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
though she was not praeposita Negotiis but because she was Persona Illustris and her Husband out of the Countrey Hope Husband and Wife Mr. David Russel contra Earl of Argyle but a Wifes Bond for necessar Habiliments for her Body found to obliege her self and not her Husbands Executors and as to these she may contract Had. July 6. 1610. Eustacius Wise contra Lady Hallyrudhouse this must be understood where the Wife has an Aliment constitute by her Husband or other Right exempt from his Jus Mariti And it was so lately found in the case of Adam Garrns Merchant contra Elizabeth Arthur December 19. 1667. February 23. 1672. John Neilson contra Arthur But a Wifes account of Furniture to her Person not being great found valide against her Husband being subscribed by the Wife though she was minor being Persona Illustris February 20. 1667. Andrew Littlejohn contra Duke and Dutchess of Munmouth This Priviledge of Wives was extended to Obligations or Dispositions made by the Wife though before compleating of the Marriage being after Contract and Proclamation whereupon Marriage followed January 29. 1633. 〈◊〉 contra Brown The like specially where the Proclamation was not only at the Husbands Paroch Church but the Wifes July 8. 1623 Stewart contra Aitkin The like of a Disposition in favours of the Wifes Children after their Contract and one Proclamation July 5. 1611. Fletcher in Dundee contra Brown Yet Wives Obligations relating to their Delinquence are not void but only such as relate to their Contracting So a Wife was found oblieged to fulfil an Act of a Kirk Session under a Penalty that she should forbear an other mans company which was found not to affect her Husbands Goods but her own Hope Husband and Wife John Bell contra Executors of James Hogg and the Kirk Session of St. Cuthberts Here also are excepted Obliegements relating to Dispositions of Lands Annualrents or Liferents of which hereafter 13. As to the Husband and Wifes Interest in their Goods by our Custome without any voluntar Contract there arises betwixt them a communion of all Moveables except the Habiliments and Ornaments of the Wifes Body which though they be superfluous and the Husband insolvent are not Arrestable for his Debts the Husband hath the full and sole administration of all moveable Goods belonging or accressing to the Wife during the Marriage and the Rents and Profits of Heretable Rights as being moveable And therefore an Heretable Bond found to belong to the Husband Jure mariti because he was married before the Term of Whitsonday at which time it was payable June 15. 1627. Nicolson contra Lyell and a sum was found to belong to the Executors of the first Husband though the Term of Payment was after his Decease and not to the Wife or her second Husband Also a Legacy left to a Wife was found to belong to her Husband Hope Legacies Elizabeth Brown contra 〈◊〉 Likewise a Husband found to have right to a Bond blank in the Creditors name which the Wife during the Marriage put in the hands of a third Party who filled up his own name therein though the Husband and Wife were voluntarly separate February 11. 1634. Drummond contra Captain Rollo except Aliments duely and competently provided for the Wife which are not Arrestable for the Husbands Debt November 29. 1622. Thomas Edmonstoun contra Christian Kirkaldie and Alexander Barclay The like of an Aliment modified by Decreet Arbitral betwixt the Husband and a third Party though the cause thereof was founded upon the Husbands Right March 27. 1627. Westnisbit contra Morison yea the Husband himself found to have no access to a Sum provided to a Wife by her Father for her Aliment July 4. 1637. Tennant contra 〈◊〉 This communion of Goods by our Custome extendeth not to the Wifes Rights Heretable as Lands Annualrents Heretable Bonds nor to Liferents for as to these the Wife may obliege her self personally in Clauses relative to such Rights as Clauses to Infeft Clauses of Warrandioe and Clauses of Requisition of Sums for which her Lands were Wodset by her if the Wife be first and principally bound with consent of her Huaband but where the Wife and Husband were bound for Infeftment in Lands belonging to the Wife and both bound in the Requisition yet thereby the Wife was not found oblieged either for granting the Infeftment or in the Requisition because it appeared that the Money was not borrowed for the Wifes use December 19. 1626. Mathie contra Sibbald other ways such Obliegements are effectual against the Wife The like Hope Annualrent Agnes 〈◊〉 contra James 〈◊〉 where a Wife was found lyable to pay an Annualrent disponed by her and her Husband out of her 〈◊〉 fee-Fee-Lands even during the time they were in Ward The like of an Annualrent disponed by a Wife and her Husband for which both were personally oblieged in respect she lifted the Rents of the Lands out of which it was to be uplifted Spots Husband and Wife Walter 〈◊〉 contra Margaret Chisholm The like of a Clause of Requisition in a Contract of Wodset granted by the Wife upon her Lands stante matrimonia Hope Husband and Wife Agnes Gordon contra Elizabeth Gordon And this is the difference betwixt these and other Personal Obliegements of the Wife stante matrimonio which even though the Husband consent are 〈◊〉 and obliege her not yea a Renunciation of a Tenement by a Wife without consent of her Husband being absent though he ratified it at his return was found null Spots Husband and Wife Helen Melvil contra So that the Husbands Right Jure Mariti to the Rents and Annualrents of the Wifes Rights which are not Alimentary cannot be evacuate without the Husbands consent though the Wife may dispose of the Right it self to take effect after the dissolution of the Marriage In Heretable Rights of Wives Bonds bearing Annualrent though without a clause of Infeftment are comprehended for these remain Heretable 〈◊〉 〈◊〉 relictum by the Act of Parliament 1661. cap. 32. And therefore a provision by a Father to his Daughter bearing Annualrent five per cent found not to fall under the Husbands 〈◊〉 Mariti June 28. 1665. James 〈◊〉 against 〈◊〉 Edgar July 4. 1676. John 〈◊〉 contra Bruce The Marriage without any Contract is a legal Assignation to the Rents and Profits of the Wifes Lands and other Heretable Rights during the Marriage so that without his consent the Wife cannot alter the condition thereof in prejudice of his Right during the Marriage Jus Mariti is so effectual as to the moveable Goods of the Wife that though a Life-renter in her second Contract of Marriage reserved a part of her Life-rent Lands to be solely at her own disposel and that the Husband in the same Contract of Marriage renounced his Jus Mariti thereanent yet that Renunciation was found to be his Jur. Mariti and so the profits of her Life-rent were affected by his Creditors it not being constitute
as a formal and a proportional Aliment as was found in the case of the Creditors of Mr. Andrew Hamiltoun contra Lady Carberry his Wife From this Communion of Goods it follows also that there is a Communion of Debts whereby the Husband is lyable for the Wifes Debt though it should both exceed her and his Moveables and the profit of the Wifes Land or of her other Heretable Rights but this was not found to hold in matter of wrong or Criminal things and so the Husband found not lyable for a Spuilzie or wrongous Intromission committed by his Wife without his knowledge or approbation during the Marriage February 2. 1628. Scot contra Katharine Banks and James Neil The same is observed by Spots Husband and Wife inter eosdem these were done Stante Matrimonio without the Husbands consent And yet the Husband found lyable for the damnage of a Milne demolished by his Wife as praeposita negotiis and by his Domestick Servants though he was out of the Countrey Spots Husband and Wife Laird Ludqhairn contra Earl of Marishal Neither was a Husband found lyable for the penalty of the contraveening the Act of a Kirk Session ut supra A Husband found lyable for his Interest for his Wifes Tutor Compts not only what she was lyable for during her Widouity but during the time of a former Husband his Successor being always first discust as to what was 〈◊〉 in his time March 28. 1629. Mathison contra Waristonn yea without the discussing of the Successors of the first Husband primo loco where the intromission was before both Marriages but prejudice to the Defender to pursue the Heirs of the first Husband as accords February 18. 1663. Dumbar of Hemprig contra Lord Frazer But a Husband was not found lyable for Furniture given by Merchants to his Wife without his consent she having gone to London without his Warrand except in so far as her ordinar expenses would have amounted to if she had stayed at home though her Husband had not Inhibite her July 6. 1677. John Allan contra Earl and Countess of Southesk After Inhibition against Wives the Husband is not lyable for any thing they Contract except what is furnished suitable to their quality and where the Husband cannot instruct that he sufficiently provided his Wife otherwayes July the 25. 1676. 〈◊〉 Campbel contra Laird of Abden The like was found at the same time concerning the Furniture of the Lady Monteith But this obliegement of the Husbands being only for his Interest 〈◊〉 Mariti the Debt it self doth not properly become his but only it may take effect against his Person and Goods during the Marriage but if that Interest were dissolved by his own or his Wifes death there will be no farther Process against him or his Heirs Nic. de reverentia Maritali Campbel contra Dumbar And though there was Litis contestation before the Wifes death the Husband was found free 〈◊〉 he was ordained by Interloqutor to find Caution to pay what should be decerned July 11. 1664. Dumbar of Hemprig contra Lord Frazer So likeways a Husband decerned with his Wife for his Interest she dying before execution he was free of the Debt December 28. 1665. Dam Rachel Burnet contra Lepers The like where the Husband was holden as confest upon refusing to give his Oath of Calumny February 26. 1668. George Graham contra Grizel Touris and Kelhead her Husband so likewise a Husband decerned with his Wife for his interest having died before execution his Successors were found free of thedebt Hope transferring Francis Kinloch contra Dumbar But the contrair was found where the Husband was denunced upon the Decreet and had sold his Wifes Portion of Land Ibidem Earl of Murray contra Lord St. Colmb The like where the Decreet against the Husband after his Wifes decease was only found effectual in so far as might extend to his Wifes third part of his Moveables February 7. 1629. Brown contra Dalmahoy And a Husband was found lyable for his Wifes Debt after her Death in so far as might be extended to the benefit of her Life-rent Duties resting at her Death February 1. 1662. Sir James Cuninghame against Thomas Dalmahoy And the Husband is always lyable for his Wifes Debt even after her Death in quantum est lucratus which cannot be understood to be by every Benefit or Tocher Marriage being an onerous Contract where a Tocher is given ad sustinenda onera Matrimonii and for the Wifes Provision by Law or Paction after the Mans Death And therefore he can only be accounted Lucratus when the benefit he hath by his Wife doth far exceed these onera December 23. 1665. Dam Rachel Burnet against Lepers And even in case he be Lucratus the Wifes Heretage must be first discust January 23. 1678. Agnes Wilkie contra Stuart and Morison A Husband being charged Summarily for his Interest upon a Decreet obtained against his Wife before the marriage and denunced thereupon yet not being undertaken by him or affecting his Goods before his death he was Liberat March 20. 1627. Knowes contra Kneiland The like though not only Horning was used against the Husband but Arrestment thereupon January 23. 1678. Agnes Wilkie contra Stuart and Morison But a Husband having given Bond of borrowed Money for his Wifes Furniture was found lyable therefore after her Death July 7. 1680. Slowan contra Lord Bargainie But that the Husbands Lands or Here table Rights will be lyable for his Wifes Debt there is neither Decision nor Ground for it these not being in Communione bonorum It is more dubious and for any thing I know undecided Whether the Heritable Debt of the Wife will affect the Husband Quoad mobilia but seing it is a Communion of Goods only moveable it should be also of Debts moveable though in communi forma as Tutors or Curators So Husbands will be decerned generally for their Interest yet with this difference that Tutors and Curators will be lyable in so far as they have the Pupils Means But I never heard that there was distinctions whether the Wifes Debt did exceed the third part of the Mans Moveables which is her Proportion of the same but indefinitely it hatheffect against the Husbands Person by Caption or his 〈◊〉 by Poynding But a Wifes Heretable Bonds become not her Husbands though uplifted by her or made moveable by a Charge during the Marriage seing she then re-imployed the Money for Annualrent February 〈◊〉 1679. Alexander Cockburn contra George Burn. 14. These are the Interests of the Man and Wife during the Marriage but before we come to their Interests after the dissolution thereof it is to be considered that by our Customes Donations between Man and Wife Stante Matrimonio are Revocable by the giver during Life which our Custome hath taken from the Civil Law where this Reason is rendered Ne unituo amore se spolient Thus a Donation betwixt a Man and his Wife was found anulled by the
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-Merk-lands or pound-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
of the Statute being to Satisfie Creditors by a Judicial alienation of the Debitors Lands ex paritate rationis it was extended against the Debitors appearand Heir who being Charged to Enter Heir did not Enter and therefore Lands were Adjudged from him to which he might have Entered either for his Predecessors debt or his own whereupon the Superiour is descerned to receive the Creditor Adjudger whether for sums of Money or for Implement of Dispositions and Obliegements to Infeft But the Custom allowed not a years Rent to Superiours for receiving Adjudgers till the years Rent was also extended to Adjudications by Act of Parliament Decem. 3. 1669. The Lords of Session have always taken latitude in the modification of the years Rent especially if the sum Appryzed or Adjudged for be small and the Lands he great and they have allowed the Appryzer or Adjudger his option during the legal to take Infeftment or not and yet not to be excluded from the Rents of the Lands till he be satisfied Decem. 3. 1672. Mr. Hendry Hay contra Laird of Farlstoun Vide Tit. 13. § 29. But the Appryzer runs that hazard that if the Debitor die before he be satisfied if the Land be holden Ward it will fall in Ward and relief by the Debitors death and in Non-entry for there is no reason that the Casualities of the Superiority should neither fall by the Appryzer nor by the Debitor There is not the like reason that the Liferent-escheat of the Debitor should exclude the Appryzer if it fell after the Appryzing and Charge for the Liferent-escheat falls to the Superiour with all the burdens which affected it by the Vassal even with the burden of his Tacks and therefore Appryzing with a Charge way be as effectual as these July 24. 1632. James Rule con Laird of Billie The Superiour can have only one years Rent from all the Appryzers or Adjudgers But now since Appryzers and Adjudgers within year and day come in pari passu where one needs only to be Infeft or to Charge there is less reason to give an easie modification of the years Rent to the first Appryzer or Adjudger insisting for Infeftment then before because one Infeftment serves for all and he who advanceth the same gets relief of the rest before they have access to the Rents 33. The prime Casulity of Fees is Ward which is not competent to all Superiours Ward is only competent in Fees holden in Military Service which have their Denomination from this Casuality being therefore called Ward-holdings and that not by the Tenor of the Investiture which seldom mentioneth Ward but by the Nature of it for when the Fee is holdeu for Military Service or as the English better express by Knight Service extending not only to following in War but to Council and Assistance in Peace then when the Vassal is unfit for such Service the Fee is open and remaineth in the hands of the Superiour or his Donatar and though this capacity might be in some sooner yet it is fixed in men to their majority at twenty one years compleat and in Women till they become fourteen years compleat for then they are capable of Husbands who may do the Service required in the Fee Decem. 20. 1609. and Jan. 27. 1610. Lady Kilbirnie contra the Heirs of Fairlie What Fees are holden Ward we have cleared in the former Title It now remains that we hold forth the effect of this Casuality 24. Ward reacheth the Custody of the Person and of his Lands holden Ward it hath its denomination rather from the former for Ward is as much as Guard or Custody The Superiour or his Donatar is by the Nature of this Right as a Tutor to the Vassals Heir Craig observeth that he is preserable to all other Tutors except only the Father of the Heir whose Fee descends by the Mother or some other person and that he is oblieged as other Tutors to pursue the rights of the heir but the course of time having turned this Right from its ancient Institution so that the Superiour hath less enjoyment of Service but more of Profite of the Fee there is the less regard to the Pupils Education with or by the Superiour to the effect he might be fitted for his Service and therefore other Tutors not only for the administration of the Pupilsmeans but even for the Custody and Education of his Person will be preferred though of old the Donatar of the Ward was preferred to the Tutor in Custody of the Pupils Person Sinclar June 15. 1543. Laird Auchnames contra Laird of Elphinstoun Ledingtoun March 16. 1565. and July 12. 1566. Weir contra Lochart Yet later Decisions have favoured Tutors more and preferred them Nicol. ubi pupuli educari Mr. James Chalmers contra Elizabeth Howstoun Lady Gadgirth Neither have I ever observed that Superiours or their Donatars were made lyable as Tutors for Administration of their Pupils Affairs 35. The main effect of Ward then is that thereby the Superiour or his Donatar have during that time the full fruits and profites of the Fee and may remove Tennents and do all other deeds that the Proprietar might have done and was accustomed to do as to continue the profites of a Wood if there be constant cutting as being divided in so many Hags that the first is ready by the last be cut Or going Heughs as they were accustomed by the Vassal but he cannor cut more then the accustomed yearly Hags of Wood or put in more Coalziers then the Vassal had at his death and ordinarly before and he may remove and in put Tennents and that without any preceding declarator or favourable account esteeming the retour Mail for the Rent as in Non-entry but he may immediatly pursue actions for Mails and Duties removing c. unless the Ward be Taxed and then the Superiour can have no more then the Duties to which it is Taxed But for it he hath not only the Vassal and all Intromettors with the Fruits personally But he may also Poynd the Ground for the Taxed Duty as Craig affirmeth in this Title 36. Yet the reach of the Ward by the Nature of the Fee cannot extend to alienation or consumption of the Substance of the Fee or any part or pertinent thereof and this is cleared by the Statute Parliament 1491. cap. 25. Whereby Donatars must find Caution not to destroy the Biggings Woods Stanks Parks Meadows or Dovecoats but to keep them in such kind as they get them Ward is also restrained by the Statutes confirming Feues of which formerly and these stand valid against the Superiour during the Ward so do also all Infeftments holden of him either by Resignation or Confirmation but not Infeftments to be holden of his Vassal unless Confirmed by him for albeit Confirmations by the King which pass of course do not take away the Casualities of Ward c. of the Kings Vassals which affect the Fee of the Sub-vassals yet the Confirmation of other Superiours of Sub-vassals
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
28. 1632. Laird of Ludquharn contra Laird of Haddo this is presumed prasumptione juris so that the Narrative bearing another clause is not respected and therefore a Tutor acquiring a Discharge or Assignation of an Annualrent due by the Pupil to his Mother the same was found to accress to the Pupil though it bore love and favour and for the Tutors pains and discharging the Office March 15. 1629. White contra Dowglas Hope Tutors Duer contra Duer Neither hath the Tutor ordinarily Action against the Pupil till his Office end and then he may pursue as a stranger Hope de Minoribus Nasmith contra Nasmith likewise he may Apprize the Pupils Lands for his own debt the Pupil having other Tutors Hope de haeredibus White contra Calderwood So a Tutrix nominat sine qua non was admitted to pursue a Registration of her Contract of Marriage against her Pupil there being more Tutors nominat and she having renounced her Office though she had acted by subscribing deeds not hurtful to the Pupil July 30. 1625. Lady Stanyhill contra her Son 18. Tutors may only do necessar deeds for their Pupils either such as the Pupil is oblieged to do as payment of his debts which the Tutor may do willingly without compulsion of Law or otherwise deeds necessar for mannaging of his Estate and setting of his Lands or labouring the same uplifting his Rents and Annualrents uplifting the Sums that are not secured carrying on any Work which was left to the Pupil which cannot otherwise be disposed of but Tutors cannot sell the Lands or Heretable Rights of their Minors without an interveening Decreet of a Judge Tit. ff de rebus eorum qui sub tutela c. And any such Alienation is null without the Cognition aforesaid which must be by calling the Creditors of the Pupil and his nearest Friends to hear and see it found that there is a necessity to sell the whole or a part of his Heretable Rights and that the rate thereof may be determined in which it must appear that the Pupils debt cannot otherways be satisfied The Law allows the like in the case of the Pupils Aliment which cannot be afforded otherways Alienations so made are not easily reduceable or the Pupil or Minor restored against the same if the true cause hath been known to the Judge but not so if that hath been latent either dolo or lata culpa l. 11. Cod. de praed minor non alien And therefore a Tutors Assignation of his Sons and Pupils Mails and Duties for the Tutors own debt was found null by exception even at the Pupils Tennants Instance Spots Assignation Lands contra Lands yet a Tutors ratification of a reduceable Decreet given against his Minor was found valide though voluntar being in re antiqua Spots Tutors Earl of Kinghorn contra George Strang. 19. Tutors and Pro-tutors are lyable for Annualrents of their Pupils Moneys which they are oblieged to make profitable in so far as they are either liquid Sums that they had in specie or which the Tutors took up which was made up of their Pupils Moveables or Rents of Lands after a Term in Money Rent and a year in Victual from the Term of payment in so far as it is not imployed for their own use or profitably for paying of their Debts or Annualrents Alimenting them or other uses necessar according to the ancient Law of the Romans which oblieged the Tutor after he had the Money two Moneths in his hands but the Novel Constitutions Novel 72. cap. 6. de administrat pecun pupilli c. it is left to the Arbitriment of the Tutor either to keep the Pupils Money by him or to imploy it for profite but it is not so by our Custome Annualrent is due even after the Office is extinct by Marriage the Tutrix having continued her intromission though there were other Tutors July 17. 1630. Vallange contra Kincaid but not for Annual of the Pupils Annualrent though the Tutor received the same and they were great July 18. 1629. Nasmith contra Nasmith But it was lately found that a Tutor by his Office and Diligence was oblieged to lift and imploy the Pupils Annualrents of sums in secure hands once in his Tutory and so pay Annual for the Annualrents of his Pupils Sums omitted to be uplifted by him but only from the expiring of the Tutory January 27. 1665. Mr. William Kintor Advocat contra John Boid So a Tutor was found lyable for the Annualrent of his Pupils Annualrent within a year after his acceptance but not for the current Annualrent during the Tutory he leaving the same imployed for Annualrent at the Ishe thereof February 27. 1673. Isobel Dowglas contra John Gray A Tutors Heir being Minor found not lyable but only for Annual after the intenting of the Cause the pursuer being silent twenty five years February 22. 1634. Davidson contra Jack Neither was the Heir found lyable for Annualrent where the Father died during his Tutory Hope de haered Graham contra Crichtoun January 21. 1665. Kintor contra Boyd 20. Tutors are lyable for their Minors and must be conveened with them by their Creditors for their interest and are also decerned with them for their interest upon which Decreets personal execution is competent against Tutors for any deed prestable by them by their Office for example he may be compelled to receive a Vassal whom the Pupils Predecessour was oblieged to receive or grant a Tack of Lands or a Charter or Seasing where there hath been a Disposition before but in Decreets for payment of liquid Sums Execution cannot be made against the Means of Tutors unless they be specially decerned to make forth-coming so much of the Pupils Means as they have in their hands for satisfying of the Debt in whole or in part which though it be oft done by a second Process yet may be a distinct member of the first or by way of special Charge in the discussing of a Suspension raised by the Tutor against Creditors on that or other grounds But the Tutors oath was not sustained to prove against the Pupil an agreement made by the Defunct though there were concurrent probabilities and testificates December 11. 1664. Eleis contra Eleis yet the Tutors Oath was sustained against the Pupil as to the Tutors intromission in name of the Pupil that being factum proprium oblieging also himself and yet he was not holden as confest as being a party but was compelled to Depone by Caption June 27. 1665. Mr. Walter Cant contra James Loch 21. The last duty of Tutors is to make an accompt and to restore and refound wherein they will be lyable to accompt and satisfie for the Pupils whole Means and Estate not only for their Intromission but for their Omission and for such diligence as they use in their own Affairs which seems sufficient in Tutors Testamentar seing the Office is gratuitous and free and not sought by them but in Tutors of Law and
Law rejected pactum legis commissoriae which we call a Clause Irritant whereby it is provided that if the Debt be not payed at such a time the Reversion shal be void Our Custome doth not annull such Clauses but by Act of Sederunt November 27. 1592. it is declared that the Lords would decide in all Clauses Irritant in Infeftments Bonds and Tacks according to the express words and meaning thereof precisely yet the Lords allow such Clauses to be purged by performance before Sentence declaring the Clause irritant committed In which Process though it be committed long before yet by payment at the Barr it will be purged even though the Party after the irritancy get Possession Hope Clause irritant John Edgar contra Gordoun of Earlestoun Yea though the Wodsetter had obtained a Decreet of Removing two years after the failzie against which Reposition was granted paying all Damnage and Interest July 8. 1636. Cleghorn contra Ferguson And albeit the Money was not ready to purge at the Bar so that the Failzie was declared yet it was superceeding Extract for a time that it may be purged in the mean time February 7. 1628. Pringle contra Ker. But where the Requisition was on nine score days there was no time granted after the Decreet to purge July 19. 1625. Nairn contra Naper This Clause is so odious that it was elided by the Wodsetters Possession of a part of the Lands and thereby getting a part of the Annualrent March 18. 1629. Barcley contra Stevinson The like by accepting of payment of Annualrent after Failzie Hope Clause irritant Nasmith contra Kinloch The like by payment of Annualrent or by compensation therewith ibid. Barns contra Barcley The reason of the Law and our Custome is because Impignoration is a permutative Contract wherein equality is meant and required and Clauses irritant are redacted to equality respect is not had to the Terms and Expressions of the Contract but to the thing truely done and therefore though sale of Lands with Reversion be exprest yet if there be not a competent equivalent price and that it be not a real and proper sale but only a Wodset under that conception the Clause irritant hath no further effect then is before exprest but if it be a true sale and competent price the Clause irritant is not penal but hath its full effect but otherwise it is still purgeable till declarator which therefore is necessar even though the Clause irritant bear that the Reversion shall be null without declarator for the remeeding of the exorbitancy of such Clauses irritant 61. Impignoration is either express by the explicit consent of parties or implicit which is introduced by Law without consent of parties of such tacite hypothecations there have been many in the Civil Law as in the Ware for the price in Houses for expenses in Preservation or Melioration or for Money lent for that use to a Wife in the Goods of her Husband for her Tocher To Pupils and Minors in the Goods of their Tutors and Curators for their Duty and Administration to Pupils in the Goods of their Mother being their Tutrix or in the Goods of her second Husband if she did not make an accompt and procure a new Tutor before her Marriage to Legators in the Goods of Executors To the Fisk for their Tribute or their Contracts to Cities in the Goods of their Administrators But our Custome hath taken away express hypothecations of all or a part of the Debitors Goods without delivery and in the tacite legal hypothecation hath only allowed a few allowing ordinarly parties to be preferred according to the priority of their legal diligence that Commerce may be the more sure and every one may more easily know his condition with whom he contracts and therefore Goods sold were not found under any hypothecation for the price June 14. 1676. Thomas Cushney contra John Crystie Yet with us there remains the tacite Hypothecation of the Fruits on the Ground in the first place and they not satisfying the Goods on the Ground belonging to the Possessour for the terms or the years when the Cropt was on the Ground but not for prior or past years and therefore all Masters of the Ground or their Assigneys having right to the Mails and Duties have interest to recover the rents thereof from all intromettors with the Fruits Rents or profits thereof though upon a Title unless their Title be preferable or at least have the benefite of a Possessory Judgement This was extended to Intromettors though they bought the Corns which grew on the Ground in publick Mercat at Zule albeit the Heretor had Poynded a part of the Crop for the Rent of a prior year unless at the Term of payment Candlemas there were sufficient Fruits on the Ground to satisfie the Rent March 29. 1639. Dam Mary Hay contra Archibald Elliot Secondly It is extended to Intromettors with the Cropt and Goods of the Ground though they lawfully Poynded the same from the Tennants for their just Debts Nic. in quibus causis pignus c. Earl of Wintoun contra Barcley unless they left as much upon the Ground as might satisfie the rent besides the Houshold Stuff July 25. 1623. February 3. 1624. Hay contra Keith The like wherein the present Cropt was not accompted but left for the subsequent Rent of which the Terms were not come June 29. 1624. Polwart contra Thirdly It is extended that thereby the Master of the Ground may summarly stop Poynding unless sufficient Goods be left to pay the Rent beside the plenishing of the House February 3. 1624. Arrocks Bairns contra Keith Fourthly This is extended against the Donatar of the Tennants Escheat intrometting thereby who was found lyable though no Action was moved by the Master of the Ground for seven years in the said case Hay contra Keith The like is sustained as to the Goods of the Possessours of Houses invecta illata for House-mailes for all intromettors therewith are lyable and the Goods may be stopped from Poynding for the Possessours Debt without Deforcement being invecta illata But this extends only to one year or two Terms Mail December 7. 1630. Dick contra Lands But the Hypothecation of the Fruits of the Ground is greater then of the Tennants other Goods for the Fruits are lyable according to the value thereof for the rents though there remain other Goods sufficient to pay the Rents on the Ground seing there remained not sufficient Fruits to pay the same March ult 1624. Lady Down and her Spouse contra Laird of Down This Hypothecation of the Fruits for the Rent was extended to a Town setting their Customes even against the Sub-tacksman not bound to the Town who were preferred to the Tacksmans Creditors in a double Poynding January 31. 1665. Anderson and Proven contra the Town of Edinburgh It was also extended to the seller of Fishing against the Donatar of the Tacks-mans Escheat who was found lyable to restore
favourable but the adjection of a penalty or estimation makes not the Obligation alternative But if any of the Members of the alternative become not intire the Debitor connot offer that Member January 18. 1675. Collector of the King and Lords Taxation contra Inglis of Straitoun The manner also of performance admitts not that the Debitor may perform by parts that which he is oblieged to by on Obligation if it be not that which cannot be performed all at once as the performance of some Acts requiring divers seasons but otherways it must be done without intermission for neither can Money or Grain be delivered at one instant but that is understood to be performed together which is without intermission yet the Civil Law favours the Debitor so far that the Creditor cannot refuse to accept a part of the Money due TITLE XI Liberation from Obligations 1. Obligations cease by contrary consent by Discharge Declaration Renunciation or per pactum de non pentendo 2. Three subsequent Discharges Liberat from preceedings 3. Payment made bona fide 4. Consignation 5. Acceptilation 6. Compensation 7. Retention 8. Innovation 9. Confusion HAVING thus run thorow the constitution and effects of Conventional Obligations It is requisite in the next place to consider their destitution and how they cease which we have exprest in the general term of Liberation comprehending not only payment but all the ways by which Obligations or Bonds are dissolved or loosed and Debitors Liberat We are not here to speak of the Objections competent against Obligations from their nullities for such were never truly Obligations neither of the common exceptions against them and other Rights as Prescription Litiscontestation res judicata Circumvention Extortion c. of which in their proper places But only of the proper ways of taking away Obligations and these are either by contrair consent or by performance or the equivalent thereof 1. First As consent constituteth so contrary consent destituteth any Obligation whether it be by Declaration Renunciation Discharge or per pactum de non petendo which may be extended not only to Conventional but to Natural Obligations as to any duty omitted or transgressed which is past though not to the discharge of the Obligation it self as to the future for love to God or our Neighbour and most of the Duties betwixt Husbands and Wives Parents and Children cannot be Discharged as to the future neither can future Fraud or Force be effectually Discharged for such cadunt in turpem causam If the Write be special and express there can be no question when it concerns a personal Right and is given by the party having power to Discharge and therefore a Discharge of a clause in a Bond constituting an Annualrent whereupon Infeftment followed for a sum lent by a Father and taken to his Son in Fee and bearing with power to the Father during his life to Dispone was found valid and that it required not Registration as a Discharge of Reversion January 6. 1681. Mary Bruce contra Patrick Hepburn But a Discharge of an Annuity belonging to an office by infeftment containing a renunciation of that annuity was not found Relevant against an Appryzer December 9. 1679. Lord Hattoun contra the Town of Dundee Neither did a Discharge of a sum payable to a man and his Wife and the Bairns of the Marriage subscribed only by the Husband exclude the Wife from her Liferent Right to that sum January 22. 1680. Isobel Caddel contra John Raith Neither was a Discharge to a Cautioner upon payment found competent to the principal Debitor unless the Cautioner concur for the Principal may be distressed by the Cautioner using the name of the Creditor as his Cedent July 13. 1675. Margaret Scrimzour contra the Earl of Southesk A Discharge to one or more Debitors Viz. Con-tutors found not to liberat the rest except in so far as satisfaction was made or as the other Con-tutors would be excluded from relief by the party Discharged December 19. 1669. Seatoun contra Seatoun But payment made by one party whose Lands were affected by Inhibition did Liberat the rest pro tanto though it bore not in satisfaction but to restrict the Inhibition January 5. 1675. Ballantine contra Edgar But Discharges by Masters to Tennents for Rent by their Subscription without Witnesses and not being holograph are sustained in regard of the custom so to Discharge November 7. 1674. John Boyd contra Story And by the same custom receipts and discharges of Merchants and Factors in re mercatoria are sufficient by the parties subscription albeit neither holograph nor with Witches But the main Question is how far general Discharges are to be extended which are of two sorts One where there are particulars Discharged with a general Clause and then the general is not extended to matters of greater importance then the greatest of the particulars February 24. 1636. Lawson contra Ark Inglas The other is where the Discharge is only general without particulars which useth not to be extended to Clauses of Warandice Clauses of Relief or obliegements to Infeft or to purchase real Rights and therefore a Discharge of all Debts Sums of Money Bonds Obligations Clags Claims for whatsoever cause was found not to Discharge a Contract for purchasing an Appryzing of Lands and Disponing the same November 19. 1680. Beatrix Dalgarn contra the Laird of Tolquhon Neither was a Discharge wholly general extended to an Obligation by the party Discharged as Cautioner unless it were proven that the Discharge was granted upon satisfaction of that Debt Hope Bonds Ogilbie contra Napier But it was extended to Contravention though there was a Decreet after the Discharge Hope Contravention Laird of Aitoun contra his Brother Yea a general Discharge in a Decreet Arbitral was found to Liberat the submitters Cautioner Hope Bonds Lady Balmastiner and her Son contra Alexander 〈◊〉 Neither was a general Discharge found to extend to a sum assigned by the Discharger before the Discharge albeit the Assignation was not intimat seing the Discharger was not presumed to know the want of the Intimation unless it were proven that the sum was particularly commoned upon or satisfied at obtaining the general Discharge February 3. 1671. Blair of Bagillo contra Blair of Denhead Neither was a general Discharge extended to sums whereuto the Discharger succeeded after the Discharge February 14. 1633. Halyburtoun contra Huntar 2. Three subsequent Discharges do presume that all preceedings are past from As first The Discharges of three immediat subsequent years Rent June 21. 1610. Nowison contra Hamiltoun This was sustained though the Discharges were only granted by a Chamberlain Hope Clause irritant Laird of Wedderburn contra John Nisbit this was sustained to purge a Clause irritant yea though some of the Discharges were granted by the Father and the rest by the Son as Heir February 17. 1631. Williamson contra the Laird of Bagillo which was extended to by gones though a Bond was
before showen intrusion is where the entry is made in possession without violenc but without warrand or consent as ejection is by violence But these contrary acts though unwarrantable yet they take away the possession that is detained by the mind 20. Possession then is lost by a contrary Possession and it is interrupted by contrary acts and attempts of possession which if they do not attain the effect to expulse it it is called also a troubled or disquieted possession for nothing can be possessed in solidum by more then one either simply or in relation to the same right as there cannot be more Proprietars then one of the same kind though one be superior and another Vassal so more Liferenters cannot possess in solidum and therefore the entry to possess that which is already possessed must expulse the prior or else introduce a partial and common possession yet it is not the contrary attempts or every act that expelleth a prior possession but if the same be violent the prior possessor hath the benefit of possessory Judgements and may lawfully use violence to continue possession which afterwards he may not for recovery thereof when it is lost though unwarrantably or violently Thus Possession is transferred from one to another But Possession is simply lost when it is forsaken and relinquished it is not easie to be known when Possession is detained by the mind and when relinquished wherein there is a general Rule that dereliction is not presumed except it appear by evident declaratory Acts or Circumstances as when it is thrown away in any publick place where it cannot but be taken up or when another is suffered to possess without contradiction or when possessory Acts have been long abstained from all which conjectures are in arbitrio judicis 21. From what hath been said the ordinary distinctions of Possession may be easily understood as being either natural or civil continued quiet and peaceable or interrupted and disturbed lawful or unlawful Under which distinction are comprehended possessio bonae fidei which may be called innocent Possession and malae fidei or fraudulent and Possession publick and clandestine and long possession momentany or precarious 22. To come to the Right implyed in Possession it is mainly in two points First in the right to continue it against all illegal contrary acts Secondly The right of Appropriation of the Fruits consumed bona fide both these are introduced by positive Law for utilities sake For by equity any man might at any time recover the possession of that which is his own by force and all the Fruits thereof whether extant or consumed But civil Society and Magistracy being erected it is the main foundation of the peace and preservation thereof that possession may not be recovered by violence but by order of Law and therefore there is no more allowed to private force then to continue possession against contrary violent and clandestine Acts immediatly after acting of the former or notice of the latter But a violent clandestine and unlawful possession may not be troubled though there be an evident right much less may Possession be entered where there is a Right in a party himself or his predecessor to whom he is Heir in that thing for as they are accounted as one person in Law so their Possession is accounted as one Possession Like unto this is the Right of appearand Heirs to possess their predecessors Rents though they be not Infeft which will not only exoner the possessors but if the appearand Heir die uninfeft his nearest of kin will have right to the Rents resting from his predecessors death to his own death and these will be subject to hi own proper Debts albeit they will not affect the Land it self but the next appearand Heir must enter to the Defunct last Infeft and his Person and Estate will only be lyable for the Debts of the Defunct to whom he entered 23. The other Possessory Right is that which was allowed in the Civil Law bonae fidei possessor facit fructus consumptos suos l. certum 22. Cod. de rei vindicatione the reason whereof is because they who enjoy that which they think their own do consume the Fruits thereof without expectation of repetition or account else they are presumed to reserve them or imploy them profitably for Restitution and if it were otherways there could be no quiet nor security to mens minds who could call nothing securely their own if the event of a dubious Right might make them restore what they had consumed bona fide and as it is in the favours of the innocent possessor so it is in hatred of the negligence of the other party not pursuing his Right 24. This Right is only competent to possessors bonae fidei who do truely think that which they possess to be their own and know not the right of any other but private knowledge upon information without legal diligence or other solemnity allowed in Law at least the private knowledge be certain is not regarded nor doth constitute the knower in mala fide March 14. 1626. Nisbit contra Williamson But a Mother was not found to enjoy this benefit in prejudice of her Children there being several presumptions of her knowledge of their right November 20. 1662. Children of Wolmet contra Lady Wolmet and Dankeith her Husband In some cases a Citation and Production of any other evidently preferable Right is sufficient when the possessor hath no probable Title but where he hath a doubtful Title mala fides is only induced by Litiscontestation or Sentence as in Reductions whether the defender is lyable for the bygone profites from Citation Litiscontestation or Decreet is in the arbitriment of the Judge July 11. 1627. Pitmedden and the Lord Elphingstoun contra Smith The like in a Tack reduced upon a failzie Hope Reduction Seatoun contra Seatoun The like June 2. 1610. Mr. Robert Hunter contra Lord Sanquhar The like as to a Decreet of Removing reduced and the violent profits found due only after Litiscontestation in the reduction January 24. 1611. Jousie contra Mortimer And found only to take effect after Sentence in Reduction of an Appryzing because the half of the of the sum was payed Hope poinding James Lamb contra Smeatoun Hepburn And though the Possessors Right was but a Tack which fell in consequence with the setters 〈◊〉 reduced in Parliament yet the Tacks-mans Possession bona fide was sustained though he needed not to be called to the Decreet of Parliament seing that on that Decreet there was nothing done to make him know it or put him in mala fide July 19. 1664. Elizabeth Dowglas and Longformacus her Spouse contra Laird of Wedderburn Upon this ground an adjudger was preferred to the bygone duties uplifted by him to a prior Appryzer who charged the Superiour to Infeft him before the Adjudication December 1. 1632. Laird of Kilkerran contra Ferguson This was extended to the profits uplifted by Infeftment upon a Disposition though
of Incorporations or persons or otherways a servitude of common Pasturage c. Therefore we shall first speak of the Right of property in Fees both in relation to the Superiour and to the Vassal Next of the Servitudes competent in Fees which comprehending all Rights not reaching the alienation or substance but the lesser interests extending only to the profits or use of Hereditaments must comprehend both the interest introduced by Law as Teinds and these that are by consent by Infeftments or other grants or long possession whether they be personal as Liferents Conjunct-fees Terces and the Right of Courtisie Annualrents Pensions Rentals Tacks c. Or whether real Servitudes as Thirlage Pasturage c. And last Feudal Pledges which are called Wodsetts But in all we are only here to speak of the constitution of Feudal Rights leaving the transmission thereof to Heirs or singular Successors to the next part Vide Title 24. and 27. 4. The property of all Lands and Immoveables or Hereditaments are either Allodial or Feudal Allodial is that whereby the right is without recognisance or acknowledgement of a Superiour having a real Right in the thing thus are Moveables enjoyed and Lands and Immoveables were so till these Feudal Customs and now there remains little Allodial For Lands holden Feu or Burgage or Lands Mortified are not Allodial seing they acknowledge a Superiour having the direct Right of property and to whom there must be some Rent or return though they be not so proper Fees as Land holden Ward Yet the Superiours Right in the Soveraign power is not Feudal but Allodial here though some Kingdoms be holden of Superiors as Feudal So also the Gleibs of Ministers seem to come nearest to Allodials having no Infeftment holding Rent or acknowledgement though they be more properly mortified Fees whereof the Liferent-escheat befalls to the King only Kirks and Kirk-yards are only Allodial without any acknowledgement of a Superiour but they are destinat for pious Uses and are ordained to be upheld and repaired Par. 1563. cap. 76. And the Parochioners of every Paroch ar ordained to build and repair Kirk-yard-dykes with Stone and Morter two els high and to make Kirk-styles therein Par. 1597. cap. 232. The manner of reparing Kirks was remitted to the Council by the said first Act of Parliament and thereupon an Act of Council was made which is ratified Par. 1572. cap. 54. but is not repeated in the Ratification but only in general that the Parochioners were warranted to name persons to stent the Neighbours A Fee signifieth either the right it self or the thing affected with the Right whether it be corporeal as Lands Lochs Woods Fortalices Milns or incorporeal as Annualrents Fishing Jurisdiction Pasturage or the like and at the first it was freely granted for Fidelity and Military service of the Vassal 5. And therefore it implyed first That it was a free and gratuitous Donation as to Money or other anterior cause and only for fidelity and service Secondly None could succeed therein but such as could perform that service whereby women were excluded Thirdly It could descend to none but to the Male Issue of the first Vassals body which ceassing it became void and could not be transmitted to the Collaterals or to the Ascendents of the first Vassal Fourthly Whensoever it was open or void by the death of the Vassal Infeft it returned to the Superiour until the Vassals Heir were capable of Military Service which was esteemed to be so soon as he attained Majority And while it was in non-entry by the negligence of the Vassal not demanding Infeftment but in his Minority when he was unable to serve both the Lands and the Vassal were in the hands of the Superiour in Ward and Custody or of his Donatar as his Legal Tutor who was to educat him for his own service and to intertain him beside which he had then no other profit of his Fee And if he married without the Superiours consent he lost a sum equivalent to that Tocher which were suitable to his Quality and Estate And if contrary his Superiours will he refused a suitable Match he forefaults the double of the Tocher The reason introductory of this was because the Superiour might be concerned in the affinity contracted by his Vassal in his marriage In all Fees fidelity by the Vassal to his Superiour is necessarly implyed and if any thing were acted contrary to fidelity and gratitude against the life and fame of the Superiour to the great prejudice of his Estate or nearest Relations the Fee became void wherein is also comprehended the Vassals disclaiming of his Superiour or owning another in his place or Infefting another Vassal without his Superiours consent Fees are not only unalienable without consent of the Superiour for the reasons now adduced but they are stricti juris and there is no obliegement upon the Superiour to receive any stranger or singular successor his Vassal except what the Law hath introduced by Statute or Custom in favours of Creditors for obtaining satisfaction of their Debts by Appryzings or Adjudication whereby the superiour may be compelled to receive singular successors Yet the Disposition procuratory or precept of seasing before Infeftment are asignable and the superiour may be compelled to receive the Assigney if the Disposition be in favours of Assigneys But Infeftment being once taken he is not oblieged to receive any Assigney or singular successors otherways then in obedience of Horning upon Appryzing or Adjudication getting a years Rent for accepting a new Vassal 6. These being the ancient requisits of Fees that is a proper Fee which hath them and the want of any of them makes it Improperin so far but most of them might always and now are changed by the Tenor of the Infeftment as when the Fee is granted to the Vassal and the Heirs of his body it is so far improper that women may succeed If it begranted to him and his Heirs simply then his Collateral Heirs or Ascendents may succeed Or if to his Heirs male whatsoever much more if to the Heirs or Descendents of other persons in Tailzies Fees are also granted not for Military service or service indefinitly but for some definite particular service as for carrying of a Sword or other Ensign of Honour before the Superiour in solemn days or not for service at all but for some Rent which is either inconsiderable as a meer acknowledgement of the Superiour as a penny Money or a grain of Pepper a Rose c. Or for a Feu-ferm-duty in Money or any Fungible or other performance Or when the avail of the Marriage and profit of the Ward is taxed to such a sum Hence we may consider what remains as to the essentials of Fees and common interests thereof which are these 7. First there must remain a right in the Superiour which is called dominium directum and withal a Right in the Vassal called dominium utile The reason of the distinction and terms thereof
hath unwarrantably refused to Enter if the Appryzer or Adjudger insist in his Appryzing or Adjudication for Possession but he may forbear to make use of the Appryzing or Adjudication and if hely long out without further diligence he will be presumed to have relinquished his Appryzing or Adjudication and posterior Rights and Diligences will be preferred But if he enter in Possession no posterior Infeftment or Diligence will exclude him although he insist no further but the Charge of Horning and it hath not occurred to be determined how long that Right will subsist without infeftment but it hath been found that the Superiour will not be excluded from the Casualities of Superiority by his former Vassal if he have not been in the fault in refusing to Enter when the Appryzer or Adjudger offered him a Charter with a years Rent of the Land or Annualrent of the sum adjudged or appryzed for this was in the case of Ward February 9. 1669. Black contra David Trinch Neither was a Superiour found to have interest to exclude an Appryzer from Possession till he payed a years Rent but that he might possess during the legal if he insisted not for infeftment which insinuats that after expyring of the legal the Superiour might hinder the appryzer or adjudger to continue in possession till he take Infeftment and pay a years Rent but during the legal the appryzing or adjudication is but as a legal assignation to the Mails and Duties so that the appryzer cannot be forced to take Infeftment till the legal expyre and the Land become irredeemably his own and then he is to pay a years Rent but in this case there was no Charge upon the appryzing December 3. 1672. Mr. Hendry Hay contra Laird of Earlestoun Albeit in the case of Johnstoun contra the Tennants of Auchincorse July 22. 1665. the appryzer having charged the Superiour though he did not then obey yet appearing in the Process of Mails and Duties he offered now to receive the appryzer and therefore the appryzer was excluded till he payed the years rent which being under consideration of the Lords in the posterior case of Mr. Henry Hay they resolved to give the apyryzer his option within the legal to take Infeftment or not so that the Charge doth only hinder others to preveen but doth not exclude the Superiour from any Casuality of the Superiority falling by his former Vassal unless he had been in culpa refusing the appryzer Entry insisting orderly to be Entered which is a great advantage both to debitors and creditors not to have the accession of a years rent till the ancient Rights may be discovered and that it may appear whether the appryzing becometh an absolute Right The main division of Infeftments is in relation to the holding is in Ward Blench Feu Burgage and Mortification 31. An Infeftment Ward hath its denomination from Ward which is the chief Casuality befalling to the Superiour thereby it is the most proper Feudal Right we have and therefore wherever the holding appeareth not or is unclear there Ward-holding is understood it is ordinarly expressed by rendering service used and wont and if the reddendo be not express in name of blensh or Feu Ferm though it bear payment of some Duty yet Ward is inferred as by a Charter bearing sex dinarios nomine cana with a taxed Marriage So also it was inferred by a reddendo bearing a particular Duty payable at Whitsunday and Martimass cum servitiis in curiis nostris alibi debitis consuetis Hope de feudi renovatione Williamson contra Thomson The main importance of a Ward-holding was indefinite service to be performed by the Vassal to his Superiour and especially in War but that being now little in use the main effect of it is the Ward and Marriage of the Vassal of which hereafter 32. Ward Lands according to the nature of proper Feudal Rights might not be alienat by the Vassals granting any subaltern Infeftment thereof otherways not only the subaltern Infeftments were void but the Vassal granter thereof his own Infeftment became void by Recognition yet by Act of Parliament 1457. cap. 72. all Feus to be granted by the King Prelats Barons or Free-holders are allowed and declared not to fall in Ward as being but Heretable assedations as the act bears paying to the Superiour during the Ward the Feu-duty providing the Lands be set to a competent avail without prejudice to the King which is ordinarly interpret to be the retoured duty the same is repeated Par. 1503. cap. 91. and extended not only to subaltern Infeftments Feu but also of annualrents so that it be without diminution of the Rental which in Lands holden of the King by secular men is the retoured mail and in the Kings property and in Kirk-lands is the full rental they should happen to be at the time of the subaltern Infeftments which therefore the Feus may not diminish and the annualrent may not be so great as to exhaust the Land that the rental remain not free This last Act was temporal for that Kings life and therefore the extention as to annualrents ceaseth though the first Act expresseth that the King will ratifie all Feus granted by the Kings immediat Vassals yet the Act bears that the King thereby will give good example to the rest viz. to other Superiours and therefore a Feu of Ward-lands granted by a Vassal holding Ward of a Subject before the Act of Parliament 1606. was found valid though without the Superiours consent June 24. 1668. Stuart of Torrence contra Feuars of Ernock This priviledge was taken away as to all Superiours and their Vassals except the Vassals of the King who only might grant subaltern Infeftments of their Ward lands Par. 1606. cap. 12. whereby all such subaltern Infeftments of their Ward-lands are declared null by exception or reply unless the Superiours consent were obtained and therefore the Superiours consenting in the Disposition by a Vassal to a Sub-vassal was found to exclude the Vassals Ward so far as concerns the Sub-vassal though it was a redeemable Feu July 2. 1672. Earl of Eglintoun contra Laird of Greenock The same was extended to the Vassals of the King and Prince who were thereby also excluded from setting of Feus of Ward-lands to Sub-vassals Par. 1633. cap. 16. but the Vassals of the King and Prince were restored to their former priviledge and the said Act 1633. wholly repealed Parliament 1641. cap. 58. which now is rescinded Par. 1661. cap. 15. Yet the Lands set in Feu during the time of these several Acts now repealed are valid So Ward-lands holden of the King or Prince may not be set in Feu nor of any other Superiours except Bishops and their Chapters for these might set Feus for a Feu-duty equivalent to the retour Par. 1621. cap. 9. But this Act was only temporary for three years and therefore subaltern Infeftments granted by Vassals if of the most part of the Ward-lands infers recognition thereof
the abolishing of Popery they return to the Crown as the Narrative of the Act of annexation of the temporality of Benefices Par. 1587. cap. 29. bears and therefore Benefices of Laick Patronage as having proceeded from these Patrons are excepted by the said Act and though after the restitution of Bishops and their Chapters the Act of Annexation in so far as concerned their Lands was rescinded Par. 1606. cap. 6. Yet Bishops being abolished Par. 1640. cap. 6. their Lands were again annexed to the Crown Par. 1649. cap. whereby all Erection of Kirk-lands in temporal Barronies or Lordships by which the King interposeth any person betwixt himself and these who were formerly Vassals of Kirkmen are prohibit and declared null this Act is rescinded in the general Act rescissory 1661. cap. 15. The annexed property after Dissolution may not be granted in ward or blensh except upon Excambion for as good Lands Par. 1597. cap. 234. 37. Feus of Kirk lands by Prelats or other beneficed persons being granted by consent of their Chapters with all requisite Solemnities were esteemed Legal Securities without any particular Confirmation by the King or Pope there being no Statute nor Constitution obliging the Subjects thereto and in case any Confirmation had been requisite the consent of the Prince under his proper Seal and Subscription was sufficient Par. 1593. cap. 187. Yet it was the Custome that the Kings or Popes Authority was interposed to all Feus of Kirk-lands therefore all Feus not Confirmed by the King or Pope before the 8. of March 1558. or being thereafter not Confirmed by the King are declared null by Exception Par. 1584. cap. 7. The Reason hereof was because in March 1558. the Reformation of Religion began to be publickly professed in Scotland and the beneficed persons became hopeless to preserve their rights of their Kirk Lands and therefore endeavoured to dilapidat the same But this was found not to extend to an Infeftment of an Office as the Office of Forrestrie though it had Lands annexed thereto and a threave of Corn out of every Husband Land of the Abbacy seing the Statute mentioned only Feus of Lands And this was but like a Thirlage 20. of Ianuary 1666. Lord Renton contra Feuers of 〈◊〉 It is also declared in the 7. Act Par. 1594. that the old Possessors were to have their Confirmation for payment of the quadruple of their silver rent or the double of their ferm Providing they sought the same within a Year after the publication of that Act otherwayes they were to pay the eight fold of the Silver rent and the triple of the Ferm and the King was thereby obliged to grant Confirmation to the old Possessors upon these terms and being so Confirmed the same could not be questioned upon aleadged Dimunition of the Rental or Conversion in monie or any other cause of Nullity Invalidity or Lesion or by any Law Canon or Statute except Improbation only And it was declared that Confirmations by the King of Posterior Feus should not perjudge the Anterior Feus granted by Prelates and their Convents with their common Seals and Subscriptions at any time being granted with consent of the Kings Predecessors under their Privy Seal though without farder Confirmation by the Kings or Popes Par. 1593. cap. 187. The Reason hereof was because in the time of the Reformation most of the Evidents of Kirk Lands were destroyed And therefore the Ancient Possessors were presumed by their very Possessions to have Right And for clearing who were the Ancient Possessors and what were Kirk Lands it is declared by Act of Sederunt 16. of December 1612. that ten years Possossion before the Reformation or thirty years Possession thereafter but interruption should be sufficient to stand for a Right of Kirk-lands the same being possest as such and Feu dutie being payed to Kirkmen before the Reformation or to the King or others having Right from them after the Reformation therefore it was so decided 5. of July 1626. Laird of Kerse contra Minister of Alva though much stronger probation of being part of a temporal Barronie for longer time was alledged in the contrary Hope Earl of Home contra Earl of Balcleugh Spots Kirkmen Mr. John Hamiltone Minister at Linton contra John Tweedie Secondly Feus granted by Prelats were null Except they were expede by the consent of their Chapters or Convents Par. 1593. cap. 187. Thirdly Feus granted by the beneficed Persons as of themselves they ought to have been without diminution of the Rental seeing the Property thereof was mortified to the Kirk and the incumbents were but as Liferenters Administrators and Tutors it was also expresly declared and statute that any diminution of the Rental or change of Victual for Money or any other Disposition making the Benefice in a worse Estate then at the Kirk-mens entrie should be null Par. 1585. cap. 11. 38. Infeftments in Burgages are these which are granted to the Burghs by the King as the common Lands or other rights of the Incorporation and that for Burgal Service in Watching and Warding within their Burghs c. These can have no Casualities because Incorporations die not and so their Land can never fall in Ward or in Non-entrie These Infeftments in Burgage are held by the Incorporation immediately of the King for Burgal service Watching and Warding within Burgh c. And the particular persons Infeft are the Kings immediate Vassals and the Bailies of the Burgh are the Kings Bailies And to the effect that such Infeftments may be known it is declared that all Seasines of Burgage Lands shall only be given by the Bailzie and common Clerk thereof otherwayes the famine is declared null which seems to have given the rise to the exception in the Act of Parliament anent Registration of Seasins that it should not extend to Seasins within Burgh Par. 1567. cap. 27. 39. Infeftments of mortisied Lands are these which are granted to the Kirk or other Incorporation having no other Reddendo then Prayers and Supplications and the like Such were the Mortifications of the Kirk-lands granted by the King to Kirk-men or granted by other privat men to the Provost and Prebendars of Colledge Kirks founded for Singing Or to Chaplains Preceptors or Alterages in which the Patronage remained in the Mortifiers 40. Of all these Mortifications there remains nothing now except the Benefices of Bishops Deans and Chapters and the Manses and Gleibs of Ministers which are rather Allodial then Feudal having no holding Reddendo or Renovatione Yet are esteemed as holden of the King in Mortification And therefore the Liferent of the Incumbent by being year and day at the Horn falls to the King Manses and Gleibs did belong to Parsons Viccars and other Kirk-men before the Reformation after which they were prohibited to set the same Feu or in long Tack without the Royall assent and the Ministers were ordained to have the principall Manse of the Parson or Viccar or so much thereof as should be found sufficient Whither
are designed there is no relief by other Kirk-lands except these who had Feus of other parts of the same Gleib seing by the foresaids Statutes the Feuars of old Manses or Gleibs are to suffer Designation or to purchase new Manses and Gleibs so that these old Manses and Gleibs do not infer relief This relief is not debitum fundi affecting singular successors as was found June 1675 Schaw contra Hamiltoun of Munckland But when the Designation is of Temporal Lands the whole Heretors of Temporal Lands are to contribute for a recompense thereof proportionally Par 1649 cap 131 revived Par 1663 Session 3. cap. 20. Gleibs are Teind-free Parl. 1578. cap. 62. The like where they are Arable or Grass Par. 121. cap. 10. And a Gleib was found Teind-free though lately mortified voluntarly without Designation or Process and though not mortified to a Paroch Church but a Chappel seing Divine Worship was accustomed to be therein June 9. 1676. Alexander Burnet contra William Gibb 41. There is another division of Infeftments into these which are granted to one Person and his Heirs and to more Persons and their Heirs which are of diverse sorts sometimes as Conjunct-infeftments and sometimes conceived in favours of Fathers and after their decease to Children or relations therein nominat Conjunct-infeftments are called Conjunct-Fees whereby the Fee is disponed joyntly to more persons and their Heirs which may be to three or more persons who by the Infeftment become all Fiars joyntly and equally whence there ariseth a Communion by which they do possess the Fee pro indiviso until division thereof be made which doth not comprehend an Infeftment to an Incorporation as to a Town or Colledge or to the use of the Poor who do not thereby become joynt Fiars but have only a share of the benefite according to the distribution appointed These Infeftments are not conceived to Heirs seing Incorporations are perpetual and die not neither doth the publick use fail therefore such Infeftments require no renovation Superiours will not easily be induced to accept Resignations from their Vassals in favours of Incorporations and publick uses by which all the Casualities of their Superiority cease or to grant Confirmations thereof having the same effect Nor can they be compelled to grant such Infeftments upon the Vassals Bonds granted of purpose that Adjudication may be used thereupon that thereby the Superiour may be compelled to receive the Incorporation yea though without design an Incorporation should become Creditor to a Vassal in a debt truly borrowed either from the Incorporation or their Cedent The question is whether an Adjudication thereupon might force the Superiour to receive the Incorporation for a years Rent Craigs opinion is in the Negative and I have not heard such a case come to be debated And though Custom hath oblieged Superiours to receive man and Wife in Conjunct-Fee which abate their Casualities during the life of two persons the consequence would not be good to reach to an Incorporation that never dies though the Act of Parliament introducing Appryzings and Adjudications be generally in favours of all Creditors It were more just that Incorporations should pitch upon a person and assign their debt to him expresly to the effect that the Lands might be adjudged to him and his Heirs for the use and behove of the Incorporation or such other uses as were designed which would be effectual against all singular Successors especially if the Trust were exprest in the Seasine but the Superiour would have all his Casualities by the death neglect or delinquence of the Trustee and his Heirs I shall not pre-determine my self or others in the case but leave it to publick determination Conjunct-Fees by the Custom of England are always so understood that the survivers have the whole benefite so long as any of them are alive but we do only extend this survivancy to Conjunct-infeftments to Husband and Wife which bears ordinarly to the longest liver But though that were not exprest it would be understood as implyed and generally it resolves in the Wife but as a Liferent and the Husband is understood to be Fiar unless it be evident that the Right was originally the Wifes and a Liferent only designed for the Husband and therefore if no Heirs be exprest or only generally their Heirs the Husbands Heir is understood in Heretable Rights Nam potior est conditio masculi and the Wife is only Liferenter but with greater power then by a separate Liferent June 24. 1663. Elizabeth Scrymzour contra Murrays And a Wife having charged upon a Bond granted to her Husband and her and the longest liver was found not to have right to uplift the sum or to insist therefore without concurse of the mans Heir or he being called that if the sum were insecure it might be consigned to be re-imployed to the wife in Liferent and to the Heir in Fee December 10. 1671. Katharine Ross contra Laird of Hunthill Yea a Clause in a Bond bearing a sum borrowed from a Husband and wife and payable to the longest liver of them two in Coniunct-fee and to the Heirs betwixt them and their Assigneys whilks failing to the Heirs and Assigneys of the last liver was found to constitute the Husband Fiar and the Wife Liferenter albeit she was last liver whereby her Heirs of Line failing Heirs of the Marriage became Heirs of provision to the Husband and lyable to his debts January 29. 1669. Graham contra Park and Gerdan January 23. 1668. John Justice contra Mary Barcley his Spouse And a Clause in a Contract of Marriage oblieging the Husband to take the Conquest to him and his future Spouse and the Heirs betwixt them whilks failing the Heirs of the Mans Body whilks failing the Wifes Heirs whatsomever was found not to constitute the Wife Fiar but Liferenter and the Husband Fiar whereby failing Heirs of the Marriage and of the Mans Body the Wifes Heirs of Line were Heirs of provision to the Man February 20. 1667. Cranstoun contra Wilkison For by this Clause of Conquest it is evident the means were to come by the Man yet an Obliegement by a Man bearing that whatsoever Lands or sums of Money he should purchase during the life of him and his future Spouse their present debts being first payed that the wife should be secured therein in Conjunct-fee and in case of no Issue or Children the one half thereof to be disponed as the Wife should think fit was found to make the Conquest divide betwixt the Heirs of the Man and the Wife and that her power to dispone the half was not a personal Faculty but did make her Fiar in that half and took off the presumption of the preference of the Husband seing no mention was made of the Heirs of either party June 27. and 28. 1676. Earl of Dumfermling contra Earl of Callender Conjunct-Fees to Husband and Wife and the Heirs of the Marriage do imply a restriction upon the Man not to
is not known And if the Warrandice be not absolute the Purchasers hazard was the greater But in Warrandice of personal or redeemable Rights the matter is ordinarly liquid and there is no design of hazard but an absolute relief But Warrandice hath no effect where there is Collusion by being holden as confest Nicol de evictione Aikenhead contra Blackwood The like was found by suppressing the Warranders Right and receiving considerable Sums therefore whereby the Right warranted fell in consequence February 18. 1679. Laird of Wedderburn contra Sir Robert Sinclar March 3. 1629. Murray contra Lord Yester Neither where Eviction falls through default of the party warranted when having a Disposition of Ward-lands with double Infeftment he infeft himself base without the Superiors consent and thereby the Lands recognosced February 1. 1610. Maxwel contra Mowbrey Neither inferred by the Forefaulture of the Disponers apparent Heir seeing the Fiar omitted to obtain the Kings Confirmation which would have excluded the Forefaulture Hope Warrandice Hamilton contra Laird of Nidderie It is not so clear either in Reason or Practice whether Warrandice takeseffect upon any other ground then what is or may be a ground of Eviction to take away the Right of the Party by whom the Warrandice is graunted judicially as when Lands are taken away by Innundation or are become barren Or when a Right assigned with Warrndice becomes ineffectual because the Debitor is not solvendo or when any accidental or extrujudicial distress or damnage befalleth to the party warranted through occasion of the ground of Warrandice though not by legal Eviction Secondly Whether Warrandice takes place when the Right warranted is taken away or burdened by a subsequent Law Thirdly Whether Warrandice in general will extend toward Releef and it Or to Forefaulture of the warrands own Superior As to the First Warrandice relates to the point of Right and not to the Matter of Fact and therefore will not reach to Accidents the hazard whereof lies alwayes upon the Acquirer and the Propriatar Yea a Clause of Warrandice that Lands should be worth so much yearly Rent was not extended to Desolation by famine March 10. 1636. Lady Dunipace contra Laird of Rouiston It was also 〈◊〉 that a Cautioner being conveened and through occasion of Compearance was made Prisoner in a Ship taken prize had thereby no interest upon the Clause of Warrandice to distress the Principal for this accidental Damnage James Maxwel contra James Nisbit of Ladytoun So that unless some what more be concurring then the naked Warrandice either by the value of the onerous Cause for which the Right is granted or Tenor of the Assignation it reacheth not the sufficiency of the Debitor or the like points of Fact as is Spotswoods opinion Tit. Assignation And it was lately found that where a Creditor had given a blank Assignation to a Cautioner who had payed him with absolute Warrandice that as to the Cautioner to whom it was gratuitous for the Creditor to give such a Warrandice importeth not the sufficiency of the Debitor July 16. 1663. William Hay contra Nicolson and Mitchel It was also found that absolute Warrandice in an Asignation bearing that the samine should be good valid and effectual was not found to extend to the Solvency of the Debitor but only that the Debt could not be excluded by any legal Exception either from the cedents deed or otherwise as if the write Assigned had been false the cedent not being accessory null or declared a publick Debt November 24. 1671. Sir Rober Barclay of Pearstoun contra Robert Liddel which quadrats with lib. 4. ff de haereditate et actione vendita Venditore nominis tenetur prestare debitum subesse Debitorem vero Locupletem esse non tenetur prestare As to the distress by subsequent Laws when these are by way of Declarator of an anticedent Right it is equivalent to a Judicial Eviction But when the Law is Statutory introducing a new burden as Taxes Augmentations of Ministers Stipends c. It was Craigs opinion dieges de evictione § 6. Which he reports as the Judgement of the Session that in such Cases the Warrand should be lyable in quantum lucratus est But Custome since hath cleared the contrary that Warrandice is never extended to subsequent Statutory Laws but that these are alwayes upon the Purchasers hazard And therefore a general Clause of absolute Warrandice was not extended to a burden imposed by a subsequent Law though there was an Anterior abrogat Law to that same effect July 12. 1667. Watson contra Law Neither was extended to the making up of a Gleib though it was by vertue of a Prior Law but the Designation was after the Disposition July 1. 1676. Laird of Auchintcul contra Laird of Innes Yea absolute Warrandice in a Ladies Liferent which is most favourable was found not to extend to an Augmentation of a Ministers Stipend thereafter though grounded upon a Prior Law March 27. 1634. Lady Dumfermling contra her Son But where a Clause of Warrandice did bear that a Rental of a Ladies Liferent should be so much worth yearly it was found effectual to make up an Abatment of the Rental by a Ministers Stipend modified thereafter July 28. 1635. Lady Cardross contra her Son Or to the making up a Readers Stipend imposed by a Posterior Law For in these Cases it was the special tenor of the Clause to uphold the Rental which would have been effectual not only as to Eviction in Jure but as to distress in facto by Inundation Devastation or the like The intent of Absolute Warrandice being only against legal eviction it doth not extend to every burden that may affect the Land as to a servitude of Pasturage Fewel Feal or Divet Or to a Thirlage of the Land to the Miln of the Barrony paying the ninteetnh Corn June 21. 1672. Sandelands contra Earl of Haddingtoun Absolute Warrandice is sometimes general and sometimes special against Ward Relief and Non-entry c. with a general Clause and all other dangers perils and inconveniences whatsoever as well not named as named c. as to which the general Clause is not to be extended above the greatest of the special But the question ariseth if such Clauses will reach subsequent Wards or Marriages of the Superiour or to future Porefaultures or Recognitions Non-entries Liferent-escheats c. It is certain that whatever of these burdens besal by the fault of the Warrand he must be lyable therefore Absolute Warrandice being much stronger then Warrandice from Fact and Deed which reacheth not only to Facts of Commission but even to ommission of Duties and therefore if the Warrandice be but by the Authour and not by the Superiour these subsequent distresses will not reach the Author unless the Clause bear expresly such distresses past present or to come and so though the fee were extinct by the Forefaulture or Recognition of the Superiour or burdened by his Non-entry or remaining at the
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
Superiours must be called 73. All other interest of Fees are carried as part and pertinent though they be not exprest and albeit Woods and Lochs use oft to be exprest yet they are comprehended under parts and pertinents and therefore the Master of the Ground hath not only right to the Water in Lochs but to the Ground thereof and may Drain the same unless servitudes be fixed to Water-gangs of Milns or other Works and the Ground of the Loch and all that is upon it or under it is a part of the Fee But if the Loch be not wholly within the Fee but partly within or adjacent to the Fee of another then unless the Loch be exprest it will be divided amongst the Fiars whose Lands front therupon The parts of Fees are only exprest in bounding Charters but in all others the parts are only known by the common reputation of the Neighbour-hood what they comprehend under the Designations exprest in the Infeftments and by Possession as part and pertinent of the Lands Designed in the Infeftment whether they have but one common Designation as such a Barrony or Tenement or if there be an enumeration of their parts by distinct Names which doth not exclude other parts though belonging to none of the parts enumerat there is only this difference that expresse Infeftments are preferable to these which alledge but part and pertinent much more if it be alledged to be separatum tenementum requiring a distinct Infeftment and yet prescription as part and pertinent will exclude an Infeftment as a separat Tenement But where there are March-stones set it is a great convenience to preserve peaceable Possession and though it cannot be proven when these Marchs were set yet their being repute as March-stones will be sufficient to defend at any time within prescription But Lands are oftimes so large comprehending Mures and Mountains that March-stones cannot be set for remeid whereof the Lords of Session by an Act of Sederunt 1580. Ratified in Par. 1587. cap. 42. Ordained all Molestations in Property or Commonty in possessorso to be before Sheriffs Bailies of Regalitie and other inferior ordinar Judges where the Lands ly and for that effect the Lords will direct Letters of Cognition to proceed upon fifteen days warning by an Inquest of persons who best know the Matter the most part thereof being Landed-men having at least four Ploughs of Land or three hundred merks of irredeemable Rent and the rest substantious famous Zeamans of the same Paroch and failing thereof of the Paroch nearest adjacent and if both parties have Cognitions raised before Litiscontestation on either the half of the Assyzers shall be taken of these summoned for either party or in case there be not a sufficient number of them habile the Judge shall supplie the same and the odd man to be chosen by lot which Inquest shall visit the ground and shall return their verdict upon oath both upon the Clames and exceptions of the parties and in case the Judge ordinar be suspect or that the Lands ly in divers Jurisdictions the Lords are to appoint unsuspect Judges to be past under the quarter Seal There are only excepted the actions belonging to the members of the Colledge of Justice which are to be before the Lords yet the Lords are accustomed to grant Commissions to some of their own number where questions arise concerning the parts or Marches of Tenements to visit the Ground and there to receive witnesses hinc inde both as to Possession and Interruption which the Lords do advise and determine without an Inquest Parts of Tenements in possessorio are sustained by the present peaceable Possession for some time for seven years peaceable Possession will sustain the Right of the whole till Reduction And fourty years Possession as part and pertinent is sufficient in petitorio for the point of Right and will exclude an Infeftment express yea though it be an Infeftment as distinctum tenementum November 14. 1671. Walter Young contra William Carmichael But if there be interruptions and that either party hath had some Possession the express Infeftment will be preferable and any lawful Interruption will preserve an Infeftment of a separate Tenement but if neither party be expresly Infeft in the Lands in question interruption by either party will not exclude prescription because there is not a prior special Right valid of it self without Possession and therefore if both parties have had mutual or promiscuous Possession each Possessing when they could and turning off the other that part of the Land so possest will continue as a promiscuous Commonty which frequently falls out about the Marches of large Tenements and was so determined betwixt the Lord Strathoord and Sir Thomas Stuart of Gairntully if neither party have an express or several Infeftment Discontiguity will not exclude part and pertinent though if the question be with him to whom the Land is Contiguous less Probation will prefer him Craig l. 2. Dieges 3. relates a case in his time betwixt the Earl of Angus and Hoom of Polwart where Discontiguity did not exclude part and pertinent not being known as a distinct Tenement Pertinents comprehends all the Natural Fruits for Corns are accounted as Moveable and as no part of the Ground as hath been shown in the former Title Section second And also all servitudes so a servitude of a Pasturage in another Heretors Wood was sustained as a Pertinent by long Possession Spots Servitude Laird of Knockdolian contra Tennents of Partick And Part and Pertinent being exprest in a minute of Sale it was found to carry common Pasturage in a Mure which was a Commonty to a Barrony whereof the Lands sold was a part February 14. 1668. William Borthwick contra Lord Borthwick And in the case betwixt the Laird of Haining and Town of Selkirk decided February 15. 1668. A Barrony of the Kings cum pertinentibus cum pascuis pasturis was found to carry common Pasturage in the Mure of the Barrony and that the last fourty years Possession did presume the like Possession in the Feuars from the obtaining their Feues and that interruptions by the Town whose Infeftment was but general cum communiis did not exclude the Pasturage of the Feuers who had also made interruptions against the Town 74. Craig l. 2. Dieges 8. Debates this question whether Wood and Coal be parts of the Ground or only Pertinent as Fruit thereof for if these be parts of the Ground Conjunct-feers or Liferenters will have no share thereof nor Donatars of Ward Non-entry or Liferent-escheat so that the question is very important wherein he relates two Decisions one betwixt the Lord Seatoun and his Mother who being served to a Terce was found to have right to the third of a Coal-work constantly going for sale in the Defuncts time and another betwixt Ramsay of Dalhousie and Mary Ballantine his Predecessors Relict in relation to a Wood which the Fiar was found to have the only Right to Sell and
Earl of Argile as Donatar to his Fathers forefaulture seing the King had done no deed to accept Mcleod as his immediat Vassal but that he was Infeft by Precepts out of the Chanclery passing of course 6. Superiours nor their donatars need not instruct the Superiours Right but the Vassal must acknowledge it or disclaim him upon his peril so it was found in the Casuality of Marriage February 25. 1662. Arbuthnet contra Keiths which will not hold if the Right of Superiority be newly acquired and no Infeftment given to the Vassal or his Predecessors by vertue thereof The Superiours Infeftment gives him interest to pursue Reductions and Improbations against all parties even against his own Vassals who will be forced to produce their rights under the Certification to be declared null or false and feigned though when they are produced they may defend them 7. Superiority carrieth a right to the Service and Duty contained in the Vassals reddendo and that not only personally against the Vassal upon any personal Obligation or Contract in Write but also by vertue of Intromission in meddling with the Fruits and Profits of the Land for all such intromettors may be pursued and distressed personally for the Duties contained in the reddendo which being granted to Masters of the Ground for their Tack Duty against Tennents and all intromettors with the rents is much more competent to the Superiour for his Feu-duty or other Service in kind how far this will be extended to Blensh-duty hath been shown in the former Title And as to Services which are annual as winning and leading of Peats c. these are not due if they be not required yearly in due time whether they be due by Vassals to the Superiour or Tennents to their Master January penult 1624. Carnowsie contra Keith So Service of Harrage and Carriage in a Feu-duty was found not due but when demanded within the year June 27. 1662. Mr. David Watson contra Mr. James Elleis 8. But also the Superiority carrieth the right to the duty of the reddendo really against the ground of the Fee for which he hath Action of Poinding of the Ground against the Vassal and all singular Successors to him whereby he may appryze the Goods upon the Ground or the Ground-right and Property of the Lands the saids Duties being liquidat upon repayment whereof the Lands are redeemable as in other Appryzings 9. Superiority carrieth the Right of Jurisdiction over the Vassals Lands and Inhabitants thereof if the same be granted to the Superiour in his own Infeftment either implicitely as being a Barrony Lordship or Earldom or expresly having the power of Courts and their Issues and though the Superiour grant the same to the Vassal yet that is not exclusive of his own right but cumulative therewith how far Superiority carrieth the right of Thirlage of the Vassals Lands to their Superiours Milns when the Vassals have not granted to them the priviledge of Milns and Multars will appear amongst Servitudes of which hereafter 10. Superiority carries all the Casualities thereof requiring Declarator to Heirs and singular Successors hoc ipso that they have the Superiority established in their person and do not fall to the Executors of the Superiour as to bygones before his death unless gifted or liquidat by Sentence March 5. 1611. Dowglas contra Captain Crawford February 19. 1635. Cunninghame contra Stuart July 11. 1673. Robert Fa contra Lord Balmerino and Laird of Pourie But Feu-duties or any Casuality may be separat from the Superiority by Sentence or Assignation and therefore a Disposition of the Superiority was found to imply an Assignation to the Feu-duties bygone which being to the vassal himself needed no intimation and was valid against a singular Successor Infeft in the Lands in Superiority December 14. 1676. Earl of Argile contra Lord Mcdonald 11. A Superiour of Kirk-lands pursuing his vassal for his reddendo was not excluded till he instructed that he consented to the surrender conform to the Act of Parliament 1633. annexing the Superiority of Kirk-lands to the Crown reserving the Feu-duties to the Lords of Erection who consented to the surrender which was presumed in possessorio June 27. 1662. Mr. David Watson contra Mr. James Elleis 12. Superiours are oblieged to receive Appryzers or Adjudgers for a years Duty albeit the Superiour alledge a better Right then the Appryzer but the Infeftment to bear salvo jure cujuslibet suo July 4. 1667. George Shein contra James Chrystie Yet a Superiour having received an Appryzer was not found excluded from any right to the Property though he made no reservation thereof seing his receiving was necessary July 19. 1664. Hospital of Glasgow contra Robert Campbel But a Superiour being charged to receive an Adjudger was found to have his option either to receive him for a years Rent or to pay the sum adjudged for getting Assignation to the Adjudication being redeemable by the Vassal from the Superiour and without any years Entry to be payed at Redemption seing the Vassal was not changed as is provided Par. 1439. cap. 36. June 10. 1671. Sir Francis Scot of Thirlestain contra Lord Drumlanerk 13. And a Superiour is also oblieged to receive a Donatar upon the Kings Presentation gratis without present payment of the Non-entry duties till declarator and if he refuse he loses his Superiority during his Life June 25. 1680. Laird of Blair contra Lord Montgomerie 14. A Superiour must also receive his Sub-vassal whom his immediat Vassal refused to Enter without further instructing of the Vassals Right but by receipt of the Feu-duty by him as Superiour wherein the mediat Superiour supplet vicem of the immediat salvo jure June 28. 1672. Menzies contra Laird of 〈◊〉 Yet a Superiour cannot exclude an Appryzer or Adjudger within the legal from the Rent of the 〈◊〉 till he pay a years rent December 3. 1672. Mr. Hendry Hay contra Earlstoun 15. And if a Superiour or any to his behove take the gift of his own Ward he was found to have no interest to extend it further against his Vissal Infeft with absolute warrandice then to a proportional part of the Composition and Expenses February 15. 1665. Boyd of Penkil cintra Tennents of Carslooth The like where the Ward had fallen after the Vassals Right for if it had fallen before he could have nothing December 1. 1676. Lord Lindsay contra Bargallon 16. Superiours are not oblieged to receive upon Resignation or by Confirmation and having accepted Resignation it did not exclude the marriage of the Resigners Heir there being no Infeftment upon the Resignation before the Resigners death November 14. 1677. Sir William Purves contra Strachan of Kinadie 17. Superiority falling to more Persons doth not obliege the Vassal to take Infeftment of them all but if heirs portioners of the eldest July 30. 1678. Lady Lus contra Inglis And by the same reason if the Superiority fall to many singular Successors by Appryzing or otherways the Vassal
exclude Non-entry while they were allowed by the Acts of Parliament as there is also shown neither is it excluded by Tacts set by the Vassal which though they stand as real Rights against Purchasers by Statute yet have no effect against Superiors in prejudice of their proper Casualities Neither is it elided by Charters or Precepts granted by the Superior though containing warrandice till Infeftment thereupon March 20. 1630. John Hay contra Laird of Achnames Neither was it excluded by Apprysing and Charge thereupon without offer of a years Rent of the Land or Annualrent of the Money Feb. 3. 1681. Hendry Keir contra Hendryson Neither is it excluded because the Vassal was not in mora being hindred by a Question of Bastardry against him Spots Non-entry 〈…〉 contra Naiper of Wrightshouses Nor doth the Vassals Minority stop Non-entry of Lands not being Ward nor restore the Minor as Lesed For as hath been now shown It is not the negligence of the Vassal but the nature of the right that infers Non-entry yet there is no doubt if it be by the Superiors fault it will be a personal Exclusion against him Non-entry is most favourable when extended as to the retoured duties But as to the full Rents it is capable of many other exceptions and doth not alwayes run from the Citation in the General Declarator as if a Superior raise his Declarator and also Reduction of the Vassals Seasine though he reduce the Seasine he will not have the full Rents till the Decreet of Reduction and Declarator Novemb. 26 1672. Earl of Argyle contra Laird of Macleud yea if the Superior do not insist but only use Citation which may be at the Vassals dwelling house and never come to knowledge or the Vassal being a Pupil without any Tutor it is not like the Lords would sustain the whole Duties from the Citation but from the time the Vassal becomes contumacious And Queensberry having interposed Kelhead betwixt him and his Vassals who thereupon pursued Declarator of Non-entry though the Infeftment was found null yet the Disposition was found to carry a Gift to the Casualities of the Superiority and the Vassals were only found lyable for the Rent after the Interloquitor sustaining the disposition as a gift of Non-entry and where a Tailzie was found to exclude a second Branch so long as there was hope of a former Branch the Lands were found in Non-entry as to the retoured Mail but not as to the full Rent seing the Heir did not forbear to enter through wilfulness but of necessity Julie 24. 1677. Lord Melvil and David Melvil his Son contra Sir William Bruce And where a Singular Successor to the Superior pursued Non-entry it was not sustained till he produced his progress from the acknowledged Superior the full duties were not found due from the Citation Julie 18. 1680. Earl of Queensberry contra Irwin of Cove And Craig relates that where the Defunct died in Battle for his Superior Non-entry should have no place We shall not here speak of common exceptions which extinguish all Rights as prescription homologation or the priviledge of these who are absent reipublicae causa As to the Question whether Non-entry Subsequent to Ward whereby the Superior or his Donatar is in possession requireth any Declarator Craig and Skeen upon the word Non-entry are for the negative and since Had. and Durie observe March 23. 1622. Lesly contra Pitcaple that the Lords found that where the Superior pursued both for the Ward and subsequent Non-entry that he or his Donatars not being in possession by the Ward behoved to declare the Non-entry which would only carry the retoured Mails till Declarator The next Casuality of the Superiority is the releef due by the Vassal to his Superior for his entering him in the Fie as the lawfull successor of the Vassal And though relees be only considerable in Ward-holdings and uses to be subjoyned to Ward yet all Fies which require Renovation are lyable to releef and therefore Releef is here immediatly subjoyned to Non-entry 26. Releef is generally treated upon by the Fewdists The Original whereof Cujace ascribeth to the constitution of the Emperor Leo extant in the Novels bearing it to be the custom of several places that the superior should have that years Rent in which he receives a new Vassal in his Clientel which therefore by most of the Feudal Customs is extended to the singular Successors of the Vassal who in some places pay for their Entry the fifth of the price of the Fie and a fifth of that fifth whereby if the price were 100. Crowns the composition for the Entry would be 24. Crowns 27. But by the Customs of England and France the Heir of the Vassal if he be Minor payes no releef but he and his Fie are in the hands of the Superior as in Ward or Custody whereby the Superior hath the whole profites more then is fit for the Education and Intertainment of the Minor Valsal which ceaseth with his Majority and there is no releef due But if the Vassals Heir at his Death be Major his Fie is lyable to his Superior for releef which distinction is mentioned in the English Magna Charta the quantity of the releef by Heirs in England is in Ward-holdings or Military Fies 100. Pounds Sterling for an Earldome 100. Merks for a Baronry and 100. Shillings for any other Military Fie which is oblieged to maintain one Souldier And if the Fie be less and lyable only for a share of the entertainment of a Souldier it is lyable Proportionally Relief by the custom of France is for a Barrony 100. Franks and for any other Military Fie 15. But if it answer not to the entertainment of one Souldier it payes for every Aiker 12. Deniers but if it be not a Military Fie but that which the English calls Sockage the Reddendo whereof is not Military service but some other payment or performance which is doubled the first year after the death of the Vassal the one half thereof is the releef which is a real burden for which the Superior may Poynd or distrenzie all goods upon the ground But as to singular Successors the most ancient Feudal Customs making them only to descend to the Issue of the first Vassal whose Collaterals had no right but were like our kindly Tenents by the propinquity of blood yet by the favour of the Superior they were oftimes admitted in the lie and were only lyable for relief If the Superior did receive a stranger upon the resignation of his Vassal he was to pay a relief which in some places was the fiftieth part of the Price And by the Custom of France it is the thirteenth part From the Original of Relief the reason of its name may be conjectured and these who appropriat it to Ward-holdings interpret it to be called relief from redeeming or Relieving the Fie out of the hands of the Superior But relief being a general Feudal name and many Nations not allowing the
old it was otherways and that the Superiour had the Ward with the burden of intertaining the Heir and with the paying of the Annualrents of his Heretable debts and that the Custom of Wards in France is such Yet there is no appearance that the custom hath ever been so with us since the reign of King Malcolm who gave out all his Lands to his Subjects and reserved only to himself for sustaining of the Royal Dignity the Ward and Marriage of his Vassals which at that time were very considerable when most of all the Lands in Scotland were holden by simple Ward but since a great part hath been changed into blensh or Taxed Ward or given out in Burgage and Mortifications or in Feues The Casuality of Ward may be enjoyed immediatly by the Superiour but is more ordinarly gifted to Donatars not only by the King but by other Superiours which Donatars may do whatsoever the Superiour himself might because they Act by his Right and are in effect his Assigneys So that if gifts be granted to more Donatars the first Intimation or Diligence will be preferred Gifts of Ward and Non-entry were accustomed of old to be granted by the Exchequer together bearing not only for bygones but for time coming till the Entry of the 〈◊〉 Heir or Heirs And albeit Gifts of Ward run still in the same Style yet by the Acts and Customs of Exchequer Ward and Non-entry are several Casualities and pass by several Gifts and notwithstanding the foresaid Clause the Gift of Ward reacheth only during the time of the Ward and three terms thereafter if the Lands run in Non-entry but ward was not found to give right to three Terms full Rent here the Donatar was not in Possession during the Ward Novemb. 2. 1680. Laird of Dun contra Viscount of Arbuthnet And albeit the Gift contain relief yet that Casuality as Hope observeth is always demanded by the Exchequer and counted for by the Sheriff being but a small duty of the retoured mail as the gratuity to the Superiour at the Vassals Entry In that same place he saith that under the Gift of a simple Ward is not comprehended Taxed Ward which being Taxed is as a Feu duty and rather as a part of the Kings ordinar Revenue then a Casuality Upon which ground the Earl of Kinghorn as Tutor to the Earl of Errol having gotten a gift of his Ward without mention of Taxt-ward he was necessitat again to take a new Gift for the Taxt-ward and gave a considerable Composition and did not adventure to put the matter to debate before the Lords of Session whether his first Gift would have been extended to Taxt-ward or not 37. The fourth Casuality of Superiority is the interest of Superiours in the Marriage of their Ward-vassals which doth arise from the Nature of the Feudal Contract in proper Fees whereby the Vassal oweth the Superiour faithfulness and Military Service and is thereby in his Clientele which could Import no more then that he should not Contract affinity by Marriage with any that were in enmity with his Superiour for thereby his Fidelity might become suspect which would take place not only in the first Marriage of the Vassal but as to any subsequent Marriage though he had Succession by a former Marriage and might take place in the Marriage of the Vassals eldest Son even in his life and might be considered as an Act of Ingratitude if the enmity betwixt the Superiour and the Family with whom the Vassal was to marry were known to him and might import a breach of his Fidelity if the Superiour did prohibit him to match with that Family which was in open and known enmity to him The Superiour might also have Interest in his Vassals Marriage when he had the custody of his Person as a Tutorial Trust for the good of the Vassal 38. But Time and Custom hath given Superiours a far different interest in the Marriage of their Vassals here and in England of which there is no mention in the common Feudal Customs nor is it in use in other Kingdoms for albeit by the Custom of France female Heirs in the Kings Custody must require the consent of the King or his Procurator yet the not doing so infers not the value of their Marriage as in England and with us it is become a power in the Superiour to exact out of his Vassals Fee the value of a Tocher suitable to the whole means and Estate of the Vassal if he Marry without his consent and the double value being solemnly required to Marry a suitable person without disparagement if he doth not obey but Marry another this Custom was introduced in England in the Reign of King Henry the third It is commonly held to have been introduced in Scotland in the Reign of King Malcolm the second who gave out all his Lands in Scotland in Fee and reserved to himself for the ordinar support of the Royal Dignity the Ward and Marriage of his Vassals whence the marriage was designed as a profit to the Crown and by example was derived to the Subjects who giving their Lands Ward were understood to give the same with the like Priviledge of the value of their Vassals Marriage which doth never take effect till the Vassal be Major for during his Minority his Superiour or his Donatar have the full profites of his Fee over and above the expenses of his Education and mentainance according to the Vassals quality if he have no other Estate which is not Ward the profits whereof may be sufficient to Entertain and Educate him or in so far as these profits come short for no Minor is oblieged to spend his Stock upon his mentainance nor may his Tutors or Curators securely do the same Therefore the true Interest of Superiours in their Vassals Marriage should now be the Tocher suitable to the Vassals Estate Marrying after his Predecessours death if he had not been Married before for the value of the Marriage being due but once and not for every Marriage if the first Marriage fall not after the Defunct Vassals death it should not be demanded nor any account called for of the profite of the Marriage falling before he could be Vassal though it hath been claimed where the Vassal was Widow at his Predecessors death having no Children of the former Marriage but it came not to be determined by the Session though it was demanded by the Commissioners of the Thesaury from Sir Robert Barcley of Pearstoun And albeit the Vassal never marry yet if he be solemnly required by Instrument to Marry a suitable Person without disparagement if he live to his majority though he never Marry his Fee will be lyable to the value of his Marriage albeit he willingly ly out uninfeft not by the Superiours fault but his own for though Creditors have a remeid by a Charge to enter Heir within fourty dayes with certification that all execution shall pass as if the debitor were Entered yet there
found lyable to the Liferenter for the true worth of the Liferent-lands and not according as he set them though they were never set before except the Appryzer had set the Lands wholly or near to the worth March 9. 1631. Lady Huttonhall contra Lairds of Moristoun and Touch. 9. A Liferenters Executors was found to have right to the Mertimas Term though the Liferenter died upon the Mertimas day in the afternoon February 16. 1642. Executors of the Lady Bruntoun contra Heir of the Bishop of Glasgow And they have right to the whole Cropt and Profite of the Land laboured and sown by themselves or which was in Mansing and not set to Tenents though the Liferenter died before Mertimas December 14. 1621. William 〈◊〉 contra James Nisbit A Liferenters Executors was found to have right to the whole years Rent of a Miln Liferented by her she having survived Martimas and that Miln Rents were not due de die in diem but as Land-rents not as house mails though the conventional Terms of the Miln Rent was after Martimas viz. one Term at Candlemess after the Separation and the other at Whitsonday thereafter July 20. 1671. Guthry contra Laird of Mckerstoun But a Liferenter Infeft in an Annualrent of Victual provided to be payed yearly betwixt Zule and Candlemess her Husband having died after Martimas and before Candlemess she was found to have no share of her Annualrent for that Cropt January 12. 1681. Katharine Trotter Lady Craiglieth contra Rochhead Lady Prestoungrange 10. A Conjunctfee or Conjunct-infeftment is that which is granted to more persons joyntly which if it be provided to them and their Heirs simply it maketh them and their Heirs to have equal right pro indiviso and they are all equally Fiars and after the death of any of them their Portions belong to their Heirs but the Liferent of the Deceassing accresseth not to the Survivers but when Conjunct-infeftments are provided to Husbands and Wives the longest liver of them two and their Heirs There the Law presumes that the Heirs are the mans Heirs and by that Interpretation the wife by the Conjunctfee is but Liferenter and generally Heirs of man and wife in all things except Moveable Rights are ever understood to be the mans Heirs propter eminentiam masculini sexus so was it found in an Assignation to a Reversion granted to a man and his wife and their Heirs that thereby the mans Heirs first these of the Marriage and next his other Heirs whatsomever were understood Hope Husband and Wife Walter Collestoun contra Pitfoddels Yet though this be presumptio juris it admits contrary more pregnant evidences as a Reversion granted to a man and wife and their Heirs found to Constitute the wife Fiar because she was Heretrix of the Wodset Lands Hope Liferent Kincaid contra Menzies of Pitfoddels But to prevent this question the provision ordinarly is to the longest liver of them two and their Heirs whilks failing to such particular Heirs exprest whereby these are commonly esteemed Fiars whose Heirs what some ever are substitute And yet a sum provided to a man and his Wife and the Heirs betwixt them whilks failing to divide betwixt the man and wifes Heirs was found not to Constitute the wife Fiar of the half but only Liferenter and the wifes Heirs of line to be Heirs of provision to the man and that the sum was Disposeable by him and Arrestable by his Creditors January 29. 1639. Graham contra Park and Gerdon So strong is this presumption that there is no more meaned to be granted to Wives but their Liferent-right and no part of the Fee unless the provision bear expresly a power to the wife to Dispone and if it be adjected at any time during her life the Fee will remain in the man and that power in the wife will rather be understood as a Faculty like to the power given to Commissioners to Dispone Lands then an Act of Property unless that the provision bear a power to the wife and her Heirs to Dispone but a Conjunctfee to future Spouses of Conquest during the Marriage in these Terms The one half thereof to be disponed upon as the Wife shall think fit being in a minut of Contract expressing no Heirs but being a short draught the Lady being of great quality having about 22000. Merks yearly in Liferent beside Money and Moveables and the Husband being a Noblemans Son having gained an Estate of 7000. Merks yearly in the Ware which he had lest the Clause was found to be understood and extended so as to make both future Spouses equal Fiars seeing the Conquest was mainly to arise out of the wifes Liferent June 27. 1676. Earl of Dumfermling contra Earl of Callender If a Conjunct-infeftment be granted to two or more the longest liver of them and express no Heirs but a liferent to them all the same accresseth to the Survivers or if it be a Right of Lands or Annualrents to a man and his Wife the longest liver of them two and to their Son named and his Heirs the man and his wife are both liferenters and the Son is Fiar only unless the right be for security of Sums of money and then the person named is but as Heir substitute the Father is Fiar even though the Son were infeft with the Father and Mother January 14. 1663. Thomas Bog contra Sir Thomas Nicolson July 23. 1675. Moor of Anistoun contra Laird of Lamingtoun 11. The main difference betwixt Conjunct-fees and other Life-rents is that the Conjunct-fiar though by interpretation Liferenter only and so may not alienat or waste yet by the nature of the right and custom they have the benefit of all Casualities befalling during their life and may dispose thereof which will not only be effectual during their life but simply for that individual casuality So Conjunct-fiars may receive and enter the Heirs of Vassals and have the benefit of their Ward Non-entry Liferent-escheat and may grant Gifts thereof effectually even as to the time after their death So also a Conjunct-siar infeft with her Husband in Lands cum Sylvis was found thereby to have right to make use of the Woods for her and her Tennants use January 10. 1610. Hunter and others contra Relict of Gadgirth Vide Title 13. § 41. Liferenters have not these Casualities of Superiority yet a Baron having disponed his Barony reserving his Liferent was thereby found to have right to receive the Heirs of his Vassals but not singular Successors Ianuary 11. 1611. Crawfurd contra Laird of Glaspen And there is reason that the Fiar disponing with reservation to himself whereby his own Infeftment stands pro tanto should have greater power then a Liferent apart or by reservation not being before infeft conjunctfees though publick as ordinarly they are and thereby as to the Superiour the Fee is full and the casualities of Ward and Non-entry excluded yet the Heir may enter to the Property and compel the Superiour to
Till when he pleaseth or open the Ground for other effects of Property as to win Coal or Stone unless by consent or Custom it be otherways regular but so far as remains Grass belongs wholly to the other But most ordinarly Pasturage is in common either to the Proprietar and him that hath the Servitude Or to many having acquired the Servitnde promiscuously though with exclusion of the Proprietar from Grassing and that again is either for an indefinite number of sums or definitly for a certain number exprest Common Pasturage is ordinarly Constitute by the Charter of the Dominant ground expressing the Clause with common Pasturage which when general hath no other effect then the common Clauses of Charters to give the Right of any pasturage belonging to the Fee if any be But if it be cled with immemorial or fourty years Possession by the Act of Prescription it carrieth unquestionably the Right of Pasturage upon any ground belonging to the Superiour and upon which he might the time of the Charter have Constitute a Pasturage Yet it is more dubious whether long Possession can introduce Pasturage upon ground not belonging to the Superiour granter of the Charter and it hath been found that it hath been so Constitute yea though the Clause of common Pasturage be not in the Charter but only the Land Disponed with parts and pertinents with long Possession Spots Servitudes Knockdolian contra Tennents of Partick The like was formerly found in the case of the Town of Pearth anent the Isle of Sleiples Pasturage may also be constitute by a Contract cled with Possession without any Seasine which is effectual even against singular Successours Jan. 26. 1622. Turnbul contra Laird of Blanernie Pasturage being constitute in reference to the Dominant ground though it be indefinite and promiscuous must be regulate and proportionat according to the use of the several Dominant grounds having right thereto proportional to the Rent thereof or the Goods it may hold and Fodder in Winter Thus a Comontie was ordained to be visited and soumed and proportionat to every Room having priviledge therein Nicol. de communi the Laird of Sessnock contra Nimnto absent And though the pasturage hath been never so long promiscuously used without any determinat soums but that all have put to it what they pleased that cannot be constitute by prescription as a right being contrary to the very nature and substance of the Servitude whereby the pasturage would be destroyed and unprofitable to all if not regulable and restrainable to what it might hold and that by proportion for though some have been in use to put more Goods and some fewer yet unless the quantities had been determinat and fixed others could not be excluded from their proportion but such as by fourty years forbearance are wholly excluded It is accustomed in some places to regulate common pasturage by souming and rouming which is the determining of the several soums it may hold by particular proportion to every Room of the Dominant Tenement but none of the parties interressed can compel the rest to divide seing it would be frequently to the disadvantage of severals of the parties Interressed as when common pasturage is in a common Muire inclosed with a Dyke and so needeth none at least but one herd for them all which if it were divided of times the several proportions of most interressed could not be worth a several hird especially when the property remains in another though burdened with this Servitude even though the proprietar retain a share in the common Pasturage yet he alone is proprietar and if any Stone or Coal were found there it would belong to him alone But it is otherways in the Community of the full property where after division any party may Till and use all Acts of Property A Servitude of Pasturage of a definite number of Sheep upon large Muirs was found not to give Interest to cause the Heretor or Tennents soum the same that the ground might not be overflocked to the prejudice of the Servitude January 23. 1679. Mr. Alexander Dunlop contra Laird of Drumelzier Where Pasturage is Constitute upon ground a part of which hath been plowed before the Constitution it does not hinder the Master of the ground to Plow other places then what was formerly Plowed but he may Plow as much as he pleaseth yet so that whenever the Plowed ground lies Lee the pasturage will reach the same Jan. 20. 1680. Earl of Southesk contra Melgam and other Heretors about Munrew-mount 15. The chief and most frequent Servitude in Scotland is Thirlage or a restriction of Lands to Milns wherein the Miln is Dominant and the Lands astricted are servient For as hath been shown before a Miln is a distinct Tenement from Land and is not comprehended under the name of part and pertinent thereof unless there be an Erection in Barony Lordships c. Milns at first were built as sometimes they are yet without any astriction or Thirlage but only to gain by the Work thereof an equivalent hire and so it is a voluntary personal Contract of Location and conduction none being oblieged to grind their Grain thereat but such only come as please and for such hire as parties do accord Yet these who come to a Miln without astriction and without express paction are understood thereby to agree to the ordinary Multures of Corns not astricted which are called Outen-Town-Multures But now most Lands are astricted to certain Milns and for a certain quantity of Multure far beyond the value of the work or grinding of the Corns but upon other considerations whereby it is a part of the Rent of the Lands astricted as when an Heretor astricts his own Tennents to his own or anothers Miln it is a part of their Rent for the more Multure they pay they pay the less Rent and so it is alike to them whether it be great or small or otherways When a Superiour gives out Lands upon condition of Thirlage the Multures are a part of the reddendo or price and it is a general rule that none can thirle Lands but he that is Fiar and hath power of disposal thereof and therefore astriction though it be not favourable but hath the ordinary odium that other Servitudes have yet it is not to be accounted an unjust and intollerable Bondage 16. There are many questions about Thirlage which may be reduced to these two heads first How Thirlage is constitute and instructed Secondly How far it is to be extended As for the first we shall proceed from the ways more evident to these which are more dubious and first positively and then negatively The first and most unquestionable way of constitution of Thirlage is when an Heretor Thirleth his own Lands to his own Miln by consent of his Tennents whereby the Multure becomes a part of the Rent Secondly When an Heretor dispones his Lands with express condition of Thirlage thereof to his Miln or to any other
interpret they would render Infeftments of small effect That we may proceed orderly in this matter we shall consider First The constitution of Tacks Secondly The extent and effect of them Thirdly The kindes of them Fourthly The restricstions and defects of them Fifthly The avoiding and removing of them As to the First Tacks are also called Assedations as a setting or setling of the Tenement in the Land the English call them Leasses Some Tacks are also called Rentals as being the constitution of a fixed Rent and they are of longer endurance then ordinary Tacks being of one or more Liserents and have somewhat special in them of which hereafter 3. As to the Constitution of a Tack consider First Who may Constitute it Secondly Of what Thirdly How For the First to the Constitution of an effectual Tack the setter must not only have all the Capacities requisite to Contract but he must have right to the thing set and power to administrate which being Tacks may either be granted by Commission if it be special as to the Tacks or at least as to matters of great importance and a general Clause for others or otherways by Tutors Curators or other Administrators of the affairs of others concerning whom Craig lib. 2. Dieg. 10. moveth and removeth this doubt whether Tutors c. may set Tacks for longer time then during their Office which he resolveth negatively even though it were without the Minors Detriment continuing the ancient Tack-duty seing he is so far hurt as not to have the free disposal of his own The subject whereof Tacks are ordinarly set are Lands but it may be any other thing having fruite or profite as a Fishing an Office or a Casuality As to the manner of Constituting Tacks they must be considered in themselves First As personal Rights Secondly As by the Statute becoming real as they are personal Rights the consent of the setter and Tack-man agreeing in the rent is sufficient 4. But as Tacks are become real Rights there is a necessity of write except in a Tack of one year which may be verbal but if the agreement be for more years the setter may resile and though the Tacks-man be in possession if he resile it will have no effect as to subsequent years July 16. 1636. Alexander Keith Contra his Tennents the like though the Tennent possessed and builded Houses conform to the agreement yet the penalty of paying a years rent by the failzier to the observer was found to stand July 15. 1637. Mr. Andrew Skein contra But if once there be a Tack the setters promise not to remove the Tennent during his life was found effectual and not to be resiled from Nicol. de migrando Lumbsden contra Black 5. The write requisite to constitute a Tack requireth not many Solemnities but if the thing set the Parties the Rent and the Time be cleared the Tack will be valid It was ordinarly granted by the setter to the Tacks-man for such a Duty without any mutual obliegement upon his part like unto a Charter but because the Tennent not being bound might at the end of any year before Whitsonday renounce such a Tack and be free as being in his favour therefore they are now ordinarly by Contract whereby the Tacks-man as well as the Setter is oblieged to stand thereto 6. Craig saith in the fore-cited place Pactum de assedatione facienda ipsa assedatio parificantur praecipue si possessio sequatur which is unquestionable as to the setter and his heirs and was also found against a singular Successor by a personal obliegement in a Contract of Marriage providing Lands to a wise and warranding the same free of all Teinds except such a quantity which was in use to be payed whereby a posteriour Assignation to the Tack of these Teinds was excluded March 20. 1629. Laird of Finmouth contra Weyms The like of a Tack and Decreet Arbitral decerning a Tack to be granted This was in a Spuilzie Hope Spuilzie John Crawford contra 7. As a Tack becometh a real Right it must necessarily be cled with possession but requireth no Seasine or Instrument or other solemnity July 11. 1627. Wallace contra Harvie January 22. 1611. Laird of Pitsligo contra Philorth The like though the Tacks-man was in possession yet not by vertue of the Tack but by vertue of a Wodset though the Tack was renewed the time of the time of the Wodset Hope removing Walter Ord contra Tennents of Fydie and therefore a posterior Tack being first cled with possession was preferred to a prior Tack June 23. 1627. Mr. John Mcmillan contra Gordoun of Troquhan 8. Yet a Tack after redemption of Wodsett Lands is valide against singular Successors as a part of the Reversion though it attain no possession before the setter be denuded But it is contrary in a Back-tack appointed to follow a Redemption of an Annualrent for it and 〈◊〉 Lands are diverse and the possession thereof diverse Nicolson removing Gawin Hamiltoun contra Alexander and others but the prorogation of a Tack is the renovation of it and hath the same effect as a new Tack of that date for the years in the prorogation 9. As to the extension and effect of Tacks they are little less then of Infeftments for thereby the Tacks-man is maintained against all parties having interest till the Tack be out-run and be warned even though set by a Liferenter it will maintain the Tennent against the Fiar either from removing till warning or from paying more then the Liferenters Tack duty though it be small July 6. 1610. Mr. Robert Bruce contra Captain Bruce Yea though the Tack-duty was elusory set by an Appriser to a person being no labourer of the ground February 3. 1631. Blaues contra Winrham The reason why Tacks by Liferenters are effectual for the year in which the Liferenter died because by Act of Parliament Tennents can only be warned to remove fourty dayes preceeding Whitsonday So that if the Liferenters live till thirty nine dayes before Whitsonday their Tennents cannot be removed but brooks per tacitam relocationem till the new time of warning 10. A Tack hath also the benefit of a possessory judgement upon seven years peaceable possession as an Infeftment without necessity to dispute the setters right July 13. 1636. Bishop of Edinburgh contra Gilbert Brown which was found where the Tack did bear to be granted by the setter as heretable Proprietar Otherwayes a Tack by a Liferenter Tennent or Donator might claim the benefit December 1. 1676. Mr. Patrick Home contra Sir Laurence Scot. And therefore if it were alledged that the setter or liferenter had any other temporary title it would be admitted without Reduction if the Liferenter or beneficed person granter thereof were dead 11. A Tack set by an Heretor for a Tack-duty to be payed to his Creditors was found a real Right effectual to the Tennents but whether it would be found a real right in favours of
Successor who is oblieged to know or warn none but the natural Possessor which was not in the former case And tacite Relocation will be sufficient after a verbal Tack or where the Tack is presumed upon use of payment though none can be shown or proven Yea tacite Relocation was sustained for more years then the setter could expresly set and is ordinarly in the case of tacite Relocation upon Liferenters Tacks which continue still after their death till warning and was so found in a Patrons Tack of teinds after the Patrons right to set by the Act of Par. 1649. was rescinded January 16. 1663. Earl of Errol contra Tennents of Urie Relocation is valide against the Donatar of a Ward till Warning or Citation though the Tack-duty be elusory and that the Tack then sleep Spots removing Laird of Lie contra Glen of Barn But tacite Relocation is no relevant active Title against any but these who have right from the Tacks-man though they had acknowledged the same by payment to him for years anterior Decem. 12. 1621. Laird of Lag contra Porochioners of Leymon By what hath been said it may appear that the force and effect of Tacks is so great by reason of the foresaid Statute and Custom extending the same that it would swallow up all Heretable Rights and make Infeftments useless unless Tacks had their own Retrincnments and defects making Infeftments necessary 24. First Tacks not being Liferent-tacks fall in single Escheat but these fall by Liferent-escheat Par. 1617. cap 15. 25. Secondly Tacks have no effect against Superiours but sleep during the time of Wards Non-entires c. For Infeftments Feu are then valide only in some cases Yet Tacks are valide against Liferent-escheat which is a casuality falling not by the nature of Fees but by Statute or Custom Vide Title 14. § Liferent-escheat 26. Thirdly Tacks are strictissimi juris and no further extended then is exprest and therefore are not extended to Assigneys unless exprest and therefore Tacks granted to Women fall by their Marriage which is a legal Assignation and cannot be annulled yet may revive by the Husbands death unexpired Vide Craig lib. 2. Dieges 10. Upon the same ground a Tack not bearing to Assigneys was not found to accress to a Relict as infeft with absolute Warrandice as jus superveniens authori June 18. 1680. Margaret Home contra Janet Lyel which is to be limited thus that it doth not exclude legal Assignations by Appryzing and Adjudication But only voluntary Assignations Hope hic Lord Elphingstoun contra Laird of Airth November 16. 1680. Drummond of Carlourie contra Sir John Dalrymple Liferent-tacks also may be assigned not mentioning assigneys February last 1637. Home contra Craw. July 16. 1672. Duff contra Fouler The like when it is of more value then a Liferent-tack as being of many nineteen years Spots hic Ross contra Blair The like holdeth in the power of making Sub-tacks or out-putting and inputting of Tennents or Removings which are not competent thereupon unless express or unless it be against these who had the possession from the Tacks-man except in Liferent-tacks and these of greater importance 27. Tacks cannot be perpetual and therefore necessarly must have an Ish or else they are null what favour is herein granted to Rentals is herein showen 28. If there be no particular Ish but to endure till the payment of a sum it hath been variously decided whether it be effectual against a singular Successor negative July 13. 1621. Laird of Mckal contra his Tennents March 5. 1629. Laird of Lie younger contra Kirkwood Affirmative Hope hic Laird of Clackmannan contra Tennents of Balmaino The like in a Tack set to a Smith so long as he should worke the setters work July 11. 1610. Sir James Lundie contra Smith of Lundie This is unquestionable in Back-tacks which have no Ish but during the Non-redemption And in other cases the Affirmative is stronger both in reason and practice but it holds not if it be but an obliegement not to remove the Tennent until such a sum be payed that is only personal And neither a Tack nor an obliegement for a Tack unless it be contained in a tack bearing such a sum to be due to the tacks-man and for seourity thereof the Lands to be set and the rent to be as satisfaction of the Annualrent pro tanto was found valide against a singular Successor and that the tack wanted not an Ish because the payment of the Money was the Ish January 22. 1625. Isobel Ronald contra Strang. But the contrary was found March 5. 1629. Laird of Lie contra Kirkwood A Bond assigning to the Ferms till a sum were payed was not found valid against a singular Successor July 2. 1624. Mitchelson contra Law So a tack set for seven years for a certain tack-duty exprest with a Clause that the tacks-man should retain a part of the tack-duty for the annualrent of a sum due to him by the setter and should not be removed till the sum were payed was found valide against a singular Successor for the seven years because there was an excresce above the annualrent which remained for the Tack-duty but not for the rest being but a personal obliegement not to remove June 15. 1664. Thomson contra Reid January 27. 1674. Peacock contra Lauder The like where a Tack was set by a Liferenter for four years And while a sum were payed found valide against the Liferenters Assignayes the 18 of December 1668. Mr. Robert Smitoun contra Mr. John Brown The like was found in a Tack against an Appryzer allowing the Tack-duty for the annualrent of the sums there remaining a several Tack-duty December 11. 1677. Charles Oliphant contra James Currie 29. Fifthly Tacks are not valide as real rights against singular Successors unless they have a Tack-duty yea if they have one but in the Tack it self it be wholly discharged yet the Tack is valide neither will the discharge of the Tack-duty be valide against the setters singular Successor January 31. 1627. Mr. James Ross contra Blair 30. But the want of an Entry vitiats not a Tack for when there is no Entry the date or the next Term is the Entry December 4. 1629. Mr. William Oliphant contra Mr. Heugh Peebles 31. Sixthly All Tennents are burdened with necessity to enter and labour the ground that the Master may have ready execution February 27. 1623. Samfoord contra Crombie and not to rive out Meadow or Greens never plowed or destroy Mosses or deteriorat the ground worse nor he found it February 6. 1633. Laird of Haddo contra Johnstouns and must leave the Houses as good as at his entry February 27. 1610. contra All which are without express provision Neither may the Tennent open the ground for winning of any Mineral Coal or Clay for Pipes without that power be exprest the 15. of February 1668. John Colqhoun contra Watson Seventhly Albeit Tacks be by Statute as real
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-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
Parliament 1617. But even Wodsets cannot be transmitted without resignation 9. But where it is said that the resignation must be by the Vassal or his Procurator this question ariseth if the Assignation be made by him who is not truely Vassal but with consent of the true Vassal quid juris Craig lib. 3. dieg 1. shows that in his time this question was not clearly determined nor is he positive in it but this far if the resigner had no Title no consent could be sufficient yet if he had a colourable Title the consent of the true Vassal might validate it If the true Vassal be consenter to the Procuratory of resignation either expresly bearing that the disponer with consent c. constitute his Procurators Or if he be consenter to the disposition by being exprest in the entry thereof which is holden as extensive to the whole disposition and so as repeated in the same will be as valide as if the consenter himself had granted the disposition or Procuratory for the Act of the disponer though more express and amplified is no more but his consent and so the other consenting doth the same materially which he would do if he were disponer formally but if his consent be adhibite after the resignation is made it is meerly personal and cannot have influence on the resignation which was before it or if he but permit or give license to the disponer or which is alike if he consent that the disponer dispone in so far as may concern the disponers right these will not be sufficient warrand for the resignation but if he give warrand or consent to the resignation it is sufficient neither is there neces sity to distinguish whether the disponer have a colourable Title or not se ing it is the consent of the true Vassal and the resignation as flowing from and warranted by that consent which transmitteth the right and therefore an Infeftment of an annualrent granted by a person not Infeft was found valide because a consenter thereto was Infeft and so it did exclude a valide right flowing from that consenter to a singular successor thereafter viz. a Tack Decem. 15. 1630. Jean Stirling contra Tennents 10. Resignation how necessar soever to transmit an Infeftment yet because the Procuratory and Instrument of resignation may be lost therefore the Vassal possessing fourty years by vertue of an Infeftment mentioning such a resignation the same will be valide without the production of the procuratory or Instrument of resignation which therefore is presumed thence presumptione juris Par. 1594. cap. 214. 11. As to the effect of resignation there is no doubt but when the same is truely made and Infeftment follows conform the resigner is fully divested and the acquirer is fully invested and if there be conditions or provisiions whether bearing express clauses irritant that the acquirers Infeftment shall be null and the disponers Infeftment shall revive or he have regress how far these are effectual till by resignation or judicial process the same be recovered is more fully cleared before Title Infeftments It is no less evident that before resignation be made the disposition or procuratory operats nothing as to the real right which notwithstanding remains fully in the disponer though he be personally oblieged to perfect it albeit there be no such express obliegement in the disposition yet by the nature thereof the disponer is oblieged to Infeft himself if he be not Infeft and to Infeft the acquirer Hope alienations William Gladstanes contra Laird of Mckerstoun Yea the disposition of property being accomplished carrysall real right of the Land or Bonds for granting real right in favour of the disponer or his authors neither assigned nor mentioned in the disposition July 1. 1623. Craigy Wallace contra John Chalmers Yea a liferent carryeth the reversion in the disponers person as to the Liferenters Liferent use that ther eupon he might redeem a Wodset So likeways a disposition of Lands immediatly before a Term not expressing an Entry nor Assignation to the rent was found to exclude the disponer therefrom though Infeftment followed not till after the Term Spots Mails and Duties Andrew Caldwal contra Robert Stark And generally it carrys Mails and Duties as including virtually an Assignation thereto July 15. 1629. Inter eosdem And though the Disposition or Procuratory cannot constitute a real right yet it doth sufficiently exclude the Disponer or his Heirs from troubling the Acquirers Possession thereupon 12. The Main question then is what is the effect of a resignation when done and accepted by the Superiour and no Infeftment following thereon where in that case the right standeth whether in the Disponer Acquirer or Superiour and whether the resigner be fully thereby denuded or if he may not grant a second resignation whereupon the first Infeftment being recovered will be effectual This is very learnedly debated by Craig in the forementioned place where he sheweth that the common opinion was that the second resignation with the first seasine will be preferred though the Lords had decided otherways in the case of a Citizen of Perth who making a second resignation in favours of his Son though after the first resignation by the space of twenty years yet Craig approveth the old opinion concerning the resigner never to befully divested till the acquirer were invested this is clear that by the resignation the Fee falls in Non-entry ' and is in the superiours hands and while the resigner resigning in his own favours bereceived or the resignation past from Or otherways the acquirer be infeft the superiour hath the Non-entry duties of the Lands resigned if the Infeftment be not delayed through his own fault It is also clear that by the superiours acceptance of the resignation in 〈◊〉 there is upon him a personal obligation to Infeft that person in whose favours the resignation was made and therefore though the resigner dieuninfeft his heir by a single service hath right to that asother personal rights and thereupon may compel the superiour to infeft him yea as Craig observeth in the fore-cited place the Lords upon supplication without Citation will grant Letters summarly upon sight of the Instrument of resignation and warrand therefore to charge the Superiour to Infeft the party in whose favour it was made who may not receive another resignation or nfeft an other party or else his obliegement may make him lyable to the obtainer of the first Resignation pro 〈◊〉 inter esse if he be not in mora in doing diligence to get his new Infeftment expede recenter but the real right will be carryed by the first Infeftment though upona posterior Resignation and so posterior Decisions go along with Craigs opinion not only in the case of the first publick Infeftment upona second Resignation but which is much more after a Resignation made a base Infeftment flowing thereafter from the Resigner and being but a short time before the publick Infeftment upon the Resignation yet was preferred
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
the Lands that the value and worth thereof might the more clearly appear where after discussing of the Appryzers Claim the hability of the persons of Inquest and Witnesses so much Land was appryzed and adjudged as was worth the sum the years Rent to the Superiour and expenses of Infeftments and if the Lands were burdened with any former annualrents whereby a proportion of Land could not be appryzed free of burden there was appryzed an annualrent forth of the Lands effeirand to the sums and expenses foresaid and redeemable in the same manner which was sustained by the meaning and intent of the Statute though by the words of it appryzing of Lands was only mentioned it was ever extended to all Heretable Rights thus it continued till the Lords of Session upon exceptions against the Sheriff upon his interest relation or enimity or upon the lying of Lands in diverse Jurisdictions for preventing of expenses by many appryzings where the Lands in one Jurisdiction sufficed not did grant Letters of appryzing under the signet direct not to the ordinar Sheriffs but to sherifts in that part which being frequent did come to run in course to Messengers as sheriffs in that part c. And thereby the appryzer in respect the Letters had a blank for inserting the Messengers name did choise the Messenger who did denunce all Lands and other Heretable Rights which the appryzer pretended to belong to his debitor And in respect the Letters bore dispensation of the place did apprize at Edinhurgh all that the appryzer clamed in satisfaction of the debt without knowledge or consideration of the value of the Lands or others appryzed or proportion to the sums appryzed for and thereupon was Infeft in the whole and payed to the superiour a composition for a years Rent of the whole which was a considerable accession to the Debitors debt and behoved to be payed by him and by the saids appryzings the appryzer might and oftentimes did enter in possession of the whole Lands without being countable for the rents thereof of what quantity soever By this abuse the intent of that excellent statute for appryzings was enervat and the same turned in a meer Formality until the Par. 1621. cap. 6. which began to correct that exorbitant abuse and declared appryzers countable for their intromissions in so far as exceeded their Annualrents to be imputed in their principal sums pro tanto and that they being thereby satisfied of their sums principal and annual composition to the superiour and expenses of appryzing and infeftments that thereby the appryzing should expyre ipso facto and it is also declared that if the Lands appryzed be not worth of free rent effeirand to the annualrent of the said sums that before redemption he shall be satisfied of the superplus By which Act it is declared that Minors may redeem Lands appryzed from them at any time within their age of twenty five years compleat yet so that after the first seven year the appryzer shall have the benefit of the whole Mails and Duties till he be redeemed which hath always been extended to Lands appryzed from persons being Major if a Minor succeed during the Legal and if a person being Major succeed to him who was Minor he hath the benefit of Reversion of seven year in so far as was not run in the Minors life and if less remain then a year at the Minors death the Major hath a full year to redeem after the Minors death and by the Act 1669. of the abrogat Parliament 1641. appryzers were declared countable for the rents of appryzed Lands intrometted with by them during all the time of the Legal whether competent to Minors or others And because of another great abuse by the debording of Appryzings from the first institution that the first appryzer appryzing the whole Estate the other Creditors had no more but the Legal Reversion which did ordinarly expyre the subsequent Creditors not being able to raise money to redeem the anterior appryzer whereby the first appryzer carried the whole Estate and excluded all the rest and being ashamed to take so great a Legal advantage and sometimes not daring to make use of it did ordinarly compone with the debitor his appearand heir or some confident to their behove whereby the debitors heir recovered his whole Estate by satisfying one Creditor and excluding all the rest therefore the Par. 1661. by their Act 62. anent debitor and creditor declared that all appryzings deduced since the first of January 1652. or to be deduced in time coming within a year after the first appryzing which became effectual by infeftment or Charge should come in pari passu as if one appryzing had been led for all the sums and thereby the legal was extended to ten year and it is declared that whensoever the appearand heir or any to his behove shall acquire right to any expyred appryzing that the same shall be redeemed from them within the space of ten year after their acquiry by posterior appryzers upon payment of what they truly payed in so far as shall not be satisfied by their intromission But neither did this statute cure the abuse of appryzings and therefore the Act of Par. of the 6. of septem 1672. upon consideration of debording of appryzings from the first design and of the great inconveniencies arising thereby for the bringing in of all appryzers within year and day did give way to break the credit and ruine the interest of the most considerable Heretors in the Kingdom that creditors being thereby invited under the hazard of being excluded to appryze within a year and thereby one wilful malicious or necessitous Creditor apprizing all the rest followed and intirely brook their credit unless they would pay all their debt in one day therefore the Parliament did in place of Appryzings ordain adjudications to proceed before the Lords of Session for adjudging the Lands and other Heretable Rights of debitors effeirand to the sums appryzed for and a fifth part more in place of the penaltiies and sheriff-fee and allowed Witnesses for either party for clearing of the Rental and rate of the Lands in the several places where they ly and appointed the adjudger to have present Possession of the Lands adjudged not being accountable for his intromission during the Legal redeemable only within five year whereby the Creditor had easie accress for his satisfaction without all hazard or account which had been the ground of many tedious Processes of Count and Reckoning for the Intromission of former Appryzers and wherein the Adjudgers is to have the Consent of his debitor both as to Right and Possession and delivery of the Evidents and it is declared that if the debitor do not instruct and deliver a good Right and consent as said is that the creditor might adjudge all the debitors Estate in the same manner and to the same effect as is appointed by the Act of Par. 1661. between debitor and creditor We shall not here speak of
would be thereby preferable to all other Rights after the Registration thereof June 8. 1665. 25. There are many debates which arise concerning the Entry betwixt appryzers and Superiours as whether the Superiour can be compelled to receive the appryzer without instructing that the Vassal from whom he hath appryzed was Infeft or specially Charged which hath been several times decided Negative fifty years since But now of a long time Charges against Superiours for Infefting appryzers salvo jure ejuslibet suo have been still sustained because it is unusual and difficult for the appryzer to get his debitors Evidents unless it were the Extract of his Seasine and the Superiours receiving him upon obedience cannot prejudge him and therefore the Superiour was ordained to receive the appryzer though himself was in possession by vertue of a Right March 5. 1634. Black contra Pitmedden The like whatever Right the Superiour might pretend March 11. 2636. Margaret Scot contra Gilbert Eliot 26. The quantity of the years Rent by the Act of Par. 1469. cap. 36. is exprest to be a years Mail as the Land is set for the time wherein consideration is had of such real burdens affecting the Land as are taken one with the Superiours consent But in the case of a Liferent so taken on the years Rent was modified full but delayed to be payed till the Liferenters death July 18. 1633. Branden Baird contra Consideration is also had of Feus set by the debitor before the appryzing which while warranted by Law the Superiour will only get a years Feu-duty for receiving the appryzer in the Superiority Feb. 15. 1634. Munktoun contra Lord Yester Spots appryzing Walter Cowan contra Master of Elphingstoun But the Superiour will not be oblieged to receive the appryzer for a years Rent of the Money appryzed for but of the Lands appryzed March 23. 1622. Mr. Simeon Ramsay contra Laird of Corstoun March 30. 1637. Thomas Peterson contra Walter Murray Yet in this last case the Lords modified the Rent far within the worth of the Lands for the Rent being worth 800. Merks was modified to 300. Merks A Superiour must not only receive the first Appryzer but all others who Charge though one was Infeft before any other Charged March 11. 1628. Ferguson contra Couper And if more Charge he must accept a years Rent for all providing that he who should be preferred refound to the rest the proportions payed by them to the Superiour July 22. 1628. Lord Borthwick and Walter Hay contra Haistoun and Smith 27. If the Superiour be contumacious and will not enter the appryzer upon diligence Craig lib. 2. dieg 2. Prescrives that the Superiour may be thrice required and if he refuse Letters may be obtained from the Lords to Charge his Superiour to receive the appryzer supplying his place and so from Superiour to Superiour till he come to the King who refuseth none by which the Superiour would loose the Casualities of his Superiority during his Life as is ordinary in the Entry of heirs upon retour 28. As to the next Point Infeftment following upon appryzing doth Constitute a real Right but under Reversion of seven years being before the Act debitor and creditor Par. 1661. cap. 62. or since of ten years which is counted from the date of the Appryzing and not from the allowance or Infeftment November 11. 1630. Laird of Limpitlaw contra Mr. James Aikenhead 29. Yet it remains but as a security which the appryzer may renunce or make use of other securities till he be satisfied March 15. 1628. Lord Blantyre contra Parochioners of Bothwel The like though after the Legal was expyred Decem. 7. 1631. Scarlet contra Paterson But here the appryzer had attained no Possession 30. Remains the last Point proposed how appryzings become extinct and are taken off and that is first when the appryzing is declared null thorow defect of any essential Solemnity Secondly When the sum whereupon it is deduced is not due as when the half thereof was payed Hope appryzing Samuel Blackburn contra James Lamb. James Lamb contra Hepburn of Smeatoun Or being deduced for a Terms Rent which was not due till after the appryzing albeit it was an assigney who appryzed seing it was to the behove of the Cedent it was found relevan to reduce the appryzing in totum June 20. 1678. Scot of Burnfoot contra Sir John Falconer and James Edmonston Jan. 31. 1679. Francis Irving contra contra Laird of Drum The like where a part of the sum was Poinded for and yet the appryzing was for the whole Nicol qui potiores in pignore John Steven contra Maxwels Or where the denunciation was before the Term of payment though the appryzing was after Nov. 28. 1623. Mr. Robert Craig contra Wilson And an appryzing for two Sums instead thereof as to one of which sums the decreet was loosed turnedin a Lybel before the appryzing was deduced Yet the appryzers intromission thereby before Citation was not found to be repealed as being consumed bonafide upon a colourable Title Nov. 23. 1677. Boid and Graham contra Malloch And an appryzing was reduced because one of the sums appryzed for was Registrat a non suo judice July 20. 1678. Moreis contra Orrock of Balram In which case the Lords would have sustained the appryzing as a security for the true sums resting if the appryzer would have past by the Termly failzie for the Lords do frequently Supply defects in appryzings or adjudications in so far as they may stand as securities of true debt and real expence especially when the question is betwixt the debitor and the appryzer but not in competition with more formal Rights and they are most strict against appryzings or adjudications when they are insisted upon as expired or for penalties Sheriff-fees and the annualrents thereof and therefore a posterior appryzing being solemn and formal according to the Custome then in use was preferred to a prior not being so formal July 15. 1670. Lady Lucia Hamiltoun contra Boyd of Pitcon And likeways an appryzing being led for Penalties and termly Failzies was reduced as to these because a part of the sum was not due at the date of the appryzing though it was deduced at the instance of an assigney But if it were proven to the Cedents behove it was also found reducible quo ad the accumulation of the annualrents and making them and penalties Principal sums But seing the appryzer declared it redeemable though the Legal Reversion was expyred it was sustained as a security of the first principal sum and current annualrents thereof Jan. 31. 1679. Francis lrving contra Laird of Drum And appryzing was sustained upon a Bond bearing a long Term of payment with a Clause irritant that if two Terms annualrent run together unpayed the whole principal and annual should be payable without abiding the first Term though there was no Declarator of the irritancy it not being penal but taking away the favour of the
unexpyred not only as to his own Estate but as to the Cautioners Estate February 10. 1675. Lady Torwoed-head contra Florence Gardner 39. But the appryzer hath it in his option whether he will enter in Possession of the Mails and Duties or will uplift more thereof then his annualrent yet if a posteriour appryzer insist for Possession the first must either Possess do diligence and be countable or suffer him to possess February 11. 1636. Colqhoun contra Laird of Balvie But if the appryzer possess he must do diligence for the rent of that Land he possest and be countable not only for what he intrometted with but for what he might have intrometted with and if the Lands were Tennent-stead at his entry he must count accordingly at that rate though thereafter given over and waste if he neither set nor laboured them himself nor intimat to the debitor so to do Feb. 9. 1639. Brownhill contra Cawder The like found that the appryzer was countable according to the Rental allowing all defalcations Jan. 4. 1662. James Seaton contra Antony Roswal But where the appryzer entered in possession of the Lands waste he was not found countable according as he set them thereafter for the first year of his proper Labourage seing by the Season without his fault he lost thereby Decem. 23. 1629. John Dickson contra Young But an appryzer was found countable for the Rental of all the Tennents of a small Tenement lying contigue having taken Decreet against all the Tennents and yet refusing to count for some particular Rooms without showing any hinderance to uplift from these which other appryzers calling to account could not know that he had forborn these but nothing was determined as to the common debitors own labourage Jan. 14. 1681. Schaw of Grimmat contra John Mure Writer Yet where the appryzer was disturbed in his Possession by the debitor Via facti or via juris he was not found countable by a Rental but what he recovered till he attained to peaceable Possession Jan. 20. 1681. Burnet contra Burnet of Barns 40. The Act of Par. 1661. cap. 62. hath lengthened the legal of appryzings and hath brought in all who appryze within a year of the first effectual appryzing pari passu By this Act these these alterations are introduced as to appryzings First Whereas before the first appryzer being infeft or doing diligence had only access to the whole appryzed Lands till he were satisfied Now the Lords are impowered to limit the Possession during the legal as they shall see cause the appryzer getting his annualrent or security therefore and therefore an appryzer pursuing for removing and Mails and Duties his pursuit was only sustained for so much of the appryzed Land as she should choose the rent whereof would be equivalent to eight per cent of the sums appryzed for he being countable for the superplus more then his annualrent and publick burdens the defenders House and Mains being always excepted seing there was sufficient of other Rents June 27. 1672. Nicolson contra Sir William Murray But the power granted to the Lords to restrict appryzers is only personal and peculiar to the debitor and not to the posterior appryzers July 28. 1671. Murray contra Earl of Southesk and others Secondly All appryzings led since the first of January 1652. before the first effectual Compryzing obtaining Infeftment or charging the Superiour to receive or within a year after the same or to be led thereafter upon any persosonal debts come in pari passu as if they all had been contained in one compryzing the other appryzers paying to the first effectual Compryzer the expenses of his compryzing and Infeftment thereupon but the year is not to counted from the Infeftment or Charge by which the appryzing becomes effectual but from the date of the Decreet of appryzing July 4. 1671. Laird of Balfour contra Mr. William Dowglas But this extends not to appryzings or annualrents or other debita fundi and accordingly it was decided by the Lords that those other appryzers behoved to pay the whole composition to the Superiour Feb. 5. 1663. Robert Graham contra John Ross. Yet these appryzings that were prior to the Act were not found to come in pari passu from the dates of the appryzings albeit the Act bear that they should come in as if they were in one appryzing but only from the date of the Act of Parliament And as to what the first appryzer had possessed bona fide before the act of his intromission exceeded his annualrent the same should be imputed to the expenses of the compryzings and composition and in payment of the sums appryzed for pro tanto Jan. 7. 1665. Graham of Blaitwood contra Browns But an appryzing led before January 1652. though Infeftment or Charge were used thereon after Jan. 1652. was found to exclude all appryzers after Jan. 1652. whose Infeftment or Charge were posterior to the Infeftment or Charge upon the appryzing led before Jan. 1652. and that the said posterior appryzing did not come in pari passu with that led before Jan. 1652. Because the Act of Parliament relates nothing to appryzings deduced before Jan. 1652. Decemb. 12. 1666. Sir Henry Home contra Creditors of Kello And albeit the first effectual appryzing was satisfied and so extinct yet it did stand valid as to the second appryzing within year and day but a third appryzing was not found thereby to come in pari passu with the second appryzing as being within year and day thereof as if the second appryzing became the first appryzer Decemb. 13. 1672. Street contra Earl of Northesk and James Deans Feb. 20. 1679. Tennents of Mortoun contra Earl of Queensberry And where the first appryzer 〈◊〉 but a part of the Lands appryzed the second appryzer not Infeft was preferred to the third appryzer Infeft as to the remanent Rents because the second appryzer needed no Infeftment but the Infeftment upon the first appryzing was sufficient for all the appryzings led within the year of the first Decemb. 22. 1664. Doctor Ramsay and William Hay contra Alexander Seatoun There is also an exception from this Clause by another Act of Parliament 1661. cap. 21. Session 3. that second apprysers shall not be prejudged if they did acquire right to a former apprysing redeemed and satisfied by them for their own security before the said Act albeit led since Jan. 1652. which first comprysing shall remain in the same case as apprysings were formerly it was so decided without necessity to alledge that Right was taken to the first apprysing to shun the expyring of the legal or any other necessary cause Decemb. 9. 1664. Veatch of Dawick contra Alexander Williamson Thirdly The extent of the legal is altered from seven years to ten years so that where the legal was not 〈◊〉 the time of the act three years were allowed to redeem them from Whitsonday 1661. which terminated at Whitsonday 1664. Whereanent it being questioned whether intromission
renunce in the second instance after Decreet obtained against him Or in the first instance when the Ground and Title of the Pursuite instructs the debt then there needs no other decreet cognitionis causa but the Pursuer Protesting for adjudication the same will be admitted summarly Adjudication it self is a most simple and summar Process whereby the heir renuncing and the debt being established as said is the whole heretage renunced orbenefite whereto the heir might succeed is adjudged by the Lords to the pursuer for satisfaction of the Defuncts obliegement wherein the heir renuncing is again called to sustain the part of a defender which is only for forms sake for he can propone nothing and one single summonds is sufficient without continuation because it is accessory to a prior Decreet as Dury observes but expresseth not the Parties Feb. 26. 1629. And all is adjudged periculo potentis whatsoever the Pursuer pleaseth to Lybel alledging that it might have belonged to the heir entring Yea though any Party having Interest should compear and instruct that he hath the only Right and the Defunct was fully denuded it would be incompetent hoc loco Spots adjudication Cairncorss contra Laird of Drumlanrig 46. The reason is because the Adjudication is but periculo petentis and can give no Right unless the Defuncts Right competent to the heir renuncing be instructed Neither can the adjudger who is a stranger to the debitors right be put to dispute the same in obtaining the adjudication yet the Lords admitted a singular successor to propone upon his Infeftment that the Defunct was denuded and adjudged not the Property but all Right of Reversion or other Right competent to the appearand heir July 22. 1669. Alexander Livingstoun and Sornbeg contra heirs of Line of the Lord Forrester In this case the matter was notour to many of the Lords that the Lord Forrester having no Sons did contract his Estate with one of his Daughters to Leiutenent General Baities Son who was thereupon publickly Infeft But the reason why appryzings and adjudications have past so much at Random is because the appryzings have deboarded from their ancient form by an Inquest knowing the Lands which therefore would never have appryzed Lands but where the debitor was commonly repute Heretor or Heretable Possessor But when appryzings came to be deduced by Sheriffs in that part constitute by the Lords by Dispensation at Edinburgh where persons were made the Inquest who knew nothing of the Lands then all became to be appryzed which was claimed and though the appryzer would not pay a years Rent for entering him in Lands where he had no probability of Right in his debitor the greatest inconvenience was as to the Lands holden of the King it was little addition of Expences to passe one Infeftment for all and other Superiours getting a years Rent salvo jure they were not suffered to Contravert But now Adjudications being in place of Apppryzings and passing upon Citation before the Lords it is not like they will adjudge Lands where the Debitors are not at least repute heretable Possessors or Liferenters for now the Lords are in place of the Inquest And albeit as they suffer Decreets in absence to pass periculo petentis so they will suffer Adjudication to pass of all that is Lybelled but if any other shall appear and make it appear that they and their Predicessors have been holden and repute Heretable Possessors and that there was no Right repute to be in the Debitor the Lords might readily superceed to adjudge till some evidence were given of the Interest of the debitor Seasines having been now Registrat since the year 1617. And likewise Reversions though adjudicationes of these might more easily pass then because no Infeftment would follow But where Lands are adjudged and Infeftments follow there arises thence grounds of pleas and pursuits especially for Reduction and Improbation upon which all the Heretors of the Lands contained in the Infeftments would be oblieged to produce their Rights and open their Charter Chests to parties having no pretence to their Estates The adjudication was sustained of all Lands generally without condescendence Decemb. 14. 1638. Corser contra Dury But where the Defender appeared not or contraverted it not in the adjudication Process for Mails and Duties of the Lands adjudged was sustained in the same Libel Ibidem And in adjudication of a Reversion the Declarator for redeeming the same was sustained in the same Lybel July 8. 1629. Dury contra Kinross 47. In adjudication all is competent to be adjudged Which should have befallen the heir entering as Lands Annualrents Reversions Tacks Liferents and all Heretable Bonds yea not only these Rights themselves but the bygone Rents and Duties thereof preceeding the adjudication and after the Defuncts death may be adjudged and pursued against the Possessors and Intrometters in that same Process because these are competent to the Heir renuncing and there is no other way to attain them as in the case of appryzings which are not extended to bygones seing these may be arrested and pursued as Moveables belonging to the Debitor as was found in the said case Corser contra Dury Decemb. 14. 1638. And likewise heirship Moveables for the same reason are competent in adjudications but not against other Moveables of the Defunct which may be confirmed Spotswood Caption Isobel Hagie contra her Daughters Novemb. 24. 1638. Campbel contra John Baxter and so it is not competent against an Heritable Bond made moveable by a Charge Jan. 30. 1627. Couper contra Williamson and Bogmiln Yet if an Heritable sum should become moveable after the Defuncts death as by an order of Redemption it would be competent by adjudication seing it could be reached no other way In adjudications it is only competent to Creditors to appear having like Process of adjudication depending for all will be brought in pari passu who are ready before Sentence with the first pursuer Hope adjudications Stuart contra Sturt 48. If the adjudication be of Lands or Annualrents requiring Infeftment the Superiour will be compelled to receive the adjudger though a stranger his Vassal though he do not instruct his Authors Right salvo jure cujustibet suo Feb. 9. 1667. Elizabeth Ramsay contra Ker. But as to the years Duty payable by the adjudger to the Superiour for their Entry though the Lords thought it equitable that it should take place as well in adjudications as appryzings the reason being alike in both yet found not sufficient ground whereupon to decern it seing the said years Rent is exprest in the Act of Parliament 1469. cap. 36. And the Composition of the Superiour for receiving appryzers Parliament 1621. cap. 6. Yet in the next Act of the same Parliament anent adjudications there is no mention of Composition to the Superiour though the Act relateth to the former Act anent appryzings and therefore they thought it not competent to them to extend the said composition ad pares casus where
trust reposed in him and the like hope of his Issue Patrene sequitur sua proles It was at first so simplie done that the entering of the Vassall in Possession in 〈◊〉 of his Peers was a sufficient Constitution of his Right and the Investiture signified then not so much the Act constituting as the Write evidencing the Fee in the which case from the nature of the right it is consequent first that none should succeed in the Fee but such as were fit for the Militarie Services and so Women and their Issue were utterlie excluded and all the Males Succeeded equally 2. In Proper Fees none could Succeed but the Lawful Issue of the first Vassall whose Person and Issue was specially chosen among which first the Male Issue of the Vassall who dyed last infeft according to their nearness do succeed with the right of Representation and so not per capita but per 〈◊〉 next unto the Descendents among the Collateralls Brothers and their Male Issue and among these the Brothers German and their Issue exclude the Brothers by one blood and after Brothers Father Brothers and their Male Issue And so other Agnats of the last deceased being alwayes of the Male Issue of the first Vassall which being extinct the Fee ceaseth and returneth to the Superior not as the Vassalls but by vertue of that Directum Dominium which still remained in the Superior In this course of Feudall Succession there could be no place to the Vassalls Father or other Ascendents because if the Fee were a new Fee or Conquest by the Son his Father nor his Brethren could not Succeed as not being of the Issue of the first Vassall and if it were an old Fee not purchased by the Son but whereunto he did succeed it doth necessarly presuppose the Death of the Father and other Ascendents to whom the Son could not be Heir nor succeed till they were Dead But when by the course of time Fees declined from the proper nature of Ancient Fees and the Investiture did express the Tenor and speciall nature thereof the Tenor of the Investiture became the first rule of Succession in such Fees and came in place of the Testament or Will of the Defunct for seing the Vassall could not alter the Succession without consent of the Superior he could not effectually Test thereupon 21. In the next place what is not the Express Will of the Vassall and Superior by the Tenor of the Investiture is regulate by their Conjectured Will from the nature of the Fee and Propinquity of Blood So if the Fee be Originally granted to a Woman her Issue 〈◊〉 succeed as well as the Male or if the Reddendo be not Militarie Service but Money Grain or Services competent to a Woman or Manual Services wherein there is no choise of Persons as Tilling c. And so generallie Fees holden Blench or Feu In all these Woman may Succeed because they are not excluded by the Nature of the Service 2. If the Fee be Granted to Heirs whatsomever not only doth the Issue of the first Vassall but all other his Lawfull Heirs or the Lawfull Heirs of the last Deceassing Vassall whether of the Issue of the first Vassall or not do succeed And now Fees being ordinarily acquired by Sale Excambion or the like Onerous Title Feuda ad instar 〈◊〉 sunt reducta Heirs whatsomever are commonly exprest and if they were not they would be understood for that which is Ordinar is Presumed 22. But now Custome hath altered the Course of Feudall Succession and given the Prerogative of Primogeniture to the eldest Male of the nearest Degree to the Defunct Vassall who excludes not only the Females of that Degree but the Males also and their Issue not only among us but in England France and most other Nations and therefore before we descend to our own Customes it will be fit to consider the Justice and Expediency of this common Custome in Feudall Succession The Lawfulness of Primogeniture will be easily evinced from what hath been said already upon Succession wherein the will of the Proprietar is the Rule even in Equity and though he be Naturally oblidged to provide for his own that Personal Obligation reatcheth him but not the Inheritance nor doth it Oblidge him to make these to Succeed but to give them Competent Provisions and therefore the Judicial Law which is the Positive Law of God evidenceth sufficiently the Lawfulness and in some Cases the Expediency of altering the Natural Course of Succession and therefore not only the Male Issue is thereby preferred to the Female All the Females are utterly excluded but only Daughters that the Inheritance may remain within the Tribe and the Preference of Males is because Femoles are less fitted for Management of Lands and therefore are to have a Portion which the Judiciall Law calleth the Dowry of Virgins The Expediency of Primogeniture is partly Publick and partly Private The Publick Expediency is that the Estate of Great Familyes remaining intire and undivided They with their Vassals and followers may be able to defend their Country especially against Sudden invasions for with us in France Polland and many other Places the Great Families are the Bullwarks of their Countrey Having 〈◊〉 to Maintain them selves and their Followers for some time without Standing Armies Constant Pay and Subsidies The Private Expediency is for the Preservation of the Memorie and Dignitie of Families which by frequent Division of the Inheritance would become despicable or forgotten Primogeniture taketh Place in Germanie and France in proper Fees like unto Our Ward-holdings but not in Allodialls and Lands holden Freely or for Cane or Rent Gudelinus de Jure novissimo lib. 2 cap. 13. relateth that in many of the German and French Provinces the Male gets two third parts and the Females one in the other Provinces the Children of the first Marriage succeed in all the Lands the Parents had during that Marriage and so in order the Children of after Marriages And in other Provinces and Cities the Youngest Son Succeedeth in all Excluding the rest and Generally Bastards are not admitted even to the Succession of their Mothers and in England though Primogeniture have the Prerogative by the Common Law yet it hath an Exception of the Custom of Kent where Primogeniture hath no Prerogative And therefore that Custom is called the Gaball kind of Kent which is as much as to give to all the kind The Customs of England and Germany are contrary in this That in Germany Parents come in the next place after Descendents and exclude Brothers and Sisters and all other Collateralls but in England Parents do never Succeed so if the Defunct have no Issue Brothers nor Sisters nor their Issue the Fathers Brother Succeeds and excluds the Father though his Relation be by the Father and much further distant then the Father And it sometimes falls out that the Uncle Succeeding dying without Issue the Father Succeeds his Brother and so Accidentally and
27. The entrie of heirs by hesp and steeple within Burgh 28. Entrie of heirs by Brievcs out of the Chancellarie 29. To whom these Brieves are directed 30. The manner of citting the Inquist and Proclaming the Brieve 31. Exceptions competent against members of Inquist 32. The appearand heirs claim 33. Exceptions against the Claim 34. First head of the Brieve 35. The 2. head of the Brieve 36. 3. head of the Brieve 37. The 4. head 〈◊〉 of Brieve 38. The 5. head of the Brieve 39. The 6. head of the Brieve 40. The 7. head of the Brieve 41. The Service 42. The Reture 43. Reduction of Retures by a great inquist 44. Reduction thereof otherways 45. Reduction of Retures how competent 46. Precepts out of the Chancellarie to Superiours to Infeft 47. Suspensions of the precepts and the reasons competent therein 48. The certification of the loss of the Superiority during the life of the Superiors disobeying 49. Further reasons of Suspension of these precepts 50. Whether the Persons nearest at the Defuncts decease may be entred where a nearer is in spe 51. Who are Fiars of Conjuct-fees or Provisions substitute 52. The entreast of heirs of Provision and import of Clauses of Conquiest in Contracts of Marriage BY the former Title it appeareth who are Heirs let us now Consider what their Interests are by being Heirs And that is either Active by the benefit or Passive by the Burden whereunto they do succeed For Heirs being successors in Universum jus quod Defunctus Habuit they do fully represent the Defunct both in the Rights belongiug to him and in the Debts due by him First then of the Interest common to all Heirs And next of the interest speciall to the severall Heirs 1. The interest of Heirs are most properly Competent when they are entered Heirs according to the due Course of Law of which afterward Yet somethings are competent not only to heirs entred but to appear and Heirs as first they have interest to prusue Exhibition of all writs made by their Predecessors to their Wives Children and others in Familia but not of writes made by them extra Familiam December 6. 1661. Margaret Forrester and Schaw of Sor nebeg her Spouse Contra Tailzefere Or to their Predecessors Simply to the effect they may know the condition of the heritage And may desiberat whether they would Enter Heirs or not Seing if they do Enter they are lyable for all the Defuncts Debts though they farr exceed his Estate and have no benefit of Inventary as in moveables And therefore they are allowed to pursue for inspection of all Writes Importing a debt of the Defunct Yet not so as to open the Charter Chists of Strangers who have purchased Lands from the Defunct on pretence of the Burden by the Warrandice for in that case the Strangers Infeftment will exclude them and only dispositions made to these in the Family hinder not inspection of the Heirs whole Rights Flowing from the Defunct or his Predecessors But I doubt not but all will be oblieged to produce Bands or Personal obleigements which might burden the appearand Heir if he enter As was found in the Case of Dispositions and Bandsgranted by the Defunct to Strangers Feb. 26. 1633 Laird of Swynton contra Laird of Westnisbit But if Infeftment had followed upon the Disposition the Defender would not be oblieged to produce the Disposition because the appearand Heir might by the Registers find his Predecessors denuded This inspection is competent during their Annus deliberandi It was so found in Favours of the appearand Heir pursuing Exhibition within the Year Feb. 26. 1633. Laird of Swinton contra Laird of Westnisbit where the Writs pursued for were likely to be the ground of a Plea against the Defender himself This Exhibition ad deliberandum is competent at any time before the Heir enter even after the Annus deliberandi which is granted to appearand Heirs that they may be free of all Actions on Chargesto enter Heir Reductions or Declarators during that time if they do not enter or behave as Heirs But on this accompt the appearand Heir hath no Interest to put parties to Compt and Reckon ad deliberandum June 22. 1671. Lessies contra Alexander Jeffray In these Exhibitions the Relations or Propinquity of Blood of the appearand Heir passeth without probation as Notorium So as if the Defender be absent the Decrcet will not be null for want of Probation of the Title Yet a Scots man born of Parents residing in Holland was found to have no Interest to pursue Exhibition as appearand Heir to his Father till he produced an Authentick Declaration and Tryal by the Magistrants in that place that he was the eldest lawful Son of his Father December 17. 1627. Fleming contra Broun 2. Appearand Heirs may defend all Rights competent to them upon Production of their Predicessors Infeftments whether they be called or compear for their Interest January 19. 1627. Laird of Rosline contra his Tenents and George Fairbairn for his interest They may also continue their Predecessors Possession and pursue for Mails and Duties of there Lands finding Caution in case of doubtfulnesse to make these forth-coming to any other having Interest Spots Heirs James Oliphant contra his Tenents Yea the Rents of Lands were so far found to belong to an appearand Heir That though he died un-entered the next Heirs not entering to him was found obleiged to pay the former appearand Heirs Aliment in so far as he intromitted with the Rents of the Years during which the former appearand Heir lived December 20. 1662. Ladie Tarsapie contra Laird of Trasapie And consequently the Rents might be confirmed by his Executors or arrested for his debt The like was found of moveable heirship wherewith the appearand Heir was intertained by his Mother June 29. 1629. Robertson contra Dalntahoy They may also pursue the Life-renters of their Estate for Aliment Feb. 12. 1635. James Hepburn contra Dam Margaret Preston and Isobel Seatoun 3. The Aliment of Heirs out of there Lands being Life-rented or in Ward is constitute by the Act of Parliament 1491. cap. 25. Bearing a reasonable Living to be given to the Sustentation of the Heir after the Quantitie of Heritage if the said Heir have no Blensh or Feu ferm to sustain him as well of Ward Lands fallen in the Kings hands as in the hands of any Barron Spiritual or Temporal whereby it is clear 1. That the Quantity of the Aliment is indeterminat And therefore is modified by the Lords according to the Quality of the Heir and his Estate 2. It takes no place if the Heir have Blensh or Feu Lands sufficient to sustain him but if these be not sufficient the same will be made up by the Life-renters and Wardatars proportionally March 16. 1622. Heir of Milioun contra Calderwood Yea where the Minor had any other means sufficient to intertain himself as the Heir being a Writer and thereby able to Aliment himself he
was found to have no Aliment from his Mothers Life-rent who brought 8000. Merks of Tocher and had but 10. Chalders of Victual in Life-rent July 21. 1626. Laird of Ramorny contra Law The like where the Heir was not Minor but designed himself Preacher and so having a calling Feb. 11. 1636. Sibbald contra Wallace Here the Relict was Infeft in no Land but had an Annualrent of 400. Merks out of Land and the Heir was not Minor Whereas the Lords thought the Act of Parliament was not in favours of Majors who ought to do for themselves but all must be considered complexly in this Decision Some Heirs by their Quality not being bound to follow Callings but the Life-rent was a mean Annualrent no more then an Aliment to the Relict the Pursuer Major and having a calling And certainly where the Life-rent is but an Aliment the appearand Heir must rather want then the Person provided for a cause onerous Though the Act mention only Ward Lands yet it was extended to a Minor having no Ward Lands against a Life-renter of all his Fstate being Houses and Annualrent of Money Feb. 22. 1631. Fiinnie contra Oliphant In this case it was not found sufficient that the Life-renter offered to maintain the Minor her own Child upon her own charges she being married to a second Husband But the Tutor obtained modisication with consideration of the moveable Heirship on the contrary where the Mother was not married her offer of Intertainment was received July 14. 〈◊〉 Alexander Noble and his Tutors contra his Mother Neither was the modifi cation excluded because there were free Lands at the Defuncft Death seing they were appryzed thereafter for the Defuncts debt Hope de haered White contra Caldwall The like the debt being great and the Annualrent thereof equivalent to the rent of the Lands not Liferented Feb. 13. 1662. Antonia Broun contra her Mother But Aliment was not found due by a Father Life-renter to his Son on this Act but only super Jure Naturae July 21. 1636. Laird of Rumorney contra Law Nor by a Grand-father to his Oye who had disponed his Estate to his Son reserving his Life-rent of a part the rest unsold by his Son being Life-rented by his Wife July 7. 1629. Hamilton contra his Goodsir But where the Heirs Mother brought a great Tougher and the Grand-father fell to a plentiful Estate by his Brother the Heir was found to have Aliment of his Goodsir though he disponed the Land to the Heirs Father burdened with his Mothers Life-rent June 27. 1662. Heir of Gairn contra Laird of Gairn This behoved not to be from the Statute but ex debito naturali Aliment was found due by a Liferenter to her daughter the appearand Heir though she renounced to be Heir July 16. 1667. Hamilton contra Symonton But where a Father disponed to his Son a part of his Estate reserving his Life-rent and another to his Son and his Wife in Conjunctfie after his Sons Death his appearand Heir got no part of his Aliment from his Goodsir but only from his Mother Feb. 26. 1675. Sr. John Whitfoord contra Laird of Lamington Aliment was found due to the Heir by an Asigney to a Gift of Ward without necessity to prove that he intromitted with the Ward Lands unlesse he had been Legally excluded which was Modified by the Lords And it was not found sufficient to intertain him in the Assignyes Family but nothing was Modified for that time that the Minors Mother Alimented him gratis Feb. 19. 1679. Sibbald of Cair contra Sr. Alexander Ealconer 4. Heirs also not entered have the benifite of such obliegments or provisions conceived in Favours of Heirs which by their Nature or Meaning require to be fulfilled before the Heirs entry As when a Party was obleiged to imploy a Sum upon Land and to procure himself and his Umquhil Spouse Infeft therein in Life-rent and the Heirs Procreat betwixt them in Fee the Bairn of the Marriage who would fall Heir was thereby found to have Right to crave his Father to imploy the Money accordingly though he never was nor actually could be Heir his Father being alive December 16. 1628. Laird of Collington contra Granton In this case the Lords inclined so to decide but decided not But that day Durie observes a like case decided July 7. 1632. Young contra Young The like was decided Feb. 13. 1677. Alexander Frazer contra John Frazer In which case a Father by his Contract of Marriage being obleiged to imploy a certain Sum upon security to Him and his Wife in Conjunct-fee and to the Heirs of the Marriage and likewise to take all Conquest during the Marriage the one half to the Wife in Life-rent and the other to the Heir of the Marriage in Fee after the Wifes Death Process was sustained at the instance of the apparent Heir of the Marriage against his Father who was decerned to imploy the special Sum to himself and after his decease to the Heir apparent of the Marriage albeit therby the Father would remain Fiar and might dispone or burden the Sum so imployed for reasonable Considerations but not by Deeds meerly gratuitous to evacuat the obleigment And if he did Deeds prejudicial he would be obleiged to purge the same or re-imploy 〈◊〉 But it was not so found as to the Conquest before the Marriage which might be altered during his Life for that only could be accounted Conquest that he had more at his Death then at his Marriage And so Heirs of a Marriage in an obleigment in case a Wife deceased without surviving Heirs of the Marriage these were Interpret Bairns of the Marriage who survived their Mother but died before their Father and so could never be served Heir to him January 26. 1630. Turnbul contra Colinshlie The like where a Father was obleiged to Infeft himself and his Spouse in Conjunct-fee and the Heirs procreat betwixt them c. The apparent Heir was found to have interest to pursue the Father for fulfilling thereof and of the obleigment adjoyned not to dispone in their prejudice Hope de haeredibus Hamilton contra Silvertonhil Tacks set to Heirs require no service but being Notour to be the Person who might be served Heir they have right without service June 9. 1675. Hoom contra Johnston of Oldwells 5. As to the benifit of Heirs they have Right not only to Obleigments conceived in favours of the Defunct and his Heirs But though there be no mention of Heirs unlesse by the nature of the obleigment there be a speciallity appropriating the same to the Person of the Defunct only as in Commissions Trusts c. So Heirs were found to have the benifit of a promise made to their Predicessors for disponing of Lands to him acquired for his use though it mentioned not Heirs Feb. 22. 1610. Heir of Jean 〈◊〉 contra Livingston The like of a Reversion not mentioning Heirs which was thought to be omitted by neglect seing it bore not
Redeemable to that Partie during his Life as it is ordinarily adjected when that is meaned January 9. 1662. Earl of Murray contra Laird of Grant The like of an Annualrent though it bore only to be payed yearly and not perpetually or heritably or to heirs Feb. 2. 1667. pourie contra Dykes And a Substitution mentioning only a Person substitute without mention of Heirs was found competent to that Persons Heirs January 7. 1670. Innis contra Innis 6. Heirs have the benefit of heritable Rights not only whereupon Infeftment hath followed or which by Destination are heritable or requiring Infeftment to their accomplishment as heritable Bands bearing Clause of Infeftment for these bearing only Clause of Annualrent are declared Moveable by and since the Act of Parliament 1641. cap. 57. Revived Par. 1661. cap. 32. Of which in the last Title So also are Reversions Pensions Tacks without necessity of being entered Heir June 17. 1671. John Boyd contra Hugh Sinclair July 9. 1675. Hoom contra Johnston of Oldwells And all Rights having a Tract or Course of time after the Defuncts Death In these Cases where the Defuncts Right is Temporary and runneth out by a certain Course of Time that time runneth whether the Defuncts Heir be entered or do Possesse or not as Tacks Pensions or Annuell Prestations during so many Years And therefore these require not Service or Solemnitie but that Person who might be Served may continue or recover the Defuncts Possession and his Possessing makes him lyable passive as Representing the Defunct Neither needs there any Service of Children nominatim substitute immediately to their Parents but if they be Substitute in the Second place a Service must be used to instruct that the Heirs appointed in the first place did fail July 21. 1676. 〈◊〉 of Drumelzier contra the Earl of Tweddel What Rights are heritable and what moveable vide Title Real Rights 7. Heirs have also Right to Moveable Heirships and to all Obleigments though the matter be in moveable Rights if Executors be expresly secluded otherways if the matter be moveable and Heirs only be exprest but not Executors yet Executors will not be Excluded because Heir is a General Term comprehending Exectors Hope Ejection Sr. Lewis 〈◊〉 contra Tenents The special Interest of Heirs are according to their several kinds viz. Heirs of Line and of Conquest heirs Portioners heirs Male and heirs of Tailzie and Provision 8. The Interest of heirs of Line is that they are heirs Generally not only because they may be Served by a General Service but chiefly because they must Generally represent the Defunct So that what cannot be claimed by a special Title either as being Conquest or Specially provided by the Tenor of the Infeftment befalleth to the heirs of Lyne And therefore in dubious cases what doth not appear to belong to other Heirs appertaineth to these in respect of whom heirs Male and of Tailzie and provision are accounted as Strangers and may come against the Defuncts Deeds in favours of the Heirs of Line But the Heirs of Lyne cannot come against such Deeds in favours of others because as heirs of Line they are reputed as one Person with the Defunct and so are obleiged to maintain and fulfil his Deeds not done on Death-bed It was so found in the Case of an heir of Tailzie against an heir of Line Spots Earl of Hoom contra And as heirs of Line have generally the Benefit so they have more effectually the Burden of the Defuncts debts which ordinarily reach them in the first place So that oft-times the heirs of Line have little or nothing free We shall not need to be Special what befalleth the heirs of Line being to show particularly what befalleth to the other heirs For what remaineth belongeth to the heirs of Line only Heirships moveable belong only to heir of Line and not to heirs of Tailzie January 27. 1668. Collonel Montgomrie contra Stewart 9. Heirship moveable is the best of every kind of moveables belonging to the Defunct which the heirs of Line may draw from the Executors whereof there is an ordinary list The reason of this Heirship moveable is because by our Law by primo geniture excludeth the Defnncts other nearest of Kin in Heritage wherethe nearest of Kin Succeeds alone in moveables and as they have no share with the heir in heritable Rights so most sitly the heir hath no share with them in moveables but hath only the best of every kind which therefore is called heirship moveable In which the Defunct cannot in his Testament or any other Deed done on Death-bed prejudge his heir as was shown last Title but if the nearest of Kin be all Femals they are both heirs 〈◊〉 Executors or if but one Male he is both heir and Executor in which cases there is no heirship moveable drawn Heirship Moveable is established by the Act of Parliament 1474. cap. 53. Ordaining the Heirs of Prelats Barons and Burgesses to have the best of every kind according to the Burrow Lands and so was found not to belong to the Heir of a Defunct who had only heritable Bands being neither Prelat Baron nor Burgess Hope de haered Todorig contra 〈◊〉 But the heirs of Prelats was Extended to other Beneficed Persons as was found in the heirs of the of Person of Dingwal Novem. 28. 1623. William Rig contra Mckenzie And likewise the heirs of Barons was extended to any Persons heirs dying in Fee of Lands though not erected in a Barrony Hope de haered Keith contra Mckenzie Todoirg contra Purdie heirship Moveable was found competent to the heir of a Person who died only Infeft in an Annualrent July 19. 1664. Elizabeth Scrimzeor contra Executors of Mr. John Murray But heirs of a Burgess was found not to extend to an honorarie Burgess who died not Trading or Working in the Burgh Spots heirs James Leslie contra Hugh Dumbar Heirship Moveable is not always a single thing but goeth sometimes by Pairs and sometimes by Dozens as in Spoons So the heirship of Oxen was found to be a Yoke and not a single Ox Nicol. de haereditatis petitione July 20. 1610. Black contra Kincaid And heirship taketh place only in corporibus but not in quantitatibus as in Money Cloath Mettal c. And so the Shell of a Salt-pan which was out of use was accounted but Iron and not to fall under heirship Moveable Had. January 19. 1611. Reid contra Thomson 10. Heirs of Conquest though they be also heirs of Line as befalling by the Course of Law and not by the tenor of the Infeftment and therefore were set down as Lineal Successors in the preceeding Title Yet because heirs of Conquest have only place where there is an Elder and Younger Brother or an Elder and Younger Father Brother c. and their Issue to succeed In which case the Law alloweth two heirs the immediat Elder succeedeth in Conquest and the immediat Younger in the heritage Therefore the one is specially called the
heir of Conquest and the other retaineth the common name of the heir of Line Conquest is feudum novum whereunto the Defunct did not succeed as heir to any Person or whereunto the Defunct could not succeed as heir for if that were disponed to him by the Defunct whereunto he would have succeeded it were but Preceptio haereditatis and so remained to be repute as heritage to descend to the Younger and not to ascend to the Elder as Craig observeth lib. 2. dieg 15. Such heritages are rare and befall only by Tailzie or Provision amongst midle Brethren Because the eldest by primogeniture excludeth the rest from being heirs of Line but it may befall in case of the heirs of Lyne when the nearest Successor is the Fathers or Grand-fathers Brothers or their Issue there being Elder and Younger Brothers but Conquest is frequent because not only that which is acquired properly by the means and industry of the Defunct But that which is by Gift of the Defuncts Parents or any other or whatsoever the Defunct could not succeed to is Conquest Yet if the heir of Conquest succeed that which was Conquest becomes heritage and descends As if there were four Brothers and the third acquiring Lands Died without Issue the second would be his heir therein who if he Died also Infeft the Lands would fall downward to the Youngest Brother and not upward to the Eldest Brother The custom of England is contrary for thereby the eldest Brother succeedeth to all his Brothers failling the Issue But with us the Immediat elder or younger doth always succeed though of different Marriages none of them being Brothersgerman And therefore in the case proposed by Craig lib. 2. 〈◊〉 15. In fine of a Brother by a second Marriage dying without Issue and having three Brothers of a former Marriage no doubt the youngest would succeed according to the Opinion of Oliphant and King there related Albeit that Craigs opinion be that the eldest would succeed It was so decyded contrary Craigs opinion July 20. 1664. Laird of Clerkington contra Stewart Heirs of Conquest succeed not only to Lands Conquest by their immediat Predicessors but in other heritable Rights passing by Infeftments as Annualrent or such as are heritable by distination and which are accomplished by Infeftment as Despositions of Lands or Annualrents Appryzings or Adjudications c. The like where an Annualrent was first Disponed and a Clause of Requisition and Reversion subjoyned July 7. 1675. Robertson contra Lord Halkertoun and in Reversions Hope de Successionibus heirs of Pitcairne But in this case it is not cleared whether the Lands given in Wodset were heritage or conquest but it seems if the Lands had been heritage as they were Wodset the Reversion would also belong to the heir of Lyne as the Lands whereto it was accessory would Yea heirs of Conquest succeed in heritable Bands bearing Clause of Annualrent As was found amongst the heirs of Doctor Craig But the heirs of Lyne and not the heirs of Conquest succeed in Tacks acquired by the Defunct Hope Succession Earl of Dumbars heirs June 23. 1663. Ferguson contra Ferguson The heirs of Lyne do also succeed in Pensions or any other Right not requiring Infeftment as in these which having a tract of time after the Defuncts Death do thereby exclude Executors and do belong to the heir of Lyne and not of Conquest though they be acquired The heir of Lyne and not the heir of Conquest falleth to be Tutor or nearest Agnat to the Pupil to whom the heir of Lyne might Succeed The heir of Lyne hath right to the heirship Moveable and not the heir of Conquest 11. Heirs-portioners are amongst Heirs of Line for when more Women or their Issue succeed failing Males of that degree it is by the course of Law that they succeed and because they succeeed not in solidum but in equal Portions they are called Heirs-portioners and though they succeed equally yet Rights indivisible fall to the eldest alone without any thing in Lieu thereof to the rest As first Dignity of Lord Earl c. 2. The principal Manse being Tower Fortalice c. which doeth not extend to houses in Burghs nor to ordinary Country-houses the former being divisible the latter falls under division as pertinents of the Land whereupon they stand and are not as separata jura or distinct Rights 3. Superiorities are accounted indivisible and befal only to the eldest Daughter and her Issue and thereby all the Casualities of the Superiority either preceeding or following the Defuncts death as Ward Relief Marriage of the Vassals Heirs Nonentry Liferent Escheat c. The reason is because the Vassals condition ought not to be worsted and made subject to many Superiors by such Successions Craig lib. 2. dieg 14. excepteth the Superiority of Feu Lands the Feu Duties whereof are divisible amongst all the Heirs-portioners yet the former reason of the indivisibility of the Superiority in respect of the Vassals Interest reacheth Feu Superiorities as well as others and it is hardly conceivable how Superiorities should belong to the eldest and yet the Feu Duties divide to the rest seing the Superiority as being Dominium directum is the only Title for poynding the Ground or pursuing the Possessors or Intrometters with the fruits thereof It seems for the reason adduced the Superiority and therewith the Feu Duty befalleth to the eldest yet so because the Feu Dutie is constant and liquid and is not like the other Casualities of Superiority which are illiquid and accidental therefore the other Heirs-portioners ought to have Compensation for their parts of the Feu Duty in or off other proper Lands Or if there were moe Superiorities of Feu Lands so that some of the Superiorities might befal one Heir and others to other Heirs no particular Superiority being divided or the Vassal made Vassal to many Superiors I conceive it would be allowed or otherways the eldest Co-heir would be dicerned to infeft the rest in Annualrents out of the Fee correspondent to their share of the Feu Duty A Vassals Heir though the Defunct had taken Infeftment of more Heirs-portioners was not found oblieged to take Infeftment of some of them severally but either of all jointly or the eldest July 30. 1678. Lady Luss contra Inglis How far Heirs-portioners succeed passive and are lyable for the Defuncts Debt shall forthwith appear 12. Heirs Male and of Tailzie and Provision succeed not by Law but by the tenor of the Infeftment or Provision and therefore have that benefit and no more which is so provided to them or which is accessory thereto whereby any Right or Security of Lands or others befalling to these Heirs which is thereafter acquired by their Predecessors though the same be acquired to him and his Heirs whatsover yet the same will befall with the principal Right to which it is accessory to the Heir Male or of Tailzie or Provision As if a Proprietar Infeft himself or his Heirs
proper Debt whichis taken off by the duply of purging the same as appears in the Decisions before adduced The said Exception is also elided by the Reply As behaving as heir albeit the same were libelled as a several passive Title March 18. 1631. Reguel Bennet contra Bennet 25. The Entry of Heirs is either of heirs general or heirs special The former requires only a general Service which is necessary to all heirs except heirs in Tacks Pensions and heirs nominatim immediately substitute in Bands But heirs of Tailzie or Provision must be served that it may appear that the heirs to whom they are substitute are failed And therefore the only Child of a Marriage was found to have no title to pursue Implement of the Contract of Marriage till he was served heir of the Marriage July 21. 1676. Hay of Drumelzier contra Earl of Tweeddale The general proceedeth thus a Brieve is taken out of the Chancery of course without Citation or Supplication for serving such a Person nearest and lawful heir to such a Defunct It may be directed to any Judge ordinar at the Parties option albeit the Defunct nor the heir never lived within that Jurisdiction March 6. 1630. the Laird of Caskiben Supplicant The Lords may in Cases where an ancient or important Service is required choose the Judge most fitting for the Affair And when Brieves pass of course they are obtained to any Judge desired But they are easily Advocat and remitted to the Macers with Assessors in cases of difficulty The tenor of the Brieve is by way of Precept from the King to the Judge To enquire per probos fideles homines patriae That such a Person died at the Faith and Peace of our Soveraign Lord And that the user of the Brieve is the nearest and lawful heir So this Brieve hath only these two heads And thus not only Heirs of Line may be served generally but also Heirs of Conquest being to Succeed to Reversions heretable Bonds or the like Rights not having an Infeftment or requiring a special Service Hope Succession Earle of Dumbar's Heirs And no doubt Heirs Male may be served generally that they may succeed to the like Rights which may be conceived in their Favour and whereunto they can have no other Access And for the same reason Heirs of a Marriage may also be served and Heirs of Provision in Bands General Services use to be included in special Services as Members thereof and a Retour to an Annual-rent bearing to be granted to Heirs whatsoever and that the persons retoured Heirs in the said Annual-rent was found to instruct him general heir though it did not bear per expressum that he was heir generally but only in that Annualrent Feb. 9. 1676. Ricartoun Drumniond contra Stirling of Airdoch The general Service of Heirs being retour'd doeth so establish Rights not having Infeftment as Dispositions Heretable Bonds Reversions Apprisings and Adjudications in the Person of the heir served as that no posterior heirs can have Right thereto unless they be served heirs to the Person last served heir though the Right stood in the name of the firstAcquirer and not of the last heir as an heretable Bond or Reversion remaining in the name of aFather to whom his eldest Son was served heir generally who dying without Issue the second Brother must be served heir to his Brother and not to his Father therein as was thought by all the Lords after dispute in praesentia albeit the matter was agreed without decision Spots Heirs Captain Peter Rollo contra Stewart of 〈◊〉 The reason is because the general Service is a compleatestablishing of the Right in the Person of the heir and therefore as in special Services the heir is served to him who died last vest and seised as ofFee whereby that Right is established so in the general Service the heir must be served to him in whose Person the Right stood last And though in special Services the heir cannot be served to him who is last served special heir unless he had been also Infeft the reason thereof is because the special Service as an incompleat Right evanisheth and the next apparant heir must be served again to the same Defunct but it is not so in general Services 26. The Entry of Heirs to Lands or Annualrents the Fee whereof is by Infeftment is either by consent of the Superior voluntarly or by Law The former is by the Superiors Precept which from the initial words thereof Quia mihi clare constat c. is called a Precept of Clare constat by which the Superior acknowledgeth that the Defunct died last vest and seised in such Lands or Annualrents and that the same are holden of him by such a Tenor and that the obtainer of the Precept is nearest and lawful Heir to him in the said Lands c. and that he is of lawful Age for entering thereto And therefore commands his Bailiff to Infeft him therein Infeftment being past accordingly giveth that Party the real Right of Lands or Annualrents if done by the light Superior It doeth also constitute the receiver thereof Heir passivè and makes him lyable to his Predecessors Debts but it will not constitute or instruct him Heir activè or give him an active Title to pursue as Heir Yea it will not be a sufficient title as to the real Right of the Ground against any other Party than those who acknowledge the Giver thereof to be Superior and the Receiver to be Heir For if upon any other colourable Title they question any of these the Infeftment and precept of Clare Constat will not be sufficient alone unless it have obtained the benefit of a Possessory Judgment or Prescription 27. Like unto this is the entry of Heirs within Burgh Royal by Hespand Staple according to the Custom of Burgh which is instructed by the Instrument of Seasing only without other adminicles November 13. 1623. Mershall contra Mershal July penult 1629. Wilson contra Stewart In which case though a Seasing by Hesp and Staple was sustained to instruct an Heir activè yet it was only because this pursuer had been proven Heir passivè the eby at the instance of that Defender 28. The securest Entry of Heirs specially in Lands or Annalrents is by Law The procedor whereof is in this manner Any Person may summarely 〈◊〉 a Brieve out of the Chancerie in the same manner as the general 〈◊〉 which is directed by way of Precept from the King or Lord of the Regality having Chapel and Chancelarie whereby the Judge to whom it is directed is ordained by an Inquest upon oath to enquire Who died last Vest and Seized as of Fee in such Lands or Annualrents And if at the Faith and Peace of our Soveraign Lord and Who is his nearest and lawful Heir therein Of whom it is holden in Chief By what Service and What the Value of it is now and in time of Peace And if the said Heir be of lawful Age In
or was buried are requisite or common Fame as to Persons who perish or are killed The second poynt of this Head is that the Defunct died last vest and Seised as ofFee which must be instructed by production of theInfeftment specially the Instfrument of Seising and warrant thereof or ground of the same For though in antiquis the very Precept cannot be shown yet the Charter or Disposition will be a sufficientAdminicle to corroberat thisSeising that it be not accounted only as the assertion of a Natar Yea there is no doubt but since the Act of Prescription consequent Seisings having the Course of fourtie Years may instruct this point being sufficient even in the case of Competition which is much exacter than this And Spotswood observeth upon Retours that in Anno 1547. a negativeService was reduced upon production of a Transumpt of theDefuncts Seising out of a Protocol transumed before a Comissar with a Decreet against the Superior bearing to have confessed that he had infeft the Defunct But here the instructing the Defunct's being once infeft will infer a Presumption that he so continued and so died Infeft unless the contrary be proven that he was denuded The third poynt in this Head That the Defunct died at the Faith and peace of our Soveraign Lord is also presumed quia quod inesse debet 〈◊〉 And therefore needs no other Probation but layeth the burthen of Probation upon theAlledger in the contrary viz. That the Defunct died Rebel or that he was Forfaulted or his Blood attiainted which may be elided by the Replyes of Relaxation Dispensation or Restitution But there useth small notice to be taken of Rebellion upon civil Debts but only open Rebellion of War or upon Treasonable Causes whereupon the Defunct was declared Fugitve which makes the Defunct as to this poynt not to die at the Faith of our Soveraing Lord. November 21. 1626. Seatoun Supplicant 35. The second Head of the Brieve is That the Pursuer is nearest and lawful Heir to the Defunct in these Lands Which resolveth in two points First that the Fee was provided to such Heirs as are contained in the Claim whether they be Heirs of Line or of Conquest Heirs Portioners Heirs of Marriage Heirs Male or of Tailzie and Provision And this can only be instructed by the Defunct's Infeftment and other ancient Evidents where in dutio the Presumption is always for the Heir of Line So that if it be not sufficiently instructed that the Fee was provided to special Heirs it will belong to the Heirs general of Lyne or Conquest according to Law as if it be instructed by three consequent Seisings which ordinarly do not express the the several Kinds of Heirs The other point of this Head is That the Pursuer of the Brieve is nearest lawful Heir which sometimes also is instructed by the Infeftment As when the Person to be served is a Member of Tailzie nominat as if the Infeftment bear Land or Annualrents to be granted to the Feer and to the Heirs of his Bodie which failling to George his Brother c. George pursuing a special Service needs no further instruction because That he is George the Defuncts Brother passeth without probation as Notorium But ordinarly the Propinquity of Blood must be proven to the Feer who died last infeft or to some member of Tailzie substitute For proving whereof the Relation must be particularly condescended on according to the Line of Succession mentioned in the former Title as that the Pursuer is the Defunct's eldest Son or the eldest lawful Son of that Son or that they are the Daughters of that Son c. or the lawful Daughters of the Defunct c. And it will not be sufficient to instruct or serve the Pursuer nearest lawful Heir without condescending Here also the propinquity of Blood being condescended on and proven it is sufficient in whatsoever Degree can be proven though it were beyond the tenthDegree Yea any Degree being presumed to be the nearest Degree unless a nearer Degree be instructed for it resolves in this Negative that there is no other nearer Degree which as other Negatives proves it self And that thePursuer is not only nearest Heir according to Lineal Succession by Course of Law but that he nor none of the Intervenient Blood were Bastards or unlawful Children which is instructed sufficiently by common Fame or being so holden and repute in the Intermediates it will be sufficient that nothing is known to the Inquest on the contrary unless Bastardrie be on the other part alledged and instructed This propinquity of Blood is proven either by Writ or by Retours Infeftments or Designations or Acknowledgments of the Feer for the time bearing such a Person to be of such a Degree or Relation to him And in antiquis Writs bearing such Designation and Acknowledgment even by others of Fame will be sufficient For there is not equal evidence of Fame required in all Cases And therefore when the Fee is to fall Caduciarie and to cease from the Feer's proper Blood lesse probation will serve than when the Competition is betwixt divers Persons of the same Blood or at least members of the same Tailzie amongst whom the pregnantest probation will take place So the Service and Retour of the Earl of Airth then designed Earl of Strathern was reduced because the propinquity of Blood not sufficiently instructed which could not be known by the Inquest or was Witnesses the progresse thereof being far past memory of man and Hear-say or common Fame was not found sufficient Neither were the Writs produced sufficient to prove the said Earls Propinquity of Blood to David Earl of Strathern Son to King Robert the second or to Eupham only Daughter to the said David and Patrick Graham her Spouse which progress not being sufficiently instructed the Right remained with the King as the unquestionable Descendent of the said King Robert the third and so Heir of his Brother the said David Earl of Strathern So that no other lawful Issue being proven of the said David's own Bodie nor of any other nearer Brother all his Right remained with the King as descending from King Robert the third who was Brother to the said David Earl of Strathern March 22 1633. The King contra the Earl of Strathern There is another Exception against this Head That the pursuer hath slain his Father Mother Good-sire Grandsire c. whereby he and all his Issue are excluded from the Heritage of the Partie slain if he be convict thereof by an Assyse and the next Agnat may be served Par. 1594. cap. 220. Which was not sustained where the Slayer was only declared Eugitive for not appearing to underly the Law in a Dittay for Slaying his Mother Feb. 3. 1674. Mr. George Oliphant contra Oliphant 36. The third Head of the Brieve is Of whom the Fee is holden in Chief or who is immediat lawful Superior thereof and this also be instructed by the Infeftments whereby the Giver of the
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
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
trafficking Burgesses and take themselves to a Country Life their heirs will have heirship moveable And therefore semel civis semper civis is not presumed Neither semel paerlatus semper praelatus for if a beneficed Person were deprived or demitted before the Death his heir would have no heirship moveable 10. The second Defense against Intromission with heirship moveable and which is also competent against Vitious Intromission is That the Defunct died Rebel and his Escheat was gifxted and declared before intenting of the Creditor's Pursuit June 10. 1663. Gordon of Lismoir contra Keith June 10. 1674. Lady Spenserfield contra Hamilton of Kilbrachmount December 22. 1674. Heirs of Seatoun of Blair contra Sr Alexander Seatoun And It is not necessary to alledge That the apparent heir had any Right or Tollerance from the Donatar For the Exception is equiparat to Executors confirmed against Vitious Intromission whereby Vitious Intromission is excluded albeit the Intromission was before another was confirmed Executor if the Confirmation was before intenting of the Creditor's Cause But it is no relevant Defense That the Defunct died Rebel and so had no moveables but that they were confiscat Neither was it sufficient that the Escheat was gifted not being also declared before the Creditor's Pursuit As was found in the said two first Cases 11. The third Defense is That the apparant Heir intrometted by a Gift to himself or to his behoofe or by a Right or Tollerance from a Donatar These being prior to the Creditor's Pursuit although posterior to his Intromission albeit not declared are relevant because the Donatar thereby is in possession and needs no Declarator Feb. 26. 1663. Cuthbirt of Drakies contra Monro of 〈◊〉 June 10. 1663. Gordon of Lismoir contra Keith July 4. 1674. Mr. William Innes contra George Wilson June 10. 1674. Lady Spenserfield contra Hamilton of Kilbrachmont Feb. 10. 1676. Grant contra Grant 12. The fourth Exception is When Moveables belonging to a Defunct remain in his House whereunto his apparant Heir hath Right by Infeftment wherein the Defunct had his Liferent or Tollerance if the Heir enter in possession of the House if at his entry he represent to any competent Judge that there are Moveables in or about the House belonging to the Defunct which he desires to be inventaried or that such as cannot be preserved may be sold that the price may be made forthcoming to all parties having interest if Inventary or Sale be made by warrant of that Judge the continuing of these Moveables in the House or the Sale of those which cannot be preserved will not infer Behaving as Heir Yet the making use of the things in the Inventary or the Sale of that which is not warranted yea the ommission out of the Inventary of Moveables of any considerable value was found to infer Behaviour January 25. 1632. Helen Scarlet contra John Paterson 13. The other ordinary member of Behaving as Heir is by Intromission with the Rents of Lands or Tiends whereunto the Defunct had Right by Infeftment or entering in possession of these Lands and Tiends unto which the apparent Heir would succeed which is the most direct Behaviour as Heir and is only competent against such persons as might be Heirs in that whereinto they immix themselves And so an Heir of line poslessing or intrometting with the Rents of Lands provided to Heirs male or to Heirs of Tailzie or Provision or the Intromission of these with the profits of Lands or Tiends befalling to Heirs of line will only infer Restitution or Reparation but will not infer a general passive Title making the partie lyable to all the Defunct's Debts 14. There are many Defenses which use to be proponed against this species of Behaviour As first it was an ordinary custom to shun this passive Title that the apparant Heir granted a Bond of purpose to adjudge the Defunct's Right upon the apparant Heirs Renounciation and then take Right to the Adjudication till the Lords by an Act of Sederunt Feb. 28. 1662. did declare that if apparant Heirs should in time coming take Right to any Appryzing or Adjudication of their Predecessors Rights for their own Debt and did 〈◊〉 thereby whether before or after expyring of the Legal they should be lyable as behaving as Heirs which hath always since been followed And therefore no Defense for such Rights will be sustained albeit it were a true Debt of the apparant Heirs and not a simulat Bond granted of designe to adjudge or apprise Neither is it a relevant Defense That the Lands or Teinds were appryzed or adjudged from the Defunct albeit Infeftment had followed thereupon if the heir apparant intromet without Right or Warrant from the Appryser or Adjudger within the Legal Feb. 21. 1663. Henrie Hamilton contra William Hamilton But it is a relevant Exception That the apparant heir's Intromission or possession was by Right from an Appryser or Adjudger though the Legal was not expired unless the Sum were fully satisfied by Intromission or otherways January 10. 1662. Barclay contra Laird of Cragievar The like though the apparant heir continued to possesse for some time after the Apprysing was satisfied by Intromission Feb. 26. 1663. Cuthbert of Drakies contra Monro of Foulis Yea Intromission with the Rents of the Defunct's Land by his apparant heir waselided by a Tollerance from a Donatar of Recognition albeit not declared till after his Intromission the apparant heir paying the single value of his Intromission July 17. 1666. Thomas Ogilvie contra Lord Gray But a Tollerance from Apprysers after their Intromission was not found relevant July 11. 1671. Sr. George Maxvell contra Maxvel Yet the apparant heir's Intromission was elided because the Defunct's Rights were improven though after the Intromission March 22. 1628. Roderick Farquhar contra Campbel of Kingingcluch And an apparant heir's Intromission was elided by a colourable Title though not valid whereby the heir of a Marriage being entered and infeft as heir to her Mother yet her Infeftment being reduced and her Father being found Feer in a dubious provision of Conjunct-fee the heir so served was not found liable as behaving as heir to her Father but only quoad valorem of her Intromission July 12. 1671. Adam Gairns contra 〈◊〉 Sandielands But it was not elided because the apparant heir past by his Father and was infeft as heir to his Good-sire though his Father was infeft that colourable Title was not sustained the apparant heir being in mala fide having the Evidents in his hands November 23. 1671. Rorieson contra 〈◊〉 Yet Behaving as heir was not inferred by the heir apparant's intrometting with the Rents of Lands which his predecessor had disponed in trust to a third party for the behoofe of the apparant heir and whereupon the Intrusted was infeft January 14. 1662. Nicol contra Home of Plandergest But Intromission by the apparant heir was elided by a Disposition by a Defunct to the apparant Heir's Son his Oye though without
of their Estate which ostentimes is disponed nomine dotis but only such a sum for them all as would have been modified for the Marriage of one man as was found in the case of the Heirs of Fairly and Thorniedikes and so was found June 14. 1673. Mr. George Gibson contra Janet Ramsay 43. But the Marriage of Heirs is debitum fundi and the Tennents Goods may be Poinded therefore for their Terms mail or otherways the Ground-right and Property may be Appryzed both being done after the Ward is ended which in men is at the age of twenty one compleat and in Women at the age of fourteen compleat This Appryzing or Adjudication will be drawn back to the time that the marriage was due and preferred to any legal diligence since that time as all Appryzings super debito fundi are December 17. 1673. Patrick Hadden contra John Moor. But it doth not affect the appearand Heir personally not being in Possession nor is the Tocher he got after his Predecessors death accounted as a part of his Estate being marriageable before that time but only the Estate he had when he married or was required to marry January 5. 1681. Laird of Dun contra Viscount of Arbuthnet 44. The value of the marriage is jus indivisibile and belongs not to every Superiour of whom the Vassal holds Ward-lands but to the most ancient Superiour 45. The King by his Royal Prerogative hath the Marriage of the Ward-vassal whensoever he becomes immediat Superiour if before the marriage fell due though the Lands holden of the King were Taxed to a small sum for the marriage July 19. 1672. Earl of Argile contra Mcleod And though the Vassal hold some Lands of the King simple Ward and others Taxed Ward the full value is due but the Taxed value is deduced as a part of it February 24. 1675. Kings Advocat contra Laird of Innernytie Yea a marriage was found due by a Vassal in the principality albeit he held Lands immediatly of the King Taxed Ward in respect of the non-existence of a Prince during which the King acts not as Administrator or Curator hareditatis jacentis of the Prince but proprio jure as Soveraign Prince and Stewart of Scotland Jan. 1680. Sir William Purves contra the Laird of Lus. 46. A marriage was found due by the Heir of an Appryzer who died Infeft albeit within the Legal unless the Appryzing were proven to be satisfied in the Defunct Vassals time July 13. 1680. Kings Advocat contra Zeaman of Dryburgh To come now to the exceptions exclusive of the value of marriage it was not found relevant that the Vassal died in the War by the Act of Parliament 1641. seing there was a pacification after that Act and it was not renewed thereafter July 9. 1672. Lord Hattoun contra Earl of Northesk Neither because the Vassal died in the Kings Service seing the Acts to that purpose were only temporary January 20. 1681. Captain Paterson contra Tweedie of Whitehaugh The next exception is the consent of the Superiour which was not inferred by the Superiours being present at the marriage as was found in the case of the Earl of Argile contra M`naughtoun Nor by receiving a Vassal upon Appryzing Neither by Entering the Vassals Heir though without reservation these being Acts to which the Superiour might be compelled by Charges of Horning upon Appryzings or on Precepts out of the Chanclery upon retours even though these were not actually used but that the Superiour gave Precept of clare constat yea his subscriving witness in the Vassals Contract of marriage after gifting of the same was not sustained Feb. 25. 1662. 〈◊〉 contra Keiths So that it seems no less then a consent as Superiour will exclude the marriage The most exceptions are upon the informalities of the Instrument of requisition But the most ordinary and material exception is disparagement which doth not consist in equality of Estate or Tocher but in the inequality of Blood wherein if a Zeaman be offered to a Burgess or a Burgess to a Barron it is commonly interpret disparagement but a Barron to any Superiour Dignity of a Subject imports no disparagement Or if there be great disparity in age or that the party offered hath any considerable defect as the want of a Member or have any loathsom or perpetual disease which are all the grounds of disparagement mentioned by Craig buthe thinks not Claudication to infer disparagement and it is like as to the single value the disparagement behoved to be very gross but as to the double value any just ground of aversion seems to be be sufficient as deformity even hardness of Favour or any vulgar reproach of Inchastity Insobriety or other Vice It will also be a temporal exception if requisition be made before the Vassal be mariageable which is the age of fourteen compleat in men and twelve compleat in women which may become an absolute exclusion if the party so required die unmarried and though the party marry to another it will but infer the single value The value of marriage is due to the Superiour if the Heir was not married at his Predecessors death whether minor or major marrying without consent of the Superiour or his Donatar or that being or becoming major and required they marry not at all 48. The last common Casuality of Superiours is the Liferent-escheat of the Vassal when the Vassal is denunced Rebel for disobedience of the Law which because it is intimate by three blasts of an Horn is called Horning if he continue so unrestored or unrelaxed year and day his Liferent is Escheat or foresaulted unto his several Superiours of whom he held his Fees this may seem a penalty for disobedience to Law and is so as to Fees holden of the King yet if it had no other ground the Liferent could not befall to the Superiour but to the King whose Command was disobeyed as Forefaulture and single Escheat do but the original of it is that Rebellion is like Capitis diminutio or Civitatis amissio amongst the Romans whereby such person cannot stand in Judgement and they are civiliter mortui and thereby their Fees become void and return to their Superiours and so is declared Parl. 1535. cap. 31. 49. Liferent-escheat carries the profit of all Fees and Liferents whether constitute by Conjunct-fee Infeftments Terce or Liferent-tack during the life of the Rebel having remained year and day at the Horn though thereafter he be relaxed during his natural life even though he be not infeft and entered as Heir the time of his denunciation July 3. 1624. Moor contra Hannay and the Earl of Galloway Yea though there be no Infeftment if by Contract or Disposition there be any heretable Right or Life-rent provided even though there were no Infeftment required as a Terce by paction without service or kenning Hope Horning Maxwel and Gordoun contra Lochinvar So Life-rent Tacks of Lands or Teinds fall under escheat without prejudice to these
who have right to such Tacks after the Life-renters Parl. 1617. cap. 15. These Tacks befall to the Master of the ground and life-Life-rents by Terce or Courtesie fall to the Superiour of the Land for these Life-renters are his vassals during life and owe him fidelity and a reddendo 50. Whensoever there is not Infeftment actually expede the denunciation makes not the Liferent to belong to that person of whom the Liferent should have been holden but to the King as an Annual-rent due by Contract or Disposition to be holden of the Disponer Decemb. 20. 1609. Hay contra Laurie July 1 1626. Halyburtoun contra Stewart January 22. 1675. Menzies of Castlehill contra Kennedy of Auchtifardel So likewise Life-rent Escheat of a Minister causeth his Stipend and Profit of his Manse and Gleib though locally within Regality to fall not to the Lord of Regality but if there be Infeftment it falleth to the immediat Superior albeit it proceed upon Disposition containing obliegement for double Infeftments and that not only till the publick Infeftment be taken but even thereafter during the Vassals life January 23. 1624. Meldrum contra Meldrum seing here the Life-rent was gifted and declared before the publick Infeftment was taken And likewise an Annual-rent due by a heretable Bond bearing a clause to infeft the Creditor in an Annual-rent without mention of particular Lands or manner of Holding was found to fall in Life-rent Escheat to the Kings Donatar after year and day but it was not determined whether if the Sum were payed or consigned it behoved to be re-imployed for the Kings Donatars use during the Creditors life whereon and in the case of redemption of Wodsetts most of the Lords were of a contrary opinion July 1. 1626. Haliburton contra Stewart It was found to be re-imployed for the Superior during the Wodsetters lifetime June 29. 1661. Tailfer contra Maxtoun and Cunninghame 51. Life-rent Escheat of the Vassal carries the Life-rent of the sub-vassal falling after the denunciation of the Vassal and being year and day at the Horn February 26. 1623. Clunie contra Bishop of Dunkeld July 24. 1632. James Ruel contra Laird of Billi because then the Superiour is in place of the vassal but where the sub-vassals Life-rent fell before the vassals own Liferent it was found carried by the vassals single Escheat February 13. 1661. Symson contra Laird of Moncur Life-rent Escheat falleth by the vassals Rebellion and the year and day subsequent is only allowed to purge the Rebellion by Relaxation which being used year and day after the Rebellion hath no effect as to the Life-rent Escheat of such Lands as belong to the Rebel the time of the denunciation though it have effect as to his Moveables Therefore the vassals voluntary deed prejudgeth not the Superior of his Life-rent Escheat not only such deeds as are done after year and day from the denunciation but which are done at any time after the denunciation if Relaxation be not used within year and day which is to be extended to these cases 52. First no Infeftment following upon a debt contracted by the Rebel after the Rebellion though the Infeftment be accomplished within the year will exclude the Life-rent escheat or prejudge the Superior if Relaxation be not used within year and day whether the Infeftment proceed upon the Rebels own Disposition or upon Apprising for in both cases it is the voluntar deed of the Rebel that prejudges the Superiour For albeit the Apprising be a deed of Law and necessary yet it proceeds upon a Debt voluntarily contracted after Rebellion such Debts will not exclude the single escheat and therefore ought not to exclude the Life-rent escheat which was so found though the Infeftment was granted to a Son and his Wife for a competent Tocher Spots Escheat Panmure contra Laird and Lady Ghight 2. The Debts or Obliegements of the vassal though they preceed the denunciation no Infeftment granted by him in cursu rebellionis for satisfying these anterior Debts will exclude the Life-rent Escheat unless he had been specially oblieged to grant such an Infeftment before the Rebellion for then the granting of it after is not a voluntary but a necessary deed which he might be compelled to grant January 23. 1627. James Vallance contra Thomas Porteous In which case an Infeftment for an onerous debt before Rebellion was not found sufficient to exclude the Life-rent seing there was no anterior Obliegement to grant that Infeftment which is the more confirmed by the parity of the case of Inhibitions which annull Infeftments after the the Inhibition though granted for satisfying anterior debts but if there was an anterior Obliegement the Infeftment conform thereto though after the Inhibition is valid as not being a voluntary but a necessary deed Vide Title Infeftments § Inhibition Thirdly Dispositions and Obliegements to grant Infeftments anterior to the Rebellion and Infeftment thereupon posterior do not exclude the Liferent Escheat unless the Infeftment be taken in cursu rebellionis and so a Contract of Wodset long before Rebellion clad with thirty eight years possession before denunciation was not found sufficient to exclude the Life-rent Escheat December 3. 1634. Mr. James Lindsay contra Scot. Neither a Charter and Inhibition thereupon seing there was not Seasine taken within year and day December 3. 1623. Jonet Herris contra Glendinning Neither a base Infeftment before denunciation there being no possession thereon till year and day March 19. 1633. Laird of Kentoun contra Blackcadder February 21. 1667. Robert Miln contra Clerkson 53. Fourthly Apprisings or Adjudications though for a debt anterior to the Rebellion exclude not Life-rent Escheat unless Infeftment or Charge against the Superiour be used thereupon within year and day after Rebellion For without Infeftment or Charge Apprising is no real Right And therefore though it were led before Rebellion against a vassal if Infeftment or Charge follow not in cursu rebellionis it excludes not the vassals Life-rent Escheat to fall to the Superior or Donatar July 14. 1622. Rollo contra Laird of Kellie albeit Infeftment follow upon the Apprising before the Life-rent was gifted Hope Horning and Escheat Sir Patrick Murray contra Adamson Neither did an Apprising upon a denunciation begun in cursu rebellionis but not perfected exclude the Life-rent Escheat February 16. 1631. Cranstoun contra Scot. But if Apprising or Adjudication be led for sums prior to the rebellion and be compleat by Infeftment or Charge in cursu rebellionis albeit they be deduced after rebellion they exclude the Liferent Escheat as is insinuat in the Limitations in the former decisions and was so decided February 13. 1611. Tenants of Lochauld contra Yonmig and Sir George Arskine Liferent-escheat being one of the Casualities of Superiority only introduced by statute or custom there is this difference of that which hath been said of Non-entry Ward or Recognition which are Casualities arising from the nature of the feudal Contract that Liferent Escheat flowing not thence