cannot remove possessors is because she brooketh the Terce pro indiviso with the Heir till it be be kenned or otherwayes divided and the Terce being served gives right not only to the years thereafter but preceeding since the Husbands death November 20. 1624. Tennants contra Crawford and Flemming and so the Tercer may pursue the Heretor or other intromettor for all by-gones of the third of the Duty not as they were at the Husbands death but as they were bettered by the fiar Feb. 13. 1628. Countess of Dumfermling contra Earl of Dumfermling and that without deduction of Factor-fee March 27. 1634. inter eosdem The Tercer being served hath interest to pursue for Commission to cognosce pasturage Lands what Soums they may hold that she may have the third Soum or else to divide January 18. 1628. contra Mackenzie The division of the Terce from the two thirds may be in the most convenient way wherein all Dwelling-houses or Kilns and Barns and other Houses for service will come in as they may be most conveniently divided This is the most ordinary way of Terces by Service as said is when the Husband died infeft in Fee 16. Terce takes place not only in Lands but also in Annualrents wherein the Husband died infeft as of Fee Novemb. 30. 1627. Tennants of Easthouses contra Hepburn but not to the Terce of Annualrents of Bands whereupon no Infeftment followed June 24. 1663. Elizabeth Scrimzeour contra Murrays It is also extended to Infeftments of Teinds Feb. 13. 1628. Countess of Dumfermling contra Earl of Dumfermling But it is not extended to Tenements or Lands within Burgh or holden Burgage neither to Superiority or Feu-duties or other Casualities thereof nor to Tacks ibidem neither to Patronage or Advocation of Kirks neither doth Terce extend to Reversions If the Fiar whose Land is lyable to a Terce die and his Wife have right to another Terce which is called the lesser Terce though the Husband died infeft as of Fee of the whole Tenement she hath not a third of the whole but a third of these two thirds which were unaffected with the greater Terce till the former Tercers death Craig lib. 2. dieges 22. proposeth two cases in which the Relict will have a Terce though the Husband died not infeft as of Fee The first is if the Husband infeft his appearand Heir in his Estate if there be no Liferent provided to his wife by a Contract in that case the Relict will have a Terce which is most just albeit it will not proceed summarly by a Brieve which bears only warrand for a Terce of the Tenements in which the Husband died infeft as of Fee But it may proceed by Reduction or Declarator and would not only have effect against the appearand Heir but against any gratuitous Disposition reserving the Husbands own Liferent for such deeds would be found fraudulent and contrary to the nature of the obligation of Husbands to provide their Wives unless there remained Tenements out of which a reasonable Terce might remain to the Relict according to her quality The other case is when a Father by his Sons Contract of Marriage is oblieged to infeft his Son