Faill and Divot upon our Moor for maintaining his houses though in strict Law every part of the Moor is affected with the servitude yet the Lords will allow any man to Tile and Sow his own Moor leaving such a proportion as may maintain these houses Mixt Servitudes are partly real and partly personal and by the Civil Law are divided in usu fruct use and habitation Usus-fructus is called liferent in Our Law which is a right to use and dispose upon any thing during life the substance thereof being preserved Use and habitation were restricted to the naked use of the Liferenter whereby his power of disposing and making profit of the thing liferented was restrained and are not in use with us Liferents are either constitute by paction or by Law liferents by paction are either by reservation as when a Fiar denuds himself of the Fie in favours of another reserving his own liferent or by a new constitution as when the Fiar dispons his lands to another during all the dayes of his life the first needs no infeftment but the second does else it is not valid against singular Successors but the liferenter being infeft transmits his right to any by assignation without infeftment for being a servitude and personal right it neither needs nor can admit of a subaltern infeftment A Liferenter also by reservation may enter the heirs of Vassals though he cannot receive singular Successors if he was himself infeft but another liferenter cannot and even a liferenter by reservation cannot enter those Vassals if he was not once infeft because he cannot transmit a right which he has not When moe persons are joyntly infeft they are called conjunct Fiars but though a wife be a conjunct Fiar yet her Fie lasts but during her life and during her life she may enter Vassals and has right also to all the casualities as other Fiars Liferents by Law are the Terce and the courtisie The Terce is a liferent of the third of all the tenements wherein the husband dyed infeft provided be law to a wife who is not excluded by express paction or is not provided to as much as will be eqvivalent to the Terce which Terce is constituted by an inquest who upon a brief out the Cbancellary directed to the Sberriff or other judge ordinary doe serve her to a Terce upon which service the judge to whom the brief was directed without retouring it divids the land betwixt the heir and Relict and expresses the marches in an instrument and this is called to kenne her to her Terce the marches being kenned by the instrument and though the service gives her right to the meals and duties yet she cannot remove tennents till she be kenned as said is the kenning being equivalent here to the seasin in lifrents This Brive contains two points first that the bearer was Lawful Wife to the defunct and secundo that he dyed infeft in such tenements but if the Relict was holden and reput lawful Wife in her Husbands life no exception in the contrary will stop the service There is no Terce in Burgage Lands Feu duties or other casualities nor in reversions tacks nor Patronages The Courtisie is a liferent granted by Law to him who married an Heritrix of all her Heritage and of that only It needs neither seasin nor other solemnity to its constitution but is ipso jure continued to him if there were Children procreated of the Marriage who were heard to cry though the Marriage disolve within year and day All these Liferenters are obliged to find caution to preserve the thing liferented and to leave it in as good condition as they found it which is called cautio usu-fructuaria and they are also bound to Aliment the appearand Heir if he have not Aliundi to Aliement himself If Liferenters survive Martinmess or if they die upon Martinmess day in the afternoon their Executors will have right to the whole years rent whether it be Land rent or the rent of a mill albeit the Conventional termes were after Martinmess But if Liferenters labour the Lands themselves their Executors will have right to the whole rent thereof albeit they die before Martinmess Title X. Of TEYNDS TEynds being a burden affecting Lands fall in to be considered in this place Teynds are designed to be that special and liquid proportion or quota of our Goods and Rents lawfully acquired that is due to GOD for maintaining His Service It seems Our Law has followed the opinion of those Divines who think that some proportion of our Goods is due by Divine right for we say that Teynds are the Spirituality of the Churches revenue But that the proportion is not Iuris Divini for we alter the proportion by special laws and customs though for distinctions sake we call this proportion the Tenth By the Canon Law they are divided into personal teynds which arise out of the personal gaine and profites that a Man has by his Trade Predial teynds which aryse from the Natural Product of the Land that men possess And mixt Teynds which arise from the profites that men by their Personal industrie make out of their Lands They are likewise divided into Parsonage teynds which are due to the Parson and Viccarage teynds which are due to the Viccars And regularly all teynds are due to the Incumbent who serves the Cure so that if the Incumbent be a Parson he has a right to the Parsonage teynds and if he be a Viccar he has right to the Viccarage teynds The teynds of Corn are called Parsonage teynds or decimae garbales and the fifth boll of the free rent is still teynd with us And all Land must pay teynd except they be such as have been Feued out of old by Church men before the Lateran Council by which they were prohibited to alienat the teynds and who had right both to stock and teynd and where the teynds were never known to have been separated from the stock Some Monks likewise got particular exemptions from paying teynds for these Lands which they themselves did bring in and cultivate and with us the priviledges granted to Temple lands which belonged of old to the Knights of St. Iohn a Religious Order and to the Monks of the Cisterian Order are continued to those who have right to their Lands with that Exemption Manses and Gleibs are likewise free from payment of teynds Viccarage teynds are called the small teynds with us because they are payable out of inconsiderable things such as Lambs Wool Cheese Eggs c. and they are said to be local because they are payed according to the custome of the place so that in the same Parishes some Heritors will be lyable for Viccarage teynds of different kinds for though no man can prescrive a liberty from payment of Parsonage â—eynds since the Lateran Council yet as 40. years possession is a sufficient right to a Minister for Viccarage teynds and as it does determine the Quota as
duty be payed for two years even though the whole was offered or though the Vassal was minor then the Vassal looses his Feu ob non solutum Canonem for the Feu duty is called Canon and if this provision be exprest in his charter he will not be allowed to purge this irritancy by offering the bygones at the Barr but though this provision be not exprest in the charter yet the feu will be annulled for not payment of the Feu-dutie by an express act of parliament but the Vassal in that case will be allowed to purge at the bar and the reason of this difference is because the express paction is thought a stronger Tye than the meer statute A clause irritant in Our Law signifies any provision which makes a penalty to be incurred and the Obligation to be null for the future as here where the Superiour gives out his Feu upon express condition that if the Feu-dutie be not payed the Feu shall be null and reduceable and a clause resolutive is a provision whereby the Contract to which it is assixt is for not performance declared to have been null from the beginning The Casualities that are due by all manner of holdings and which arise from the very nature of the feu without any express paction are None-entry Relief and Liferent Escheate None-entry is a casuality whereby the Superiour has right to the Meals and Duties of the Lands when there is not a Vassal actually entered to him and the reason why this is due to him is because he having given out his Feu to his Vassal or service when there is no actual Vassal entered the Law allowes him to have recourse to his own Feu that he may therewith provide himself with a Vassal who may serve him but though the full Rents of the Lands be due to the Superiour from the very time that he cites his Vassal to hear and see it found and declared that the Land is in None-entrie yet before that citation the Superiour gets onely the retoured duties and the reason of the difference is because after citation there is a greater contempt than before and so is to be more severely punished For understanding which retour dutie it is fit to know that there was of old a general valuation of all the Lands of Scotland but thereafter there was a new valuation the first whereof is called the old and the second the new Extent and both are called the Retour duty because they are exprest in the Retour or Return that is made to the Chancellary when an Heir is served but both are very far below the Value to which Lands are now improved though in Our Law the new extent be constructed to be the Value But in an infeftment of annualrent the whole annualrent is due as well before declarator as after because the annualrent is the retoure dutie it being retoured valere seipsum and that is called an infeftment of annualrent when the Vassal is not infeft in particular lands but is infeft in an yearly annuity of money to be payed out of the lands as for instance if a man should be infeft in the sum of five hundred merks yearly to be payable out of any particular Lands being worth 5000. merks yearly how soon the Vassal who had right to the 500. merks dyed the Superiour would have right to the whole 500 merks yearly until the Heir of the Vassal be entered vide infra Tit. Servituds § annualrents There is no Nonentry due in Burgage Lands because the Burgh it self is Vassal and never dyes and so therefore neither does the Burgh nor any private Burgess pay nonentrie the duty payable by a Burgh being onely by Watching and Warding When the Vassal enters he pays an acknowledgment to the Superiour which is called relief because it s payed for reliving his land out of the Superiors hands It is debitum fundi and affects not only the ground really but the Vassal Personally who takes out the precept for infefting himself though he never takes infeftment thereupon The value of this Casuality varies according to the nature of the holding for in Blench and Feu holdings it is only the double of the Feu or Blench duties but in Ward-holdings it is the full duty of the land if the Superiour be in possession the time of the Vassals entrie but if the Superiour was not in possession though the Vassall was minor or if the Vassall be major before his Predecessor dye then the Superiour gets only the retour dutie and it is so far from being presumed to be remmitted by the Superiours entering his Vassal that it is still exacted though it be gifted with the other Casualities For understanding Life-rent Escheates it is fit to know that when any man does not pay a debt or perform a deed conform to his Obligation his Obligation is Registrated if it carry a consent to the Registration in the body of it or if it do not there must be a sentence recovered and upon that Registrated writ or decreet for a Registrated writ is a decreet in the Construction of Law there will be Letters of horning raised and the Partie will be charged and if he pay not within the dayes allowed by the charge he will be denounced Rebel and put to the Horn and from the very day of the denounciation all his moveables falls to the King by a casualitie which is called single Escheate but now single Escheates fall likewise to Lords of Regalities if the persons denounced live within a Regality because the King has gifted all single escheates when he erected those Regalities If the Vassal continue year and day Rebel without Relaxing himself which Relaxation is expede by Letters under the Kings signet expresly ordaining him to be relaxed from the Rebellion then he is esteemed as Civilly dead and consequently not being able to serve the Superiour the Law gives the Superiour the meals and duties of his Feu during all the dayes of the Vassals life and this casuality is called Liferent Escheat so that every Superiour aswell as the King has right to the meals and duties of the lands holden of himself if his Vassal was once infeft and even though he was not infeft if he was appearand Heir and might have been infeft for his lying out should not prejudge his Superiour but if a man have right by disposition whereupon no infeftment followed the King only will have right to his Life-rent Escheate as he has for the same reason to the Manses and Gleebs of Ministers when they are Rebells since they are not infeft in these but all heritable and Life-rent Rights requiring no infeftment of their own nature such as a terce and Liferent-tacks fall not to the King and the Life-rent tacks fall to the Master of the ground and the Life-rent by Terce pertains to the Superiour during the Life-renters Lifetime This Life-rent Escheate comprehends only Rights to which the Vassal himself had right
for his Lifetime for else it will fall under single Escheate single Escheates comprehending every thing that is not a Life-rent Escheate and therefore if the Superiour having right to the Vassals Liferent Escheate become Rebel himself the Vassals Liferent Escheate will fall under the Superiours single Escheate for the Superiour had not right to those meals and duties during all the dayes of his own Lifetime and so it could not fall under his Liferent and the like does for the same reason hold in all such as have assignations to Liferents or to Liferent Escheats or to Tacks for any definit number of years few or many The Superiour has also right to the Sub-Vassals Liferent Escheate which falls after the Vassals denounciation for by the denounciation of the immediate Vassal the Superiour comes in his place and so has right to the sub-Vassals Liferent The Liferent Escheate falls by the Rebellion that is to say by the denounciation and the year and day is given only to the Rebell to relax himself so that if he relax not within that time his Liferent will fall from the denounciation In competition betwixt the Superiour of the Rebell and the Rebells Creditors these Rules are observed in our decisions Primo No Legal Diligence nor Voluntar right for payment of any debt contracted after Rebellion will prejudge the Superiour for else after a Vassal were at the horn he might fraudulently contract debt to prejudge the Superiour Secundo If the debt was prior to the denounciation no voluntar infeftment will prejudge the Superiour except the Rebel was obliged prior to the Rebellion to grant that infeftment and that the infeftment it self was expede within year and day of the denounciation Tertio Though Legal Diligence be more favourable then voluntar rights because there is less collusion yet no legal dilligence will be preferred to the Superiour except it was led for a debt prior to the denounciation and was compleated by infeftment or charge within year and day thereof albeit the said Legal diligence was deduced after the denounciation Though this be the course in competitions quo ad liferent Escheates yet actual payment made or diligences done to or by Creditors for payment of debts prior to the Rebellion or the commission of crimes will be preferred to the donator if these Rights or Diligences be compleated before declarator which we owe rather to the benignity of our Kings than to the Nature of these Rights since there is jus questitum fisco by the denounciation Liferent Escheates is proper to all kinds of holding except Burgage and mortification for the Vassal being a Societie or Incorporation dyes not and so can have no liferent Escheate and albeit the administrators were denounced for debts due by the Incorporation yet that is still presumed to be their Negligence which ought not to prejudge the Societie For compleating this Casualitie a general Declarator must be raised at the Superiour or Donators instance to hear and see it found and declared that the Vassal was orderly denounced Rebel and has continued at the Horn year and day And in a competition betwixt Donators the last gift if first declared will be preferred If the gift be taken to the behoove of the rebell it is null and is presumed to be to his behoove if he or his Family be suffered to stay in possession The last Priviledge of the Superiour is that he may force his Vassal to exhite his Evidents to the end he may know what is the nature of the holding and in what he is lyable to his Superiour which proceeds ordinarly by an Action of Improbation Title VI. Of the Right which the Vassal acquires by getting the Feu THE Vassal by getting the Feu settled in his Person by Charter and Seasin as said is has right to all Houses Castles Towers but not Fortalices Woods and other things that are above ground of the Lands expresly disponed and to Coals Lime-stone and other things within ground and to whatever has been possessed as part and pertinent of the Land past memorie of Man But there are some things which passe not under the general dispositive words and require a special Disposition which belong to the King in an eminent way and are called therefore Regalia and are not presumed to have been disponed by his Majestie or any other Superiour except they were specially mentioned such as are all Iurisdictions Forrests Salmond-fishings Treasures hid within the ground and Gold Silver and Fine-lead for other Mines such as Iron Copper c. belong to the Vassal If Lands be erected in a Barrony by the King then though the lands lye discontiguously one seasin will serve for them all because Barrony implyes an union This erecting them in a Barrony will likewise carry a right to Iurisdictions and Courts Fortalices Forrests hunting of Deer and Ports with their small Customes granted by the King for upholding these Ports Milnes Salmond-fishings c. because Barronia est nomen universitatis and possession of any part of a Barrony is repute possession of the whole But Mynes of Gold and Silver Treasures and goods confiscate are not carried with the Barrony The Heritor has also power to set Tacks remove and in-put Tennents as a consequence of his property A Tack is a Location or contract whereby the use of any thing is set to the Tacksman for a certain hyre and in Our Law it requires necessarly that the terms of the Entry and the Ish must be exprest that is to say when it should begine and end and it must bear a particular dutie else it is null and if it be a valid Tack that is to say if Write be adhibit verbal Tacks being onely valid for one year to the thing set the Contracters names Tack-duty Ish and Entry clearly therein exprest and cloathed with possession it will defend the poor Tacksman against any Buyer * and even against the King and his Donators when they succeed by forfeiture which was introduced in favours of poor Tennents for encouraging them to improve the land but it will not defend against a Superiour of ward lands for the ward c. though by Act of Parliament the Superiour be obliged to continue them in their possession till the next term of Whitsonday Albeit Tacks have not all the solemnities foresaid yet they are valid against the Granter and his Heirs Tennents cannot assign their Tacks except they be Liferent Tacks or that the Tack bear a power to assign but they may be comprysed or adjudged and if the Master suffer the Tacksman to continue after the Tack is expyred he will be obliged to pay no more than he payed formerly during the Tack and this is called in Our Law the benefite of a tacite Relocation that is to say both the Setter and the Tacks-man are presumed to design to continue the Tack upon the former terms till the Tennent be warned If the Tack be granted to sub-tennents then the Tacks-man may
witnesses Interruptions made against the principal party interrupt as to Cautionâ—rs and interruption as to a part interrupts the prescription of the whole so that if a man arrest the meals and duties of any part of a Barrony he interrupts prescription as to the whole Barrony Title VII Of Succession in Heritable Rights HAving formerly shewed how Rights whether Heritable or Moveable Real or Personal are constitute and how they are transmitted to singular Successours It remains now to consider how these Rights are transmitted by succession beginning first with Succession in Heritage An Heir is he that succeeds universally to all that belonged to the Defunct and is therefore in the construction of Law one and the same person with the Defunct Though the Executor be in effect the Heir in moveable Rights yet we call those only properly Heirs who succeed in Heritage and with us there are several kinds of Heirs distinguished by their several denominations The first and chief kind of Heirs are the Heirs of lyne who are so called because they succeed Lineally according to the right of Blood and they succeed thus First Descendants according to the proximity of their Degree in which the eldest Son is preferred to all his Brothers and all the Brothers to the Sisters and if there be onely Sisters they succeed all equally The next degree is Grand Children and their great Grand Children c. who succeed all in the same way If there be no Descendants then Collaterals succeed in which the first degree is Brothers and Sisters German for the whole blood excludes the half blood and Brothers the Sisters and Brothers by the Fathers side exclude Brothers by the Mothers side there being no Succession with us by the Mothers side Failing Descendants and Brothers and Sisters the Succession ascends and all the Ascendants succeed upward according to their degrees of Proximity as the Descendants did downward and thus the Father succeeds to his own Son and failing him the Grand Father Great-Grand Father c. and failing of Ascendants in the right â—ine the Collateral Ascendants succeed in the same way and thus the Fathers Brother or if there be no Brothers the Fathers Sister secludes the Grand Fathers Brothers or Sisters c. It is to be observed that in Heritage there is a Right of Representation whereby the Descendants exclude still the Collaterals though nearer by many Degrees to the Stock or comunis stipes And thus the great Grand-Child of the eldest Son secludes the second Brother because he comes in place of and so represents the elder Brother his great Grand-Father The Heir of Line has Right to the Heirship moveables and excludes all other Heirs therein Heirship moveables are the best of each kind of moveables which is given to the Heir because he is excluded from all other Moveables if there be pairs or dozens he gets the best pair or dozen but in others he gets onely one single thing None have right to Heirship moveables but the Heirs of Prelates under which are comprehended all Beneficeâ— Persons the Heirs of Barrons under which are comprehended all who are infeft in Lands or annual rents though not erected in a Barrny And the Heirs of Burgâ—sses by which are meaned actual Trading but not honorarie Burgesses If the Defunct had any Lands or Heritable Rights to which he could not succeed as Heir of Line then he who succeeds in these is called the Heir of Conquest and the Rule is that Heritage descends and conquest ascends so that if the midle of three brothers dyes his immediate elder brother would be his Heir of conquest and if a Son of a second Marriage dyes leaving three brothers of a former Marriage the youngest would succeed in his conquest lands and this I conceive was introduced for enriching the elder brothers whom Our Law still favours whereas heritage must descend according to the Law of Nature These Heirs of conquest have right to all lands annualrents heritable bands and others whereupon infeftment did or might follow but they have no right to tacks pensions moveable Heir-ship and all other rights having tractum futuri temporis and requiring no infeftment and so not competent to Executors all which belong to the Heir of line The Heir Male is the nearest Male who can succeed and all Heirs of Line are also called general Heirs because they succeed by a general service and represent the Defunct universally The Heir of tailzie is he to whom an Estate is tailzed so called because the legal Succession is cut off in his favours from the French word tailer to cut and the matter of tailzies may be Summond up in these few Conclusions Primo In tailzies the person first named needs not be served Heir as for instance If I take my land to my self which failing to Seius Seius needs not be served because there is no cognition requisite to clear that he is to succeed but if I take may lands to my self and my Heirs or to me and the Heirs of such a Marriage which failing to Caius then either Caius in the one case or the Heirs of such a Marriage in the other must be served because it is requisite to inquire Whether there were Heirs or who is Heir of that Marriage Secundo In all tailzies he on whom the last termination falls is Fiar as for instance If I take my lands to Seius and failing him to Caius and his Heirs Caius is Fiar and Seius is onely Liferenter Tertio Though the last termination fall on the Wifes Heirs the Husband remains Fiar because of the prerogative of the Sex as for instance If I take my land to my self and my Wife which failing to her heirs my heirs would be preferred except the estate belonged to my Wife as Fiar For then her heirs would be preferred Quarto Though in Conjunct-Fie Rights if I take my lands to my self and my Wife in Conjunct-fie which Failing to our Heirs my Heirs would be preferred as to heritable Rights but in substitutions to moveables the Right would divide betwixt her Heirs and mine Quinto The Heir of Tailzie has but a hope of succession and so the Fiar may dispone nor can the substitutes or remoter members of the Tailzie hinder him by Action Inhibition or otherwayes except there be a clause irritant and resolutive declaring that if the first Member dispone his Disposition shall be null in which case though generally the remoter member must be served Heir to the immediate prior who was infeft yet in that case the remoter member may be served Heir to the first Disponer Sexto If one oblige himself to make such a man his Heir of Tailzie that Obligation tyes him onely once to tailzie his estate but not that he shall not break that Tailzie except the Obligation be for an equivalent Onerous cause Or if a person oblige himself to do nothing contrare to his Tailzie he cannot
thereafter make any voluntar gratuitous Right to the prejudice of that Tailzie But yet the lands tailzied may be comprised or adjudged for sums truely due and not dolose contracted to disappoint the tailzie Heirs of Provision are these who succeed by vertue of a particular provision in the infeftment such as are Heirs of a second Marriage and as to these Heirs of Marriages we may observe two things first That if a Father by his Contract of Marriage be obliged to employ a sum to himself and Wife in Conjunct-â—ie and the heirs of the Marriage he cannot in prejudice thereof do any fraudulent gratuitous deed tho he may provide a Ioynter for a second Wife or provisions for his Children of a second Marriage Secundo Though a Father may assign or dispone sums to Children when extant whereby they will be preferred to posterior Creditors becoming Fiars by the said Rights yet if the Father dispone to children to be procreat this will be considered only as a destination and so will not hinder the Father to make posterior Rights or even posterior Creditors to affect by Diligenâ—es what is so disponed Tertio Process will be sustained at the instance even of the appearand Heir of the Marriage against the Father to fulfill the special obligations therein or to purge any deeds already done by him in prejudice thereof Albeit where Heirs are not designed in any right the Heirs of Line exclude all other Heirs yet if a man take lands to himself and his Heirs Male tailzie or provision and thereafter acquire reversions or tacks of the same lands to himself and his Heirs these rights will accress to that special Heir to whom the land was provided for it is not presumable that a man would give the lands to one and the rights of them to another Heir When women succeed all these of one Degree succeed equally and because the estate is divided amongst them they are called heirs portioners the eldest not secluding the rest and having no advantage over him but where the Rights are indivisible such as Titles Iurisdictions Superiorities and all the casualities of these superiorities such as Ward Marriage Nonentrie Feu duties c. these fall to the eldest heir Female without division together with the Principle Messuage it being a Tower or Fortalice for other houses are divided equally All these Heirs are lyable in solidum if they once enter Heir except heirs portioners who are onely lyable pro rata and heirs substitute in a sum who are onely lyable to Creditors in the value of the sum to which they are substitute But they have in SCOTLAND a Priviledge which they call the benefit of Discussion whereby the Heirs of Line must be first pursued to fulfill the Defuncts deâ—ds or pay his debts And next to these the Heir of conquest the Heirs Male the Heir of tailzie and Heirs of provision but for fulfilling a deed relating to particular lands the Heir who succeeds in these particular lands must be first pursued without discussing and that which is meant by discussing is that the Creditor must proceed by horning caption and apprising against the Heir who is to be discussed before he can reach the other Heirs An Heir is said with us to be Heir active who is served Heir and may pursue whereas he whom the Law makes lyable to be Heir is said to be Heir passive As when the appearand Heir is infeft upon a precept of clare constat by the Superiour or otherwise medles with his Fathers Estate When the Predecessor dyes he who should be Heir and therefore is called appearand Heir has year and day allowed him to deliberate whether he will be Heir which is called annus deliberandi and which is indulged by the Law because if a man enter once Heir he is lyable to all the debts though far exceeding the estate and within that year he cannot be pursued nor obliged to enter but after the year is expyred the Creditor may charge him to enter Heir and if he resolve not to enter he must renounce any Right he has by a writ under his hand This year is compted from the defuncts death except in a posthum child who has a year allowed him after his Birth and not only during this year but after it expires the appearand heir without instructing any Title may pursue for exhibition of all Rights made to his Predecessors and of all rights made by his Predecssors to any in his own Family but not to Sirangers to the end he may deliberate whither he will enter Heir and the Liferenter is bound to aliment the appearand Heir not being able to entertain himself though he renounce vid. supra Part 2. Title 9. § Liferents If the appearand heir resolves to enter heir to his Predecessor he must raise Briefs from the Chancellarie which Brief is a command from the King to the Iudge ordinary where the lands ly to cause cite 15 sworn men to try whether the raiser of the Brief be nearest heir and this is executed or proclaimed at the mercat Cross where the lands lye and if at the day appointed these 15. sworn men find him to be the next person who should succeed they serve him heir by a paper which is called a service and which being returned be them to the Chancellarie there is a write given to the heir whereby he is declared heir and which is called the retour because it is their answer and return to the Chancellarie of the points contained in the brief and thereafter the person who is served heir is infeft by a precepts out of the Chancellarie and if the service was to any particular lands it is called a special service but if there was no land designed it is only called a general service and this general service is sufficient to establish a right to heritable Bands Dispositions Reversions Iurisdictions and all other rights whereupon the Defunct was not infeft nor needed to be infeft and a special service includes a general service but not E contra The general brief hath only two points or heads viz. if the Defunct dyed at the Kings peace and if the raiser of the brief be the next Heir but the special brief has seven viz. when the Defunct dyed Secundo If he dyed last vest and seased at the Kings peace Tertio That the raiser is next heir Quaerto Of whom the Lands are holden in capite Quinto By what manner of holding Sexto What is their old and new extent Septimo Whether the raiser be of lawful age and in whose hands the Lands are at present Sometimes likewise the Vassal without serving himself heir gets a precept of seasin from the Superiour wherein because the Superiour declares that it is known to him that such a man is heir to his Father it is therefore called a Precept of Clare constat which therefore makes the Obtainer lyable passive to all his Predecessors
not execute the Testament in their own Lifetime that is to say have not obtained Decreets for the goods belonging to the Defunct there will be place for a new Executor for executing these and they are called Executors quoad non executa or if the Executor ommit to give up any thing in the Inventar or do not give up the saids moveables at the full rates there will be another Executor Dative made by the Commissar who is called an Executor Dative ad ommissa vel male appretiata The Executor onely has power of Administration and the Creditors and Legators can onely pursue him except where there is a special Legacy left of such a particular thing or a sum owing to such a particular person For then the special Legator has the dominium transmitted to him and so he may himself pursue for his special Legacy but the Executor must be still called in the pursute to the end it may be known whether the Debts exhaust the special Legacies For no Legacy can be payed till the Debts be payed and therefore if all the Legacies cannot be payed the Legators suffers a proportional defalcation for payment thereof but if there be as much free goods as will pay the special Legacy it will be preferred without defalcation An Executor cannot dispone till he obtain a sentence but even the sentence states him not in the absolute right of the moveables otherwayes than that he may discharge and assign to the respective persons having interest For if he were denounced Rebel the Executory goods even after sentence would not fall under his Escheate nor would his Executors or his Creditors have right thereto in prejudice of the nearest of kin of the Defunct to whom he was Executor If there be moe Executors whom we call Co-Executors one cannot pursue without the rest for all of them represent the Defunct only as one person but if any of the rest will not concurr they may be excluded from their Office by a process before the Commissars nor can an Executor for the same reason discharge a debt wholly since the rest have an equal share in each debt but if the other Executors have got as much as their share will extend to the discharge even from one of the Executors will be sufficient nor are for the same reason Co-Executors lyable for the whole debt and so cannot be singlely pursued unless they have intromitted with as much as may pay the debt pursued for An Executor is lyable to do diligence for recovering the debts due to the Defunct and the diligence required upon his part is a sentence and Registrated horning against the defuncts debitors but if there be an universal or special legatar whereby an Executor confirmed has no advantage then the Executor is not lyable in diligence but only to assign the Creditors that they themselves may pursue The Executor likewise cannot pay any debt without sentence least otherwayes he might prefer one Creditor to another but yet the Executor may pay those debts that are acknowledged in Testament without Process providing the same be payed before the Creditors intent a persute or these which we call priviledged debts because they are preferred to all others viz. servants fies medicaments on death-bed house-meal and funeral-expenses After the Executors have executed the whole Testament they may get a Decreet of Exoneration before the Commissars against the Creditors and all having interest wherein they may prove that all they got is exhausted by lawful sentences but it is not necessar to have such a decreet when they are pursued before the Lords for it is sufficient when they are pursued there to alledge that they are exhausted by way of Exception If any Person intromit with the Defuncts moveables without being confirmed they are lyable to the Defuncts whole debts whether they were related to himor no and though their intromission was very small and this was introduced to prevent the fraudulent and clandestine abstracting of the Defuncts moveables without inventary in prejudice of Creditors and therefore this passive title is only introduced in favours of Creditors but of none others such as Legatars Bairns c. But if the intromitter confirme before any Action be intented this purges the Vitious intromission and the intromitter is only lyable for the value of the thing intromitted with or if there be an Executor confirmed no Person can be pursued as Vitious Intromitter for the Intromitter then is only lyable to the Executor But the Relict or the Defuncts Children confirming within year and day after the Defuncts death does thereby purge the vitiosity though they confirm not till after citation nor will necessar Intromission infer vitiositie and that is called necessar intromission when either the Husband or the Wife continue their possession of one anothers Goods after one anothers decease for preservation and that because there is no other person to look after them and this is for the advantage of the Creditors since it hinders the Goods from perishing If there be moe vitious Intromitters they are each lyable in solidum if they be pursued in several Actions and pro virili if they be pursued together but none of them get Relief for wrong in our Law has no warrant The Heir is obliged to relieve the Executor of all heritable debts and the Executor is bound to relieve the Heir of all moveable debts as far as the Inventar will reach Title IX Of last Heirs and Bastards WHilst there is any alive who can prove even the remotest contingencie of blood to the Defunct they succeed to him but if there be none the King succeeds as last Heir for quod nullius est est Domini Regis and so the King succeeds to the Defunct as last Heir both in Heritage and Moveables and is preferred to all Superiours and others whatsoever for which end he makes a Donatar who must obtain a Declarator before the Lords of Session against all who are supposed to have any Relation whereupon a Decreet being obtianed before the Lords declaring that the King has right as last Heir the Defunct having dyed without any Relation This Decreet is equivalent to a service but if lands be taken by a man to himself and his Heirs Male simply the King will succeed as last Heir if there be no Heirs Male though there be Heirs Female since the land was not provided to them and therefore men ordinarly in their tailzies adject the Clause whilks failzing to their Heirs whatsomeever Because the King succeeds here as Heir therefore he is lyable to pay the Defuncts debts but he is only lyable as farr as the Estate will extend and therefore the Creditors may adjudge the Real Estate and serve themselves Executors Creditors in the Moveables A Bastard by Our Law has neither Heirs nor Executors but yet he may dispone upon either his Heritage or Moveables inter vivos though he cannot make a Testament except
his right he will be preferred but they are still valid against the Disponer without registration When the Granter of the Wadset is to use an Order of redemption he must premonish the Wadsetter to compear and take instruments thereupon called an instrument of premonition to receive payment of the sumes due to him and at the time and place appointed by the reversion offer being made of the Money if the Wadsetter refuses voluntarly to renounce and to accept his money it is consigned in the hands of the person designed in the reversion or if no person be designed it may be consigned in any responsal Mans hand but there must be a paper taken under the Consignatars hand acknowledging that it was consigned in his hand for though an instrument under a Notars hand proves that all this order of redemption was used yet it will not prove the receipt of a sum against the Consignatar If the Wadsetter receive his Money and renounce voluntarly this is called a voluntar redemption But because though renounciations be sufficient to extinguish they are not sufficient to transmit a right therefore if the Wadset was given to be holden of the Disponer the Wadsetter must resign ad remantiam in the Disponers hands as his Superiour and thereafter the Disponer needs not to be infeft of new as no Superiour needs but if the Wadset be given to be holden of the Superiour then the Disponer uses to take a Letter of regress whereby the Superiour obliges him to receive him back to be his Vassal when he shall redeem his own lands for otherwayes after the Wadsetter is seased the Superiour is not obliged to receive him back If the Wadsetter refuses to renounce after the Order is used the Lords will force him to renounce and declare the Lands redeemed by a Process called a Declarator of Redemption after which Decreet is obtained the Lands are redeemed and belong to the Redeemer and the Wadsetter will upon a simple charge of horning force the Consignatar to deliver him up the money The user of the Order of Redemption may pass from it at any time before Declarator and therefore the sumes for which the Wadset was granted are still heritable before Declarator but after that they are moveable and fall to Executors except the Declarator be obtained after the Wadsetters death in which case they remain heritable And though the Wadsetter require his Money he may pass from his requisition either directly by a clear Declaration that he passes from it or indirectly by intrometting with the duties of the Wadset lands or by taking annual-rent for termes subsequent to the requisition Wadsets are either Proper or Improper Proper Wadsets are these wherein the Wadsetter takes his hazard of the rents of the land for the satisfaction of his annualrent and payes himself all publick burdens Improper Wadsets are these wherein the Granter of the Wadset payes the publick burdens and the receiver is at no hazard but has his annualrent secure And if a Wadset be taken so that the Wadsetter is to have more than his annual-rent and yet the Granter is to pay the publick burdens this is accounted Usury by Our Law the punishment whereof is confiscation of moveables loosing of the principal sum and anulling the usury contract or paction and by a late Statute If the Debitor offers security for the Money and craves possession the Wadsetter must either quit his possession or restrict himself to his annualrent And if a Man impignorat his Lands or Bands with expresse condition that if the Money be not payed at a precise day they shall not be thereafter redeemable The Law reprobates this unjust advantage called pactum legis commissoriae in pignoribus and will allow the Money to be offered at the Barr or they will allow a short time before Extracting of the Decreet for payment of it Taking of annualrent having been discharged by the Cannon Law men did buy annualrents out of other mens lands which was the origin of our present infeftments of annualrent and continues still frequent by which if men resolve not to rest on the personal security of the borrower they take him also obliged to infeft them in a yearly annualrent payable out of his Lands correspondent to the sum lent but if they exceed the ordinarly annualrent allowed by Law it will infer usury and so they have a double security one personal against the borrower for payment and another real against the ground it being debitum fundi for which they may poynd any part of the ground as also they have good action against the Intrometters with the duties of the lands out of which there annualrents are payable though they cannot poynd or exact from the tennents any more then they owe to their master These annualrents require a special seasin like Wadsets and other real rights the symbols whereof if the annualrent be payable in money is a penney of money but if it be payable in Victual it is a parcel of Victual This is singular in infeftment of annualrent that apprysing thereupon will be preferred to all prior apprysing quoad the bygones of the annualrent if the infeftment of annualrent was prior to those apprysings to which the apprysing will be drawn back and preferred to any interveening right which priviledge is continued in the late Act of Parliament concerning Debitor and Creditor These infeftments of annualrent being properly granted for security of sums are extinguished not only by resignations but by renounciations and even by intromission with as much as might pay the principal sum which intromission is probable by witness whether the Rent be victual or money and therefore singular Successors buying infeftments of annualrent are not secure by any register but must rest on the warrandice of the Seller Infeftments of relief are these which are granted by a debitor to his creditor for security of sums owing to him upon which the creditor cannot enter to possession till he be distressed and when the sum is payed the right becomes absolutely null as being but a temporarie right and so the debitor who granted the right needs not be of new infeft but his former right revives Title IX Of SERVITUDES THE Nature and Constitution of Propertie and real Rights being explained in the foregoing Titles We shall now treat briefly of Servitudes which are Burdens affecting Property and Rights Servitudes are either Real Personal or Mixt. Personal Servitude is in desuetude amongst Christians and therefore is not proper to be considered here Real servitude is whereby one Mans Property or Ground is affected with some burden for the use and behoove of another Man which are devided in Rural servitudes and Citie servitudes Rural Servitudes are Iter which is a power of going through our neighbours land Actus which is a power of driving Carts or Waines Via being the priviledge of having high wayes in our neighbours ground and Aquae-ductus which is a power and priviledge to draw
to make Faith that the goods belong to them and not to the Debitor then the Messenger must deliver them to that Party else he is lyable in a spulzie Poynding is a judicial sentence and the Messenger is Iudge constitute by the letters the Messenger writes likewise an execution of poynding and that execution is better believed than any who offers to prove the contrare for that execution is onely quarrelable by improbation Arrestment being but an inchoat diligence discharging the Partie in whose hand the Arrestment is made to pay the right to the goods arrested remain still in the Debitor and may be poynded for his debt for poynding is a compleat diligence giving an absolute right to the goods poynded Labouring Oxen or other Plough Goods cannot be poynded in time of labouring least labouring should be otherwayes discouraged except there be no other Moveables upon the ground to be poinded Title VI. Of PRESCRIPTIONS PRescription being a way of evacuating and annulling both Heritable and Moveable Rights comes in here after both these are explained Prescription is defined an Acquisition of Propertie by the Possâ—ssors continuing his possession for such time as the Law determines Which was introduced not onely for punishing the negligence of the 〈◊〉 who owned not his Right for so many years But likewayes for securing Possessors and such as derived right from them and least by a constant uncertainty the Possessors being unsecure might neglect the improvement of what they possessed Heritable Rights under which I comprehend Wadsets Heritable Offices Servitudes Patronages c. and all Actions depending upon them or relating to them prescrive with us in 40. years if the Possessor being a singular Successor have a Chartor Disposition or Precept and Seasin in his Person or being an Heir have a constant tract of Seasins continuing and standing together for the space of 40. years flowing upon Retoures or Precepts of Clare constat For the Law did not trust a Seasin alone it being onely the assertion of a Notar. But Reversions which are in the body of the Possâ—ssors right or reversions duely Registrated prescrive not All Personal Rights and Actions relating to them prescrive likewayes in 40. years If a Document be not taken upon that Right that is to say If nothing be done whereby the true Proprietor declares his intention to follow and own his Right In both these Prescriptions the extraordinary length of time supplies the want of bona fides in the possessor But no length of time can make the possessor prescrive things Sacred Religious or publick nor yet things stolâ—e or robbed Ob vitium reale which affects such things Actions of Spulzie and Ejâ—cti on prescrive in three years after committing thereof as to the specialities of these Actions viz. the violent profits and Oath in litem But Minors have three years after their Majority As do also Actions for Servants Fies House meals and Marchant compts except they can be proven after these three years by the Debitors oath And removings if Action be not intended within three years after the warning If Assysers err in serving a man wrongously Heir to his Predecessor the Retour may be quarrelled within 20 years but the Assysers themselves can only be pursued for error within three years but the right of blood it self never prescrives and therefore a man may be served Hâ—ir to his Father or Grand-Father after a 100 years being debarred by no time nam jura sanguinis nullo jure â—ivili adimi possunt If a Person who is forefaulted possessed lands 5 years before the forefaultur without interruption the King is obliged to show no right in the person of him who was forefaulted to the lands or others that he possessed because it s presumed that the person forefaulted would abstract the writs which quinquenrial possession is to be tryed by an inquest of the Shire where the land lyes Arrestments on Decreets and depending actions prescrive within five years after sentence Meals and Duties due by Tennents prescrive if not persued within five years after the Tennents removing Ministers stipends and multurs presâ—rive so that they cannot be pursued after five years except they be proven by the Debitors oath Holograph Bands and subscriptions in compt books prescrive in twenty years except they be proven by the debitors oath And lastly all bargans probable by witnesses all actions on warnings spulzies ejections Arrestments Ministers stipends c. prescrive within ten years unless wakned every five years but this alters not any shorter prescriptions of these actions All these prescriptions run de momento in momentum so that the prescription runs till the last moment of the time allowed but they run only from the time wherein the debt could have been pursued since till then the Proprietar could not be called negligent which negligence is the foundation of prescriptions and therefore prescription runs not against a band from the date of a band but only from the term of paymennt and prescription of an action of warrandice runs only from the eviction because no man is lyable in warrandice till the lands be evicted and from the same principle it is that contra valentem agere non currit prescriptio and that prescription runs not against Minors in whom negligence is not punishable since it proceeds from no design but from the unripness of their Age. Vassals cannot prescrive against their Superiours because the Vassals right acknowledges the Superiours nor can Laicks prescrive a right to â—â—ynds being incapable of such rights after the Lateran Council but though the right it self prescrives in neither of these cases yet the bygons due by vertue of these rights before fourty years may prescrive Prescription runs against the Kirk and Mortifications but on the other hand because Church men are negligent and rights may be lost in the change of Intrants therefore 13. years possession is sufficient to maintain a Church man in possession which is called decennalis â—riennalis possessio and is a presumptive title and sufficient till a better be showen by which it may be excluded for praesumptio caedit veritati Prescriptions run likewayes against the King except as to His Majesties annext propertie or to his unannext propertie whereof the ferms duties or feu ferms have been compted for in Exchequer since August 1455. years Any deed whereby the true proprietar owns his right during the course of the prescription is called interruption and prescription is interrupted in Our Law either by a process or a charge raised within the years of the prescription though the citation was only on the first Summonds and though the Summonds was past from pro loco tempore But interruption by citation is not sufficient unless it be made by Messengers personaly or at the parties dwelling house and that it be renewed every seven years and that the Execution be signed by the Messenger and
bring with him the said Suspension the blank day of blank prevento termino to hear and see the same called reasoned and discussed with Certification that if he sail the Lords will cause call the Suspension upon a coppie and admit Protestation therein and ordain the letters to be put to furder execution If an Advocation be raised to too long a day of compearance there may be likewise a Summonds of Prevento raised thereof In a Summonds of Contravention of Laborrows the pursuer lybells that A. B. became surty and Laborrows for C. D. that the Complainers Wife Baâ—rns Men Tennents and Servants should be harmelesse and skaithlesse in their Bodies and lands c. And then subsumes upon the prejudice done notwithstanding of the said caution And therefore concludes that both the Principal and Cautioner should be decerned to have contraveened the said Act of Caution in manner foresaid and therethrow that they conjunctly and severally have incurred the foresaid pain the one half to the King and his Thesaurer and the other half to the Complainer as Party grieved In a Declarator of property the Complainer narrates his right to the lands and how long and after what manner he and his Authors have been by themselves their Tennents and others having Right from them in the peaceable possession of the saids lands untill of late that he is molested and troubled by the Defender and therefore concludes that it should be found and declared that he has the sole good and undoubted Right and interest in and to the saids Lands and that therefore the said Defender and his Tennents and Servants and others of their causing and commanding should be decerned not to trouble nor molest them for the future in their peaceable possessioon bruiking and joysing thereof If the Complainer designs only to maintain his possession without bringing his propertie in contraversie he raises a Summonds of Molestation In which he only concludes that they should desist and cease from troubling and molesting him in the peaceable possession of his lands In a summonds for poinding the ground the Pursuer narrates that he stands infest and seased in an annualrent of to be uplifted out of the lands of and therefore concludes against the Tennents of these lands and the Heritor for his interest to hear and see Letters directed to Messengers at Armes Sherriff in that part to Fence Arrest Apprise Compel Poind aud Distrinzie the readiest Goods and Geer that are presently upon the lands and yearly and termly in time coming during the not redemption of the annualrent In a summons of Spulzie the King commands Messengers c. which is the stile of all Summonses which begin with Our Will is to Summond Warne and Charge the Defender to compear and answer at the instance of the Pursuer against whom the spulzie after specified was committed that is to say the Defenders for their Wrongous Violent and Masterful coming by themselves and their servants complices and others in their name of their causing sending bounding out command reset assistance and ratiabition to the lands of upon the day of and for their Wrongous Violent and Masterful spoilziation of the Goods to be condescended on And then concludes that they should pay the prices extending to and the profits that the Complainer might have made of the said Goods daily since the said spulziâ—tion extending to c In a Summons of wakning the Complainer after narrating that he had raised such â— Summonds which he had suffered to lye over and sleep for a year for there needâ— no wakning if there was any Iudicial Act or Minute upon the Summonds within thâ— year and therefore concludes against all the Personâ— cited in the first Summonds to hear and see the foresaiâ— action called wakned and begun where it last left insisted into and Iustice Administrate therein till the final decision of the cause A Furthcoming is that Action wherein the Arrester lybels that he having raised â—etters of Arrestment he caused Messenger lawfully Fence and Arrest all debts owing by â—he Defender to the Debitor â—o remain under Arrestment and to be made furthcoming to him and therefore concludes â—hat the Defender should be decerned to make furthcoming payment and delivery to the said Complainer of the sum of adebted restand owâ—nd be him to the said Debiâ—or If notwithstanding of the Arrestment the Debitor pay his own Creditor there is an summons for breaking of Arrestment wherein after the Arrestment and payment is narrated the Pursurer concludes that the Defender should be decerned to have broken the Arrestment then standing anâ— not lawfully and duely loosed anâ— therefore to be punished in his person and goods conform to thâ— Laws of the Realm in example â—â— others Though the Accumulatiâ—â— of several actions into one lybell was not allowed by the Ciâ—â—â— Law yet it is allowed by Ours in which we may noâ— only pursue several persons for several debts in one lybelâ— which we call by a general name an actions against debitors but we may likewise accumulate several conclusions againsâ— one and the same person though they be of different nâ—tures as Reductions Improbations and a declarator of propertie and actions of general and special Declarator in all which it is a general rule quot articulâ—â— tot libelli But when many actions are â—ompetent for one and the same thing as if a Messenger be deforced we may pursue â—he Deforcer Criminally which will infer confiscation of moveables or civilly for payment of our debt and the pursuing of â—he one does not extinguish or consume the other and either the Criminal or Civil action may be first pursued and â—n the concourse of all actions â—f the actions which concurr â—ave different conclusions as â—n the foresaid instance where the Criminal action of Deforcement concludes Confiscation and the Civil action only payment Though the Defender be assolzied in the Criminal Proâ—â—ss yet he may be pursued Civillie and the deforcement referred to his oath Title II. Of PROBATION FOR understanding the matter of Probation it iâ— fit to know that alâ— Probation is either by Write by Oath or by Witnesses Probation by Write has been formerly explained in the Title concerning Obligations by write Probation by Oath is when either the Partie or Judge referres any thing to the oath of the contrare partie but regularly no mans Right can be taken away by oath except he who has the Right referr the same to the adversaries oath but when there is a former probation already adduced the Iudge sometimes gives an oath of supplement which is so called because it is given to supplie the Probation already â—ed An Oath of Calumnie is that whereby either the Pursuer or Defender is obliged to swear that the pursute defence reply c. are not groundless and unjust and this may be craved by either Party at any time during the