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
Deeds contrary to the Tack 37 Or by Removing 38 Summary Removing without warning in what Cases 39 The old way of removing Tenents 40 Warning of Tenents to remove 41 The active Title in Removings 42 Exceptions against Removings not instantly verified are not receiveable till Cautiou be found for the violent Profits 43 Defenses against Removing and Replys thereto 44 Violent Profits 45 Succeeding in the vice of Tenents removed TITLE XX. Wadsetts where of Reversion Regress and Redemption 1 Infeftments for satisfaction of Sums Principal and Annual or for Relief are proper feudal Impignorations consisting with the Disponer's Property 2 The Nature of Wadsets 3 The Nature of Reversions 4 Kinds of Reversions 5 〈◊〉 requisit in Reversions 6 The effect of Clauses irritant in Reversions 7 Reversions are stricti juris 8 Kinds of Wadsets 9 Proper Wadsets 10 The effect of Tacks after Redemption contained in Reversions 11 Improper Wadsets 12 Regress 13 Discharges of Reversions 14 Wadsets become legally extinct by Declarator of explring thereof or by the Order and Declarator of Redemption 15 The Order of Redemption of Apprisings or Adjudications 16 The Order of Redemption by conventional Reversions 17 Premonition 18 Gonsignation 19 Declarators of Redemption 20 The effect of Declarators of Redemption 21 Defenses against Declarators of Redemption 22 Requisition 23 How far other Rights may be reserved in Redemptions or Renounciations TITLE XXI Extinction of Infeftments where of Resignation ad remanentiam Recognition Disclamation Purpresture and other Feudal Delinquences 1 THe form of Resignations ad remanentiam 2 They may be by Procurators or propriis manibus 3 Instruments of Resignation prove not without a Warrant in writ 4 Resignations ad remanentiam were valid without Registration till the year 1669. 5 Resignations imply all Burthens by the Vassal affecting the Fee 6 Resignation by him who hath no Right with consent of him who hath Right how far effectual 7 How far Superiors may not reject Resignations ad remanentiam 8 How Infeftments become extinct by Succession as Heir or singulari titulo 9 The original of extinction of Fees not by the Vassals consent but by his Deed. 10 Recognition by Alienation of the Ward Fee 11 Recognition by Infeftments a se. 12 Whether Recognition can be incurred by Deeds in minority or on Death-bed 13 Whether Recognition can be incurred by Sub-feudation 14 How far Feus exceeding the Half of the full Rent may subsist without Recognition 15 In what Cases other Feus of Ward lands infer not Recognition 16 Recognition by Alienation is only of Lands clearly Ward simple or taxed 17 Recognition is not incurred unless the major part be alienat 18 Recognition is not incurred by Alienations to the Vassals apparent Heir 19 Whether Recognition be incurred by Alienations on condition that the Superior consent 20 Inhibition excludes not Recognition 21 Recognition is not excluded by the Vassals drunkenness when he alienat 22 How the Superior's Consent may be adhibit to Alienations to shun Recognition 23 How far the Kings Confirmation without a novodamus takes off Recognition 24 How Recognition is taken off by homologation 25 Recognition excludes all Infeftments Tacks or Servitudes by the Vassal's Deed without the Superior's Consent or authority of Law 26 Servitudes by Prescription are not excluded by Recognition 27 In Recognitions who must be cited and who may compear 28 The Title and Order in Declarators of Recognition 29 Disclamation how incurred 30 Purpresture how incurred 31 Feudal Delinquences adduced by the Feudists for resolving Fees 32 Atrocious Deeds against Vassals Fidelity to their Superiors resolving their Fees 33 How far the Ignorance or Weakness of the Vassal excuses with other exceptions for the Vassal 34 Whether the Delinquence of the Subvassal infers Recognition TITLE XXII Prescription 1 PRescription distinguished and described 2 Usucapion 3 The several times required to Usucapion or Prescription by the Roman Law 4 Requisits to Prescription 5 Bona fides requisit to Prescription 6 Whether he who doubteth of his Author 's Right be in bona or mala fide 7 Evidences of mala fides 8 The Title requisit to Prescription 9 The Motives inductive of Prescription 10 Exception where Prescription took no place by the Civil Law 11 The common Rule of Prescription with us 12 The beginning of Prescription of personal Rights with the extensions thereof 13 Prescription of Moveables 14 Prescription is reckoned de momento in momentum per tempus continuum 15 Prescription of heritable Rights 16 Prescription is not extended against the Right of Superiority 17 Prescription runs not for Tenents against their Masters 18 Prescription runs not against Minors but there is no exception of Mortifications to pious uses 19 In our long Prescription bona fides is not required 20 The Titles requisit in Prescriptions of heritable Rights 21 This long Prescription secures Wadsets Infeftments for Security Teinds and long Tacks 22 How far Teinds can prescribe 23 This Prescription extends to Patronage and Offices 24 And to Thirlage and all Servitudes 25 This Prescription excludes all Action and ground of Reduction and Declarator if the essentials of the Title appear 26 The several ways of interruption of Prescription 27 The way of Interruption by King CHARLES the first as to special Rights of the Crown by Letters of publication 28 The annual Prescription of the priviledge of apparent Heirs intra annum deliberandi 29 The biennial prescription of the preference of Diligences of the Creditors of Defuncts to the Diligences of the Creditors of the Heir 30 Triennial Prescription of Spuilzie Ejection Intrusion and Succeeding in the Vice Merchants Compts House-maills and Removings 31 Quadrennial Prescription of the priviledge to reduce Deeds of Minors intra quadrennium utile 32 Quinquennial Prescription of Arrestments Ministers Stipends Multures Rents of Tenents removed and legal Reversion of special Adjudications 33 Septennial Prescription of old Apprisings and Summons for Interruption 34 Decennial Prescription of late Apprisings or general Adjudications 35 Prescription of twenty years of holograph Bonds Missives and Subscriptions in Compt-books without Witnesses 36 No Prescription runs in Minority except Removings House-maills and Merchant Compts PART II. TITLE XXIII Assignations Where of Arrestments and Actions for making forth-coming 1 THe several Conveyances of Rights 2 What Rights are not transmissible 3 The rise of Assignations 4 The tenor of Assignations 5 The Conveyance of blank Bonds c. 6 The rise and effect of Intimations 7 The several wayes of Intimation 8 What Assignations are perfected by Possession without other Intimation 9 Other supplies of Intimation 10 Intimations to more correi debendi 11 Intimation is not necessary to Rights registrat for publication as Reversions c. 12 Nor to Orders of Merchants 13 Nor to judicial Assignations by Apprisings c. 14 Nor to the legal Assignation Jure mariti by Marriage 15 Nor against the Cedent's Heirs or Executors even though Creditors 16 To what Rights Assignations extend 17 Assignations carry Inhibitions following on the
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
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
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
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-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
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
Miln Thirdly When the Heretor of Milns or Lands Feues and dispones the Miln with the Multure of his own Lands per expressum all these ways are not contraverse constitutions of thirlage whether they be in an Infeftment Contract bond or other personal right for these being cled with Possession are sufficient to constitute a Servitude though the right of the Miln being a separate Fee 〈◊〉 Infeftment Fourthly When the Heretor of the Miln 〈◊〉 or Dispones the same with the Multures used and wont though he do not express out of what Lands it is sufficient to constitute a Thirlage upon the Lands which were wont to pay in Towns Multure being then his own Lands or to convey the right of the Multures of other Lands being formerly astricted But where a Barrony was principally disponed with the Miln thereof and the Multures of the Miln used and wont it was not found to extend to the Multures of another Barrony holden of another Superiour though in use to come to that Miln December 11. 1666. Earl of Cassils contra Tennents of Dalmortoun and John Whiteford Fifthly Thirlage of a whole Barrony is inferred by Infeftment in the Miln of the Barrony with the Multures of the said Miln being granted by the Heretor both of the Miln and Barrony whereby these parts of the Barrony that were not in use of astricted Multures before were thereby astricted and that according to the use of the rest of the Barrony Jan. 31. 1611. Wilson contra Warrock here the constitution bore not used and wont but Multures of the Miln generally The like where the Infeftment bore only the Miln of the Barrony with astricted Multures not repeating Multures of the Barrony July 9. 1611. Alexander Moncrief contra Borthwick and Pittinweem Sixthly Thirlage is constitute without Infeftment or any Write subscrived by the Heretor of the Lands astricted but only by an Act or Rolment of Barron Court bearing the Heretors consent and fourty years possession conform Hope Milns and Multures Earl of Murray contra Earlesmiln The like by Decreet against the Possessors their Master not being called or consenting but his Bailie inacting them to pay Multure with long possession Ibid. Mr. Andrew Miln contra Patrick Falconer Seventhly A dry Multure was found constitute and instructed by use of payment fourty years without any other adminicle because it could not be constructed as a free or voluntary deed as other Multures may be Hope Milns and Multures James Dog contra Maxwel and the Tennents of Prestoun July 23. 1675. Sir George Kinaird contra Mr. John Drummond Eighthly Thirlage is inferred of Lands within Barronies of the Kings Property to the Milns holden and repute to be the Milns of that Barrony only as being in use past memory of man to do deeds of Thirlage as paying of Multures laying in of Damns February 5. 1635. Dog contra Mushet January 8. 1662. James Stuart contra Feuars of Aberlednoch January 4. 1662. John Nicolson contra Feuars of Tillicoutrie Nor was it found relevant that the Feuars had right cum molendinis in the tenendas which was but past of course in Exchequer in the common Clause as was found in the foresaid case January 8. 1662. James Stuart contra Feuars of Aberlednoch The reason hereof is because the Kings Rights are Constitute Jure Coronae without Infeftment or other Write which is not requisite or accustomed to be keeped and therefore the presumption from long possession is sufficient Craig l. 2. Dieges 8. Relateth it as the opinion of some that immemorial Possession is sufficient to instruct the Thirlage of Kirklands in the same way as of the Kings Lands to which he assenteth not but the reason seemeth much to be the same especially after the Reformation when the Evidents of the Kirk were lost or destroyed So that long possession hath been sufficient to instruct the right of Propperty of Kirklands and may much more instruct this Servitude unless Milns and Multures had been granted to the Feuars anterior to the Feu of the Miln But unquestionably Thirlage is easilier sustained in kirk-Kirk-lands then others as it was sustained being by an infeftment of a Miln cum Multuris generally and the Bishops Precepts to his Tennents to pay their Multures to that Miln with long Possession though without consent of the Chapter Decemb. 7. 1665. David Veatch contra John Duncan 17. As to the negative first Thirlage is not inferred by use of coming to the Miln and paying Multures there at though immemorial even though the Multures payed were as great as the thirle Multures March 13. 1635. Gilchrist contra Menzies The reason hereof is because such payment is but voluntatis non necessitatis and therefore can no more infer a Servitude then they who past memory came such a way to a Town were astricted only to come that way But Infeftment in a Miln with the astricted Multures of such Lands per expressum and fourty years possession of paying the insucken Multures was found to constitute the Thirlage though the Feuars were infeft cum molendinis before the Feu of the Miln and sometimes went to other Milns which not being frequent and for some whole years was found but clandestine and such as occurs in all Thirlages and no legal interruption June 29. 1665. Heretors of the Miln of Kythick contra Feuars Secondly Thirlage is not inferred because the Lands are a part of the Superiors Barony having a Miln of the Barony where the Vassals Infeftment contains cum Molendinis Multuris or a Feu-duty pro omni alio onere or such a Feu-duty allanerly Novemb. 26. 1631. Oliphant contra Earl of Marshal But where the Barons Disposition contained not these Clauses his giving a subaltern Infeftment of a part of his Barony which part was thirled to the Miln before it was not found liberat but continued thirled to the Miln of the Barony though the Miln and Multures of the Barony were disponed thereafter to another July 17. 1629. Newlistoun contra Inglis For if the Vassal had acquired that part of the Barony with the Multures it would have been exprest particularly or generally seing thereby the seller behoved to diminish the rental of his Miln Thirdly Thirlage of a Barony or any part thereof was not inferred by a Disposition or Infeftment of a Miln granted by the Baron though it be the only Miln of the Barony seing he expressed not it to be so nor expressed any Lands nor the Multures thereof but only dispo ed the Miln with the pertinents July 12. 1621. William Douglas contra Earl of Murray In this case there were several acts of Court thirling the Tennants and long possession which was not insisted on but only the act of Court which was not found sufficient seing it was only by a Bailie without warrand or consent of the Heretor albeit cled with fourty years possession But a Decreet against the Tennants for astricted Multures and immemorial possession was found to constitute Thirlage to
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
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
and unfavourable with the exceptions against it 41 Single Value found due where the Heir was married before his Predecessor died by precipitation 42 The quantity of the single Value in Heirs Male or Female 43 Marriage is debitum fundi 44 It belongs to the eldest Superior 45 The Royal Prerogative prefers the King to all others as to the Marriage of the Vassal 46 Marriage is due by the Heirs of Apprisers 47 Exceptions against the Value of Marriage 48 The rise of Liferent Escheat 49 It extends to all kinds of Liferents 50 Liferents of Fees not having Infeftment or not owing Fidelity to a Subject belong to the King 51 Liferent Escheat of Sub vassals to whom they belong 52 Liferent-Escheat is not excluded by voluntary Infeftment after Denounciation not being for Im plement of a special Obligement to infeft before Denounciation 53 Liferent-Escheat is excluded by Apprifing for Debts anterior to the Rebellion there being Infeftments or Charge in cursu rebellionis 54 Liferent-Escheat extends not to Burgage or Mortification 55 But extends to Ministers Stipends 56 Liferent-Escheat is made effectual by Declarator TITLE XV. Annualrent where of Pensions and Poinding of the Ground 1 DEscription of Annualrent 2 The rise of Annualrent 3 The manner of constituting Annualrents 4 The kinds of Holding of Annualrents 5 Liferent-Escheat of Annualrenters 6 Kinds of Annualrents amongst the English 7 The difference of Feu-Annuals Ground-Annuals and Top-Annuals 8 Poinding of the Ground 9 The extent thereof 10 Who must be cited in Poynding of the Ground 11 The effect of poynding the Ground as to Ground Rights 12 The Order of poynding Moveables by several Annualrenters 13 Annualrents are effectual personally against Intrometters 14 Annualrents are moveable as to bygones 15 Extinction of Annualrents 16 Ecclesiastick Pensions affect the Benefice 17 Pensions by secular Persons how far effectual 18 The Kings Pensions are not arrestable TITLE XVI Liferents where of Conjunctfees Terces and Liferents by the Courtesie of Scotland 1 SErvitudes personal by the Roman Law 2 Servitudes personal by our Custom 3 Clauses of Conquest of Liferent or Fee of Lands acquired during Marriages how far extended 4 All Liferents must be salva rei substantia 5 Liferenters are burthened with Aliment of Heirs 6 Liferents without Infeftment are not effectual against singular Successors 7 The effect of Assignations to Liferents 8 Liferents are not prejudged by Tacks or other Deeds of the Feer being posterior 9 What Terms do belong to Liferenters 10 Conjunctfees 11 Liferenters by Conjunctfees have all the Casualities of Superiority 12 Terce 13 Services of Terces 14 Kenning to Terces 15 The effect of Terces 16 The extent of Terces 17 Exceptions against Terces 18 Burthens of Terces 19 Liferents by the Courtesie of Scotland 20 Publick Burthens TITLE XVII Servitudes real 1 REquisits to constitute real Servitudes by Consent 2 How Prescription constituteth Servitude 3 How far Servitudes ate effectual against the Superior 4 Extinction of Servitudes 5 Kinds of Servitudes 6 Servitudes of Support 7 Stillicides 8 Sinks 9 Servitudes of Prospect or Light 10 Wayes 11 Watering 12 Watergang 13 Feuelling 14 Pasturage 15 Thirlage 16 Several wayes of constituting Thirlage 17 Several Cases in which Thirlage is not constitute 18 The effect and extent of Thirlage 19 The import of several Clauses of Thirlage 20 Invecta illata or tholling Fire and Water 21 Sequels 22 Miln-service 23 Priviledge of Milns 24 How Thirlage becomes extinct 25 In Multure Seed and Horse Corn are to be deduced but no other expense of Labouring 26 Thirlage constitute by a Vassal not effectual against the Superior 27 Deductions for insufficiency of the Miln breaking down of the Damm or Frost TITLE XVIII Teinds where of Benefices Stipends Presentation Collation Institution Tacks Annats and Patronage 1 TEinds affect all Intrometters but not singular Successors 2 The rise of Teinds 3 The first division of 〈◊〉 4 Whether Teinds be jure divino 5 Kinds of Teinds 6 We have no personal Teinds and Vicarage is local according to the Custom of the several Places 7 What Lands are Teind-free 8 Teinds might not be Feued after the Lateran Council 9 Teinds are not annexed to the Crown 10 Teinds included 11 Surrender of Teinds to the King and his Decreet arbitral for valuing and selling thereof 12 Commission for Valuation of Teinds 13 Annuity of Teinds 14 The Rule for valuing Teinds 15 Benefices 16 Decime debentur parocho 17 Consent of the Chapter Convent or Prebend how far requisit 18 Diminution of the Rental of Benefices 19 Consent of Patrons 20 Tacks by Colledges 21 The present condition of Teinds 22 Drawn Teinds 23 Spuilzie of Teinds and Inhibitions 24 Rentalled Teind Bolls 25 The Interest of Bishops in their Benefices 26 The Interest of Ministers in Benences 27 Kirks patrimonial or 〈◊〉 28 Presentation and Collation 29 The effect of Possession as to Benefices and Stipends 30 Stipends allocat and unallocat 31 Teinds change as the Lands are in Grass Corn or other Crop 32 Teinds are not debita fundi 33 The legal Terms of Benefices and Stipends 34 The Annat 35 Patronage TITLE XIX Tacks where of Rentals tacite Relocation and Removing 1 THe nature of Tacks 2 How Tacks become as real Rights effectual against singular Successors 3 Who may grant Tacks 4 How Tacks may be ser. 5 The Tenor or Tacks 6 The effect of Obligements to set Tacks 7 Tacks become real Rights by Possession 8 Tacks in Wadsets after Redemption become valid 9 The extent and effects of Tacks 10 Tacks-men in Possession need not dispute the Setter's Right disputing as heritable Proprietar 11 The effect of Tacks whereof the Tack-Duty is payable to Creditors 12 Tacks are good active Titles for Maills and Duties 13 The effect of Tacks set to Husband and Wife 14 Kinds of Tacks 15 Rentals 16 The effect of Assignations or Subtacks of Rentals or other Tacks 17 The effect of Sub-tacks as to Tutors and Donatars 18 The effect of Rentals in Court Books or Rental Books only 19 The endurance of Rentals 20 The effect of Grassums 21 How far Rentals become void by Alienation Assignation or Subtack 22 Defect of Subtacks 23 Tacit Relocation 24 How Tacks fall in Escheat 25 Tacks sleep during Ward and Non-entry of the Setter and are valid against his Liferent-Escheat 26 Tacks are 〈◊〉 juris and extend not to Heirs or voluntary Assignys or Subtacks or Removing but when exprest except Tacks for Liferent or equivalent 27 Tacks without Ish are null 28 How far Tacks to endure till a Sum be payed are valid 29 Tacks are null without a Tack-Duty 30 Tacks are valid though not expressing the Entry 31 Tenents must labour and not wast or open the Ground for any Minerals 32 Tacks become void by two years not payment of the Tack-Duty 33 Or for not finding Caution to pay the Tack-duty bygone and in time to come 34 Or by the Tenents Renounciation 35 By contrary Consent of both Parties 36 By
to which it was estimate all the other Goods of the Wife were Paraphernalia whereof she had the sole Power and Right The Customs of most Nations even where the Roman Law hath much weight in this matter have returned to the natural course as is observed by Cassaneus ad consuetudines Burgundiae tit 4. And Duarenus tit ff de nupt in relation to the Custome of France Wessenbecius in parat ad tit ff de ritu nuptiarum And Covaruvias Epitt. lib. 4. Decretal part 2. cap. 7. In reference to the Customs of the Germans Spaniards and most part of the Nations of Europe Gudelinus de Jure Noviss sheweth the same to be the Custome of the Netherlands in which they do almost in every thing agree with our Customs to which we return By the Custome of Scotland the Wife is in the power of the Husband and therefore First The Husband is Tutor and Curator to his Wife and during her Minority no other Tutor or Curator need to be conveened or concur to Authorize So it was decided French contra French and Cranstoun hop tit de minoribus But on the contrair the Wife is in no case conveenable without calling the Husband and though she be Married during the dependance the Husband must be cited upon Supplication and the Process continued against him for his interest Spots Husband and Wife Margaeret Bailie contra Janet Robertson And likewise a Wife being charged upon her Bond given before Marriage but the Letters not being raised against her Husband for his interest they were found null by way of exception Nic. Reverentia Maritalis Relict of Robert Young contra Wachup yet a Wife was found con veenable without calling the Husband he being twenty years out of the Countrey and she repute Widow June 19. 1663. Euphan Hay contra Elizabeth Corstorphin Yea a Wifes Escheat or Liferent falls not upon any Horning execute against her during the Marriage because being then under the power of her Husband she hath no power of her self to pursue suspend or relaxe Dury February 16. 1633. Stuart contra Banner man and this was found though the Decreet was an ejection committed both by man and Wife yet where the Horning is upon a deed proper to the Wife as to divide the conjunct-Conjunct-fee Lands Horning is valide Nic. Reverentia Maritalis Duff contra Edmonstoun or where the Horning was upon a Delinquence as on Laborrows Hope Husband and Wife Lord Roxburgh contra Lady Orknay In like manner a Wife cannot pursue or charge without concourse of her Husband and so Letters not raised at his instance were reduced though he concurred thereafter Dury July 27. 1631. Robert Hay contra Mr. John Rollo The like Spots Husband and Wife Napeir contra Mr. Robert Kinloch and Agnes Lial The like in a Reduction of an Heritable Right done by the Wifes Father on death bed which was not sustained unless the Husband had concurred or had been called in which case if he refused concourse without just reason the Lords would authorize the Wife to insist July 8. 1673. Christian Hacket contra Gordoun of Chapeltoun But we must except from this Rule if the Husband were Inhabilitat or forefaulted Had. the 26. of March 1622. William Hamiltoun contra Stuart or the Wife authorized by the Lords upon special consideration the Husband refusing to concur Dury the 9. of January 1623. Marshel contra Marshel Or that she were pursuing her Husband himself against whom ordinarily she hath no Action except in singular cases ut si vergat ad inopiam or in case he had diverted from her Dury December 21. 1626. Lady Foules contra her Husband Or if a Wife with concourse of her Friends at whose instance Execution was provided by her Contract were pursuing reduction of a deed done by her Husband in prejudice thereof during her life February 12. 1663. Lockie contra Patoun or that the Obligation in its own nature require execution in the Husbands life as an obliegement to Infeft the Wife in particular Lands but if it be a general Obliegement to imploy Money for her or to Infeft her c. which the Husband may at any time of his life perform the Wife will have no Action against him neither will she get Inhibition upon supplication unless the Lords grant the same upon knowledge that the Husband is becoming in a worse condition or that the Wife hath quite a present Infeftment for an Obligation of an other in which case the Lords granted Inhibition July 13. 1638. Lady Glenbervy contra her Husband This delay where a Term is not exprest is upon consideration of Merchants who ordinarily having no other means than the Stock with which they trade it would ruine them if they were necessitate to imploy it on security so soon as they are married It is a Priviledge of Women amongst the Romans per Senatus consultum velleianum that the Obligations by which they became surety or interceeded for others were void But our Custome hath inlarged that Priviledge so far that a Wifes Obligation for Debt or personal Obliegement contracted during the Marriage is null even though the Bond were granted by her and her Husband containing an Obliegement to Infeft the Creditor in an Annualrent out of their Lands and in this case the Bond as to the Wife and an Apprising thereon as to her Life-rent of these Lands was found null But here there was no special Obliegement of Annualrent or Wodset of the Wifes Life rent Lands but generally out of both their Lands Dury March 24. 1626. Greenlaw contra Gulloway The like Hope Husband and Wife Archibald Douglas of Tofts contra Mr. Robert Elphingstoun and Susanna Hamiltoun The like Dury January 30. 1635. Mitchelson contra Moubray in which case the Bond being granted by the Man and Wife and thereupon Apprising deduced though she did Judicially ratifie it upon Oath never to come in the contrair yet the Bond and Infeftment as to her Life-rent was found null seing there was nothing to instruct her Ratification but the Act of an inferiour Court whereof the warrand was not produced But a Wifes Obligation with her Husband conjunctly and severally oblieging them to pay and also to Infeft in an Annualrent out of either of their Lands found null as to the Wife in the Obliegement to Pay but not as to the Obliegement to Infeft December 15. 1665. Master John Ellies contra Keith Neither was a Wife found lyable for furnishing to the House in her Husbands absence furth of the Countrey which did only affect her Husband Spots Husband and Wife John Loury contra Lady Louristoun The like January 29. 1631. Porter contra Law The like though the cause of the Bond was Money advanced for the Wifes necessar Aliment for which no Process was granted against her till her Husband was first discussed December 22. 1629. Mr. David Artoun contra Lady Hackertoun And also a Wifes Obligation without consent of her Husband found not to affect her but him
the Mother Nov. 117. de haered cap. 10. 12. The Custome of the Neighbouring Nations do follow more closely the Natural Law as the Custome of France and the Netherlands as is recorded by Gudel de jure Nov. cap. 13. And Mathias Stephanus 〈◊〉 the like of the Customes of Germany oecon juris civilis lib. 2. cap. 67. § 4. The Custome of this Nation also keepeth close to what is expressed before of the Natural Law as to the Interests and Obligations of Parents and Children and thereby Aliments are frequently decerned to Children to be payed by their Fathers if they expell them from their Families and that not only by the Act of Parliament providing Aliment to Heirs of Land to be payed by the Liferenters but a Father though his Son had no Lands was found conveenable super Jure naturae alendi 〈◊〉 July 21. 1636. Laird of Ramorney contra Law So also by our Custome a Father is Tutor of Law to his Sons being Pupils and therefore a Father was found lyable to the Son for Annualrent of his Mothers third of Moveables remaining in the Fathers Hands February 4. 1665. Beg contra Beg. But a Father was not found oblieged for Annualrent of a Legacy belonging to his Son uplifted by him seing he Alimented the Son December 15. 1668. Margaret Winram contra Mr. James Ellies A Father is also Curatour to his Children specially when in his Family unless other Curatours be chosen by his consent and so a Father discharging the Rent of his Sons Lands set by the Father though he was only Life-renter and the Son the Pupil-Fiar was found valid for years after the Fathers Decease in respect he was lawful Administrator young Rosyth contra his Tennants But a Father being poor was not allowed to lift his Sons Money without finding Caution to make it forth-coming February 12. 1636. Givan contra Richardson Neither might a Father being lapsis bonis assign a Tack acquired by him to his Son though he might uplift the Duties as Administrator January 29. 1629. Lands contra Dowglas So deeds done by such Minors without their Fathers consent as lawful Administrator were found null George Stuart contra Home of Rentoun After Pupilarity a Father is no more Tutor to his Children and so might not discharge for his Daughter being past Pupilarity but only consent with her as Curatour June 26. 1610. John Forrest contra Forrest A Father is lawful Administratour both as Tutour and Curatour honorarie of himself without any Cognition or Solemnity and is not lyable for omission neither is he exclusive of other Curatours But deeds done without a fathers consent by a Son were found null albeit the Son resided not in his Family but followed the Law having no Calling or Patrimony to maintain himself but living on his Fathers Charges neither was his Fathers Subscribing with him found a sufficient Authorizing of him seing he Subscribed with his Father as Cautioner for him December 7 1666. Sir George Mckenzie contra Mr. John Fairholme 13. As to the Fathers power to keep his Children within his Family and to apply their work for his use though controversies in that point have seldom been moved but the matter transacted by consent It is not to be doubted but that Children may be compelled to remain with their Parents and to imploy their Service for their use even after their Majority unless they be foris-familiat by Marriage or by Education in a distinct Calling from their Parents unless their Parents deal unnaturally with them either by Attrocity or unwillingness to provide them with a competent Marriage in due time and with means suitable to their Condition for that obliegement to provide for them would be a ground of exception against them if he would unjustly detain them in these cases or if the Father countenance or allow the Children to live by themselves and to mannage their own Affairs apart from whence his tacit consent to their Emancipation may be inferred in which cases also Zas 19. in lib. utrum turp c. De verb. oblig And Math. Steph. oecon juris civilis lib. 2. cap. 1. doth declare that the Consuetude of Germany is the same with our Customes before expressed The English account Children to be Emancipat so soon as they passe their Minority Cowell Institut jure Anglicani Tit. 12. § 4. TITLE VI. Obligations of Tutors and Curators Pupils Minor and persons Interdicted 1. The rise of Tutory in the Law of Nature 2. Order of Tutory by the Law of Nature 3. The Naturall Obligation of Tutors 4. Pupils Obligations to their Tutors 5. Kinds of Tutors by the Common Law 6. Tutors Testamentar 7. Tutors Testamentar exclude all others 8. Tutors of Law who 9. How Tutors of Law are entered 10. The time within which they must enter 11. Tutors Dative 12. Pro-tutors 13. Factors for Tutors 14. Con-tutors 15. Tutors custody of the Pupils Person 16. Tutors Authorizing their Pupils 17. Tutors or their Factors Rights relating to the Pupils accress to them 18. Tutors can only do necessary not free arbitrary deeds but may not sell Lands sine authoritate Judicis 19. Tutors are lyable for Annualrent for their Pupils means 20. Tutors are conveenable with their Pupils and lyable in quantum intus habent 21. Tutors Accompts 22. Tutors are lyable for exact diligence both for intromission and omission 23. Tutors are lyable in solidum 24. Tutory how finished 25. Tutors of Idiots and furious Persons 26. Gesta Tutorum accrescunt Pupillis 27. Removing of suspect Tutors 28. Duty of Pupils to their Tutors 29. Rise of Curators 30. Curators ad lites Negotia 31. Minors may at their option choose or not choose their Curators 32. Minors deeds having Curators without their consent are ipso jure null nisi in quantum â—â—erantur 33. Curators consent not requisite to latter Wills 34. Restitution of Minors upon enorme Lesione 35. Minor non tenetur placitare super haereditatem paternam 36. Differences betwixt Tutors and Curators 37. Duty of Curators 38. Curators or Interdictors for Prodigals or lavish Persons 39. Interdictors constitute causa cognita 40. Interdiction by Parents consent 41. Publication and Registration of Interdictions 42. Interdictions only extend to Heretable Rights not Moveables not to Personal Executions 43. Interdictions are only Competent by way of Reduction 44. Interdictions cannot be taken off but by Authority of a Judge TUTORS and Curators succeded in the place of Parents and their Obligations have a near resemblance and therefore shall be here fitly subjoyned though in the constitution and duties of Tutors and Curators the Positive Law predomineth yet that without any Positive Law or Contract there is a duty of Tuition and Protection of Orphans and specially upon these who by relation of Blood are their nearest Kinsmen and in place of their Parents it will appear by what ensueth and what is superadded either by the consent of parties in Curators or by the Law in Tutors with the condition and interest of
Our Decisions have been exceeding various in this matter for clearing whereof several cases must be distinguished First In the case of the Contracters themselves and in that either the mutual obliegements are conceived conditionally that the one part being performed or upon the performance thereof the other part shall be performed or where the obliegements are not conceived conditionally yet they are properly mutual Causes each of other The obliegement to deliver the Ware and to pay the price in permutation the things exchanged and mutual obliegements for delivery thereof are the mutual causes each of other in Location the use of that which is set for hire and the hire are the mutual Causes and so are the Obligations hinc inde otherways the Obliegements are not the proper Causes each of other but either wholly different matters which are frequently accumulate in the same Contracts or the one but the occasion and motive and not the proper cause of the other The case of Assignays must be considered in all these For the first The Civil Law is for the Negative that in reciprocal Contracts neither party can have effectual Action except he perform the whole Contract on his part As to the first member of the first case there is no question but when the mutual obliegements are conceived conditionally he that demands the one part must perform the other As to the other member when the Obliegments are mutual causes each of other expresly when the Contract bears for the which causes or when by the nature of the thing appeareth so to be It is most consonant to reason to the Civil Law an our Practice that neither party should obtain implement of the obliegement to him till he fulfil the obliegements by him it was so found July 27. 〈◊〉 Laird of Keirs contra Mr. James Marjoribanks Leidingtoun November 〈◊〉 1565. James Crichtoun contra Marion Crichtoun July 1581. Lord 〈◊〉 contra Provost of Lincluden where the reason is rendered because it is 〈◊〉 data non sequuta till he who craves implement fulfil his own part 〈◊〉 though it be ordinarly understood when the cause of the Obligationaltogether faileth yet upon the same ground so long as the cause is suspended or delayed on the one part the effect is also to be delayed on the other But in Contracts wherein the Obliegements are not the proper Causes each of other the one part hath effect before the other be fulfilled and the same is only reserved or declared not to be prejudged by way of Action or Charge Sinclar February 19. 1548. Laird of Ker contra Panter December 1563. Earl of Glencairn contra Commendator of Kilwinning As to the second case whether an Assignay Charging or Pursuing upon a mutual Contract be in any better case then the Cedent or can crave implement till the Cedents part be performed the difficulty is here that if Assiggnays be cloged with the obliegements of the Cedent it will marr Commerce and render such Contracts ineffectual as to summar execution and so Obliegements therein for Liquid sums of Money might not be Poinded or Apprized for nor any Execution valid thereupon but this will not follow for though these Executions be summarly used they will stand valide only the effect will be suspended till the other part be performed But the Assignay having no title whereby to compel his Cedent to perform his part therefore the other Contracter must either be decerned to assign his part of the Contract to the Assignay to the other part that thereupon he may insist for performance and that before the Extract of his Decreet or rather execution may be sisted except as to Adjudication for his security till he procure implement of his Cedents part or otherways that he find Caution that the other Contracter using diligence against his Cedent for performance that the Assignay shall make up what shall be wanting to him as was done in the case betwixt William Cunningham contra John Ross wherein an Assignay Charging upon a Contract for the price of Lands by which Contract his Cedent was oblieged to cause the Tennants pay certain bygone Ferms therefore the Assignay was ordained to find Caution for satisfying of these Ferms against the Cedent February 15. 1627. William Cunninghame contra John Ross. Hope Contracts Laird of Rentoun contra Robert Dowglas And though a Donatar was found to have Right to the price of Lands due by a Contract though the Rebel had not performed his part of the Contract Hope Cessio bonorum Balfour contra Futhy there was nothing alledged of the insolvency of the Cedent But a Donatar pursuing for the price of Fews the Fewers were assoilzied from the Declarator till the Donatar obtained the Fews to be perfected here it was known the Donatar was in trust for the Rebel who was in power to perform January 28. 1673. Lord Lyon contra Arthur Forbes But there can be no reason that the one part of the mutual Cause should be effectual without the other for if the Cedents Back-bond apart would affect the Assignay much more when it is in the same Contract yea though the matter proceed not by way of Contract but by Bonds apart if thereby it appear that these Bonds are mutual Causes one of another the effect should be the same and though there be no more to prove that they are mutual Causes but that they are of the same date and before the same Witnesses the Lords will readily examine the Witnesses insert ex officio whether they be mutual Causes each of other and therefore where a Bond apart did bear that the Creditor should ratifie a Disposition of the same date at his Majority under a great penalty A Bond granted apart to that party of that same date being Assigned the Assignay was found to have no power to lift the principal sum till the Cedent ratified at his Majority or were past his anni utiles without Reduction November 14. 1628. Cunninghame contra Cunninghame The like was found as to Writes of the same date with a Contract anent the same matter though not mentioned in the Contract Hope Contract Duncrub contra Chapman But if in Contracts or mutual Bonds the mutual obliegements have different terms of performance a pursuit upon the one part will not be stoped by not performance of the other part while the term agreed for the performance is not come November 28. 1676. Sir David Carmichael of Basmedy contra Dempster of Pitliver 17. To come now to particulars according to the order proposed Loan comprehendeth both the Contracts in the Law called mutuum and commodatum by the former a thing Fungible is freely given for the like to be restored in the same kind and quantity though not the same individual A Fungible is that which is estimate according to the quantity and is not easily decernable nor noticed in the individual or particular body but only in the like quantity of the same kind the chief of
Acts either without the possessors consent or by their tollerance or tradition and delivery or by forsaking or relinquishing them so that in the matter of possession of Moveables there is little controversie 12. Secondly Possession of the Ground is also clear in many cases As First In Habitations whether in Caves Tents or proper Houses Next in Gardens Inclosures and all Plantations Thirdly In Fields by Pasturage or Tillage in so far as the Acts extend so far these all are most natural possessions But after that most ancient simplicity Rights and the ways of acquiring thereof were multiplied and therefore possession could not be intire but behoved to be divided amongst the several interests then did the difficulties arise as when one had the property a second the fruits a third the use a fourth the servitudes in some part a fifth the detention for security a sixth the custody or location and all these exercised either by the parties themselves their servants or Children in their power and their Procurators in their name Yea and by opposite and interrupting Acts many at once pretending to the same kinds and parts of possession 13. So then the third kind of Possession was when the Earth began to be divided by limits and bounds and to have common denominations then the possession of the whole was attained by exercising possessory Acts upon a part as he who possesseth a Field needs not go about it or touch every Turff of it by himself or his Cattel but by possessing a part unless there were contrary possessory Acts. So possession of the greater part of Lands contained in one Tenement was found sufficient to validat a base Infeftment as to the whole and to exclude a posterior publick Infeftment for removing the Tennents from a part of the Tenement though the base Infeftment had possession several years and had attained or pursued for no possession of these Tenements Spots removing Hunter contra Hardie observed by Dury January 14. 1630. The like of possession of a Tack of a part of Teinds in a Tack found sufficient to validat the Tack as to the whole Spots 1. possessione Lady Merchistoun contra Wrights-houses 14. Possession Civil is extended to uplifting of Mails and Duties which is sufficient to introduce and preserve property though the pasturage and tillage and all other natural deeds of possession be in others who are properly called possessors who hold and possess for themselves in so far as concern the excresce of the profits above the rent as to which they possess in name of their Masters and therefore this possession is partly naturral to the Master of the Ground and partly civil by their Tennants 15. Fifthly Possession is attained Symbolically where there is not use of the whole or a part but only of a Symbol or Token and this is when the thing to be possest is present as the civil possession by Infeftment by delivery of Earth and Stone upon the Ground of the Lands or by delivery of a parcel of Corns for a Stack or Field of Corn or some of a herd or Flock for the whole Flock being present in which the Symbols being also parts of the thing to be possest have some affinity to natural possessions Sixthly Civil Possession is by a Token or Symbole which is no part of the thing to be possest but is a Token to represent it as either having some resemblance with it as the delivery of a Copy or Scroll for an office or a penny for an Annualrent or otherways hath no resemblance but is a Token meerly suppositious to represent it as delivery of a Batton in Resignation or Delivery of a thing bought or sold by a wisp of Straw which ordinarly is in absence of the thing to be possessed 16. Seventhly Possession is attained or retained without Symbol and without Interposition of any person in our power or procurator but only by conjunction of Interest So when the property of Lands is granted to one and the Usufruct or Liferent to another or when the Liferent is reserved the possesssion of the Liferenter is held to be the possession of the Fiar as to all other third parties and Rights And a Husbands possession of Lands by himself or any deriving right from him is held to be the Wifes possession by her Liferent Infeftment The several kinds and degrees of possession being thus laid open it will be more easie to takeup the common notion and nature of it and it may be thus described 17. Possession is the holding or detaining of any thing by our selves or others for our use it is not every holding or detaining which makes possession for so Depositars detain but because it is not for their use they do not possess To Possession there must be an act of the body which is detention and holding and an act of the mind which is the inclination or affection to make use of the thing detained which being of the mind is not so easily perceiveable as that of the body but it is presumed whensoever the profite of the detainer may be to make use of the thing but where it may be wrong or hurtful it is not presumed As he who taketh another mans Horse by the Head or keepeth that which is waith or taketh in his hands the Money or Goods of another which if it were to make use of it would infer theft and therefore such detention is not presumed to be possession He also who detaineth or holdeth a thing not at all for his own use but for anothers who doth detain by him as by his Servant or Procurator doth not possess But otherways if he have no warrand from another but only intended or is oblieged that it shall be to the behove of another in that case he is possessor because the real Right is in him and there is upon him only an obligation to make it forthcoming to another And they who possess partly for themselves and partly for others as Tennants have possession in part 18. To come now to the Requisites for entering and beginning Possession there must be both the detention of the body and the detention of the mind for use for neither of the two alone can begin possession corporal possession alone can neither begin it nor continue it and if any act of the mind were enough possession would be very large and but imaginary but the manner of this seasure of possession to begin it is very diverse by all the several ways which are before set forth 19. Possession being once begun is continued not only by reiteration of possessory acts but even by the mind only though there be no outward acts exerced and the mind and affection to continue possession is always presumed unless the contrary appear so that if the thing once possessed be void as to outward acts yet it is held possest by the mind and any contrary act of others entering to that possession is unwarrantable and intrusion For as hath been
Tacit conditions in Feus 52. Liferents reserved in Infeftments of Propertie 53. Exceptions in Infeftments how far effectual 54. Faculties reserved in Infeftments 55. Burdens of sums in Infeftments how far effectual 56. The effect of impossible or unlawful conditions in Infeftments 57. Conditions inconsistent are null 58. Clause de non alienando in Tailzies 59. Clauses restrictive and irritant in Tailzies 60. Regalia not exprest are not carried by Infeftment 61. Regalia are carried in Barony though not exprest 62. Jurisdiction and Courts 63. Jurisdiction of Baron Courts how far restricted 64. Issues of Baron Courts belong to themselves 65. Infeftments of Constabulary 66. Fortalices how far extended 67. Forrestries 68. Hunting of Deer inter regalia 69. Salmond-fishing 70. Cruives 71. Milns 72. Priviledge of Brewing 73. Part and pertinent 74. Wood and Coal 75. Houses and Biggings and Park Dykes 76. Fowling Hunting and Fishing 77. Cunningars 78. Dovecotts 79. Free Ish and Entry 80. Herezelds 81. Steelbow-goods 82. The effect of Infeftments in possessorio 83. The effect of Infeftments in petitorio 84. Inhibitions and their effects against Infeftments THE Roman Empyre in Italy being long opprest and at length supprest by the Inundation of the Longobards and other barbarous Nations who seated themselves there and divided these beautiful Courtreys amongst their Captains and they sub-divided the same to their Souldiers for their Military service and as they were the authors of this new Right so they did term it by a new and barbarous name Feudum which the Germans call Fiff and we with the English call a Fee concerning which there was no common written Law but the several Provinces had their diverse Customes as they thought most suitable to the nature of this Right and their own utility These Books annexed to the Civil Law called Libri Feudorum though they have great respect amongst Lawers yet they are but the observations of privat persons and so not a written publick Law By the Irruption which happened in the sixth Century the Civil Law was sopit for five hundred years it was revived in the eleventh Century and did take in with it the Feudal Customes which have been propagat through the most civil Nations in the World not only for strengthning them towards War but because Soveraigns had thereby a new interest over their Subjects and Inferiors thereby becoming their Feudatars and Vassals owing always to them fidelity and oftest following as their Clients and Assecles acknowledging them as their Lords Superiours and Paramount in their Lands and Heretages which are all derived mediatly or immediatly from the Soveraign authority as the common and supream Superiour of all the Subjects who have any more then the right of unfixed Moveables 2. And thereby also ariseth the Feudal Jurisdiction whereby not only the Soveraign power but all Superiours do by the advice and assistance of their Vassals who are called Peers of their Court order and determine all things not only relating to themselves and their Vassals but to all others who are locally within their Territories both in Civils and Criminals in so far as they derive Jurisdiction Civil or Criminal from the Soveraign power immediatly or mediatly no Nation is more exact in this then Scotland wherein the King as Supream Superiour ruleth by His Vassals assembled in Parliament in which at first all were personally present who held Lands immediatly of Him as Barons great and small Free-holders and Prelats for Church-lands the free Burghs were also represented in Parliament by their Commissioners as holding their Burgage Lands and their Freedoms and Priviledges of Burghs as Feudaters of the King so that there was not one foot of ground in Scotland whose Lord was not present in Parliament But when Fees holden of the King became sub-divided or multiplied two or more Commissioners were admitted in Parliament in name of the meaner Barons and Free-holders all were accompted great Barons who held an hundred merk Land or above of the King and the rest meaner Barons Par. 1503. cap. 78. So also other Superiours have their Courts consisting of their Vassals who are oblieged to answer suit thereto who as a Jury gave Doom and Judgement of old when all matters proceeded by Jury or Inquest as it was also in the Kings Court by Sheriffs Bailzies c. of which the shadow or formality yet remaineth of having a Doomster as a member of Court to pronounce sentence though Inquests be in most things laid aside through custom 3. The very right of Superiority carryes this right of Jurisdiction over the Vassals unless by their Infeftments or Prescription they be exempted Our Learned Countrey-man Mr. Thomas Craig Advocat hath largely and learnedly handled the Feudal Rights of this and other Nations in his Book de Feudis and therefore we shall only follow closely what since his time by Statute or Custom hath been cleared or altered in Feudal Rights which is very much for he having written in the year 1600. there are since many Statutes and variety of cases which did occur and were determined by the Lords and have been de recenti observed as they were done by the most eminent of the Lords and Lawers as by Haddingtoun who was President of the Session and by President Spotswood and by Dury who continued in the Session from the year 1620. until his death in the year 1642. And though these Decisions have been intermitted since that time till the Kings return the loss is not great these times being troublesome and great alterations of the Lords but the Decisions of the Lords have been constantly observed since the Kings return by which most of the Feudal Questions are determined and these things which Craig could but conjecture from the Nature of the Feudal Rights the Customs of neighbouring Nations and the opinion of Feudists are now commonly known and come to a fixed Custom neither doth he observe any Decisions particularly by the time further then his own time in which our Feudal Customs could little be determined seing the Lords of Session were mutable and ambulatory till the year 1540. in which King James the fifth did perfect the establishment of the Session in a Colledge of Justice who at first could not be so knowing and fixed in their forms and customs and therefore it cannot be thought strange if the Feudal Customes as they are now settled do much differ from what Craig did observe he hath indeed very well observed the origine and nature of Feudal Rights and the Customs of Italy where they began and of France and England whence they were derived to us and therefore we say little as to these And so much only of the Rights themselves as must necessarly be introductory to our fixed Customs in which we shall follow that same Method as most accommodat to the matter which we observed in the former Title of real Rights But there being in Feudal Rights nothing of that original Community which is therein being only a promiscuous property
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
is because it can hardly be determined that the Right of Property is in either the Superiour or Vassal alone so that the other should only have a servitude upon it though some have thought Superiority but a servitude the property being in the Vassal and others have thought the Fee it self to be but a servitude to wit the perpetual use and fruit yet the reconciliation and satisfaction of both hath been well found out in this distinction whereby neithers interest is called a servitude but by the resemblance of the distinction in Law betwixt jura actiones directae and these which for resemblance were reductive thereto and therefore called utiles 8. The Superiors Right is called dominium directum and the Vassals utile and without these the Right cannot consist Secondly As there must be a right in the Superiour and another in the Vassal so the Vassal in his right must necessarly hold of and acknowledge the Superious as having the direct Right in the Fee otherways the two distinct Rights without this subordination will make but two partial Allodial Rights Thirdly There is necessarly implyed in Fees some Rent or return to the Superiour for the Fee which may be either service Money or other Fungible or prayers and supplications as in Fees mortified to the Kirk or other performance or at least the Vassals fidelity to the Superiour implying not only negative that he may not wrong the Superiour but positive that he must reveal to his Superiour any design against his Life or Fame 9. Which fidelity though it be not exprest yet it is necessarly imported in all kinds of Fees and cannot be taken away by any paction to the contrary without destroying the very nature of this Right 10. To come now to the constitution of the Property of Lands in Fee and Heretage the Feudal Contract is of it self alienative as Loan Sale Exchange and the Contracts in Law ealled do ut des and do ut facias Of which two last the Feudal Contract is a kind seing thereby Land or other immoveable is given for giving or doing something therefore as in others so in it the will of the owner must constitute the Right in the Vassal and seing by the Custom of Nations some kind of Possession is necessary to constitute or transfer property the Superiours delivery of Possession to the Vassal or acknowledgement and approbation thereof in the Vassal to be holden by him in Fee were sufficient to constitute and perfect the Fee 11. And therefore in the Udal Right of Lands in Orknay and Zetland whereby without any Infeftment Investiture or other Right or Write they enjoy Lands and Hereditaments it sufficeth them to instruct by Witnesses that they have possest as being holden and repute Heretable possessors of such Lands but the Law and Custom of Scotland having as in all other places necessarly required Write not only for evidence of the Constitution of this Right but as Solemnities for the perfecting and solemnizing thereof without which it becomes not a compleat real Right of the ground except where such Writes have been destroyed or lost in times of trouble and then proving the Tenor of them must be used Or in some cases the Heretor may be cognosced by an Inquest as Heretable possessor But ordinarly Write is requisite which Writes are called an Infeftment or an Investiture 12. Infeftment or infeudatio signifieth the Right constitutive of a Fee as its Etymon indicateth So also Investiture is the same more Metaphorically as we are said to be invested or indued with any right as men are covered with a Garment or Cloak and denuded and divested thereof when it is extinct or transmitted So both Infeftment and Investiture signifie the Writes which are evidents signifying the Act constituting the Fee and these are two the Dispositive Will of the Superiour and his delivery of Possession by himself or his Procurators in his Name 13. Of a long time Infeftment hath required write as a necessar solemnity not only as a mean of probation that the Superiour did truly dispone to the vassal any immoveable in Fee and Heretage and that accordingly the vassal attained Possession Natural Civil or Symbolical for if write were adhibite only for probation other probation might also be admitted not only against the Superiour or his Heirs by their Write or Oath but even against their singular successors or other Competitors by whose oath of knowledge or write the truth of the Infeftment and of these two necessary Acts to constitute a Fee might be proven and albeit the Superiours oath would not prove against a singular successor yet his write anterior to that singular successors Right acknowledging that he had at such a time invested such a person as his vassal and entered him in possession which would prove against his Assigney yet neither of these ways would constitute a Fee and supply a written Infeftment except where the peculiar custom of Fees without write hath been immemorial and therefore sustained as sufficient And albeit it be provided by ancient Statutes that the Heretable Possessors of Lands may be cognosced by inquest yet that was only upon consideration of Calamity and War whereby Writes were destroyed and where no competition was by any pretending a written Infeftment and Possession conform But the question being only betwixt the Superiour and his Vassal who with his Predecessors had been in Immemorial possession as being holden and repute Heretable possessors by performing the deeds proper to Vassals of such Lands and so holden and repute as Heretable Possessors by the Neighbour-hood which I have not heard to take effect but as to the Kings immediat Vassals who claims property in no Lands as Supream Superiour but what is annexed to the Crown or whereof the property is acquired to the King by the Casualities of his Superiority Or by Acquisition from other Proprietars and therefore he doth never exclude the ancient Heretable Possessors though they have losed their Rights by publick calamity wherein not only Adminicles in Write but the testimonies of Witnesses above exception are received whereby if the Right be not proven to be blench or Feu by the Exchequer Rolls which bears all the Kings Property and the Reddendo's thereof or by Eque's made in Exchequer the Fee will be held Ward and according to the probation and verdict of the Inquest Charters will be granted by the King in Exchequer and there scarce can be pretendedany Fee which hath not been already established by write 14. The Write requisite to constitute a Fee must contain the present Dispositive Act of the Superiour by which he Dispons to the Vassal and his Heirs the Fee in whatsoever terms he expresseth it as if he gift grant alienat sell or dispone though the several terms exprest may import a different Title and Warrandice yea albeit no Cause or Title be exprest or implyed but only that the Superiour Dispons or though the Cause or Title insinuat be not true yet
it was sufficient with Possession until the Solemnity of Instruments of Seasine was introduced and is still sufficient when Seasine is rightly adhibit for we follow not that subtility of annulling Deeds because they are sine causa but do esteem them as gratuitous Donations and therefore Narratives expressing the cause of the Disposition are never inquired in because though there were no cause the Disposition is good And albeit neither tenendas reddendo or the modus acquirendi be exprest yet if the property was the Disponers and he do but express the Disposition to be in Fee and Heretage it is valid for the reddendo is understood to be services accustomed in Ward-holdings and there will be carryed though not exprest all the parts and pertinents of the Fee And therefore any Disposition de presenti in Fee is valid as to that part of the Infeftment although the Disposition contained an obliegement to grant Charters yet the not granting there of doth not prejudge And if Charters be granted relative to prior obliegements yet the Charter is good without necessity to prove these Nor will it be sustained for the Superiour or any competitor that if the prior Obligation Disposition or Contract were produced it would be found conditional or have Clauses in favours of the Superiour or that Competitor whether generally or particularly alledged But if these were lost the Charter is sufficient and no more is understood to be in the real Right then what is contained in the Charter yea though the Charter bear according to the provisions and conditions contained in such a Contract Disposition or Bond which may import that the Superiour by granting the Charter without these hath not past from them and therefore he may insist upon them as personal obliegements and the Vassal will be oblieged to produce the same ad modum probationis by Exhibition as an incident diligence whereupon he must Depone whether he has them or had them since the Citation or did at any time fraudfully put them away But if without Fraud they be lost the Charter is sufficient and in no case doth require the production of any former ground Precepts of clare constat are also sufficient seing they contain a Precept to Infeft such a person as Vassal which implys the Dispositive Will of the Superiour and therefore is valid in place of a Charter from its date albeit it 〈◊〉 no effect against singular Successors as to that Vassals Predecessors Rights which must be instructed by the Rights themselves and not by the Superiours acknowledgement And for the same reason other Precepts of Seasine not relating to particular Charters or Seasines but either simple or bearing secundam cartam 〈◊〉 are sufficient although these Charters be never granted But there will be only understood a proper Ward-holding gratuitous without 〈◊〉 extending only to the Heirs of the Vassals Body but not reaching to 〈◊〉 or Ascendents unless the precept express or insinuat an onerous Title 〈◊〉 Vendition Excambion c. But since Write became to be an essential solemnity of Fees the Superiours 〈◊〉 Dispositive Act must be in Write but his preterit Declaratory Act acknowledging such a person and his Predecessors to be Vassals and have the Fee 〈◊〉 his obliegement to grant the Fee though never so express which relates but to a Disposition de futuro will not supply a Charter though clede with 〈◊〉 Possession or having Seasine by Instrument bearing to be propriis 〈◊〉 though by these the Superiour may be compelled to grant Charters 〈◊〉 and compleat bearing expresly all the ordinar Clauses in such Rights Yet 〈◊〉 〈◊〉 cases Adminiculation of a Seasine will suffice as in the Liferents of 〈◊〉 being proportional or in very ancient Rights or where in Competition no better Right is shown Much less is it necessary to have formal and ample Charters in the best style upon Parchment in Latine sealed and subscribed albeit Vassals are oblieged to accept no other and the Nottars drawers of such Charters may be deposed and censured yet the Right will not be annulled or postponed to posterior more formal and solemn Rights for want of these formalities 15. The formal Tenor of Charters is different according to the several kinds on Infeftments whereof some are original Infeftments by which the Fee was first constitute and therefore are most plain and simple containing the dispositive Clauss relating or insinuating the Title or original of the Right if it be an original Charter from the King it begins with His Royal Title Carolus Dei Gratia c. And bears the consent of the Thesaurer and Commissioners for the Thesaury and bears a Narrative of the Motives inducing the King to grant the same and if it be Ward or Blench in Burgage or Mortification it bears Damus concedimus in perpetuum confirmamus But if it be a Feu Charter it bears Arendamus locamus in emfeuteosin dimittimus in perpetuum confirmamus And then follows the Clause Tenendas and the Clause Reddendo which if it be Ward bears Servitia debita If Blench the particular Blench Duty nomine Albae firmae If Feu the particular feu duty and sometimes the duplication thereof and the marriage of the Heir If Burgage it bears Servitia Burgalia If in Mortification it bears Preces supplicationes And ordinarly Warrandices which though very ample hath no effect for if the Right prove invalid there is no Action against the King who doth always Dispone plenissimo jure but periculo petentis especially when he Dispones as Supream Superiour by the Right of His Crown But if he dispone for a price or cause onerous as for sums of Money or by Excambion Lands acquired by him being no part of the Revenue of the Crown or annexed property in these utitur jure privato and his warrandice may have effect as to his privat Patrimony and not as to the Patrimony of the Crown Charters granted by the King of Fees by progress are either upon Resignation or by Confirmation or upon Apprizing or Adjudication which differ from original Charters in their several specialities as Chartersupon Resignation after the Dispositive Clause bear the conveyance that the Lands or others were resigned in the hands of His Majesty or His Commissioners by a Procuratory of Resignation a-part or in a Disposition or Contract expressing its date in favours of the Acquirer his Heirs or Assigneys whereupon Resignation being made in the Resigners Life the Charter will be granted to him or to his Heirs served generally or to his assigneys having right by Assignation to the Procuratory of Resignation Charters of Confirmation do deduce the Right to be confirmed which if it be a Charter a se bearing to be holden from the Disponer of the King and expressing the Tenendas reddendo The Kings Charter doth in the like style generally relate the Charter to be confirmed and then Ratifies Confirms and approves the same in all the Heads and Articles therein and
Heir Yet by act of Exchequer it is only extended to three Terms after the Ward though the old Style be still continued Charters do also comprehend several conditions and provisions of which hereafter And some Charters do express a bounding which is ordinary in these within Burgh And some do express a particular enumeration And some have only the general name of Barony or Tenendry or some other common Designations under which there may be particular Designations comprehended And some Charters bear Infang-thief outfang-thief Pit and Gallows These Charters or other Writes in place of Charters though they do never so fully comprehend the Dispositive Will of the Superiour yet they never become a real Right till they be compleated by seasine which imports the taking of Possession for seasine and seasure are from the same original signifying laying hold of or taking possession And disseasing is dispossession and therefore it is a needless question whether Seasine or Possession were distinct and which were most effectual for till the solemnity of Instruments of Seasine was introduced to accomplish the real Right of Fees Possession was necessary to be joyned to the Disposition Which Possession might either be natural by actual Inhabitation Manuring or Stocking the Ground positione sediuni Or might be Civil by uplifting the Fruits and Duties Or it might be Symbolical positione pedum by entering upon the Lands as Vassal upon the Superiours Warrand But if this Symbolical Possession were retent a possessione naturali the Superiour disponing to another who first attained the natural Possession be would have been preferred to the Symbolical Possession as being suspect and simulat retenta possessione Therefore till the time of King James the first any Charter Disposition or Precept from a Superiour to a Vassal mentioning his Heirs or an Heretable Right with true and real Possession without simulation was sufficient to compleat the Fee So a Charter with natural Possession was sustained being in the Raign of King Robert the second June 24. 1625. And also before the Raign of King James the second Hope seasine Earl of Mar contra Bishop of Aberdeen 16. But King James the first having been long detained in England being taken in his Voyage coming home from France did thence bring in the Solemnity of Seasines by the Instrument of a Nottar about the year 1530. as Craig relateth l. 2. dieges 7. near the beginning and yet sayeth that long thereafter even near to his time the Bailies Seal upon the Superiours Disposition Charter or Precept was sufficient to instruct Delivery of Possession Neither was there necessity in any case to prove the delivery or the Superiours Entering the Vassal in Possession but that was presumed from the Possession it self and therefore it needs not be debated how the Vassal entered in Possession or what warrand the Bailzie had to give him Possession or what warrand the Person who received the possession for the Vassal had as his Procurator or Acturney for if the Vassal were in the Natural and Civil Possession all these powers were presumed Neither were Precepts of Seasine or Acturneys then in use for as this solemnity of an Instrument of Seasine was introduced from England so was the name of Acturney which is frequent there but seldom usedhere but in cases of Seasine After Instruments of Seasine became in use they were not only sustained as the mean of probation that Possession or Seasine was given or taken but they were the necessary solemnities to accomplish the right which could not be supplied by any other mean or probation though the Superiour with a thousand Witnesses should subscribe all the Contents of a Seasine It would be of no effect to make a real Right without the attest of a Nottar in which sense the vulgar maxime is to be understood nulla sasina nulla terra which is not only necessary to the first Vassal but must be renewed to all his Heirs and Successors although by the custome of France the Vassal being once Infeft his Heirs need not be Infeft but do continue to possess by his Right as the Heirs of Tacks-men do with us But every Heir must be Infeft in Fees otherways if they die uninfeft they never attain the real Right but only a possessory Title to the Fruits and Rents which will belong to their Executors in so far as unuplifted from their Predicessors death till their own death or renunciation to be Heir and will be affected for their proper Debts which will not affect the Heritage or the next Heir entering who must enter to the Defunct who died last Infeft and will be lyable for his debts but not for the debts of his appear and Heir who was never Infeft 17. Let us then consider the formal Tenor of an Instrument of Seasine and the meaning thereof and then consider the essentials and necessary requisites thereto and how far unformal seasines have been sustained A formal Seasine is the Instrument of a Nottar-publick bearing the delivery of Symbolical Possession by the Superiour or his Bailzie to the Vassal or his Acturney by delivery of Earth and Stone and other Symbols accustomed upon the Ground of the Fee which should contain the Name of God as its initial Words In Dei nomine Amen that may keep the Nottar in remembrance of his faith and trust deterring him to take the Name of God to a falshood or lie Secondly It should bear the date by the day moneth and year of God and was accustomed to have the indiction and Name of the Pope which since the Reformation hath not been in use But it should contain the Name of the King and the year of His Raign Thirdly It bears the appearance of the Vassal or his certain Aucturney which is sufficiently instructed by having of the Precept of Seasine in his hands which is but presumptio juris and doth not exclude a contrary probation especially as to the Heirs of the first Vassal who by taking Infeftment becomes lyable for all his Predecessors debts and therefore if the Superiour should grant a Precept of clare constat the bearer whereof as Aucturney for the appearant Heir taking Seasine would involve the appear and Heir in all his Fathers debts and therefore it may be proven by the Superiour and Aucturneys oath that the Precept of Seasine was without warrand from the appearant Heir and so was fraudulent and collusive to involve him in his Predecessors debts in an overburdened and hurtful succession Fourthly It must bear the delivery of the Precept of Seasine to the Superiour if he be present or in his absence to his Bailzie whose warrand is secured because there is a blank left in the Precept for his Name in which blank any persons name being filled up he is sufficiently authorized as Bailzie in that part specially constitute Fifthly It bears the Bailzies accepting of the Precept and delivering of it to the Nottar in presence of the Witnesses Sixthly It must bear the Nottars reading of
the Precept and exponing it if it be in Latine and then the words of the Precept should be Ingrossed Seventhly It bears the Superiour or the Bailzies delivering of Earth and Stone of the Land to the Vassal or to his Aucturney bearer of the Precept Or delivery of any other accustomed Symbol as a penny for an Annualrent a Net for Fishing a Clap for a Miln Eighthly It bears the Aucturneys requiring Instruments Ninthly It must bear that these things were done upon the ground of the Land or other Hereditament and the hour of the day before two Witnesses at the least required thereto And last The attest of the Nottar bearing the auctority of his Creation and that he was present with the Witnesses vidi scivi audivi that the things contained in the Instrument were so done as is exprest therein and that he took a Note thereof and thereupon drew a formal Instrument and insert the same in his Protocol whereunto are adjoyned his Sign his Motto contained in his Commission relating to his faithfulness and trust and his name or the initial Letters thereof 18. If any of these be omitted the Nottar may be exauctorat and punished by the Lords but the essentials are much sewer Yet the Seasine must contain the delivery of symbolical Posession by the Superior or his Bailzie to the Vassal or his Acturney upon the Ground of the Land or other Tenement in presence of the Nottar and Witnesses with the date and subscription of the Nottar But the delivery of the symbol of an Office having no particular place or ground is sufficient any where as a Batton for a Military Office or a scrol Book or Cape for a Civil Office But where the Fee hath a particular ground or place there it must be taken upon the ground and it will not be sufficient to be in view of the ground yet Law or Custom may otherways order in case of necessity As the Infeftments of Lands in Nova Scotia were appointed to be taken at the Castle-hill of Edinburgh And when Lands are rightly Unite or Erected in Barronries Seasine taken upon any part thereof sufficeth for the whole and without Union Seasine taken upon any part of the Lands will serve for all the Lands in the Infeftment lying contigue Craig relates that a Seasine was found null and false where it bore These things were done upon the ground of the Land albeit the parties had put of the ground of the Land on which they stood within their Shooes but were not upon the fixed ground thereof The Instrument of Seasine must be taken by a publick Nottar lawfully authorized at the least so holden and repute for though the Nottar be deprived it will not vitiat his Instruments taken bona fide by persons who knew not his deprivation till it be commonly known or Letters of publication intimat at the Mercat Cross. A Seasine was also found null because it wanted these words vidi scivi audivi Hope Seasine Primrose contra In ancient Rights or where there is not a more Solemn Infeftment Seasines have been sustained though with considerable defects as where the Seasine bore not delivery of Earth and Stone but only actual and real Seasine June 17. 1630. Earl of Wigtoun contra Earl of Cassils But not where the Seasine wanted delivery of Earth and Stone and the name of the Aucturney Hope Seasine Laird of Lie contra Earl of Callender A Seasine was sustained though it did not repeat the Precept and did not bear delivery of Earth and Stone but only of the ground of the Land yet was preferred to a posterior formal Seasine taken after the matter was Litigious October 23. 1680. Lady Lambertoun contra Laird of Polwart And a Seasine being the Title in a Reduction was sustained to infer Certification though it bore not delivery of Earth and Stone nor Instruments taken nor the hour nor being conform to the warrand but bearing only according to the custome in such cases but the defender thereafter having made a production of his Right certification was not granted contra non producta March 20. 1632. Laird of Lie and Stuart contra Earl of Lunderdail Aand Seasine of Land and a Miln was sustained bearing delivery of Earth and Stone of the Land and Milne with all solemnities requisite March 15. 1631. Laird of Swintoun contra Vassals of Dumfermling 19. Seasines being but the assertions of a Nottar do not prove or instruct a real Right unless they be astructed by a Warrant or Adminicle in write except that it be against Tenents at the instance of their Master who is known to be in Possession or that Prescription hath run by one or more subsequent Seasines and 40 years peaceable Possession And albeit the most ordinar warrant of Seasines be the Superiors Precept Ingrossed or related to in the Seasine yet after 40 years Possession there is no necessity to produce Precepts of Seasine Procuratories or Instruments of Resignation even in the Case of Reductions of Infeftments for want of these Parliament 1495 cap. 214. In which there is not required peaceable possession neither yet continued possession as is required in the Act of Prescription so that Interruptions as to this point will not alter the case but there is no necessity to produce any more for instructing an Infeftment but the Seasine and a warrant thereof such as a precept of Clare Constat a precept out of the Chanclery a disposition or contract of Alienation according as the Seasine doth relate to the one or the other As if the Seasine bear to proceed upon a precept contained in a Charter ter Disposition or Contract of Alienation these must be produced specifice as they are related not only passive to defend in Reductions but active as Titles of Reductions Declarators and all other Processes except against Tenents or naked Possessors or where prescription hath run because the Charwhen it is related to is a part of the Investiture making up the real Right and therefore as hath been now shown § 14. there is no necessity to produce a Disposition Contract of Alienation or Bond though the Charter relate thereto But if the Seasinebear to proceed upon a Precept contained in a Disposition Contract of Alienation or Bond then these are parts of the Infeftment and make up the real Right and so must be produced that the Defender may except or defend upon any clause therein contained in favours of himself his predecessors or authors unless the Infeftments be ancient and clede with long possession in which case it is like the Lords would extend the foresaid Statute and would sustain a Disposition Contract or Bond as a sufficient Adminicle of the Seasine though it related not thereto And albeit this Statute mentions only that Charter and Seasine shall be sufficient under which a disposition or Contract of Alienation must be comprehended when the Seasine is immediatly taken thereupon and not upon a formal Charter for then they
any thing mentioned in the Statute as to the competition of Infeftments upon Appryzing or Adjudication with prior base Infeftments nor of the competition of one base Infeftment with another Yet Custome since that Statute hath cleared and determined the competition of publick and base Infeftments and hath restricted this Statute in some points and extended it in others First Custom hath preferred all publick Infeftments upon Resignation or Confirmation or upon Appryzing or Adjudication to base Infeftments though prior if the base Infeftment hath lain out of all kind of possession and likewise hath preferred posterior base Infeftments first clede with Possession to prior base Infeftments without possession especially in consideration that such base Infeftments are fraudulent or simulat retenta possessione for the retaining of Possession is a pregnant ground of simulation not only of Infeftments but many other Rights as when Moveables are disponed and delivered but presently taken back and the natural Possession continued in the Disponer though Instruments be taken upon the delivery yet other Dispositions or legal Diligences attaining and retaining Possession are preferable because the other Dispositions are presumed fraudulent and simulat And gifts of single Escheat or Liferent Escheat are presumed to be simulat if the rebel or his conjunct and confident persons be long suffered to retain the Possession and therefore base Infeftments retenta possessione are also presumed fraudulent and simulat and that not only presumptione juris by this and other Statutes but presumptione juris de jure admitting no contrary probation For certainly base Infeftments may be and oftentimes have been without simulation and for onerous causes and yet these have never been sustained or admitted to probation to validat such base Infeftments And albeit long retention of Possession may raise presumptionem hominis that publick Infeftments are simulat or without cause onerous yet that presumption hath not been owned by Law Secondly Custom hath preferred posterior base Infeftments attaining possession or using diligence to attain it to prior base Infeftments not attaining Possesion nor using diligence to attain it And albeit the superveening Statute for Registration of Seasines be designed for publication thereof that purchasers thereafter may not be insnared or disappointed whereby it might seem that the difference betwixt privat or base Infeftments and publick Infeftments might have been laid aside since the Act for Registration of Seasines whereby the uncertainty of real Rights by proving base Infeftments cled with Possession by Witnesses wherein our Law is so justly Jealous and Cautious that they are not admitted in cases where Write uses to be adhibit might be avoided Yet the preserence of publick Infeftments to prior base Infeftments not cled with Possession being fixed by Custom from this Statute before the Act for Registration of Seasines by the space of threescore seventeen years hath been still continued And such Infeftments as are without consent of the Superiour or order of Law have still retained the name and nature of base Infeftments and albeit the alledgeance useth sometimes to be proponed against base Infeftments that they are null not being cled with Possession yet it is no simple nullity but only a preference of a more solemn right for pursuits for Mails and Duties Removings yea and Reductions are sustained thereupon and will not be excluded upon pretence of want of Possession as thereby being null though they had lain long out of Possession So a base Infeftment without Possession was found a sufficient Title in a Reduction to inforce production of all other Infeftments base or publick albeit the Superiour did not concur Spots Kirk-men Dowglas contra the Earl of Home And such Infeftments do always exclude posterior Arrestments They do also exclude the Terce of the granters Relict January 27. 1669. Bell of Belford contra Lady Rutherford But base Infeftments do not exclude the Liferent Escheat of their authour unless they attain Possession in cursu rebellionis March 19. 1633. Laird of Rentoun contra Laird of Blackiter February 21. 1667. Robert Milne contra Clerkson Where there is no further ground of Simulation then the want of Possession very little Possession or Diligence for Possession will prefer base Infeftments to Posterior publick Infeftments or to posterior base Infeftments cled with Possession as the lifting of one Terms Rent did prefer a base Infeftment to a posterior publick Infeftment cled with many years Possession Hope alienation Hamiltoun contra Mcadam And the payment of a small part of Annualrent far within a Terms Annual was sustained to prefer a base Infeftment of Annualrent and it was also preferred because there was a Decreet of Poynding of the Ground though not put to Execution February 26. and 27. 1662. Creditors of Kinglassie competing And a citation for attaining Possession was found sufficient February 13. 1624. Corse contra July 2. 1625. Raploch contra Tenents of Lethem June 26. 1662. Wilson contra Thomson January 24. 1679. Hamiltoun contra Seatoun Yea a base Infeftment of Annualrent was preferred to a posterior base Infeftment of property which interveened before the first Term at which the Annualrent was payable and cled with Possession before that Term so that the Annualrenter did not lye out of Possession but could attain none July 26. 1676. Captain Alison contra Bailzie Carmichael And an Infeftment of Annualrent being out of discontiguous Lands in several Shires was preferred as to both Tenements by getting payment of Annualrents from the Heretor or Tenents of either Tenement November 6. 1673. Mr. Alexander Miln contra Mr. Thomas Hay And Possession by an Infeftment for Corroboration of an Annualrent did preferr the principal Infeftment of Annualrent having no other Possession July 9. 1668. Alexander contra 〈◊〉 And an Infeftment of principal Lands and Warrandice Lands being cled with Possession of the principal Lands these being evicted was found to make the Infeftment of the Warrandice Lands effectual from its date and preferred to a posterior publick Infeftment of the Warrandice Lands though cled with long Possession January 9. 1666. Elizabeth Brown contra John Scot. Yea base Infeftments to Wivesupon their Contracts of marrage 〈◊〉 preferre to all posterior Infeftments and the Husbands Possession is accounted the Wives Possession though he be common author to both November 23. 1664. Elizabeth Nisbet contra Patrick Murray And though the Husband did not 〈◊〉 himself but Wodsetters deriving right from him June 18. 1667. Lady 〈◊〉 contra Sir John Strachan And where the Husbands Mother did 〈◊〉 by a Liferent flowing from the Husbands Father to who 〈◊〉 he was Heir it was found sufficient to cloath his Wifes Infeftment with Possession February 21. 1672. Mr. James Reid contra Countess of Dundee But a base Infeftment of a Wodsett with a back-tack to the granter is not held cled with Possession by the granters Possession as Tacks-man till some further possession be attained Where there is any further ground of suspition or simulation there must be a clear
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
Solemnities requisite in Infeftments there uses to be many Clauses insert therein all which we cannot follow but shall insist in the most ordinar and and important These are Union Erection Warrandice Reservations Provisions Conditions and Clauses irritant 44. Union is the Conjunction or Incorporation of Lands or Tenements lying discontigue or several kindes unto one Tenement that one Seasine may suffice for them all in which there is sometimes exprest a special place where Seasine should be taken and when that is not Seasine upon any part is sufficient for the whole Lands lying contiguous are naturally Unite and needs no Union so that Seasine taken upon any of them extendeth to the whole But where they ly discontiguous other Tenements being interjected there must be Seasine taken upon every discontiguous Tenement which must be all particularly so exprest in the Instrument of Seasin whereof one will serve for all the Tenements or otherways when they are Tenements of several kinds as Lands Milns Fortalices and Fishing all which are several kinds of Tenements and require several Seasines and pass by several symbols or tokens as Lands by Earth and Stone Milns by the Clap Fortalices by the Entry at the Gates and inclosing the person possest and excluding the granter of the Possession solemnly conform to the Charter or Precept Union can be Constitute originally by no other then the Soveraign Authority conceding the same January 16. 1623. Mr. Hendry Aikin contra Greenlaw Or Confirming the same January 16. 1623. Aikin contra Stuart And therefore Union being Constitute by a Subject not having the same from the King was found null by Exception at the instance of the Possessors though pretending no Right December 16. 1628. Lady Borthwick contra Scot of Goldylands And when there is a place for the Seasine of the Union a Seasine taken elsewhere reacheth none of the Lands lying discontigue March 19. 1636. Lady Dunipace contra Laird of But if the Lands united by the King be Disponed wholly together by the Vassal to others Subalternly Infeft the Union stands valid July 12. 1626. Stuart and Dowglas contra Cranstoun Home repeated Jan. 5. 1627. which for the same reason ought to be extended to Subaltern Infeftments of an annualrent of a Barrony or United Tenement which was found to extend to a Miln and to Lands lying discontigue though not taken in the place designed in the Union Spots Executors Lady Ednem contra Tennents of Ednem 45. Erection is when Lands are not only Unite in one Tenement but are Erected into the dignity of a Barrony which comprehendeth Lordship Earldom c. All which are more noble Titles of a Barrony having the like seudal Effects and whensoever the Tenements are granted as a Barrony Union is comprehended as the lesser Degree though not exprest and therefore one Seasine carryeth the whole Barrony and all Milns and Fortalices thereupon and fishing adjacent thereto Erections can be only granted by the Soveraign Authority and are not Communicable by the Subaltern Infeftments though the Union implyed therein may be Communicat Erection was found to be instructed by the Kings Confirmation of a Charter Designing the Lands a Barrony though it was not a Barrony before but the half of a Barrony wherein the Barron Infeft his Son in Libera Baronia which Infeftment being Confirmed by the King did Constitute it a full Barrony whereby an Infeftment of annualrent taken upon a part of the Land affected the whole November 16. 1630. Laird of Clackmanan contra Alardice Erections of Kirklands in Temporal Barronies or Lordships whereby the Lords of Erection were interjected betwixt the King and the Feuars are prohibite Par. 1592. cap. 119. and Par. 1594. cap. 195. for all these Lands are annexed to the Crown Par. 1587. cap. 29. and Par. 1633. cap. 10. The Reason whereof is evident that such Erections are prejudicial both to the King who loseth his Casualities of the Feuars and to the People who must accept another Superiour in stead of the King and though they had formerly but Subjects to their Superiours yet Church-men were much more easy then secular persons as requiring little service and being ashamed to demand rigorous Rates but any man may obtain the Lands he hath in property holden mediatly of the King which were Kirk-lands Erected in any dignity the King pleaseth to grant There are many exceptions in the Acts of Annexation of the Temporality of Kirk-lands and in the Acts against Erections by which the Kirk-land excepted are validly Erected and all the Erections are so far allowed as to give the Lords of Erection right to the feu-duties or fruits of the property of Kirk-lands feued till they be redeemed by payment of ten per cent and the Infeftments granted to the Vassals medio tempore are valid but the Casualities ought still to belong to the King It hath been sometimes questioned whether the Union and Erection of Lands be dissolved and lost by an Infeftment of a part thereof from the Vassal holden of the Superiour by Resignation or Confirmation Craig l. 2. Dieges 7. is for the affirmative confirmed by the resemblance of a Sheaf of Arrows bound with one Ligament for if one Arrow be pulled out all become louse and so the Union of the whole is dissolved unless the Superiour give the new Infeftment but prejudice of the rest But though such cases frequently occur whereby Infeftments of discontiguous Lands would only be valid as to the contiguous Lands upon which they were taken yet in no competition or other Process hath it been observed by any to be drawn in question or decided so that we have ever rested in the Negative and the consequence from that resemblance is not sufficient But on the contrary he who unites many Discontiguous Lands unites every part of them to every part so that the taking off of one part dissolves only it self the rest remaining unite But Union or Erection doth not change the Jurisdiction of the Lands unite as to the Shires and Bailziries where they naturally ly Vide Tit. Confiscatione § Horning Barronies and United Tenements when they are originally granted ought to express the several Tenements according to their proper Designations and so expresly Unite them But when these are acknowledged to have been Baronies or otherways Unite or are named or defigned as such by these who have power to Unite then the common Name of the United Barony or Tenement is sufficient to carry all that is holden and repute as part and pertinents thereof which was extended to Lands as parts of a common Designation though some particulars were named and the Lands in question had also proper names and were exprest in the ancient Infeftments the right in question being an Appryzing March 23. 1622. Gallowsheils contra Lord Borthwick Union and Erection are as qualities of the real Right and pass unto singular Successors as is before exprest 46. Warrandice is either real when Infeftments is given of one Tenement in security of
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
deeds to a third party this will import but a personal obliegement and will not affect singular Successors 55. But if the Dispositive Clause be expresly burdened with payment of such a sum to the Author or bear that upon that condition the Infeftment is granted and no otherwaies such a Clause was found effectual against a Singular Successor bearing only a Provision in the Dispositive Words that the Lands should be affected with such a sum and was sustained against an Apprizer November 7. 1676. Caucham contra Adamson here there was a Clause irritant in the Disposition but was not in the Charter 56. Provisions or Conditions in Infeftments impossible or unlawful if they be conceived as suspensive Clauses annexed to the Disposition they annul the same But if there be Provisions otherways adjected though they be in the Terms of a Clause irritant or resolutive they are void as not adjected 57. Provisions also inconsistant with the Nature of the Right are ineffectual as if it were provided that the Vassal should not owe fidelity to his Superiour or that the Right should be valid by the Charter without Seasine these Provisions are inconsistent and null 58. It is much debated amongst the Feudists whither Clauses de non alienando with an irritancy or resolutive Clause or that the Fiars should contract no Debt by which the Fee might be alienat or the Tailzie changed and they are generally for the Negative that a Clause prohibiting contracting of Debt or simply not to alienat are inconsistent with Property albeit they may be effectual if so qualified That no alienation be made or debt contracted to affect the Fee or alter the succession without consent of the superiour or such other persons but that being absolute they cannot be effectual against singular Successors whereas these limited prohibitions resolve but in Interdictions and being contained in the Seasines registrate they are equivalent to Interdictions published and Registrate though many such Clauses have been in Tailzied Infeftments yet none of them have come to be debated but that which was in the Tailzie of the Estate of Stormont Tailzied to Annandails Heirs Male of his Body whilks failing to Balvaird and his Heirs with a Clause not to annalzie or to contract any debt or do any deed whereby the Lands might be taken from the Heirs of Talzie otherwise the Contraveener should ipso facto loose his Right and the next person who would be Heir should have Right which being at length contained in the original Seasine and all the subsequent Seasines was found effectual to annual the Right of James Earl of Annandail who contraveened and of all his Creditors who apprized for his debt Febru 26. 1662. Viscount of Stormont contra Creditors of Annandail Other Clauses irritant consisting with the nature of the Right are effectual against singular Successors as the taking the Name and Arms of a Family And generally all real burdens of Lands contained in Infeftments though they give no present Right to these in whose favours they are conceived nor cannot give them any Fee of the Lands yet they are real burdens passing with the Lands to singular Successors though they bind them not personally but the Ground of the Land by Appryzing or Adjudication as if Lands be disponed with the burden of an Annualrent furth thereof to such a person and his Heirs this will not constitute the annualrent but may be a ground of adjudging an Annualrent out of the Lands In all these cases Purchasers by voluntary Disposition are presumed and ought to see their Authors Rights at least a progress of fourty years whereby they may know such Clauses and consider them in the price or otherways secure themselves against them But in the only Decision of this matter concerning the Tailzie of the Estate of Stormount which did pass with great difficulty the Lords being near equally divided special consideration was had that the Clause irritant de non alienando was expresly set down in the first and subsequent Seasines of Heirs whereby Creditors were certiorat of their hazard if they should lend their money that they could expect no security threfore by that Estate seing thereby the borrowers Right became void and therefore such Clauses or any other Clauses irritant or conditions that might evacuat infeftments or deeply burden the same when they are not particularly exprest in the Seasine may not only be quarrelled by anterior Creditors but also by posterior Creditors as latent and fraudulent Clauses to insnare Creditors who having no mean to know such Clauses do contract and lend sums of Money to persons whom they see standing Infeft in considerable Estates of Land Clauses de non alienando or non contrahendo debitum are most infavourable and inconvenient specially when absolute for first Commerce is thereby hindered which is the common interest of Mankind Secondly the Natural Obligations of providing Wives and Children are thereby hindered which cannot lawfully be omitted Thirdly It is unreasonable so to clog Estates descending from Predecessors and not to leave our Successors in the same freedom that our Predicessors left us whereby though they have the shadow of an Estate yet they may become miserable as if they should happen to fall into Captivity or in any Transgression that would infer a considerable fine against which no such Clause can secure then being disabled to borrow they behoved to be denunced to the Horn and thereby their Liferent Escheat fall to their Superiour which no such Clause can prevent and therefore if any man have ground to suspect the frugality of his Successor he may provide a part of his Estate by a Tailzie disabling that Successor to contract debt without the consent of such persons in which he confides leaving some part of his Estate to his diseretion For such a Clause irritant being in the Seasine published by Registration may be sustained as equivalent to an Interdiction such Clauses are also much more tollerable in Lands acquired by the Fiars own industry wherein if there be insert a Tailzie with a Clause de non alienando to be insert in the Original and all subsequent Seasines and bearing Provisions for the Wives of Successours not exceeding such proportion of the Fee and for Children only to affect such a proportion of the Free Rent Or if persons having no near relations of value prefer others of their Name or Kin to their Estates Or in case of mutual Tailzies such Clauses limited as aforesaid may be much more tolerate But Clauses of that nature have never been attempted but in proper Tailzies where they are diverse nominat Branches which are neither Heirs of Line nor Heirs Male to one another and where the main design is to preserve the Tailzie for when all the Branches are of far relation the preference of the first is not much above the rest and therefore the other Branches have by such Clauses jus acquisitum and are not simply Heirs but partly Creditors to
the first Branch and therefore though there were no Clause irritant they might reduce alienations meerly gratuitous or fraudulent especially when done not by the Heirs of Line or Heirs Male of him who constitute the Tailzie for these are always in every Tailzie in the first place and while the Fee continues in them it is rather a simple Fee then Tailzied as it becomes again when all the Branches of the Tailzie fail The perpetuities of Estates where they have been long accustomed have 〈◊〉 〈◊〉 their Inconvenience therefore divices have been found out to 〈◊〉 them ineffectual Only the Majoratus of Spain hath been most 〈◊〉 〈◊〉 and 〈◊〉 that the King Nobilitating a Person of Merit and 〈◊〉 either by the Kings Gift or his own Right that Estate can neither be alienate or burdened but remains alimentary for preservation of the Dignity of that Family But these perpetuities in England are now easily evacuat First by Warrands to sell purchased in Parliament which pass without much difficulty and if they become frequent with us it is like we will find the same remeid they are also evacuat by a simulat Action of fine and recovery whereby the purchaser pretends that he is unwarrantably dispossest of such Lands by the present Fiar who coludes and is silent having received a Price or other consideration so that these Sentences though Collusive must be irrevocable In Tailzies the Heirs Male or Heirs of Line of every Branch being the Issue of the Stipes of that Branch do succeed and therefore there is a good Caution by the Law of England that after the possibility of Issue is extinct the present Fiar can do no more as to the Fee but what a Liferenter could do The next Branch being ordinarly altogether strangers to that Fiar little care will be taken to preserve the Fee In the Tailzie of Stormount the whole Estate was not comprehended and it was distinctly provided that in case any of the Heirs of Tailzie for the time should contraveen that the Right should be divolved on that person who would succeed if the contraveener were dead But in such Tailzies formerly it was not so clearly ordered being only provided that the contraveener should lose his Right and the next Heir of Tailzie should have place whereby it remained dubious whether the next Branch of the Tailzie were meaned so that the contraveener losed his own Interest and all descending of him Or whether he losed the Interest of all descending of that Branch Or whether he losed only his own personal Interest wherein the design of the Constituter of the Tailzie might be dubious enough 59. To sum up this important Subject of Tailzies let us consider the effects thereof according to the several ordinary Tenors of the same and how far the Fiar or his Heirs of tailzie is bound up thereby we must then distinguish betwixt Tailzies having Clauses not to alter burden or alienat And these that are simple without any express restrictive Clause Secondly Betwixt Tailzies made freely and these that are made for onerous Causes Thirdly Betwixt these that have Clauses resolutive or irritant and these that have only such Clauses by way of Obligation Provision or Condition As to the first Case It is a general Rule that quisque est rei suae moderator arbiter every man may dispose of his own at his pleasure either to take effect in his life or after his death and so may provide his Lands to what Heirs he pleaseth and may change the Succession as oft as he will which will be compleated by Resigning from himself and his Heirs in the Fee in favours of himself and such other Heirs as he pleaseth to name in the Procuratory whereupon Resignation being accepted by a Superiour and new Infeftment granted accordingly the Succession is effectually altered yea any obliegement to take his Lands so holden will obliege the former heirs to enter and to denude themselves for Implement of that obliegement in favours of the heirs therein exprest and if the Superiour refuse to accept the Resignation altering the Succession a Bond of borrowed Money though granted only upon design to alter the Succession will be the ground of Adjudication of the Land and being assigned to the Fiar himself and to such heirs as he pleaseth the Superiour will be forced to receive him accordingly so that the first constituter of a Tailzie or any heir succeeding to him may change it at their pleasure unless the Tailzie be for an onerous Cause as when Tailzies are mutual then the first constitutors of the mutual Tailzies cannot alter the same although their Debts may affect the same yet no fraudulent or gratuitous deed can alter or evacuat such Tailzies and therefore a mutual Contract betwixt two brethren oblieging them that what Lands they should succeed to or acquire should be taken to the Heirs of their body whilks failzing to the Brother and the heirs of his Body c. though thereafter either Brother took their Lands otherways to their heirs whatsomever whereby Sisters having succeeded to one of these brothers they were decerned to denude themselves in favours of the other Brother January 14. 1631. Mr. John Sharp contra Helen Sharp But if the Cause onerous be of less import then to grant and continue a Tailzie it will import no more then once perfecting the Infeftment by such a Tailzie whereby the hope of Succession ariseth to these parties in whose favours the fiar is oblieged to take the Tailzy but he was not found oblieged to continue the same but that he might alter it thereafter without refounding the Money he got for granting it being but of that value as was equal only to the hope of Succession which behoved to be understood of alteration sine dolo July 15. 1636. Mr. David Drummond contra Drummond Heirs of Provision by Contracts of Marriage are in part ouerous being granted for a Tocher and the interest of the Wife concerned therefore they cannot be alterred by the Husband at his pleasure but do exclude all fraudulent or meerly gratuitous alterations as hath been shown Section fourty three But if there bean express Obliegement not to alter the Tailzie albeit that will not give Title to the Heirs of Blood of the present Fiar to quarrel his deed or alteration yet it will give interest to any other Branch of the Tailzie whether to the person nominat or his heirs to quarrel and reduce such alterations though it will not exclude alterations by Appryzing or Adjudication for debts truly borrowed by the Fiar and therefore a Tailzie of a sum of Money lent in thir terms to be payed to the Creditor and the heirs of his Body whilks failing to the Father and the heirs of hsi Body whilks failing to a person named and his heirs and assigneys whatsomever with a provision that the Creditor and his heirs should do no deed hurtful to the Tailzie nor the Debitor should not pay without consent of the heir
be given and expired which in all Decreets proceeding upon Citation requires fifteen days In which address may bemade to the Lords Thirdly Decreets of Barons have no Execution by Horning which goeth of course upon the Decreets Precepts and Executions of other Judges ordinary so that all the Execution upon their Sentences is only poinding or corporal Punishment As to which if there be any process for Capital Punishment the Lords will very easily grant Advocation as they do advocat Causes from Inferiour Judges not only upon Incompotency but upon Intricacy and Importance So there being nothing more Important then the life of Man they would easily advocat such Processe wherein Barons should not proceed summarily to Execution But both they and other Inferiour Judges ordinary should after Sentence at least abide Terms of Law by the space of fifteen days that the Lords may give remeed by Advocation or Suspension of Execution For though the Lords have not Criminal Jurisdiction they do ordinarly advocat and by the same reason may suspend Criminal Processe to the effect the same may be remitted to competent and unsuspect Judges so that if there were any doubtfulness in the case the Lords would remit the Cause to the Justices Fourthly The Courts of Barons or Free-holders are not Courts of record in which writes use to be registrat 64. As the Courts of Barons and Free-holders have these Restrictions more then the Inferiour Judges so they have this advantage ordinarly that all the Profits and Issues of their Courts belong to themselves whereas Sheriffs Stewarts and Baliffes of Royalty are countable to the King seeing these are the Kings Courts But Baliffes of Regality are not countable because though they be the Kings Courts yet the King hath gifted the Profites of the Court by the Erection of the Regality If then an Infeftment contain Courts the Profites thereof are carried therewith though not exprest but ordinarly they bear cum curiis earumque exitibus And therefore the Amerciaments of Courts or there other Issues or there Priviledge on the breakers of Arreeistments loosing their Tacks to their Masters within their Barronies are not comprehended within publick Confiscations reserved to the King 65. Fortalices are also inter regalia and are not carried by the Fee unless exprest or at least the Lands be erected in Barrony By Fortalices are understood all Strengths built for publick Defence whether that appear by common Fame or Reputation such as all the Kings Castles whereof many are now in privat hands as Proprietars or Heretable Keepers thereof or Constables of the same such are the Castles of Dunstafnage Carrick Skipnes and others belonging to the Earl of Argyl the Constabulary of Forfar belonging to the Earl of Strathmore the Constabulary of Dundie now belonging to the Lord Hattoun And when these Castles are disponed either in Property or custody the Infeftments thereof carry therewith not only the Bounds of the Castle but the Dependencies thereof as Gardens Orchards Parkes Meadows and other ground possest by the King or Keeper for the use of the Castle and all Rents Annuities Jurisdictions and Priviledges thereunto belonging which may be instructed by their Charters their Court-books or other Writes or Instruments and even by Witnesses proving long Possession albeit the Infeftments of Constabulary bear only in general Officium constabularii cum feodis divoriis ejusdem which was found to extend to the proclaiming and riding of Fairs anterior to the Constitution of the Office and exercing Criminal Jurisdiction in the Town where the Fairs were held during these Fairs but not to extend to other Fairs recently granted by the King or to Jurisdiction at other times July 18. 1676. Earl of Kinghorn contra Town of Forfar The like was done in the Process betwixt Hattoun and the Town of Dundie in anno 1679. wherein multitudes of Witnesses were examined upon either part And the Emoluments Priviledges and Jurisdiction of the Constabulary were decerned according to the Probation and Particularly 20 shillings Sterling yearly for which the Town of Dundie counted in Exchequer as belonging to the Constable which was found to belong to the Office albeit there was a Discharge thereof granted to the Town by Scrymzour Constable of Dundie which was not found effectual against Hattoun his singular Successor in the Office by Apprysing December 9. 1679. inter eosdem 66. The Case is more doubtful as to other Fortalices which are not repute to have been the Kings Castles Craig's opinion is that all strong holds are presumed to have been builded for publick Defence and not for privat Safetie wherein turris pinnata is comprehended having Turrets or Rounds upon the Angles from whence Shot may be directed alongst all the Walls And therefore much more may Castles with Bartizens or Bands that is strong and high Walls surrounding the Castle Or if the Castle be built upon a place naturally strong which may give suspition to the King to be an occasion of Rebellion and not to be patent and accessible at his pleasure and most of all if there were regular Fortifications of Stone or Earth Certainly such Fortresses or Fortifications whereby places are made of that strength which is accustomed to secure against publick Enemies in War may not be builded without the King's Warrand and if otherwise built may be demolished and the Builder punished but long possession presumes a Warrand And as such Fortalices may be presumed to have been at first the Kings from the very Inspection of the Fortalice and its proper use so long Possession may take off that Presumption and that they have been built mainly for privat use in times of trouble with the Kings consent But we need not insist in these Questions seeing Towrs and Fortalices do now pass in course in Charters Yet though these were exprest if it appear the Fortress hath belonged to the King and can be comprehended in the annexed Property the Right of them will only resolve into an heretable keeping so that the King in time of War or Insurrections may make use of such strong holds and put Garisons therein seeing keeping doth not exclude the Kings own necessary use neither will the expressing of Fortalices generally impower the Vassal to build such Strengths as are proper for publick War because the Clause can only import such Fortalices as then were built But I see no ground to extend Fortalices to all houses with Batlements or with Turrets or Rounds which can only infer private safety against Robbers Plunderers or flying Parties but nothing proper for a Seige or publick Defence of a Kingdom and therefore these may pass as Houses or Pertinents And as to that ground Craig adduces That it is Treason to hold any Fortalice against the King or to deny Him or these commissioned by Him access by armed force and yet delivery of any other privat Right may be refused to the King without hazard Whence he inferreth that the King must have greater Right and Interest in
what the meaning of the Clause cum piscationibus simply or of fishing in salt Water can Import seing there are common freedoms of every Nation to Fish into the Sea or into Brooks or Rivers for common fishes and therefore needs no special Concession from the King or other Superiour but the use thereof may be first that it may be the Title or foundation of prescription of Salmond-fishing not only in fresh-water but in the Sea at the Water-mouth where they are frequently taken And also that in other fishings if a prescription run of interrupting and hindering others to fish whatsoever sort of fish it will constitute a property thereof which could not consist without this clause or the like as a Title neither could it be comprehended as Annex or Connex of Lands or as a Servitude being a distinct right having so little respect to Land 70. There is a special way of fishing by Cruives or Zaires both in fresh water and salt all such Cruives are absolutely prohibite to be set within Rivers in so far as the Tide flowes as being destructive to the frey of all fishes Parliament 1424. cap. 11. renewed Par. 1477. cap. 73. Par. 1581. cap. 111. And as to other Cruives in fresh water they are also prohibite by the said last Statute except such as are Infeft in Cruives Lynes or Loups within fresh water who are to enjoy the same according to their Rights keeping Saturdays Slop and the due distance betwixt the Hecks the distance of the Hecks by the Act of Parliament 1477. cap. 73. is exprest to be three inches conform to the Statute made by King David but the Act of Parliament 1489. cap. 15. expresseth the distance to be five inches conform to King Davids Act And in both these Statutes besides the distances aforesaids Saturdays Slop is appointed and likewise that the mid-stream by the space of five foot be always free and that no Cruives be made use of in forbidden time of year when Salmond may not be taken which is declared to be from the Feast of the Assumption of the Virgin Mary unto the Feast of Saint Andrews in Winter Parliament 1424. cap. 35. Few debates have occurred concerning Cruives notwithstanding the great notice thereof by so many of our Kings One did lately occur and was fully debated in presentia betwixt the Heretors of the Water of Don and the Town of Aberdene which was mainly decided on January 26. 1665. The case was thus The Town of Aberdene having changed a Cruive-dyke to another place within their own bounds and built the same there again of new whereupon the Heretors who had right to the Salmond-fishing upon the Water of Don above these Cruives raised a Declarator against them wherein after large disputes concerning Saturdays Slop and the mid-stream and the distance of the Hecks and the height of the Cruive-dyke and whether it ought to be built sloping or perpendicular and whether it might be changed to the prejudice of the Heretors The Lords found that the Town of Aberdene might change the Cruive-Dyke keeping it within their own bounds and having no more Dykes but one but found that seing they had a Cruive past memory without interruption which had determined the height and frame thereof they found that the new Dyke behoved to be built in all things conform to the old and with no more detriment to the saids Heretors fishing then was formerly before the water had pooled at the old Dike and so it was not determined how high a Cruive-dyke might be or whether it behoved to be sloping or not where prescription had not determined which is very seldom It was also found that the distance of the Hecks ought to be three inches conform to the Act of King James the third Par. 1477. cap. 73. and not five inches according to the Act of King James the fourth Par. 1489. cap. 15. which mentions five inches which the Lords found to be a mistake in the Transcribing or Printing of the Act of Parliament in respect that both this and the former Act relates to the Statute of King David as the pattern thereof which mentions but three inches and that Hecks of five inches wide will be of no use nor hold in any Salmond The Lords also found that the Saturdays Slop behoved to be observed not only in one Cruive but in all the Cruives of the Dyke and that by pulling up the Hecks of each Cruive by the breadth of an ell to continue from Saturday at six a Clok till Monday at Sunrising and the Lords found that part of the Statute concerning the mid-stream to be indeed distinct from Saturdays Slop but they found that part of the Statute concerning the mid-stream to be in desuetude in all the Cruives of the Kingdom and that it is not repeated by the Act of King James the sixth Par. 1584. cap. 111. and therefore found the same not obligatory notwithstanding that in the late Act of Parliament 1661. there is an Act Ratifying all the old Statutes concerning Cruives which was alledged to revive that point of the mid-stream which the Lords did not respect as a general Law albeit the Confirmation did run in these terms because it past the Parliament without notice as an ordinary Confirmation at the impetration of their pursuers and did not pass the Articles and was not appointed to be Printed as a publick Law 71. Milns are not carried as part and pertinent because they are esteemed as separata tenementa requiring a special Seasine unless the Lands be in Barronia for then Infeftment in the Land carries the Milns thereon yet a Miln being built upon a Liferenters Land after her Infeftment bearing cum molendinis was found to belong to the Relict though Milns was not in the Dispositive Clause Nor was she in conjunct-Conjunct-fee of a Barrony but she was not found to have right to the astricted Multures of any Lands but her Liferent Lands February 16. 1666. Lady Otter contra Laird of Otter 72. The Priviledge of Brewing being designed for publick use for common Hostlaries the inspection whereof is committed to the Judges ordinary Magistrates of Burghs Sheriffs Bailies and Barrons who are appointed to settle Hostlaries in convenient places and to visite their measures if they be sufficient and the goodness of their Ale Par. 1535. cap. 17. And the saids Magistrates to Burgh or Landward are ordained to see reasonable prices for Meat and Drink in Hostlaries with power to deprive them of their priviledge if they transgress so that a Barrony carries that priviledge though not exprest but Infeftments of other Tenements carry it not unless it be expresly granted by the King immediatly or by progress that is that all the Superiours interveening betwixt and the King have that priviledge July 25. 1626. Stuart contra Brewers but in possessorio the Proprietars Infeftment bearing cum brueriis will be sufficient and presume the progress unless that priviledge be craved to be reduced wherein the
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
seemeth to make a herzeld due by Tennents possessing four Oxen-gang of Land to their Masters going to the War by poor Tennents possessing only four ongat of Land or less such not being able by reason of poverty to go in person with him yet the constant Custom layeth Herezelds most upon Tennents possessing more Lands and generally upon all who are not Cottars not paying immediately to the Master but to his Tennent dwelling upon the Ground and there is no difference whether he be Mailer or Fermer only due at the Tennents death The Herezeld was found due to the Lady Liferenter though the Defunct had the Room in Steelbow Hope Herezeld Lady Tockrig contra Oliver Baird But not where the Defunct Tennent was warned and decerned to remove Hope Ibid. Walter Callender contra his Tennents And Craig observeth lib. 2. Dieges 8. That a Herezeld being taken the Tennents Successor is not to be removed for a year so it was found March 20. 1629. Auchnacloich contra Mathie 81. Steelbow Goods set with Lands upon these terms that the like number of Goods shall be restored at the issue of the Tack do not pass by Disposition of Lands as pertinents thereof unless they were exprest but do remain as moveables arrestable December 4. 1638. Lady Westmerland contra Earl of Home January 28. 1642. 〈◊〉 Dunda contra George Brown and so they fall under single Escheat and cannot be taken from the Tennent till his Tack run out Decem. 6. 1628. Lawson contra Lady Boghal Having considered the nature tenor and import of the several kinds of Feess it is now proper to consider the legal effects thereof which are either injudicio possessorio or petitorio 82. In Possessorio all Infeftments cled with lawful Possession during the time prescribed by Law or Custom are valide and effectual either in pursuit or defence ay and while they be reduced and thereby not only is the Fiar or these deriving right from him secure to possess and cannot be impeded or disquicted by any other right though it would be a prior and better Right in petitorio but thereupon all Possessory Actions may effectually proceed for Mails and Duties for removings of Tennents or Possessors for Perambulation or Cognition of Marches much more for Intrusion succeeding in the vice of removed Tennents or Ejection as to which Possession alone is sufficient The motive Introductory of this Priviledge in possessory Judgments is because Infeftments are ordinarly granted subalternly there being many Superiors betwixt and the Supreme and each Superior keepeth his own Infeftments and gives to his Vassal out a Charter and Seasine holding of himself and therefore no perfect right of the Ground can be instructed but by a Deduction from the King the suprem Superior or by Prescription And therefore in Petitorio whereby the full Validity of the Right is declared or decerned before a full Issue all the interveening Superiors must be called to produce their Rights till the common Superior from whom both Parties derive right so that neither Party can quarrel his 〈◊〉 which requires a long course of time And therefore he who by Infeftment is suffered to possess for a considerable course of time unquarrelled the Law presumes his Right is good and he is not only secure not to be comptable for the Rents and profites he has enjoyed which require no course of time but bonae fidei Possessor facit fructus conjumptos suos Of which in the former Title § 28. But he is even secure for all that he shall enjoy until in a petitory Judgement by a Declarator or Reduction he be put in mala fide by the Production of another Right appearing evidently to be better and exclusive of his till which he is not to doubt of his own Right but may safely and quietly enjoy and spend the Fruits The time required by Law or Custom for attaining this Priviledge was undetermined and in arbitrio judicis at first but it was not sustained upon two years possession July 17. 1610. Auchterlony contra Annan It was sustained upon fifeteen years possession ordinarly and then upon fourteen years possession July 16. 1623. Sybald contra Stuart And upon ten years possession November 19. 1623. Hamilton contra Dick. March 29. 1624. Monnypenny contra Tenents It was also sustained upon seven years possession Decemb. 10. 1623. Irving contra Gordon Hope confirm Earl of Arran contra Tenents of Camely and Earl of Seaforth And it was once sustained upon six years possession March 13. 1627. Feurd contra Stivenson Yea once upon three years possession Hope Possession Murray of Lochmaben contra his Tennents But now of a long time it hath been fixed to seven years possession and it was not only sustained as to Lands either as to the Fiars or Liferenters but also to Multures where the Lands and Quantities of Multures were particularly exprest But it was not sustained upon an Apprizing without Infeftment or Charge Feb. 6. 1668. Mr. George Johnstoun contra Charles Erskin Neither was it sustained upon obtaining Decreets or lifting of seven years Rent together but continuing in possession by the space of seven years by labouring or uplifting the Rent January 25. 1672. Harper contra Armour Neither upon possession as part and pertinent the possession being vitious and violent June 25. 1674. Mr. Heugh Maxwel contra Ferguson The like where the possession was interverted June 24. 1679. Menzies of Sckian contra Campbel of Torerick Neither upon Apprizing and Infeftment against an other Apprizer within year and day July 17. 1675. Balie Baird contra Bailie Justice Neither was it sustained against an Apprizing for the avail of a Marriage being debitum sundi December 17. 1673. Patrick Hadden contra John More Neither against the King nor His Donatar seeing the King needs no Reduction and cannot be prejudged by the neglect of His Officers not pursuing in seven years January 28. 1679. Laird of Blair contra Lady Heslehead Neither against a Liferenter unless the Possession had been seven years after her Husband's death Neither against recourse upon Infeftment of Warrandice after Eviction which requires no Reduction January 9. 1666. Elizabeth Broun contra John Scot. The like unless there had been seven years possession after the Eviction February 20. 1668. Mr. John Forbes contra Innes Neither is it ever sustained against Infeftments of Annualrents Feu-duties or other debita fundi June 29. 1662. Adamsons contra Lord Balmirrino Neither have Annualrents the benefite of Possessory Judgements for them more then against them But it was not found relevant to exclude a Possessory Judgement that there was Interruption by Citation not being within the last seven years July 15. 1668. Earl of Wintoun contra Gordon of Letterfary Nor because the matter became litigious by a Denunciation and Apprising June 17. 1678. Sir William Stuart contra Murrays It uses to be contraverted whether seven years possession be relevant against an Infeftment cled with possession immediatly before the seven years As to
falls by Reduction or nullity of Infeftments or retours 20. Burgage falls not in Non-entrie as to the Burgh or particular persons 21. The effect of the general Declarator of Non-entry 22. The effect of Non-entrie after Citation in the general Declarator 23. Exceptions against Non-entry as to the Feu-dutie or retoured mail 24. Exceptions against Non-entrie as to the full Rent 25. Whether Non-entrie after Ward requires Declarator 26. The Original of Relief 27. The Custom of England and France as to Relief 28. The quantitie of Relief with us 29. Whether Relief be due during Non-entrie 30. Whether Relief is due when the heir is entered whether the Fee be burdened with Conjunct-fee or Liferent 31. Relief stops not the heirs Seasine 32. Compositions for the Entrie of Appryzers or Adjudgers 33. The Original of Ward 34. The effect of Ward as to the heirs person 35. The effect of Ward as to the fee. 36. The restrictions of Ward 37. The value of the Marriage of heirs of Ward-vassals 38. The true interest of Superiours in the Marriage of their Vassals 39. The single value of Marriage not penal but favourable 40. Double value penal and unfavourable with the exceptions against it 41. Single value found due where the heir was Married before his Predecessor died by precipitation 42. The quantity of the single value in heirs male or female 43. Marriage is debitum fundi 44. It belongs to the eldest Superiour 45. The Royal Prerogative prefers the King to all others as to the Marriage of the Vassal 46. Marriage is due by the heirs of Appryzers 47. Exceptions against the value of marriage 48. The rise of Liferent-escheat 49. It extends to all kinds of Liferents 50. Liferents of fees not having Infeftment or not owing fidelity to a Subject belong to the King 51. Liferent escheat of sub-vassals to whom they belong 52. Liferent Escheat is not excluded by voluntary Infeftments after Denunciation not being for implement of a special Obliegement to Infeft before Denunciation 53. Liferent Escheat is excluded by Appryzing for debts anterior to the Rebellion there being Infeftments or Charge in cursu rebellionis 54. Liferent Esche it extends not to Burgage or mortification 55. But extends to Ministers Stipends 56. Liferent Escheat is made Effectual by Declarator HAVING now shown what is the interest of the Vassal in the Fee it will be the more easie to find out what the Superiours Right of the Superiority retaineth for what is proper to the Fee and is not Disponed to the Vassal is reserved to the Superiour and it is either Constitute as belonging to the Superiour constantly or casually 1. The constant Right of the Superiour standeth mainly in these particulars First Superiority it self is dominium directum as the Tenentry is but dominium utile as before is shown and therefore the Superiour must be Infeft as well as the Vassal and that in the Lands and Tenement it self without mention of the Superiority which followeth but upon the Concession of the Fee in Tenentry though sometimes through the ignorance of Writers Infeftments bear expresly to be of the Superiority 2. Only the Soveraign Authority as the common Fountain of all Rights of the Ground needs no Infeftment but hath his Right founded in jure communi and is not Feudal but Allodial and when the Right of Lands fall to the King by the Casuality of his Superiority as Forefaulture Recognition Bastardry or last heir if the Lands be holden immediatly of the King they are ipso facto consolidat with the Superiority and the Declarators required thereanent do not Constitute but declare the Kings Right without prejudice of what is consumed bona fide But where they are not holden immediatly of the King the Right thereof is perfected by Gift and Presentation whereby the immediat Superiour is oblieged to receive the Donatar by Infeftment like to that of his former Vassal yet the Kings Right by the Casuality though it be not perfected is real and effectual against all singular Successours whereby deeds of Treason and Recognition being in Facts ordinarly proven by Witnesses Purchasers cannot be secured by any Register and therefore must secure themselves by the Kings Confirmation novo damus But where the King succeeds in any Fee to a Subject as to Property or Superiority before he can alienat the same he must be served Heir in special thereunto so King CHARLES the first was served Heir to Queen Ann his Mother in the Lordship of Dumfermling in which King James Infeft her in Fee to her and her Heirs by a Morning-gift the first day after his Marriage with her and King Charles the second was served Heir to Charles Duke of Lennox in the Earldom of Lennox In which Service the Chancellour and fourteen of the Lords of Session were the Inquest the youngest Lord being left out because there could be no more but fifteen But the King needs no Infeftment upon such Retours but if he acquire any Lands holden immediatly of himself the Instrument of Resignation must be Registrat and if holden of a Subject there ariseth no real Right to a Donatar till he be Infeft upon the Kings Presentation and his Seasine Registrat by both which the certainty of Land-rights is preserved 3. Secondly Superiority carrieth a Right to all Actions following the Land against any other then the Vassal for seing Superiours are Infeft in the Lands they can only be repelled from such Actions by the Rights granted to their Vassals but by no others and so may remove Possessors who can show no Right this was found though the Superiours Infeftment bore him only to be Infeft in the Superiority of the Lands November 19. 1624. Lag contra his Tennents 4. If a Superiour become Fiar by Succession or Acquisition for Establishing the Property in his Person he may either be Infeft upon his own Precept or the Kings November 26. 1668. Daughters of Mr. Robert Mortoun 5. But a Superiour cannot interpose betwixt himself and his Vassals by Infefting another in the Lands to be holden of himself Such infeftment was found null by Exception January 30. 1671. Dowglas of Kelhead contra Vassals Superiours must receive and Infeft their Sub-vassals upon the refusal or incapacity of the Vassal and may at any time after receive the immediat Vassal or his Successour or another if the immediat Vassals Right be extinct or acquired by the Superiour which is no unwarrantable Interposition which is repelled as contrary to the Nature of the Feudal Contract and Right it being inconsistent that the Superiour should both give his Superiority to another and claim it himself Dans retinens nihil dat And if that were allowed interposed Vassals might be infinitely multiplied November 26. 1672. Earl of Argyle contra Mcleod in which case the late Marquess of Argyle being forefault Mcleod who was Argyles Vassal was retoured and Infeft in the Lands as holden immediatly of the King which did not hinder the King to Interpose this
of the Statute being to Satisfie Creditors by a Judicial alienation of the Debitors Lands ex paritate rationis it was extended against the Debitors appearand Heir who being Charged to Enter Heir did not Enter and therefore Lands were Adjudged from him to which he might have Entered either for his Predecessors debt or his own whereupon the Superiour is descerned to receive the Creditor Adjudger whether for sums of Money or for Implement of Dispositions and Obliegements to Infeft But the Custom allowed not a years Rent to Superiours for receiving Adjudgers till the years Rent was also extended to Adjudications by Act of Parliament Decem. 3. 1669. The Lords of Session have always taken latitude in the modification of the years Rent especially if the sum Appryzed or Adjudged for be small and the Lands he great and they have allowed the Appryzer or Adjudger his option during the legal to take Infeftment or not and yet not to be excluded from the Rents of the Lands till he be satisfied Decem. 3. 1672. Mr. Hendry Hay contra Laird of Farlstoun Vide Tit. 13. § 29. But the Appryzer runs that hazard that if the Debitor die before he be satisfied if the Land be holden Ward it will fall in Ward and relief by the Debitors death and in Non-entry for there is no reason that the Casualities of the Superiority should neither fall by the Appryzer nor by the Debitor There is not the like reason that the Liferent-escheat of the Debitor should exclude the Appryzer if it fell after the Appryzing and Charge for the Liferent-escheat falls to the Superiour with all the burdens which affected it by the Vassal even with the burden of his Tacks and therefore Appryzing with a Charge way be as effectual as these July 24. 1632. James Rule con Laird of Billie The Superiour can have only one years Rent from all the Appryzers or Adjudgers But now since Appryzers and Adjudgers within year and day come in pari passu where one needs only to be Infeft or to Charge there is less reason to give an easie modification of the years Rent to the first Appryzer or Adjudger insisting for Infeftment then before because one Infeftment serves for all and he who advanceth the same gets relief of the rest before they have access to the Rents 33. The prime Casulity of Fees is Ward which is not competent to all Superiours Ward is only competent in Fees holden in Military Service which have their Denomination from this Casuality being therefore called Ward-holdings and that not by the Tenor of the Investiture which seldom mentioneth Ward but by the Nature of it for when the Fee is holdeu for Military Service or as the English better express by Knight Service extending not only to following in War but to Council and Assistance in Peace then when the Vassal is unfit for such Service the Fee is open and remaineth in the hands of the Superiour or his Donatar and though this capacity might be in some sooner yet it is fixed in men to their majority at twenty one years compleat and in Women till they become fourteen years compleat for then they are capable of Husbands who may do the Service required in the Fee Decem. 20. 1609. and Jan. 27. 1610. Lady Kilbirnie contra the Heirs of Fairlie What Fees are holden Ward we have cleared in the former Title It now remains that we hold forth the effect of this Casuality 24. Ward reacheth the Custody of the Person and of his Lands holden Ward it hath its denomination rather from the former for Ward is as much as Guard or Custody The Superiour or his Donatar is by the Nature of this Right as a Tutor to the Vassals Heir Craig observeth that he is preserable to all other Tutors except only the Father of the Heir whose Fee descends by the Mother or some other person and that he is oblieged as other Tutors to pursue the rights of the heir but the course of time having turned this Right from its ancient Institution so that the Superiour hath less enjoyment of Service but more of Profite of the Fee there is the less regard to the Pupils Education with or by the Superiour to the effect he might be fitted for his Service and therefore other Tutors not only for the administration of the Pupilsmeans but even for the Custody and Education of his Person will be preferred though of old the Donatar of the Ward was preferred to the Tutor in Custody of the Pupils Person Sinclar June 15. 1543. Laird Auchnames contra Laird of Elphinstoun Ledingtoun March 16. 1565. and July 12. 1566. Weir contra Lochart Yet later Decisions have favoured Tutors more and preferred them Nicol. ubi pupuli educari Mr. James Chalmers contra Elizabeth Howstoun Lady Gadgirth Neither have I ever observed that Superiours or their Donatars were made lyable as Tutors for Administration of their Pupils Affairs 35. The main effect of Ward then is that thereby the Superiour or his Donatar have during that time the full fruits and profites of the Fee and may remove Tennents and do all other deeds that the Proprietar might have done and was accustomed to do as to continue the profites of a Wood if there be constant cutting as being divided in so many Hags that the first is ready by the last be cut Or going Heughs as they were accustomed by the Vassal but he cannor cut more then the accustomed yearly Hags of Wood or put in more Coalziers then the Vassal had at his death and ordinarly before and he may remove and in put Tennents and that without any preceding declarator or favourable account esteeming the retour Mail for the Rent as in Non-entry but he may immediatly pursue actions for Mails and Duties removing c. unless the Ward be Taxed and then the Superiour can have no more then the Duties to which it is Taxed But for it he hath not only the Vassal and all Intromettors with the Fruits personally But he may also Poynd the Ground for the Taxed Duty as Craig affirmeth in this Title 36. Yet the reach of the Ward by the Nature of the Fee cannot extend to alienation or consumption of the Substance of the Fee or any part or pertinent thereof and this is cleared by the Statute Parliament 1491. cap. 25. Whereby Donatars must find Caution not to destroy the Biggings Woods Stanks Parks Meadows or Dovecoats but to keep them in such kind as they get them Ward is also restrained by the Statutes confirming Feues of which formerly and these stand valid against the Superiour during the Ward so do also all Infeftments holden of him either by Resignation or Confirmation but not Infeftments to be holden of his Vassal unless Confirmed by him for albeit Confirmations by the King which pass of course do not take away the Casualities of Ward c. of the Kings Vassals which affect the Fee of the Sub-vassals yet the Confirmation of other Superiours of Sub-vassals
rights doth take off from him the Ward if the right be Feu only generally without mention of the Ward seing the Act 1606. doth only annul Feues set by Vassals holding Ward of Subjects without their Superiours consent which was so found albeit the Feu was under reversion that it was free of the Ward and Marriage of the Vassal as to the subvassal feuer but did only affect the Vassals interest viz. the Feu duty reversion and back-tack July 2. 1672. Earl of Eglintoun contra the Laird Greenock Ward is also restrained by the Terce and Liferent of Husbands by the Courtesie of Scotland both which are introduced by Law and are valid without the Superiours consent But Rentals and Tacks set by the Vassal have only this effect against the Superiour or his Donatar that the Tennents or Labourers shall not be removed till the next Whitsonday after the beginning of the Ward paying the old accustomed Duty Par. 1491. cap. 26. But then the Superiour or his Donatar may remove them notwithstanding their Tacks be unexpired which therefore sleep during the Ward but revive against the setter and his Heirs and endure as many years after the Ward as they were excluded by the Ward Sinclar May 21. 1549. Laird of Durie contra Robert Steuart Ledingtoun December 16. 1569. Kings Donatar contra Tennents of Drorgan July 4. 1611. Laird of Couter contra Where also the Terce was found relevant to exclude the Superiour yet Ward is not excluded by Annualrents holden of the Vassal March 11. 1629. James Weyms contra Kincraig But now since the Act of Parliament 1606. Prohibiting Feues without consent of the Superiour these did not exclude the Ward or other Casualities of the Superiority as to Fees not holden of the King which was even extended to the Fees holden of the Prince Hope Ward Lady Cathcart contra Vassals of Cathcart And after the Act of Parliament 1633. extending the foresaid Act to ward-Ward-lands holden of the King and Prince Feues then granted till the year 1641. when the effect of that Act being before suspended by Act of Parliament 1640. was taken away And so Feues of Lands holden of the King or Prince were valid till the rescissory Act 1661. whereby the said Parliament 1641. was rescinded Par. 1661. cap. 15. So that now Feues of Lands holden of the King Prince or any other Superiour without their consent do not exclude it or other Casualities of the Superiority except such Feues as were granted the several times they were allowed by Law but a Charter upon an Apprizing did exclude the Ward though no Infeftment was taken thereupon during the Vassals life as Hope observes Title Ward Hamiltoun contra Tenents of Newburgh because the Superiours Charter without Seasine did import a Gift of the Casualities which might befall to the Superiour and he there observes that a Ward was excluded by Appryzing and Infeftment thereupon whereby the Defunct was denuded albeit it was to the behove of his Heir Laird of Ley contra Laird of Barro During the Legal the Superiour or Donatar as before the Infeftment upon the Apprysing they might pay the Appryzer and take his right So after they may redeem him and exclude him it being against reason that by Appryzing suppose of a great Tenement for a small debt the Superiour should be simply excluded and it may be upon design if an Appryzer Possess his Ward falls and not the former Vassals though the Legal be not expired but after the Ward is fallen though the Superiour received an Appryzer Appryzing from the Heir without Protestation yet it was found not to prejudge the Ward by the death of the former Vassal July 9. 1664. Hospital of Glasgow contra Robert Campbel But a Superiour was not excluded from the Ward by his Vassalt death because an Appryzer had charged him to Enter him during that vassals life seing that Charge could not make the Apprizer vassal by whose death Ward would fall and thereby make the Superiour lose this Casuality by the death of both the old Vassal and the appryzer unless the Superiour had been in mora aut culpa which was not found unless a years rent of the Land or Annualrent of the Money And a Charter were offered with a Bond to pay what further the Lords should modifie February 19. 1669. Black contra David Trinch If an Appryzing be satisfied or extinct by Intromission the Ward-lands appryzed become in the Superiours hands by Ward till the Majority of the heir July 20. 1671. Lindsay of Mount contra Maxwel of Kirkonel In which case the Appryzer was not found oblieged to restrict to his Annualrent to the effect that the Donatar of Ward might have the superplus by the Act of Parl 1661. cap. 62. betwixt Debitor and Creditor whereby there is a power given to the Lords of Session to cause Appryzers restrict to their Annualrent which is only personal in favours of the debitor if he demand it The benefite of Ward is also burdened with the Mentainance and Sustentation of the Heir by vertue of the foresaid Act 1491. cap. 25 whereby a reasonable Sustentation according to the quantity of the Heritage is appointed to the Heir if he have not Lands Blensh or Feu to sustain him and that by the Superiour and his Donatar and Conjunctfiars and Liferenters of his Estate the quantity whereof is to be modified by the Lords according to the quality of the Heir and so found not only when the Heir had no means but though he had if it was not sufficient to entertain him the superplus was modified out of the Ward-lands and Lands Liferented proportionably March 16. 1622. Heirs of Miltoun contra Calderwood We shall say no more of the Aliment of Heirs by Ward Superiours or their Donatars in this place but you may see it in its proper place Title 27. Section third Thus it appeareth in what way the Casuality of Ward is excluded burdened or restricted being always by Law or by the consent and deed of the Superiour but no private deed of the Vassal without the Superiours consent or appointment of Law can burden the Fee when it is in the hands of the Superiour by Ward c. So that Servitudes introduced by the Vassal as Thirlage ways and the like are not effectual against the Superiour or his Donatar when the Fee is in their hands Unless such Servitudes be introduced by Prescription of fourty years or immemorial Possession whereunto all parties having interest their consent is presumed and therefore in that case there is more ground for sustaining of the Servitude even against the Superiour who might at least have used civil interruption Marches set by the Vassal of consent or by Cognition whereto the Superiour is not called hath no effect in his prejudice during the Ward Feb. 8. 1662. Lord Torphichen contra As to the personal debts of the Vassal whether Heretable or moveable they do not affect the Fee though in Ward albeit Craig Dieges 20. relateth that of
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
most frequently Blensh for a Penny but if no holding be exprest it is held to be Ward and therefore the Casualities of the Superiority befall to the Superiour according to the kind of the holding as in Property so that being Ward or Blensh it falleth in Non-entry in the hands of the Superiour without Declarator and so ceasseth during that time even though the constituent as Debitor be Superiour though he may be lyable personally upon any personal obliegement for paying thereof March 23. 1631. Somervel contra Somervel Annualrents may be either base or publick by Resignation or Confirmation as to the requisits to accomplish it when base it is fully shown before Title 13. § Base Infeftments 5. So likewise annualrent falling in Liferent escheat belongs to the Superiour during the annualrenters Life and if it be redeemed the Profite of the Money comes in place thereof as followeth a pari from a Wodsett redeemed which was fallen in Liferent-escheat and therefore the Money was ordained to be imployed upon annualrent for the Superiour during the Life of the Wodsetter June 29. 1661. Tailziefer contra Maxtoun and Cunninghame 6. The English distinguish Rent in Rent-Service Rent-Charge and Rent-Seck Rent-service is that which is due by the reddendo of an Infeftment of property as a Feu or Blensh duty this is a part of the Infeftment of Property but hath the same effect by poinding of the Ground as other Annualrents Rent-charge is that which not being by reddendo yet is so Constitute that the Annualrenter may brevi manu his Terms being past poind the Ground therefore we have no such Annualrent for we admit of no distress without publick Authority but all execution must proceed by Decreet and Precept Rent-seck is so called as reditus siccus because it is dry having no effect without Sentence such are our Annualrents 7. There is a distinction of Annualrents mentioned Par. 1551. c. 10. in feu Annuals Ground-annuals and Top-annuals which Craig thinketh to quadrat with the English distinction of Rents But the consideration of that Act and Ordinance in relation to the Articles there exprest will make it appear that the case being there of Tennents within Burgh the Feu Annual is that which is due by the reddendo of the Property either of the Ground before the House was built or the Ground and House together Ground-annuals is a distinct several annualrent Constitute upon the Ground before the House was built and the Top-annualrent is out of the House which is the more clear that when such Tenements were destroyed the least abatement was of the Feu-annual or Feu-duty and therefore the Proprietar repairing the Tenement was to pay the Feu-annuals with abatement of a sixth part and the Ground-annual as being more ancient then the Top-annual suffered an abatement of a fifth part and the Top-annual of a fourth part 8. The chief effect of Annualrents either by reddendo in Property or several Infeftments is by poinding of the Ground upon which the Annualrent is constitute and that by an ordinary Action whereby the Annualrenter pursueth upon Letters to Poind and Appryze all Goods upon the Ground for payment of his Annualrent and also for Poinding and Appryzing the Ground-right and Property it self As to the first member the English Custom extendeth it to all goods that shall happen to be upon the Ground at the Term if they have but lain down thereupon And our ancient custom extendeth it to all Goods of the Possessors invecta illata by them without retrinching it to what the Tennent is due to the Proprietar Constituent of the Annualrent and the Poinding in this case was extended to purge a Spuilzie November 21. 1628. Watson contra Reid June 26. 1628. Laird of Ednem contra Tennents of Ednem where the pursuit was rather declaratory to establish the pursuers Right then for present Possession or Execution But thereafter the Lords have been accustomed to interpose with Chargers upon Decreets of Poinding of the Ground to restrict the same in favours of Tennents to their Terms mails from the Statute 1469. cap. 36. bearing that the Cattel of poor men Inhabitants of the Ground shall not be poinded for the Landlords debt where the Mail extends not to the avail thereof and though the Act seemeth Correctory of an evil Custom to poind the Tennents Goods for the Masters debt yet the same reason equity and favour of their Rusticity craves the Extension of it to these debita fundi and therefore it was so restricted the Tennents producing their Tacks or offering to depone upon their Rent summarly without taking a Term but it was not found requisite that the Annualrenter should either lybel or prove the quantity of the Rent February 14. 1674. Lady Pitfoddels contra the Laird of Pitfoddels and Tennents In which case it was found that if the Tennents the time of the poinding had compeared and produced their Tacks or had offered to make Faith what the Rent was if more had been poinded for then equivalent to their Rent it would have been a Spuilzie but they should not only depone what their Rent is but what is resting of it for the poinding of the Ground or the Brieve of distress is only restricted by the Act of Parliament for remeid of that inconvenience that was sometime in use that where sums are to be payed by the Brieve or Distress against the Lord owner of the Ground the Goods and Cattel of poor men Inhabitants of the Ground were taken and distrenzied for the Lords debt where the Mail extends not to the avail of the debt and therefore it is ordained that the Tennent shall not be distrenzied for the Lords debt where the Mail exetnds not to the avail of the debt further then his Terms Mail extends to And therefore in so far as the Tennents Mails are resting the poinding may proceed And likewise for the current Terms though not yet come that is if the Rent be Victual payable all at one Term the poinding may proceed for the value of the victual according to the Rate of the Victual communibus annis in the several places of the Countrey as men use to buy or Wodset or by the feirs of that place Neither cantacks absolutely secure the tenents if they be posterior to the Infeftment of Annualrent in which case if they be within the true value of the Land the 〈◊〉 or others poinding pro debitis fundi cannot be prejudged by Collusive Tacks or such as are granted with considerable diminution of the true worth So that the poinding may proceed for one year or Terms Mail as the Lands are worth the time of the poinding But in this case the poinding cannot proceed summarly till it be cognosced by Declarator or Reduction of the Tacks which may frequently occur Tennents being oft accustomed to suspend in Decreets for poinding the Ground Poinding of the Ground was found to take no effect against Corns standing upon the Ground having been
poinded before by a third party for a Debt Hope poinding Paterson contra Patrick Adam 10. In poinding of the Ground the Proprietar the time of the Summonds must be called albeit his Infeftment be base but not the Superiour January 19. 1636. Oliphant contra Oliphant And is sufficient to call the Wodsetter without the Reverser February 1. 1631. Gilbert Williamson contra Hendrie Cunninghame The Tennents also must be called in so far as concerns their Goods but the present Heretors and Tennents being once Discerned the Decreet will be effectual against all singular Successors and subsequent Tennents without a new Decreet of Transferrence Hope poinding of the Ground Forrester contra Tennents November 21. 1628. Watson contra Reid June 26. 1662. Adamson contra Lord Balmerino But poinding of the Ground upon Annualrents may proceed summarly without declaring the Right in a petitorie Judgement though the Annualrenter hath not been in possession for seven years and a posterior Annualrenter in possession seven years was not found preferable because Annualrents being debita fundi have neither prejudice nor profite by Possession as in a possessory Judgement which is only competent upon Infeftments of Property or Tacks January 9. 1668. old Lady Clerkingtoun contra Clerkingtoun and the young Lady And a poinding of the ground may proceed against the appear and Heir without a Charge to enter Heir January 2. 1667. Oliphant contra Hamiltoun 11. As to the Ground-right and Property of the Land Appryzing upon Infeftment of Annualrent is not only effectual against the Proprietar but against any other Appryzing for personal debt and Infeftment thereupon being after the Original Infeftment of the Annualrent though before the appryzing thereon Hope poinding and appryzing Tennents of Clunie contra Tarachtrie Slowand and Glendoning And it is the singularity of this Right that the Infeftment of Annualrent being once Established appryzing thereupon will be preferred to all interveening Rights and Diligences even though they proceed upon posterior Infeftments and Annualrents And though by the late Act of Parliament Appryzings within year and day come in pari passu there is an express exception of Annualrents and therefore an appryzing proceeding upon a personal Obliegement and Requisition both for Principal and Annual and within year and day of other appryzings the Appryzer was allowed to pass from his appryzing as to the Annualrents prior to the Appryzing and these were preferred to all the appryzings and his appryzing was brought in pari passu for the Principal sum and Annualrents after the appryzing December 22. 1671. Campbel contra Yea an Infeftment of Annualrent being betwixt the first effectual appryzing and the subsequent appryzings within year and day was brought in pari passu with these appryzings as to the whole right as being in a matter dubious upon a new Statute the Annualrenter having rested thereupon and not having appryzed for his principal sum which if he had done he would clearly have come in pari passu February 6. 1673. Brown of Colstoun contra Edward Nicolas There is a case proposed by Sir Thomas Hope viz. If one having Right to some years of an Annualrent by Liferent or otherways should appryze for these years and that appryzing expyre whether that appryzing expired will carry the right of Property not only from him who constitute the Annualrent but from the Fiar of the Annualrent himself so that the Infeftment of annualrent should become extinct which seems to be resolved affirmatively because of the nature of the Right for the Infeftment of annualrent being jus sed ignobilius becomes extinct if the annualrenter there upon do appryze the Property and be Infeft and therefore whoever appryzeth for years of the annualrent the Infeftment thereof unless it be taken away by satisfaction or redemption extinguisheth the Infeftment of annualrent without distinction whether the appryzing be led for any years belonging to the Fiar Liferenter or any other and whereas the difficulty seems to be that the Liferenter cannot prejudge the Fiar of the annualrent or appryze more from the Fiar of the Land than he had It is answered the Fiar needs not be prejudged because he hath a virtual Reversion and might thereby redeem from the Annualrenter and take the Liferenters Right Neither doth the appryzing exclude the annualrent it self as to years posterior by the Tenor of the appryzing but by the nature of the right constitute to that very end that an Apprising for any years of the Annualrent is drawn back ad suam causam viz. The original Infeftment of the Annualrent and so excludes all posterior Infeftments and therefore extinguisheth not only these but even the Infeftment of Annualrent it self ceaseth by accession of the property ut juris nobilioris but if the Fiar of the Annualrent were neglective in so dubious a case it is like the Lords would repone him satisfying the Liferenter In the case of competition the Infeftment of Annualrent it self will be preferred to the posterior Rights though no Apprising followed January 29. 1635. Sir James Hamiltoun of Brownhill contra Wilson Infeftments of Annualrents have the priviledge and preference though they be made use of by way of competition without Apprising thereupon Yea though requisition was made and an Apprising led upon the Sum whereunto the Annualrent was accessory yet it was found the Appriser might pro loco tempore pass from that Apprising and upon the Annualrent it self be preferred January 24. 1663. Robert Graham contra John Ross. 12. But as to apprising of Moveables or Rents the Lords use in competitions to give so much time to the first Annualrenter and so to the rest after each term that they only may poind and so they decerned the first Annualrenter to poind within twenty dayes of each term and the second within the next twenty dayes Feb. 15. 1662. Ladies Mouswall elder and younger competing The like allowing the first Annualrenter fourty dayes after each term July 26. 1662. Sir John Aiton contra Adam Wat. But as to the Apprising of the Property the first Annualrenter may apprise when he pleaseth and then is preferable to all others but the regulating of the poinding of Moveables is in favour of the poor Labourers The like June 26. 1662. Adamson contra Lord Balmerino where it was found that the Annualrenter might affect any part of the ground in solidum albeit now belonging to several Heretors but so as the Heretor of the ground affected behoved to have Assignation to the Decreet for obtaining relief 13. Annualrents long ago had no effect but poinding of the ground and could not come in to hinder Arresters of the duties for the Proprietars debt March 24. 1626. Gray contra Graham but thereafter were ordained to be a sufficient Title against all intromettors with the Duties personally March 15. 1637. Richard Guthrie contra Earl of Galloway Annualrents were found lyable to publick Burdens proportional with the superplus Rent belonging to the Fiar June 23. 1675. David
Bruce contra James Bruce This annualrent was not for security of a Stock The like was found of a Liferent Annualrent June 18. 1663. Margaret Fleming contra James Gillis 14. Annualrents as to bygones are moveable and so arrestable and belong to Executors December 15. 1630. Ogilvie contra Ogilvie Yet it will be more competent and suitable to pursue it personally against intrometters with the Rents or Postessors then by a real Action of poinding the ground Annualrents are supprest by Wodset of the Land or other more noble Right in the person of the Annualrenter unless that Right were evicted 15. An Infeftment of Annualrent redeemable was found extinct by a Renunciation registrat in the Register of Reversions and that against a singular Successor though there was no resignation of the Annualrent January 7. 1680. John Mcclellan contra Mushet An annualrent was also found extinct by the annualrenters intrometting with the Rents of the Lands out of which the Annualrent was payable equivalent to the principal Sum for security whereof the annualrent was constitute which intromission was sound probable by witnesses though it was silver-rent Feb. 4. 1671. Wishart contra Elizabeth Arthur And therefore singnlar Successors succeeding in annualrents either by voluntary Disposition or by Apprising or Adjudication cannot be secure by inspection of Registers as they may be for Lands but they run the hazard of satisfaction of the principal Sum for which the Annualrent is granted wherewith it falls in consequence For no provident man will buy an annualrent given for security of a principal Sum but either upon necessity for satisfying a prior debt or upon great advantage in both which cases he should take his hazard Scire debet cum quo contrahit as all Purchasers of personal Rights must do Pensions resemble Annualrents or the seuda ex camera or ex cavena mentioned by the Feudists for thereby a yearly Rent is constitute to be payed out of the Constituents Lands generally or particularly Yet these Pensions not having Infeftment have but the nature of Assignations and so are not valid against singular Successors 16. Except only Ecclesiastick Pensions constitute by Prelates which are valid against their Successors in Office but not unless they be cloathed with Possession or Decreets conform in the Constituents life Par. 1592. cap. 137. And so a Pension granted by a Bishop with power to assign was found valid to the Assigney after the first Pensioners death against the succeeding Bishop and to be no dilapidation July 21. 1625. Minister of Kirklistoun contra Patrick Whitelaw yea though the Pension bore a power to assign etiam in articulo mortis December 17. 1628. Chalmers contra Craigievar But in this case the Pensioner granting Assignation reserving his own Life-rent or to take effect after his death whereby both might at once have interest therein the Assignation was found null by exception though having Decreet conform and thirty years possession The like Hope Assignation Abernethie contra Lady Drumlanerk But now by the Act of Par. 1606. cap. 3. Archbishops and Bishops are disabled to grant Pensions to affect their Benefices further then themselves have right to the Benefice but do not prejudge their Successors in Office Yet Pensions granted by beneficed persons are not only due during their life but out of their annat after their death February 28. 1628. Bairns of the Bishop of Galloway contra Andrew Couper 17. Pensions granted by secular persons though they contain Assignations to the duties of the Lands specially and have Decreet conform were found ineffectual against singular Successors in the Land July 9. 1629. Urquhart contra the Earl of Caithness December 11. 1662. Andrew Clappertoun contra Laird of Ednem neither against the Lady Tercer of the Constituent March 27. 1634. Countess of Dumfermling contra Earl of Dumsermling A Decreet conform being obtained against the granter of a Pension his Tenants and Chamberlains is effectual against subsequent Chamberlains without new Decreet or Transference yet must be transferred against the Constituents Heir and his Chamberlain though it would be valid being an Ecclesiastick Pension against his Successor December 7. 1630. Earl of Carrict contra Duke of Lennox Spots hic Alexander Weyms contra Chamberlain of the Duke of Lennox A Pension bearing for love and special service done and to be done was found effectual though the Pensioner removed and did not that service his removal being necessary by transportation March 25. 1629. Doctor Strang contra Lord Couper The like of a Pension granted to an Advocat for services done and to be done which was found valid during his life though he left Pleading December 3. 1662. Mr. John Alexander contra Mr. Roderick Mcleod The like of a Pension for service done and to be done though the service was not done when not required nor was it excluded by the Pensioners pursuing Processes at his own instance against the Constituent upon a probable ground though the Constituent was assoiled June 26. 1678. Mr. William Weir Advocat contra the Earl of Callendar 18. Pensions granted by the King are declared not arrestable in the Thesaurers hands by Act of Sederunt June 11. 1613. The reason thereof must be because such are ordinarly alimentary and alwayes for the Kings special service which would be impeded by hindering payment of the Pension TITLE XVI LIFERENTS Where of Conjunctfees Terces and Liferents by the Courtesie of Scotland 1. Servitudes personal by the Roman Law 2. Servitudes personal by our Custom 3. Clauses of Conquest of Liferent or fee of Lands acquired during marriages how far extended 4. All Liferents must be salva rei substantia 5. Liferenters are burdened with aliment of Heirs 6. Liferents without Infeftment are not effectual against singular successors 7. The effect of Assignations to Liferents 8. Liferents are not prejudged by Tacks or other deeds of the Fiar being posterior 9. What Terms do belong to Liferenters 10. Conjunctsees 11. Liferenters by Conjunctsee have all the Casualities of Superiority 12. Terce 13. Services of Terces 14. Kenning to Terces 15. The effect of Terces 16. The extent of Terces 17. Exceptions against Terces 18. Burdens of Terces 19. Liferents by the courtesie of Scotland 20. Publick burdens FROM the Feudal Rights of Property we proceed to Servitudes burdening the 〈◊〉 these are either personal or real Personal Servitudes are whereby the property of one is subservient to the person of another Real Servitude is whereby a Tenement is subservient to another Tenement and to persons But as and while they have Right to the Tenement Dominant as Thirleage Pasturage Ways Passages c. and the like Servitudes personal for term of Life are therefore called Liferents Servitudes for an indefinite time are such which either may or uses to be Constitute for a longer or shorter time such are Pensions Ecclesiastick Rentals and Tacks which though they be in their nature but personal Rights Yet by Statute or Custom they have the effect of real Rights of which
in Fee in certain Lands if the Sons Relict be no otherwayes provided she may claim a Terce of these Lands though the Father did not perform his obliegement which may be construed as fraudulent and in her prejudice 17. Terce is excluded by all wayes whereby the Marriage was dissolved upon adultery or desertion or by the death of either party within year and day without Children or may be found null of which formerly amongst Conjugal Interests Tit. 4. And also by whatsoever way the Husband is sine frande divested the Terce is excluded as by a Crime inferring Forefaulture or Recognition by the Husband or his Superiour though not declared before his death or by the Ward and Non-entry of his immediat Superiour There was one decision observed by Spotswood and Hope betwixt the Relict of John Cranstoun and Crichtonn That an Apprising without Infeftment did exclude a Relict from her Terce it were hard to sustain that in all cases even though there were a Charge against the Superiour upon the Apprising which as it would not exclude the Superiour from the Ward Non-entry or Relief So neither should it exclude a Relict from her Terce unless she had a Conjunct-fee or Life-rent by consent equivalent to a tertia rationabilis And though our custom hath far deborded from the ancient design of Terces whereby a reasonable Terce was appointed and if any voluntary Liferent were granted Craig observes that it was ever understood to be no more but for clearing and securing the Tercer against the trouble and difficulty of recovering possession by a Service and therefore was alwayes retrenched unto the Terce Yet now not only real voluntary Provisions are sustained though of the Husbands whole Estate and Conquest albeit granted in aestu amoris with this temperament only That if the Heir have no other Estate the Liferenter must intertain and educat him according to his quality by Act of Parliament which is more extensive then a simple aliment but she is also lyable super jure Naturae to aliment her other Children if they have no provisions But Custom hath so far proceeded as not only to allow voluntary provisions how great soever but therewith to add a Terce of any other distinct Tenement unless the voluntary Liferent were accepted in satisfaction of the Terce which indeed were reasonable in many cases The voluntary Liferent being oftimes small and suitable to the Estate the parties have when they Marry but cannot make a rationabilis tertia if by Conquest their Estate should grow great neither is it reasonable that though the voluntary provision be never so great that a Terce should be given though litle remained to the Heir only because by Ignorance or negligence the clause in satisfaction were not adjected Which satisfaction may not only be proved by Write but by Presumption from the design of parties in the Contracts of Marriage which are uberrimae fidei For suppose which is ordinary enough that a Liferent of Lands are provided by the Contract of Marriage yet some Lands are not mentioned but there is a Clause adjected for the Liferent of the whole Conquest were it rationabilis terlia to give the Wife a third of that which is omitted though she had a particular Liferent of more and the whole Conquest though never so considerable Yea it came lately to be 〈◊〉 whether a Liferenter Infeft in an Annualrent out of her Husbands Estate consisting of one Tenement lying Contigue the Annualrent being two thirds of the Rent thereof because it bore not in satisfaction of a Terce The Relict did also claim a Terce out of that same one Tenement which is yet sub judice But so far as I can understand by former Decisions it hath not yet been determined whether Relicts should have a reasonable Terce according to the Terms of the ancient Law inducing Terces Or whether she should have a Terce proportionable or suiteable or not though she be already suitably provided if she have not expresly accepted her former provision in satisfaction of her Terce Which Terce is most favourable when suitable and therefore takes place in the two cases before mentioned even beyond the Letter of the Law and therefore if it were unproportionable to the quality of the Husband and Wife who might have a great Estate in Money and little Land a voluntary Provision out of any Tenement should not exclude a Terce out of the remanent of the same Tenement or of any other Tenement unless the Relict were sufficiently provided before There is one Interloquter betwixt Jean Crightoun and Kirkhouse her Son wherein it was alledged that she was sufficiently provided to more then a Terce of her Husbands Estate which was repelled but the Case was in possessorio where the Relict was already served and kenned to a Terce and was pursuing the Tennents so that the Service and Kenning being a standing Sentence doth not determine what might be done in petiterio Neither was that allegeance proponed and offered to be proven but only alledged informative whereas the Defence proponed was that the Relicts provision was but a minut of Contract bearing to be extended with all Clauses requisite whereof there was a Process of Extension depending including the acceptance in satisfaction of the Terce as being ordinary but it was replyed that that Clause was omitted in the full Contract already extended But now by the late Act of Par. 1681. cap. 1. there is no place for a Terce where there is a provision for the wife of liferent unless a Terce be expresly reserved Craig proposeth another case whether the 〈◊〉 would have a Terce of Lands competent in Fee to her Husband and so possest by him though by fraud or neglegence he never Infeft himself which he says is the opinion of Litletoun and it is not without much ground though it hath not come to be decided with us voluntary Liferents in satisfaction being so ordinary for though the appearand Heir not entering cannot burden the Fee with his debt yet his jus apparentiae gives him or his Executors right to the Fruits during all his life whereunto it would be suitable enough that though his voluntary provisions to his Wife could not affect the Fee yet the legal provision of a reasonable Terce might By the Custome of England Relicts loose their Terces by falling in publick and atrocious Crimes as Treason Murder Witchcraft although they be restored by the King by way of grace because thereby the memory of their husbands and fame of their Children are disgraced I know no such Point to have been drawn in question with us Craig in the forecited place holds that if the Fiar Transact for his own or his Superiours Forefaulture or Recognition or obtain a Gift thereof it should accress to the Tercer whose provision is onerous importing Warrandice and therefore might be effectuall against the Fiar if he represent the Husband and in all distresses Relief doth import what the party distressed truly payed
out A Terce of Wodset Lands wherein the Husband died Infeft was not found elieded because the Husband Required or Charged for the Money not being denuded before his death Feb. 16. 1642. Veich contra Veich of Dawick But the wifes third continues as to the third of the Annualrent of the Money in lieu of the Lands Redeemed by the heir after his predecessors death Terce is not excluded by Ward Non entry or Liferent-escheat of the Husband as hath been more fully shown before Title Superiority 18. Terce is burdened proportianally by all debita fundi affecting the whole Tenement as Annualrent Thirlage Pasturage but with no other debts of the Defunct being personal though they be Heretable and have provision of Infeftment 19. Liferent by the Courtesie or Curiliaty of Scotland is the Liferent competent to the Husband of the Wifes Lands and Hereditaments It is introduced by our Common Law which is our most ancient Custom wheroef no beginning is known in the same way as the Terce of the surviving Wife whereby without any paction or provision 〈◊〉 enjoys the third of her deceassed Husbands Heretable Rights wherein he 〈◊〉 Invested as of Fee during her life so the Husband Liferents the whole Lands and Hereditaments of the wife wherein she died Infeft in Fee and that without any Service or Kenning as in Terces but Summarly by vertue of his having been Husband to the Defunct neither is there any difference whether the Defunct wife had a prior Husband or not or whether her hereditament be Ward Blensh Feu or Burgage The original of this Liferent by the Courtesie as Craig observeth lib. 2. dieges 22. is from the Rescript of the Emperour Constantine whereby the Father had the Usufruct of the heretage of his Children befalling to them as heirs to their Mother and therefore the Courtesie takes no place but where there were Children of the Marriage one or more which attained that maturity as to be heard cry or weep for then the Law regardeth not how long the Children live or whether they do Survive their Mother but hoc ipso that they are born at maturity they are heirs appearand of the Fee and the Liferent is established in their Father In this the Courtesie of Husbands differs from the Terce of Wives for the Wife hath her Terce if either the Marriage continue undissolved year and day or though it continue not so long if a Child was born of the marriage heard cry and weep though the Child had been begotten before the Marriage yea though it had been born before the Marriage being Legitimat by the subsequent Marriage how short soever it endured the wife should have her Terce But the Courtesie takes no place unless a ripe Child beborn though the Marriage should continue for many years so that the being of Children procreat and born to maturity is the chief motive introductory of this Law Skeen in his Title de verborum significatione upon the word Curialitas limiteth the Courtesie to the Lands or Hereditament into which wives succeed as heirs to their Predecessors whether before or during the Marriage which Craig in the foresaid place doth likewise follow and doth exclude the Husband from the Liferent of the wifes Land to which the wife had right by any Contract as titulo emptionis which will not exclude the husband where the wises Predecessor Infefts her per praeceptionem haereditatis If a Father should Infeft his Daughter reserving his own Liferent with power ro Dispose she is not thereby heir active nor is that Estate accompted Heretage but Conquest yet she is heir passive and there is more reason that the husband should enjoy his Liferent of that Estate then if his Wife had been therein heir of Provision or Tailzie whereby failing her and her Issue another Branch not nearest of blood to her might readily succeed so that if her Children were dead before her self her heirs of Tailzie would have much more reason to question her husbands Liferent by the Courtesie then his own Children as heirs of line would have to contravert his Liferent of the Estate wherein she was Infeft by her Father or any of her Predecessors to which she was appearand heir but there have been few Debates or Decisions or limitations thereof which would clear this and other points thereanent The Law hath well fixed the maturity of the Children by their crying or weeping and hath not left it to the conjecture of witnesses whether the Child was ripe or not both as to the Courtesie Terce and Dissolution of the Marriage within the year in all which cases the Law alloweth Women Witnesses as being necessary in the case of the death of the Children at the time of their Birth Liferenters were found free of the Reparation of Ministers Manses by the Act of Parliament 1662. cap. Ordaining Heretors to build or repair Manses to the value of 1000. Pounds whereof no share of relief was found due by the Liferenters they not being exprest November 14. 1679. Minister of contra Laird and Lady Beanstoun Yet if the whole Estate were Liferented by Conjunctfee the Conjunctfiar might be liable as Fiar in that case when the Heretor had no profite of the Land and if the whole were affected with a separat Liferent the effect would be the same seing what the Heretor would be lyable to would diminish his Aliment which behoved to be made up by the Liferenter Liferent by the Courtesie hath the same extensions and limitations sa terces it affects all the wifes Lands not Acquired by a singular Title it is not excluded by the Ward but it is excluded during the Non-entry or by Liferent-Escheat and also by the Ward of the Superiour or the Forefaulture or Recognition either of the Superiour or Wife it is burdened with all real burdens by Infeftment or Tack and with the Aliment of the Wifes Heir if he have not aliunde It is also excluded by the Dissolution of the Marriage within year and day by Divorce or by the Husbands desertion of the Wife though Divorce followed not Or by his Adultery or other atrocious Crimes 20. Amongst personal Servitudes may be numbered publick Burdens imposed by the King and Parliament for publick use such as Taxations which by the Acts imposing them are declared real affecting the Ground and that thereupon the Ground may be poinded and so consequently do affect singular Successors The extraordinary burdens of Mentainance and Sess imposed by the Parliament during the troubles had not that Clause therein of Poinding the Ground and so were not found debita fundi but debita fructuum nor do they affect singular Successors July 13. 1664. Grahame of Hiltoun contra the Heretors of Clackmannan TITLE XVII Servitudes Real 1. Requisites to Constitute real Servitudes by consent 2. How Prescription Constituteth Servitude 3. How far Servitudes are effectual against the Superiour 4. Extinction of Servitudes 5. Kinds of Servitudes 6. Servitudes of Support 7 Stillicides 8. Sinks
9. Servitudes of Prospect or Light 10. Wayes 11. Watering 12. Watergang 13. Feualling 14. Pasturage 15. Thirleage 16. Several ways of Constituting Thirlage 17. Several Cases in which Thirlage is not Constitute 18. The effect and extent of Thirlage 19. The import of several Clauses of Thirlage 20. Invecta illata or tholing Fire and Water 21. Sequels 22. Miln Service 23. Priviledge of Milns 24. How Thirlage becomes extinct 25. In Multure Seed or Horse Corn are to be deduced but no other expence of Labouring 26. Thirlage Constitute by a Vassal not effectual against the Superiour 27. Deductions for insufficiency of the Miln breaking down of the Damn or Frost SERVITUDES are distinguished in Real and Personal though neither of them be personal Rights yet these Servitudes whereby one Tenement is subservient to another Tenement and to persons only as having Right to and for the use of that Tenement are called real Servitudes as not being subservient directly to persons but to things And the other are called Personal because thereby the Tenement is subservient directly to Persons and not with respect to any other thing as Liferents c. Before we come to the particular kinds of these real Servitudes it will be fit to enquire how such Servitudes are Constitute and next how they are Destitute and Ceass 1. As to the first these Servitudes require no Infeftment though they may be Constitute by Infeftments yet there is no necessity of Infeftment to their Constitution Secondly Real Servitudes cannot be Constitute by any personal Right as by Contract Paction Testament or Legacy neither by Disposition or Assignation alone the reason is because they are real Rights and cannot be Constitute by any personal Right which though they be oftimes the remote cause of real Rights yet there is more requisite to their Constitution and therefore though such personal Rights may be sufficient against the granters thereof by a personal Objection whereby they cannot come against their own deed yet they are not sufficient against singular Successors neither do they affect the Ground Thirdly All real Servitudes are Constitute by Possession or Use for things corporeal are said only to be Possest therefore Incorporeal Rights as Servitudes have rather use then Possession to Consumate them which though it be the last requisite to accomplish Servitudes yet is not sufficient alone but must have another Title either by the express consent of the Proprietar or by Prescription there is no difference in what way the consent be adhibite so it be in Write and the Obliegement to grant any Servitude with Possession is equivalent to the formal Disposition or grant thereof as it is in the most of these Rights which do essentially require nothing else but Consent alone or Consent with Possession and not any other Solemnity as Obliegements to grant Assignations Discharges Renunciations are equivalent to these Rights themselves when formally made 2. The Civilians debate much whether Servitudes can be introduced by prescription and whether in that case there be requisite a Title and the Proprietars Knowledge wherein we need not insist seing our Prescription being only by Statute upon the course of fourty years in most cases presumeth both a Title and Knowledge but theirs being upon ten years against those who are present may require more yet many even of the learnedest of them account Prescription sufficient without Title or any other then presumed Knowledge With us the Servitude of a way to the Kirk was not found Constitute by Possession thirty years but by immemorial Possession going and coming that way uninterrupted without any Write for here the way was claimed at the nearest to the Kirk whether the Desenders Lands were under Cropt or not For though a way to the Kirk be due to all parties in the Paroch without Consent or Prescription yet it must be with the least detriment to the interjacent Lands and so cannot always be the nearest way but must go about Corns and though thirty or fourty years Alternative was not sustained to Constitute a way thorow Lands even under 〈◊〉 yet fourty years is equivalent and always 〈◊〉 to immemorial Possession in the same case 〈◊〉 gtoun observes That a convement way to the Kirk without going through Corns was sustained without prescription And the like would be sustained for Passage to Mercat Towns or 〈◊〉 Ports A servitude of laying over a Miln Damn upon another Heretors Land was found Constitute by Possession fourty years whereby the Heretor of the Miln was found to have Right that when the Water did wash away the Ground from the end of the Damn to lengthen the same upon the Servient Tenement so that it might be made effectual with the least detriment and that he was not lyable for any damage by washing away the ground of the Servient Tenement by occasion of his Damn July 20. 1677. Laird of Gairletoun contra Laird of Smeatoun June 27. 1623. Gilbert Neilson contra Sheriff of Galloway It must be adverted that when such Servitudes are said to be Constitute by sole prescription without Write it is to be understood without Write from the Proprietar of the Servient Tenement for ordinarly there is this much Title in Write for these Servitudes that the party having Right thereto is Infeft in the Tenement with the Pertinents under which Servitudes are comprehended Or with common 〈◊〉 trage by which he hath not only such Pasturage as he hath been long in Possession of upon the Lands of his Superiour or Author but fourty years Possession therewith is sufficient against any other who can be said in no case to have done any deed for the Constituting of the Servitude and it was so found in the case of the Town of Pearth concerning the Isle of Sleiples But this long Possession is not estimat by deeds done by the Proprietar of the Servient Tenement as he who brings his Grain to another mans 〈◊〉 for 〈◊〉 so many years these deeds of his do not Constitute a Thirleage upon his Lands unless he suffer the Proprietar or Tennent of the Miln to cause him or his Tennents either to bring their Grain by Process or otherways And he who opens a Window in his Dyke or Wall whereby his neighbour hath a Prospect doth not thereby put himself under a Servitude But if he suffer his neighbour to break a Window in his Wall and enjoy it till prescription be run his suffering introduceth that Servitude 3. As to these who can impose Servitude when they are Constitute by express consent They cannot be Constitute without consent of the 〈◊〉 and if the Superiour consent not they will not be effectual against him if the 〈◊〉 be open and return to him by Right of Superiority for a time or for 〈◊〉 Liferenters cannot Constitute a Servitude to have a real Right against singular Successors or beyond the endurance of that Liferent or Wodset much less can Tennents yet both can begin or continue to make up
the Miln of the Barony albeit the defender was infeft cum molendinis prior to the Infeftment of the Heretor of the Miln and did sometimes go to other Milns but clandestinely and sometimes was brought back by force June 24. 1665. Colonel Montgomery contra Wallace and others which did not import Interruption which was not found by clandestine abstraction but by paying no Multure at least for a whole year Fourthly Thirlage is not inferred by any deed of Tennants Possessors Wodsetters Liferenters or any other but the Fiar and therefore there will be no Process sustained against the Tennants for Multures unless the Fiar be called February 9. 1628. Laird of Wardess contra Laird of Dunkincie or at least that there have been prior Decreets wherein he was called constituting the Thirlage and all 〈◊〉 and Acts otherwayes are null by exception if quarrelled within prescription Fifthly Thirlage of Lands to another mans Miln doth not infer a Thirlage of the Teinds of these Lands though acquired by the Heretor who thirled the Lands July 7. 1635. Laird of Innerweek contra Hamiltouns The like in molendino Regio where no write was shown but possession to consttute the Thirlage which was found not to extend the Teinds January 8. 1662. James Stewart contra Feuars of Aberledno The like where the Clause of thirlage bore omnium granorum crescentium super terris suis Here the Heretor of the Lands thirled had no right to the Teind Spots Milns and Multures Laird of Wauchtoun contra Hoom of Foord The like where the Clause in a Charter granted by an Abbot to his Feuars bore the astriction omnium granorum which was found to extend to the Teinds which then belonged to the Abbot and the Teind was found thirled when a Feu-duty was payed both for Stock and Teind January 21. 1681. Greirson contra Gordoun of Spado Nor will the exception of Teind be sustained in Milns belonging to Kirkmen having right to both Stock and Teind 18. The next point proposed was the effect and extent of Thirlage being constitute which is exceeding various for clearing whereof advert That thirlage is either introduced and instructed by Custom and Prescription or by Paction and Write when it is by Prescription and Custom it is wholly regulat by Custom and the Heretor of the Miln and his Tennents can get no more and wil get less then they instruct to be their ancient custom which holds where thirlage is constitute by write but generally with the multures sequels and services used and wont for then also custom must rule it and the Heretor of the miln will not be put to prove what the custom was before that Write though it relate to custom past but long custom present will be sufficient presumption and proof of what was that preterit custom if the contrary cannot be proven and though it should be proven yet fourty years possession will alter the case and either increase the Servitude or the Freedom If the Servitude be constitute by Writ special regard is had to the tenor of the Writ which therefore varieth thirlage accordingly So thirlage simply exprest in the Writ without mention of all Grain growing upon the ground was found to extend to all Corns growing thereupon abstracted to other Milns or sold though they had payed no Multure past memory for sold Corns June 26. 1635. Laird of Wauchtoun contra Hoom of Foord 19. A Clause of thirlage bearing Una cum Multuris omnium terrarum intra Parochiam found not to extend to other Corns bought-in and not growing within the sucken Hope Milns and Multures Giles Murray contra Tennants of Drumsei A Clause of thirlage thirling an Heretors tennants to another mans Miln and all the Tennants Grain growing upon the Land found not to extend to that Heretors Farm-bear whether delivered to him or sold by him to his tennants or others but that the same was Multure-free but yet was thirled and behoved to come to the Miln and pay the smal duties only Hope Milns and Multures Lord Keith contra Nathaniel Keith Which is also observed with this further that invecta illata were not thereby thirled Spots de servitutibus A Clause of thirlage omnium granorum crescentium was found not to extend to the Heretors Farms who had so thirled his Lands not being grund at any other Miln but sold or otherwayes made use of Neither to Corns not growing within the thirle though tholing fire and water or garnelled there July 11. 1621. Keith contra Tennants of Peterhead A Clause of thirlage granted by a Town to a Miln expressing invecta illata found to be extended to all Corns Kilned or Steeped within the Thirle though not brought to the Miln nor use made of within the thirle Spoos de servitute Ruthven contra Cuthbert of Drakies Thirlage of invecta illata constitute by a Towns Charter found effectual as to the Grain that grew in the thirle of that Miln and was lyable for a greater multure as grana crescentia so that these Corns being bought by the Town fell to pay both the ordinary multure as growing in the Thirle and a lesser multure by a several Thirlage by the Towns Charter thirling omnia invecta illata in their Town to that same miln seing the Town might shun the inconvenience of double multure by buying only Corns which grew not in the Thirle of that miln Decemb. 11. 1678. Sir Andrew Ramsay contra the Town of Kirkaldie 20. In this case invecta illata was found to import mault made within the Liberties of the Town or Brewed within the same but not to meal where they did not buy the Corn but bought the meal though it was baken in the Town in respect it was so proven to be the custom November 24. 1680. inter eosdem But the quantity of abstract multures being referred to the Towns mens oathes they were not found olieged to depone that they had payed the whole Multures of years long bygone but only if they knew and remembered that any part of it was not payed and what that part of it was December 12. 1679. inter eosdem But ordinarly invecta illata or tholing Fire and Water is only interpret of Steeping and Killing but not of Baking or Brewing A Clause in Feuars Charters Thirling them to the Superiours Milns of such a Paroch whereof there were four was found not to be put in the option of the Feuars to go to any of the four but to keep to the particular Miln to which they were accustomed in respect the Milns had several Suckens and the Feuars were in use fourty years to pay Multures and do all services thereto as was found 1663. as to the Miln of Catharine And the like found as to the Miln of Dalsangan another Miln of Mauchlein about the same time Thirlage being constitute or determined by custom doth ordinarly carry not only Multures of the Grain growing within the Sucken but those that thole
fire and water within the same by being kilned and steeped and in some places brown within the same The quantity of the Multure if it be not determined by Write is determined by use of payment of the Barrony or Sucken though a part thereof in question payed less formerly which did only liberat them from bygones July 20. 1610. Neilson of Craigcaffie contra Tennents of Innermesson 21. Beside the Multures Thirlage is extended to Sequels which being expressed in Thirlage is understood to be the Knaveship Bannock or lock payable besides the Multures to the Milners and their Servants for their service according to the use of the several Milns though these be not exprest March 22. 1628. Adamson of Braco contra Tennents of Shallie The like before even where the Corns were abstracted Spots Milns March 22. 1628. And where the Thirlage is by use and custom these small Duties are accordingly due beside the Multure 22. Thirlage also carries service to the Miln as carrying home of Miln-stones upholding the Damns Watergates and of the Miln-house which are Services diverse and regulat according to the customs of the several Milns The Thirlage constitute by Infeftment of a Miln cum mutturis sequelis found to give right to the ordinary Miln Services to the Miln-damn and Miln-stones by paction or prescription the same were taken away February 27. 1668. Maitland contra Lesly In proving of the customs of these Duties to Milns there is no necessity to prove fourty years constant custom but diverse years custom in 〈◊〉 unless a contrary custom be proven by the Thirled Nicol. de servitute 〈◊〉 contra Ballachan But it was found that an Heretor of a Miln being Infeft and in possession of the Miln with the Multures of the Lands in question 〈◊〉 he hath the benefite of a possessory Judgement with seven years 〈◊〉 and so it will stand and be effectual till it be reduced notwithstanding an anterior Infeftment cum mollendinis June 28. 1636. Maxwel contra Maxwel 23. Thirlage also is esteemed by some to carry this priviledge that the Heretor of the Miln may brevi manu cast down any other Miln bigged within the Thirle But Craigs opinion is in the contrary in the forecited place and it was so found where the Miln so bigged had gone fifteen days Spots Husband and Wife Laird of Ludquharn contra Earl of Marischal But whether it may not be hindered while the new Miln is in building is not so clear at least it may be civily interrupted nunciatione novi operis In respect of the favour of going Milns these are not to be destroyed for the publick use of the Countrie from which ground it is that the Water-gang of a Miln passing thorow an Heretors Land was not suffered to be stopped though it was without consent or prescription not being to his prejudice Hope Milns Laird of Bass contra Laird of Balgown But though Milns may not be stopped brevi manu yet building a Miln within the Thirle on pretence to get Voluntary Multure and that the builder will still bring his own Corns to the other Miln is unwarrantable and contrary the common custom of destroying Querns which might have the same pretence nor could it be known what were Clandestinely grund at the new Miln within the old Thirle but Halyards being building a Miln near to Breast-miln who craved summarly to stop him by Supplication to the Lords they did refuse to stop because it was not clear that his Land were Thirled July 29. 1673. Thirlage hath also this effect in someplaces that when any person is apprehended abstracting Corn the Horse and Corn may be seazed upon braevi manu and the Corns confiscated to the Milner and Craig relates in the forecited place that it is the ordinary custom in France that Corns are Escheat to the Lord and may be seazed summarly It is related by Craig l. 2. Dieg. 8. out of the Statutes of King William that there ought to be a Master and two Servants in every Miln sworn to be faithful to the Master of the Ground and his men and that the common Multure not determined by Infeftment is the twentieth Grain and that all Grain that shall be set down upon the Ground of another Thirle shall pay Multure there and that when a Horse carrying Grain out of the Thirle is taken the Grain is escheat to the Miller and the Horse to the Master and that he who removes from the Thirle shall have his Seed Multure free These are most part over-ruled by custom as hath been before showen This far I find it amongst our customes that the Spuilzie of a Horse was elided because he was seazed upon taking Corns out of the Thirle to another Miln as was the custom of that place and that after carrying back thereof the Horse was offered that same night January 22. 1635. Menzies contra Mckie Thirlage omnium granorum crescentium upon such a Tenement found to extend not only to the Tennents but to the Mains July 29. 1673. Dundas of Breastmiln contra Skeen of Halyards 24. It remains that we confider how Thirlage being Constitute is destitute or taken off and that is in the like manner as it was constitute either by prescription whereby Liberty is recovered to the Thirled Lands which needs no positive Act to deny the Multures but simple forbearance to lift or seek them is enough or otherways by any Discharge or Renunciation without further solemnity for in that way also it is constitute but the most ordinary way of taking off Thirlage is by granting a Charter containing Milns and Multures in the tenendas which was not found good as to the Kings Feuars because past in Exchequer without notice as the common Style January 8. 1662. James Stuart contra Feuars of Aberledno which is more evident when Milns and Multures are in the dispositive Clause it hath the like effect when the Miln and Multure is disponed to one party and by a prior Disposition or Infeftment the same Lands which were of old of the Thirle are granted to the Vassals thereof cum molendanis multuris for thereby the posterior Infeftment of the Miln and Multures is a non habente potestatem and ineffectual Novemb 26. 1631. Mr. William Olephant contra Earl Marischal 25. In Thirlage there is only allowance or deduction of Seed and Horse-corn but nothing for Expenses of Labouring Jan. 14. 1662. Nicolson contra Feuars of Tillicoutrie 26. Thirlage by a Vassal was not found effectual against the Superiour when the Lands fell in his hands by Ward unless the Superiour had consented Decem. 11. 1666. Earl of Cassils contra Tennents of Dalmortoun Thirlage by a Vassals Charter found not to make him lyable for the Abstraction of his Tennents but only the Tennents themselves Decemb. 10. 1667. Earl of Cassils contra Sheriff of Galloway 27. If it be questioned whether Multure be due when the Miln is unable to work by Frost breaking of the
when they are allocat all Intrometters with the Teinds of these Lands allocat are lyable for the Stipend not proportionally with other Intrometters but in so far as their whole Intromission can reach even though they made payment before they were charged by the Minister which they alledged was bona fide to the Heretor or Tacksman February 19. 1629. Kirk contra Gilchrist And if there be no Allocation the Stipend is a burden affecting the whole Teind out of which it is modified and the Minister may take himself either to the Heretor or possessor Spots Kirk-men Mr. Andrew Ker contra William Gilchrist December 3. 1664. Mr. J. Hutcheson contra Earl of Cassils In which case it was found that the Minister might take himself to any of the Heretors of the Paroch for the whole Teind inso far as his modified Stipend went seing he had no Locality and that the Heretor distrest behoved to seek his relief proportionally from the rest And a Minister was found to have right to pursue an Heretor for his Stipend payed out of his Lands and that accepting an Assignation to a part of the Tennents duties did not liberat the Heretor further then what the Minister received unless the Assignation bore in full satisfaction November 9. 1677. Mr. John Rutherford contra Murray of Skirling Yea though an Heretor was but an Appryzer of the Stock and Teinds he was found lyable personally though he had not intrometted and though he offered to assign as much of the Rent December 20. 1622. Sir John Prestoun contra Sir John Ker. And though the intrometter was but a Wodsetter both of Stock and Teind having no more but his Annualrent and there being sufficient Teind beside the Wodset March 21. 1633. Mr William Keith contra James Gray and others But where a Liferenter possessed she was only found lyable not the Fiar June 24. 1663. Menzies contra Laird of Glenurchie 31. But Teinds before valuation are only due according to the Cropt and Goods without restraining the Heretor in the free use of his Ground who may leave it all Grass though it had never been so long Corn and may Stock it with yeld Goods which will yield no Viccarage and therefore having inclosed a parcel of Ground and sown it with Kail Carrets and Herbs the same was found Teind free unless these were accustomed to pay Teind in that place June 9. 1676. Alexander Burnet contra William Gibb 32 Even after valuation Teinds are not debita fundi nor do affect singular Successors as to bygones before their Right February 28. 1662. Earl of Callender contra Andrew Monro 33. The legal terms of Benefices and Stipends whereby they are due to the Incumbents are Whitsonday at which the Fruits are held to be fully sown and Michaelmess at which they are presumed to be fully separate and therefore if the Incumbents Entry be before Whitsonday he hath that whole year So if he be Deposed or transported before Whitsonday he hath no part of that year if after Whitsonday and before Michaelmess he hath the half July 24. 1662. Mr. Patrick Weims contra Cunninghame If after Michaelmess he hath the whole But if the Incumbent die he hath further interest in his Benefice even after his death 34. Ministers dying their Wives Bairns or Executors have the Annat of their Beneficeor Stipends which is acknowledged to be their ancient Right Parl. 1571. cap. 41. whereby it is declared that Beneficed persons dying shall have right to the fruits of their Benefice upon the ground and the Annat thereafter to pertain to their Executors But the question is what the Annat importeth there is a Letter concerning it written by the King to the General Assembly and ratified by them All do agree that if the Incumbent die after Michaelmess he hath right to that whole year by his Service and to the half of the next year by the Annat But if he die before Michaelmess he hath right to the half of the Stipend if he survived Whitsonday proprio jure And to the other half as the Ann which his Executors have right to but all the question is when the Incumbent doth not only survive Michaelmess whereby he hath the half of the next year but if he survive the last of Dec. whether he hath right to the whole Stipend of that year as to which that Rule hath been sustained in favorabilibus annus incaptus habetur pro completo therefore the Ann was the whose year which was so decided July 5. 1662. Executors of Mr. James Fairlie contra his Parochioners but the Anns of Bishops and Ministers are now brought to a much more equal way by Act of 〈◊〉 August 23. 1672. whereby it is Statute that the Ann in alltime thereafter shall be half a years Rent of the Benefice or Stipend over and above what is due to the Defunct for his Incumbency viz. if he survive Whitsonday he shall have the half of that year for his incumbency and the other half for his Ann and if he survive Michaelmess he shall have the half of the next year for his Ann whereas before if he survived Michaelmess and lived but till the last of December his Ann was but the half of the next year but if he lived till the first of January his Ann was that whole year whereby the next Incumbent had nothing to expect for a year during which the Kirk was like to ly Vacant The Annat divides betwixt the Relict and nearest of Kin if there be no Bairns and is extended to the profite of the Gleib if there be no new Intrant July 19. 1664. Elizabeth Scrimzour Relict of Mr. John Murray contra his Executors But where there is an Intrant the Gleib belongs to him and is not part of the Ann nor did belong to the former Minister unless it had been sown by him and the Cropt upon it at the Entry of the Intrant July 6. 1665. Mr. John Colvil contra Lord Balnterino Where it was also found that the Defunct had his Ann though he had neither Wife nor Bairns 35. To conclude this Title with the Interest of Patrons in Benefices we have already shown their Original and Kindes their interest in the Benefices or Stipends is first the Right of Presentation of a qualified person for the Ministry whom the Presbytrie behoved to try and admit if he were qualified whereanent the Patron might appeal to the Synod and thence to the General Assembly and if that person be still rejected he must present another which must be done within six moneths after the Vacancy may come to his knowledge Otherways the Kirk may admit a qualified person for that time Par. 1592. cap. 115. Par. 1606. cap. 2. Par. 1609. cap. 12. Since the Restitution of Bishops Presentations must be directed to them in their several Diocesses Secondly During the Vacancy without the Patrons default but by the default of the Presbytery refusing to admit a qualified person he had
Grassum before and therefore Rentals expresly so granted or to tennents Constitute kindly tennents though they contain no Ish should not be annulled for want of an Ish which is implyed in the nature of a Rental to be a Life-rent and it would be far contrary to that favour that in other cases is allowed them to sustain them but as verbal Tacks lasting for a year Upon this ground it is that a Rental granted to a man and his wife not bearing the longest liver nor any issue was yet found to Constitute them both Rentallers during their life and their wife surviving to enjoy the same February 20. 1629. Laird of Ley younger contra Kirkwood 21. Rentals do ordinarly contain a Clause not to subset assign or annalzie which if it be contraveened not only the assignation or sub-tack is void but the Rental it self February 28. 1610. John Hamiltoun contra Thomas Boid The like being subset as to a part pro tanto Hope rentals Lord Douglas contra Walkinshaw But if the Assignation or Sub-tack was to the Major part it did annul the whole Rental November 13. 22. Laird of Craigie Wallace contra his Tennents Yea though the Subtack was only granted for certain years and these expyred before the pursuit Hope rentals Earl of Roxburgh contra Ker. This is so far extended as being in the nature of a Rental without any such Clause that it falleth in whole in the same manner as Ward-lands recognosce by alienating or subsetting the whole or major part if Possession follow and that by exception or reply March 15. 1631. Earl of Galloway contra Burgesses of Wigtoun Though the alienation was by Excambion and was conditional if the Heretor consented else to be null The like where the Rentaller had given a Disposition of the Rentalled Room whereupon the acquirer was in possession which was found to annull the Rental albeit it bore Assigneys and to exclude a Sub-tack by the Rentaller to that same party before any contraversie moved February 21. 1632. Laird of Johnstoun contra Jamison The like though the Sub-tennents offered to repone the Rentaller November 13. 1622. Bonar contra Nicolson The like upon an Assignation of an Rental though it contained a power to sub-set and in-put and out-put Tennents March 21. 1623. Laird of Craigie Wallace contra his Tennents But this taketh no place if the Sub-tack be set to the Rentallers eldest son who was to succeed March 19. 1622. Earl of Roxburgh contra Robert Gray It will also be elided if the Heretor receive duty from the Assigney as Assigney Hopehic Laird of Craigie contra his Tennents But it will not be inferred by the Rentallers entering another in Possession without granting him a Right in Write July 5. 1625. Laird of Aitoun contra Laird of Wedderburn last of January 1633. Laird of Cleghorn contra Crawfoord unless the Rental contain an obliegement to put no other in Possession and then it became null by granting tollerance and that by exception against the person having tollerance without calling the Rentaller July 15. 1628. Maxwel contra A Rental setting the keeping of a House Yard and others to the Rentaller and his Heirs as kindly Tennents was not found null by demolishing the House and Yard whereby the Rentaller failed in his duty and in the cause of granting the Rental January 29. 1628. Duke of Lennox contra Houstoun 22. A Sub-tack is that which is granted by the principal Tacks-man to his Subtennent who doth not thereby become Tennent to the setter of the principal Tack this is competent to Tacks-men where Lands are set to them or their Subtennents or that they have power to out-put and in-put Tennents and it is like a subaltern Infeftment it hath the same effect to defend the possession as the principal Tack it self if it be cled with possession and cannot be taken away by any Renounciation granted by the principal Tacks-man though his Tack bore not Assigneys but though it be not observed it hath born either power to in-put Tennents or Sub-tennents July 14. 1625. Earl of Mortoun contra his Tennents Yea when the principal Tack was reduced for not production the Sub-tacks-men not having been called the Sub-tack was sustained as a defence notwithstanding the Reduction seing the Heretor had consented to the Sub-tack December 13. 1626. Earl of Galloway contra Meculloch Yet otherways the Heretor is not oblieged to know the Sub-tack nor to call the Sub-tacksmen in the Reduction of the principal Tack and it becomes null by exception unless the Substacks-man had appeared and produced his interest in the Reduction or in the second instance can propone a defence sufficient for the principal Tacks-man or himself after which it did not defend him as bon a fidei possessor after Inhibition or drawing the teind Decem. 11. 1623. Earl of Wigtoun contra Parochioners of Stobo but otherways the Sub-tack would be sufficient till warning This is the effect of a Sub-tack passive but active it is not a sufficient title to pursue without instructing the principal Tack unless it had been acknowledged by the defender or cled with possession sufficient for a possessory Judgement March 29. 1622. Sir James Cleiland contra Tennents of Arbuckle For in Intrusions or Ejections Sole Possession is the Title 23. Tacite Relocation is that which is presumed to be the minde of both parties after expiring of a Tack when neither the setter warneth nor the Tacks-man renounceth for other significations of the alterations of their mindes will not suffice these being the habile way of voiding Tacks which is now much more strengthened by the Statute Prohibiting tennents to be put out without warning before Whitsonday But where warning is not requisite though other competent ways of evacuating the Tack will be sufficient as Inhibition in teinds or actions for removing summarly from Fortalices Coalheughts c. Yea though warning hath been used if it prescrive by three years not pursuing thereupon it hath no effect even against tacite Relocation July 6. 1610. Mr. Robert Bruice contra Captain Andrew Bruice There is a kind of tacite Relocation by taking the Rent before the hand during which time as Craig observeth in the forecited place the setter cannot remove the Defuncts Successor for the years ensuing in both which cases he is understood to relocate tacitely by these deeds Tacite Relocation hath the same effect to maintain Possession that the Tack had even against singular Successors and that not only to the Tacksmen but to the sub-tennents being Possessors who alledged the principal Tacks-man was not warned and were not oblieged to alledge he had a Tack for terms to run but only that he was not warned December 2. 1628. Mr. Walter Whitefoord contra Johnstoun But where the Sub-tennent was warned tacite Ralocation alledged by the Sub-tennent was not sustained without producing a standing Tack to the principal Tacks-man January 30. 1663 Riccart contra Laird of Udnie Here the warning was by a singular
Rights yet they are affected with Back-bond granted by the Tacks-man which are relevant againstthe Tacks-mans singular Successor though neither Registrat nor Intimat January 8. 1668. Margaret Forbes contra It remains now to consider how Tacks are destitute and taken off And first as to the point of Right Next as to Possession As to the point of Right we shall not speak of the nullities of Tacks by which they were never truly Constitute and so needs not be destitute But when they have once a real Beeing they ceasse First By any deed contrary to the Tenor or nature thereof as hath been before shown in Rentals which is not so in ordinary Tacks unless there be a Clause irritant and that be declared and so is not competent by exception Spots hic Robert Stevinson contra Alexander Barcley 32. Secondly They become void by not payment of the Tack-duty in the same manner as a Feu Right by the delay of two years unless the Tacks-man offered payment at such a time November 23. 1629. Romanno contra Nisbit 33. Thirdly If the Tacks-man be pursued to find Caution for the Duties resting and in time coming if he find no Caution the Tack becomes void and he may be removed summarly without warning this was also sustained against a Back-tack in Wodsetts though having no Clause irritant Hope Confirmation Sir Thomas Dischingtoun contra Laird of Pitmeden Idem William Hamiltoun contra Earl of Argile It was also sustained though the Duty was small the ground plenished and but one year resting February 27. 1627. Lawson contra Scot. But it is not sustainable where there are no bygones resting Neither was it sustained unless a year were resting the time of the Citation at least at Litiscontestation albeit the tacks-man was Bankrupt and in prison for Debt January 3. 1672. Lady Binnie contra Heugh Sinclar 34. Fourthly Tacks ceass by the expyring of the Terms thereof and the setters warning or other deeds to take off tacite Relocation or the Tennants Renounciation the form whereof is the tennent fourty days before Whitsonday subscrives and delivers to his Master a Renunciation of his tack and possession consenting that he enter braevi manu without hazard of ejection whereupon there must be taken an Instrument of Renunciation in the hands of a Nottar as a Solemnity requisite which is sufficient to instruct the overgiving astbeing the habile way approven in Law albeit in other cases not approven in Law Instruments of Nottars prove not the deed of the party in this case it avoideth the tack and is probable by Instrument if the tack be expired but during the tack the Instrument will not prove the acceptance of the Renunciation 35. Fifthly Tacks are taken off by the contrary consent of both parties though they be not expired as when they are really left by the tennent and possessed by the Master Or when by write they are renunced and accepted for verbal renunciations may be resiled from before they be perfected in write in the same manner as verbal tacks may and much more promises to renunce this way of renunciation is express and direct 36. Sixthly Tacks are taken away by tacite and implyed renunciation and by passing therefrom as by taking a posterior tack for fewer years and making use thereof albeit but a minute not by Contract nor subscribed by the tacksman nor in his hand but his acceptance proven by witnesses and by paying conform January 17. 1632. Earl of Lawderdail contra Waterstoun By accepting a posterior Factory of the same Lands Hope action of reduction Earl of Tillibairn contra James Dalzel By paying a greater duty February 27. 1610. Atcheson of Gossoord contra his Tennents Lethem contra his Tennents But not by paying of more presents Ibid Robert Hamiltoun contra Tennents of Melburn Neither by Sub-tennents paying a greater duty without warrand of the principal Tennent June 5. 1611. Laird of Phairnieherst contra Minister of Innerkeithing Also by taking an heretable right of the same thing but it holds not if the heretable right were reduced for then the Tack revives Spots appryzing Laird of Garthland contra Campbel Neither is it taken off by a posterior appryzing in the Tacks-mans person seing it was satisfied and declared extinct against him last of February 1623. Brice Semple contra Tennents of Closseburn 37. Tacks are taken off as to possession by removing of the Tennents either voluntarly as is before exprest or more ordinarly judicially by Process of removing which is most frequent and important and therefore is reserved to be spoken of together in this place though there be diverse kinds of removings having respect to diverse Titles for though removing be competent against all Possessors whether possessing without any Title or by an insufficient Title as an invalide Infeftment or the like yet the rise thereof is for removing of Tennents 38. Removing is either summar without warning or solemn upon warning again summar removing is either by paction or Law By Paction when it is so agreed by the Tack or other Write that the Tennant shall remove at such a Term without warning which will be sufficient at that time Craig hic This will hold upon Dispositions whereupon the Disponer may be compelled to remove summarly without any such express Clause which was also extended in favours of Appryzers against their Debitors possessing a House March 26. 1612. January 18. 1623. Earl of Lothian contra Sir John Ker and his Son But it is more questionable whether it will be sufficient at any time thereafter if the Tennent be suffered to possess per tacitum relocationem especially seing the Statute for warning is a publick Law introduced for the good of poor Tennents whose rusticitie is excuseable if they advert not to anterior Pactions Nam pacta privatorum non derogant juri communi Yet upon the contrary cuique libet 〈◊〉 juri pro se introducto Betwixt which I conceive this temperament will hold that such pactions though recent may be effectual at the precise Term or at any Term or time thereafter upon intimation if it be so agreed upon in Write for promises in this case may be resiled from as before is shown but in either case the Tennent must have intimation before the Term which will suffice without the solemnities of warning but it must be of that length that the tennent may provide for himself and remove his goods which will be in the arbitriment of the Iudge and I suppose that they will walk most fairly and safely who shall intimate the same to the Tennent fourty days before the Term Or otherways all the effect is like to be that he will be discerned to remove at the next Whitsonday after the Process without violent profites as uses to be done when there is any probable excuse for the Tennents not removing Summar removing is competent by Law without Paction in all cases where the Statute appointing warning takes no place which is chiefly regulate
are not wakened every five years for such prescrive in ten years by the Act 9. Par. 1669. The exceptions of removing at the instance of the Master of the ground are very frequent and various for it is ordinarly proponed and sustained that the Defenders are Tennents by payment of Mail and Duty to a third party who is not warned nor called neither are they put to dispute their Masters Right to be valide which holdeth whether his Right be an Infeftment Liferent-right or Tack and though the Tennent hath been put to condescend what the Right is and that in specie it is a valide Right though he needs not dispute the particular defects of it nor the competition of it with any other Right That hath been done that the pursuer might know how to quarrel their Masters Right but I have never observed that Litiscontestation has been made or a Term assigned to Tennents to instruct their Masters Right therefore this defence is but dilatory and should not be sustained unless instantly verified by Tacks or Discharges from the alledged Master which would be repelled if the Tennents have interverted the pursuer or his authors Possession or if the pursuer were singular Successor not presumed to know any interest but of the Possessors if the Tennent produce his Masters Seasine with his Tack or Discharge it would instruct this Dilator which is sufficient upon the not calling the Tennents Master for his not being warned is proper for himself to alledge and the partie will in the same Process get warrand to cite that Master who must defend himself upon his own Rights and therefore this defence was sustained to Tennents though they condescended upon no other Right to their Master but tacite Relocation December 2. 1628. Mr. Walter Whitefoord contra Laird Johnstoun It hath also been sometimes sustained that the defenders were Tennents by payment of mail and duty to an Appryzer though not Infeft Hope hic Crawfoord contra Brown This exception is also elided by this reply that the defenders had acknowledged the pursuer by payment of Mail and Duty Nicol hic Lady Evandale contra her Tennents It is also elided by alledging that the defenders Masters Right was reduced at the pursuers instance December 12. 1622. Spading contra Fleming The like where his right was reduced at the instance of the pursuers author Spots hic Maxwel contra Tennents of Glassock Earl of Nithisdale contra his Tennents The exceptions against removing upon the defenders own right are either in respect of his right to the Land in question or to the other Lands brooked by him pro indiviso with it For the first there are as many such defences as there are rights competent for defending possession and they are either founded upon the benefite of a possessory judgement which how conpetent may be seen at large Title Infeftment 13. § 82. which needs not to be repeated Or if that be not competent the defender must found himself upon the point of right which ordinarly infers a competition of rights But in either case the defence will not be sustained upon any right if the possession was not attained there upon bat upon the pursuers right which Possession must be restored and the defender left to his action upon the others right as accords as if after redemption of a temporary right whereby the defender entered in Possession he should defend upon another right which will not be sustained in this possessory judgdement against him or his Successor from whom he had the Possession November 22. 1677. Sir Archibald Stuart of Castlemilk contra Duke of Hamiltoun The exception pro indiviso is very pregnant and taketh not only place in solemn removings but in the Action to find Caution for Mails and Duties or to remove though the Excipient had taken Tacks from the Pursuer December 6. 1623. 〈…〉 contra Carmichael Yet it was not found relevant to stop removing from the pursuers part of a Coal-heugh in Lands undevided because the Coals are divisible by measure as they are raised out of the Coal-pot Spots removing Hugh Somervel contra Dickson Neither was it found sufficient to maintain a Relict in possession of a House which could not be divided whereof she had a third part and possest the other two thirâ—s pro indiviso but the Fiar having the two thirds was to be preferred to the Poâ—â—ession paying her the third of the Mail upon condition that if he seâ— the Tenement she should be preferred giving as much Mail as another January 26. 1665. Legan contra Galbraith The last exception against removing is obedience by voluntary removing conform to the warning and leaving the Land void and red at the Term without necessity of a renunciation in write March 2. 1637. Keith contra Simpson The like the defender finding Caution to desist from the Possession Nicol. de migrando Wallace contra Mitchel But the alledgeance of obedience was not found relevant upon an exception bearing that the Land was left void and red at the Term seing that it bore not that the Possession was offered to the Charger in respect that at the time of his removing another party entered in his Vice January penult 1624. Greenlaw contra Adamson But the obedience must be full according to the warning by the defenders removing himself his Family Sub-tennents and Cottars Goods and Gear So that the pursuer may enter in Possession and therefore Decreet would be obtained against the principal Tacks-man and the Letters still put to execution against him till all these be removed and if the pursuer please he may pursue them to remove without other warning then what was made to the principal Tacks-man So it was sustained against a Son upon a warning against his Father even after his Fathers death January 26. 1630. Hoom contra Hoom. As to the last point concerning the effects of Decreets of Removing it is not only the attaining Possession of the Land it self but sometimes also the Corns growing thereupon as being a part thereof being a Possession violent Hope Spuilzie John Elliot contra Lord Balcleugh Yea of the Hay of that Cropt though separate and Stacked by the person removed Hope Spuilzie Sir James Balmuire contra Williamson But the main effect is the obtaining the violent profites of the Land until the possessors obedience and that both against these who are warned and against these who succeed in the vice of warned or removed Tennents 44. Violent profites are so called because they are such profites as are due by and for violent Possessioa whatsoever way it be by warning and removing ejection intrusion or succeeding in the Vice and they are opposite to ordinary profites which were due by tacit Relocation or were formerly accustomed to be payed Violent profites are pursued for by a several Action after the Decreet of removing is obtained Wherein the Decreet of removing is both a sufficient Title and probation of the violent Possession against the parties
Order of Redemption being lawfully used the action thereupon is a declarator of Redemption because it is the order that Constitutes the Redemption and the Declarator but finds and declares it to be orderly proceeded and decern-the Wodsetter to denuds himself conform thereto and therefore though the Reversion be personal excluding Assigneys if that person once use the Order he may Assign it and Dispone the Lands as Redeemed and the Assigney at any time even after his death will have interest to declare July 29. 1623. Earl Marischal contra his Brother March 3. 1630. Murray contra Myls July 30. 1650. Campbel contra Dick. Declarator of Redemption was sustained upon an Order used against a defunct and the Declarator pursued against his appearand Heir without a Charge to enter Heir or a new Order December 11. 1638 Findlayson contra Weims But in the Decreet of Declarator of Redemption against the appearand Heirs they cannot be decerned to denude unless they were Charged to enter heir yet the Declarator it self would be sufficient to extinguish the Wodset against singular Successors But it would not convey the right of Wodset to the Redeemer and therefore if he were not Infeft or heir to a person Infeft in the Wodset Lands it would be necessary to charge the appearand heir to enter to the effect he might denude and dispone and therefore a declarator of Redemption against an appearand heir did bear that the sums should not be given up till the appearand heir were Infeft and Resigned January 10. 1665. Campbel contra Brison It was also sustained at the instance of an Appryzer of the Reversion without calling him from whom it was Appryzed but only the Wodsetter December 17. 1629. Carnousie contra Lesmore In respect that the Appryzing was a Legal Assignation of the right of Reversion granted by the Wodsetters author And there have been no interveening singular Successors but in Redemptions against singular Successors in Wodsetts whose rights do not instruct that they are derived from the granter of the Reversion the pursuer must instruct that the granter of the Reversion stood Infeft in Fee Otherways that singular Successor will not be oblieged to acknowledge the Reversion and because the Successors of the first Wodsetter would have warrandice against the first Wodsetter or his heirs if they had disponed the Lands without reserving the Reversion therefore in that case only the first Wodsetter or his heir if he can be condescended upon having any visible Estate have been of old accustomed to be called which is not necessary in other cases and hath been the ground of that Decision July 9. 1630. Fisher contra Brown Where it was found necessary to call the heirs of the granter of Reversion if the defender could condescend upon them for the ancient custom hath been to have more respect to the heir of the granter of the Reversion then to the singular Successor present Possessor of the Wodset as Craig observes l. 2. Dieges 6. that sometimes Redemption hath been sustained upon Premonition and Citation only of him who granted the Reversion or his heir But ever since the present Heretable Possessor of the Wodset must necessarly be Premonished and Cited and but seldom the granter of the Reversion or his heir as where the granter of the Reversion was immediat Author to the singular Successor against whom the Order was used as in the former case his own Rights behoved to acknowledge the right of the granter of the Reversion who was common Author and might intimate the plea to him but could not be oblieged so to do where his own right shew no right from the granter of the Reversion A Redemption being voluntary without Process was sustained against a Sub-wodsetters right being a Liserent by the Wodsetter to his Wife albeit it was 〈◊〉 yet the Redeemer was not found oblieged to know it but it was found taken away without any Order against her or Citation of her Iuly 27. 1665. Lillias Hamiltoun contra her Tennents Redemption upon a Rose-noble used upon the Sabbath-day albeit the Instrument of Consignation did not bear the Reversion was shown nor read was sustained Spots Redemption Laird of Newwark contra his Son but this would not be drawn in example amongst strangers where the Wodset is redeemable upon considerable sums For though Consignation upon the Sabbath-day by a Father against his Son be sustained 〈◊〉 non debet sed factum valet Yet the Wodsetter cannot be oblieged to attend and perform the requisites of Consignation by numeration of Money perusal of Writes and subscribing a Renunciation upon the Sabbath-day Redemption was sustainedwithout necessity to the pursuer to uplift the sums Consigned from the Consignatar and re-produce them at the Bar unless it be instructed he had taken them up December 7. 1631. Grierson contra Gordoun Where the Extract was superceeded till the Consignatar was Charged summarly upon Letters granted upon the Instrument of Consignation to exhibite the Consigned Money but no Annualrent was found due after Consignation A Redemption was sustained without production of the Reversion the pursuer being an Appryzer and proving that the Reversion was in the Defenders own hand February 19. 1662 Children of Wolmet contra Mr. Mark ker The like where the pursuer was a singular Successor February 17. 1663. Collonel James Montgomery contra Robert Halybruntoun Yea an order used by an Assigney sustained though he shew not his Assignation till the Process of Declarator yet so as the Wodsetter was not countable for the Rents but from the production of the Assignation February 19. 1674. Lord Borthwick contra Pringles Yet Redemption was not sustained at the instance of an heir not being entered at the time of the Order though entered before Declarator Ianuary 19. 1672. Lord Lovat and Kintail contra Lord Mcdonald But if the Redeemer uplifted the Consigned Money he must produce the same with the Annualrent and will have right to the Rent during that time Hope Confirmation Baikie contra December 8. 1671. Forrest contra Brounlie November 29. 1672. Duke of Buckleugh contra Scot of Thirlestain Redemption was not eleided because the sums were Consigned in the hands of the redeemers own servant and taken up from him seing it was offered at the Bar and no special provision in the Reversion anent the Consignatar Hope Confirmation Laird of Drum contra Wishart The like though there was an Instrument of another Nottar contrary the Order of Redemption July 18. 1610. Earl of Kinghorn contra Kincaid 20. The effect of Declarator of redemption is that it makes the redeemed Lands belong to the Redeemer and makes the sum Consigned moveable and to belong to the Wodsetters Executors if he have accepted the Consignation or Declarator do follow in his Lifetime but if Declarator do follow after the Wodsetters death the Consigned sums will not belong to his Executors but to his heir who remains Propietar of the Wodset But if Declarator past in the Wodsetters Life it did take
infers recognition WE are not here to speak of the common wayes of extinction of Infeftments and other rights as the extinction of the Subject matter Prescription Forefaulture Homologation or acceptance of incompatible Rights neither to these ways by which an infeftment is extinct as to one but is conveyed to another which falleth in consideration amongst conveyances of Rights But of these ways proper to extinguish Infeftments and make the right toceass and to return to the Superiours and these are two either by consent of the Vassal or by Law 1. Infeftments are extinct by consent by resignation made by the Vassal who stands Infeft in the Lands to his Superiour ad perpetuam remanentiam to which there is necessarly required as a solemnity thereof an Instrument of resignation in the hands of a Nottar in the same way that their constitution was perfected by an Instrument of Seasine their distitution is consumate by an Instrument of resignation which no other write nor acknowledgement of the Vassal of the being thereof will supply much less will the deeds done otherways prove and as in Seasines there must be a tradition or delivery of Possession by some Token or Symbol as by Earth and Stone c. So in the Instrument of Refignation there must be a re-delivery of the Possession by an accustomed Symbol which ordinarly is by delivery of Staff and Bastoun yet in this they differ that the delivery of the Seasine must be upon the ground of the 〈◊〉 naturally or by union but the Resignation may be any where And as Seasine may be given either to the Vassal or his Procurator so may the Resignation be either to the Superiour himself or to his Commissioners authorized to that effect 2. And though Instruments of Resignation use to be by Procurators warranted by a Procuratory of Resignation Yet as there may be Seasines given by the Superiour propriis manibus so may there be Resignations by the Vassal 3. But in both the Instrument of Resignation alone is not sufficient as being but the assertion of a Nottar but they must have for their warrand a Disposition or other Adminicle and therefore it is Statute Par. 1563. cap. 81. That where such Resignations are by Procurators the Procuratories be subscribed by the party or Nottars and if the Resignation be propriis manibus that the Instrument be so subscribed otherways to be null because the subscription of the Instrument is in that case the only probation of the Warrand thereof But if there be a Disposition or Obliegement to Infeft the Instrument of Resignation though not subscribed by the resigner will be sufficient as warranted by the Disposition or Obliegement But Seasines and Resignations did formerly differ in this that Seasines must be registrate within sixty dayes after dates Par. 1617. cap. 16. 4. But so needed not Instruments of Resignation ad Remanentiam for though by that Statute Renunciations of Wodsets are to be registrat it was not extended to Renunciations of irredeemable Rights ad remanentiam these being either omitted by inadvertency or of purpose in the favours of Superiours that Rights may be taken with their consent Yet in so far that excellent Statute was defective till the late Act of Par. 1669. cap. 3. whereby Instruments of Resignation are null if not registrat within sixty dayes By which and others to that purpose purchasers in Scotland may better know the condition of these with whom they contract about Infeftments and be more secure of lurking rights then any where so far as I can learn in the World 5. By this Resignation so made the property is consolidate as it was the time of the Resignation and is affected with all real burdens or debita fundi that validly affected it before as Feues Tacks Annualrents Servitudes For though all such burdens as are not warranted by the Superiours consent or by Law cease when the Fee returns to the Superiour either for a time by Ward Non-entry c. or for ever by Recognition yet when it returns thus by consent it comes cum suo onere which is very just and fit seing else such securities might easily be evacuat by voluntar Resignations in the Superiours hand There is another Resignation which is called in favorem being for new Infeftment to the resigner or some other but thereby the Fee is not extinct but either renewed or transferred and therefore it shall be considered hereafter 6. Craig upon this head very fitly moveth and solveth this question Whether the Vassal may renunce and resign his Fee to the Superior though he be unwilling and instances in two cases First in a Vassals holding a very inconsiderable parcel of Land Ward and did thereby become obnoxious to his Superiour for the value his Tocher having relation to the whole Estate which Tocher did much exceed the worth of the Tenement And yet a resignation thereof being judicially offered the Superior was suffered to refuse it unless the value of the Marriage were first payed The other of a Burgess offering to renunce his Burgesship for shunning a great Taxation put upon him and therefore solveth the case upon the common Axiom Cuique licet renunciare favori pro se introducto And therefore the Fee of its nature being gratuitous in favours of the Vassal may be renunced but that will not prejudge the Superiour of any casuality befalling to him before the renunciation but will have only effect ad futura and therefore a Vassal judicially disclaiming his Superior was not admitted so to do to exclude the Life-rent already fallen March 26. 1628. John Stewart contra Laird of Wedderburne No Contract Obligation or personal Right nor any less then an Instrument of Refignation will take away Infeftment for though these may be sufficient against the granters thereof by a personal objection whereby they cannot come against their own deed Yet truly the real right stands in them and they are not denuded thereby and so a Renunciation without the solemnity of an Instrument of Resignation will not suffice to obliterat an irredeemable Fee though it may be sufficient to evacuat any personal right as Servitude not requiring Infeftment yea or a Liferent though constitute by Infeftment because it is communicable to no other persons by Infeftment and therefore passeth by Assignation or Resignation The reason hereof is because by the common custom of Nations real Rights cannot pass by sole consent without artaining possession in the way prescribed by Law and therefore this symbolical possession which alone the Law alloweth as sufficient either in the constitution or destitution of Fees must be adhibite and the real possession of the Tenement it self will not suffice in either case as is before instanced in Seasines by several decisions So a Renunciation without a formal Resignation was not found relevant to take away the Infeftment renunced against a singular successor November 23. 1627. Dumbar contra Wilson Resignation cannot be effectual if the resigner be not infeft
for he who is not invested cannot be divested or if by his Infeftment he hath no valid right 7. Craig discusseth this question also in that place Whether consent of one who is infeft and thereby hath right will validat the Resignation of another who is not infeft and hath no right Which he determineth in the affirmative with good reason for though the consent alone would not be sufficient yet seing the form of the resignation is done though in the name of him who hath no right yet by consent of him who hath right here is both the substance and solemnity of the act and it is alike as if the Resignation had been by the consenter which I doubt not will hold though the consent be but adhibit in the beginning of the Disposition or Contract And though the consenter for all right he hath doth not dispone as is ordinary for further security yea if the consent be not repeated in the Procuratory of resignation or mentioned in the Instrument of Resignation for being exprest generally in the entry of the Disposition or Contract it reacheth to every Article thereof and all done conform thereto Consent hath the same effect in the constitution of Fees and so the consent to an Annualrent by a party having right and infeft was found to validate the Annualrent though the Disponer was not infeft and so did exclude a Tack set by that consenter afterward December 15. 1630. Jean Stirling contra Yet if more persons should dispone for their several rights without consenting one to another if any of them be omitted out of the Procuratory or Instrument of Resignation in whom truly the right standeth Nonthing will be validly done though that party be also in the Disposition And this is the reason why when many persons dispone or resign they do it all with one mutual consent for thereby each of their rights doth contribute to the deed of the rest though some of them were omitted to be repeated in the Procuratory Instrument of Resgination or Infeftment following thereupon the deed would be valid But it is safest to repeat their consent in the Resignation and Infeftment 8. Infeftments are also extinct when the Superior adjudgeth or appriseth from his Vassal for thereby it was found that the Property was consolidat with the Superiority Spots Apprising Stevinson contra Laird of Craigmillar Or if the Superiour succeed as heir to the Vassal in which case though the Superiour upon supplication obtained Precepts out of the Chancelary to infeft him in the Fee it was thought as Superior he might have infeft himself as Vassal But he would not have been so secure by a Declarator of Consolidation upon the Superiours special Retour as Heir to his Vassal in the Lands because that way would make a defect in the security of Land-rights by the Negisters in which Decreets of Consolidation are not required to be recorded whereas the Superiors Seasine either on the Kings Precept or his own behoved to be registrat and if the Superiour acquire the property by Apprifing or Adjudication the allowance thereof must also be registrate The The like effect will follow if the Vassal become Heir or singular Successor to the Superiour whereby being infeft in the Superiority he may as Vassal resign to himself as Superiour ad remanentiam 9. It is more disputable how and under what consideration Fees are extinct otherwayes then by consent Some hold that they are extinct by the attrocious delinquency of the Vassal against the Superior as the penalty or punishment thereof and others conceive that acknowledgement and fidelity being necessarly involved in all Fees as is shown before though it be not exprest So this is implyed as a legal resolutive or irritant Clause that if the Vassal failie in his duty his Fee becomes void And others hold that Fees being of their own nature gratuitous even though there be a cause onerous yet they retain the nature of a Donation and therefore as all Donations are revocable propter ingratitudinem So are these which soever of these be the ground the consequences and effects are much to the same purpose But I incline to the middle opinion for unless it were evident by Law that the penalty of that delinquence were such and so applyed it would hardly be consistent upon that ground seing otherwayes as we have shown before of delinquences the punishment is publick and would belong to the Magistrate And therefore for several delinquencies forfaulture of Fee is introduced without benefite to the Superiour who as a private party can have no more but a reparation equivalent to the damnage sustained by him and so the alienation of the Fee without his consent or incroaching upon the border of his property would not infer for its reparation the return of the Fee how great soever And for the last though Fees of their nature be gratuitous yet they are oft-times for an equivalent price and so the less ingratitude can be alledged yea though it be true Si ingratum dixeris omnia dixeris yet fidelity and trust is a much stronger bond then gratitude and the breach thereof hath the most powerful consequence betraying of trust being most hurtful and hateful to mankinde and therefore seing fidelity is necessarly and properly in all Fees and is essential thereto and inseparable therefrom it looketh likest the surest ground from whence the eviction hereof may flow And if it be truly gratuitous it is an aggravating circumstance making the deed more odious But whatsoever it be it is agreed by all that the deed must be of knowledge moment and attrocity though there be many such heaped up by the Feudists yet many of them have no place with us where both such deeds are rare and therefore the decisions thereupon are few and certainly our Fees being ordinarly onerous are not evacuated but by such as are either named and known in Law or which are very attrocious There be three such wayes of extinction which have peculiar names in Law Recognition Disclamation and Purpresture Of which therefore in the next place Recognition is the Superiours returning to own the Fee and therefore may be extended to all the wayes by which it returneth through the Vassals infidelity as is hereafter exprest But the least culpable and yet most ordinary way of incurring Recognition is by the Vassals disponing irredeemably or under reversion his Fees holden Ward for by this he renders himself incapable to serve his Superiour and in a manner renunces and disclaims him This kind of Alienation makes recognition of ward-Ward-lands but Fees feu or blensh do not recognosce by such Alienations but by the attrocious infidelity of the Vassal 10. The nearest cause of Recognition is the Vassals alienation of the Fee without consent of the Superiour which is a legal clause irritant implyed in the nature of proper Fees or Ward-holdings though it be not exprest that though the Vassal alienat the Fee it shall return to the
Superiour whether the rise hereof be from the personal obligation of fidelity which the Vassal oweth to the Superiour only or from the obliegement of gratitude and service or from that peculiar choice of the person and race of the Vassal which the Superiour hath made contrair to which a stranger cannot be obtruded upon him neither can the Vassal withdraw himself from the fidelity or render himself unfit for his service or from all these yet in this do most agree that the nearest cause of Recognition is the alienation of the Fee So then the main difficulty is what is meaned by that Alienation by which Recognition is incurred Craig lib. 3. dieges 5. declareth that this Alienation cannot be by naked Contract or Disposition till Seasine follow for these being but personal and incompleat Rights do not alienat the Fee from the Vassal but only constitute upon him a personal obliegement so to do It is also clear that by Infeftment granted by the Superiour upon resignation there can be no recognition because the Superiours accepting of the resignation importeth his consent So that the question will only remain when the Vassal granteth Disposition or Charter a se to be holden of his Superiour and before the Superiours Confirmation obtained giveth Seasine For the Confirmation being the express consent of the Superiour if the Seasine be after it there can be no hazard of Recognition or otherwayes while the Vassal granteth a subaltern Infeftment to be holden of himself 11. As to the first case it seems there can be no recognition incurred by Infeftments granted by the Vassal to be holden of his Superiour because if these be confirmed the Right is null and there is no alienation nor transmission of property but the Vassal granter of the Infeftment remains still Proprietar And therefore such an Infeftment is equivalent as if the Vassal did alienat upon condition that the Superiour should consent and if he did not consent the Infeftment to be null In which case most Feudists do agree that by such Infeftments there is no recognition and this reason is the more fortified that Craig in the fore-cited place relateth that an Infeftment null for want of Registration was not found to infer Recognition in the case of the Kings Advocat against Kenneth Mackenzie and Bain For solution of this difficulty it is not to be denyed that if a Seasine be null by defect of any substantial or essential necessarly requisite to Seasine or symbolical delivery of possession there would follow no Recognition as if there were no tradition of earth and stone or symbol requisite or not by the Superiour or his Bailie or not to the Vassal or his Procurator or not upon the ground of the Land naturally or by union But though Seasine may be null by defect of some accidental solemnity introduced by Statute or Custom and not necessarly involved in the nature of tradition as the indiction or year of the Princes Reign though Law should declare the Seasine null for want of these yet the Vassal performing such essential requisites the Feu falleth in Recognition and therefore there seemeth no ground to follow that Decision adduced by Craig excluding Recognition upon the nullity of the Seasine for want of Registration But as to the case proposed the Superiours Confirmation is not essential to the Vassals Seasine neither is it so required by the common Feudal Customs as with us for thereby if the Superiour did acquiesce approve or homologate the Seasine granted by a Vassal to a stranger the same would be valid without a formal Confirmation in write albeit by our Custom such Infeftments till Confirmed are null not only as to the Superiour but as to all other third parties and so is become as a substantial of the Infeftment not being truly essential by the common Fedual Customes it doth not exclude Recognition and as Craig in the forecited place rendereth the reason that Infeftments by the Vassal a se not Confirmed infer Recognition is because he hath done all that in him is to alienate the Fee there being no Act remaining to be performed by him or his Procurator and therefore in the Declarator of Recognition pursued at the instance of Lady Anna Hamiltoun Lady Carnagy contra Lord Cranburn upon the Earl of Dirletouns Disponing of the Lands of Innerweek holden of the King Ward to Cranburn and Infefting him therein to be holden of the King this Defence was not found relevant that the Seasine was not Confirmed and so null though done upon Death-bed accepted for a Minor absent and inscient and recalling and reducing 12. For in such cases as in rebellion or escheat there is no priviledge of minority nor of deeds upon death-bed against the Superiour though done by a minor except the deeds upon death-bed be in prejudice of the Heir and be reduced by the Heir ex capite lecti But in this case Dirletouns Heir did not quarrel the Disposition made by him as done upon death-bed but did take a gift of recognition from the King But where the gift of recognition was not granted to the Heir-male who was heir in the investiture but to an heir Female the Heir-male proponing that the alienation was upon death-bed and so null as to him The Lords found that if the Disposition was upon death-bed the Defence was relevant and competent by way of exception the Declarator of recognition not being a possessory Judgement But where the Disposition was in leige poustie and was delivered with a Precept of Seasine simply without 〈◊〉 not to take Seasine base upon the Precept which imported a Warrand to take Seasine thereupon It was found the taking Seasine when the Disponer was upon death-bed upon that precept subscribed and delivered in 〈◊〉 poustie did infer recognition July 20. 1669. Barcley contra Barcley 13. It is much debated amongst the Feudists whether by Sub-feudation Recognition be incurred or whether it be comprehended under alienation because in libro Jeudorum albeit alienation of Fees be expresly prohibite yet in the same place as Craig observeth Sub-feudation is allowed because by sub-feudation neither the personal right betwixt Superiour and Vassal is altered seing the Vassal continues Vassal and lyable to all these Neither is the real right and interest of the Superiour in the Fee it self diminished but he hath the same access thereto as if there had been no sub-feudation yet Sub-feudation in all cases is accounted alienation And where alienation is prohibite Sub-feudation is understood and so Emphitiosis or Feu-ferm which is at least a perpetual Location For solving this difficulty it must be remembered that feudalia are localia regulable according to the custom of the several places and according to the Nature of Feudal-rights and common Feudal-customs where special customs are not and therefore there is no question of this point in France or most places in Germany where alienation of Fees many ways is allowed But in Italy and other Countreys where the common Feudal
the Superiour by which the Vassal can be accessory to no attrocious Deed against the Life and Blood of the Superiour but against any Infamy may befal him or any great detriment in his Estate and so will reach to Deeds of hurt or disgrace to his Wife or Children by Adultery Fornication or attrocious Violence upon their persons or attempts thereunto and may also extend to the revealing of the Superiours secrets or not Defending him against his Enemies or such as attack him or deserting of him in that case and in case of a necessary flight by overpouring in not crying for help and relief and in lawful War in not concurring with him or deserting him while with any probability of prevailing he stood in fight if the Vassal were then near him but it will not import his concourse active in private quarrels by force of Arms which are not warrantable 33. In all cases the ignorance of the Vassal not being affected or his weakness will excuse these Delinquencies and whatever he acteth in self-defence or upon provocation of the attrocious injury of the Superiour or by publick Authority or in the service of his Prince or anterior Superiour in Ward-holding Or unless the attrocious Deeds be past from by the Superiour by owning his Vassal after the knowledge thereof or by a considerable times forbearance to quarrel the same especially when in the mean time either the Superiour or Vassal dies for though death obliterats Crimes as to the punishment yet the righ arising to the Superiour in the Fee from the Delinquence as a resolutive condition is not excluded by the Vassals Death if the Superiour were ignorant of the Fact or not in capacity to vindicat the same through publick Calamity or his Pupilarity or absence but by the mutual friendship and strict Union betwixt Superiour and Vassal small evidences will import the passing by former Delinquencies especially when not questioned during the life of both parties There are multitudes of specialities proposed by Craig as Delinquencies resolving Fees not only in relation to the Superiour his Person and Family but also of invading his House befieging the same or entering it by force or invading his Property which is the ground of Purprysion acknowledged by our Custom or by denying or refusing to show the Superiour the Marches of the Fee or denying any part of it to be holden of him or not showing him his Holding and Investiture being solemnly called to that purpose which take no place with us for our ordinary custom for Superiours as well as others is to pursue Improbations of their Vassals Rights wherein the Certifications is not the loss of the Fee but the presumptive falsity of the Writes or the denying to do justice to Superiours but also in relation to the Fee if he waste or deterioat it Yea in relation to the Vassals own Person as if he fall in Incest or if he kill his Brother or commit any Paracide or if he contract friendship with the Enemies of his Superiour And generally whatever may make him unfit or unworthy to attend his Superiou or to be in his Court but none of these are implyed in the Fidelity of any Vassal There be special grounds of resolution or extinction of Fees by the particular Nature or Tenor thereof as Feues become extinct ob non solutum canonem and other Fees are extinct by resolutive Clauses as to both which we have spoken Title 13. § Craig doth hold that by the delinquence of Vassals Conquest or feuda nova become extinct and return to the Superiour but Heretage or feuda vetera do but become extinct as to the delinquent Vassals and his Descendents but is not returned to the Superiour but divolved to the next Collateral of the delinquent Vassal descending from the first Vassal who would have succeeded if the delinquent Vassals had died without issue and who must enter Heir to the delinquent Vassals predecessor but in this the interest of the Superiour is too far restricted for we have no custom nor tenor to enter any person heir to a Defunct while a nearer heir is existent whatsoever his delinquence be except Paricide He doth also move this question That if the Vassal have committed a Feudal delict against the Superiour and a publick crime inferring forefaulture whether the Fee would fall to the King or to the Superiour or if the first sentence of forefaulture or recognition would prevail but does not determine it Yet the first deliquences sufficient to extinguish the Fee if insisted in must give the preference for the sentence of forfaulture or recognition is but declaratory and hath effect not from the sentence but from the deed inferring it There is no difference whether the delinquence inferring recognition was before the Vassal was actually entered or after but it is more questionable whether recognition would be incurred by the deeds of the appearand Heir in his predecessors life which could have no effect as to Collaterals who are not alioqui successuri seing they may be excluded by a descendent which in men is alwayes in hope And if the heir apparent die before his predecessor it can have no effect to exclude either his Collaterals or Descendents and it is more probable that though the heir apparent should survive he would not be excluded seing feudal delinquences are now so little extended 34. It hath been much and long debated and is not yet decided whether Recognition can be incurred for ay attrocious deeds dne by sub-vassals whereby the Superiour might claim the right of the sub-vassals Fee to fall to him by Recognition Or Whether Recognition can only be incurred by the deeds of the immediat Vassal The case in question was where a sub-vassal rose in rebellion against the King whereby his Fee as all his other Rights were confiscate to the King by forefaulture which could but confiscate them as they were in his person with the burden of all real Rights of Liferent Annualrent or other subaltern Infeftments of the forefaulted person But if the forefaulture of the sub-vassal did also comprehend Recognition the sub-vassals Fee would fall to the King and belong to his Donatar without any real Right or Burden contracted by the forefaulted person except such as were confirmed by the King either by a special Confirmation or by that general consent of the King inviting all his Subject to set their ward-Ward-lands feu by the Act of Parliament 1457. cap. 72. which would preserve such Feus being constitute before the Act of Par. 1633. rescinding that Act as to the Vassals of the King and Prince as was found Feb. 12. 1674. Marquess of Huntley contra Gordoun of Cairnburrow November 16. 1681. Campbel of Silvercraigs contra Laird of Auchinbreck and the Earl of Argyle And therefore if Recognition were implyed in forefaulture in that case it behoved to infer a general rule that Recognition might be incurred by all attrocious deeds against gratitude and fidelity omitted not only by the
acquired by a just Title though for a Cause onerous and an equivalent price and by continuation of Possession bona fide yet prescription taketh no effect because of the inherent Vitiosity The like is to be understood of Rapine or violent Possession Yet the Fruits and Profites of such things belong to the bonae fidei possessor rather by that Right that followeth possession bonae fidei Of which formerly in the Title real Rights then by prescription Thirdly It runneth not against Pupils by the Civil Law though some think that it is not to be understood of their Moveables yet it runneth against other Minors but they may be restored if they pursue for Restitution in the time and manner prescribed in Law 11. To come now closs to our Law concerning Prescription our common Rule of Prescription is by the course of fourty years both in Moveables and Immoveables Obligations actions Acts Decreets and generally all Rights as well against these absent as present we have not these differences which we have shown were in the Civil Law and because our Prescription is so long there is little question with us de bona fide But there must be continual possession free from interruption and in Lands and other Fees a Title of which hereafter 12. By our ancient Custom there was no place for Prescription in any case which hath been Corrected by our Statutes both as to long and short Prescription First as to personal Rights in Par. 1469. cap. 28. par 1474. c. 54. it is Statute that as to all obligations that should be pursued thereafter and that were not then depending in Law before the making of that Act that if the Creditor did not follow or pursue the Obligation within the space of fourty years and take document thereupon the same shall be prescrived and of no avail Which Statute though it mention only Obligations that is to say simple Obligations was also extended to others as Contracts of Marriage whereupon no Marriage followed as may be inferred argumenta a contrario from the Decision February 26. 1622. Sir George Hamiltoun contra Lord Sinclar And afterward it hath been ordinarly extended even to Contracts of Marriage wherepon Marriage followed November 27. 1630. Lauder contra Colmiln December 23. 1630. Ogilbie contra Lord Ogilbie It was also extended to Testaments June 19. 1627. Lundie contra Laird of Balgoum And was also extended to pursuites for Tutor Counts Hope Prescription It was also extended to all Decreets though in foro contradictorio and this ordained to stand as a constant Practick July 26. 1637. Laird of Lawers contra Dumbar 13. Prescription of fourty yeays was found sufficient to Constitute the Right to a Bell in a Kirk-steeple against another Kirk pursuing therefore without instructing a Title whereby they had the Bell which is not necessary to be instructed but is presumed from Possession in Moveables December 7. 1633. Minister and Session of Aberchirdo contra Parochioners and Kirk of Chanrie 14. Prescription being odious the fourty years are accounted de momento in momentum So that it is not the running but the compleating of the fourty years that makes Prescription and therefore a Write blank in the Moneth and Day expressing the year was reckoned from the last of December that year and because there was three quarters wanting of fourty years before insisting upon the pursuite thereupon it was sustained as not prescribed Sep. 23. 1630. Ogilbie contra Lord Ogilbie But in regard of the length of this Prescription it is accounted ex tempore continuo non utili and so no abatement for the time of troubles or surcease of Justice even in the case of Mortification to Bead-men June 30. 1671. Bead-men of Magdalen Chapel contra Gavin Drysdale After this Statute there was no Prescription of Heretable and real Rights and therefore not of a Decreet of Poinding the ground Hope Prescription Sir George Currier contra Laird of Louristoun Only it was declared that no person shold be compelled to produce Procuratories or Instruments of Resignation Precepts of clare constat or other precepts of Seasine of Lands or Annualrents whereof the Heretors and their Authors or Liferenters having Liferents reserved in their Infeftments were in Possession fourty years together their Charters making mention of the Precepts the wanting whereof shall make no Reduction the Charters and Seasine being extant Par. 1594. cap. 214. 15. But Prescription of fourty years is introduced of all Heretable and other Rights Par. 1617. cap. 12. where the Heretors their Predecessors and Authors possessed Lands Annualrent or other Heritage by themselves their Tennents or others having their Rights as by Liferenters for the space of fourty years together following the dates of their Infeftments without lawful Interruption that such shall not be troubled pursued or unquieted by HisMajesty and other Superiours Authors their Heirs and Successors uponany ground whatsomever except upon falshood providing such Heretors shew a Charter to them or their Authors preceeding the saids fourty years possession with the Instrument of Seasine following thereupon Or otherways Instruments of Seasine one or moe continued and standing together for the said space of fourty years either proceeding upon retours or precepts of clare constat where by standing together it is not meaned unreduced but that either the Vassal lived and brooked by one Seasine fourty years Or if he died that the Seasine was renewed to his Heirs and so continued not only the Possession but the Seasine fourty years In which the continuation of Seasines cannot be reckoned de diein diem because there must necessarly be an Interval betwixt the death of the person first ceased and the service of the Heir to whom the Law gives annum deliberandi to consider whether the Heretage will be beneficial or hurtful and accordingly whether he will enter or not February 15. 1671. Earl of Argile contra Lord of Mcnaughtoun And also all actions upon Heretable Bonds Reversions Contracts or others whatsomever Except Reversions incorporat within the body of Infeftments used by the Heretors for their Title or Registrat in the Register of Reversions Which general Clause was found to extend to Actions of Reduction of Retours though if no other Heir had been retoured the right of Blood prescrives not but any person may enter Heir to his Predecessor who died hundreds of years before yet if any other were entered he cannot after fourty years quarrel or reduce the same by the general Act of Prescription though the retour was anterior to the special Act of Prescription of Retours Par. 1617. cap. 13. whereby Retours thereafter are irreducible if not quarrelled within twenty years November 28. 1665. younger contra Johnstouns In the former Statute it is declared that Actions of Warrandice shall not prescrive from the date of the Bond or Infeftment whereupon Warrandice is sought but only from the date of the distress 16. But this Prescription is not to be extended against Superiours upon their Vassals Possession
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
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-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
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
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
proper Debt whichis taken off by the duply of purging the same as appears in the Decisions before adduced The said Exception is also elided by the Reply As behaving as heir albeit the same were libelled as a several passive Title March 18. 1631. Reguel Bennet contra Bennet 25. The Entry of Heirs is either of heirs general or heirs special The former requires only a general Service which is necessary to all heirs except heirs in Tacks Pensions and heirs nominatim immediately substitute in Bands But heirs of Tailzie or Provision must be served that it may appear that the heirs to whom they are substitute are failed And therefore the only Child of a Marriage was found to have no title to pursue Implement of the Contract of Marriage till he was served heir of the Marriage July 21. 1676. Hay of Drumelzier contra Earl of Tweeddale The general proceedeth thus a Brieve is taken out of the Chancery of course without Citation or Supplication for serving such a Person nearest and lawful heir to such a Defunct It may be directed to any Judge ordinar at the Parties option albeit the Defunct nor the heir never lived within that Jurisdiction March 6. 1630. the Laird of Caskiben Supplicant The Lords may in Cases where an ancient or important Service is required choose the Judge most fitting for the Affair And when Brieves pass of course they are obtained to any Judge desired But they are easily Advocat and remitted to the Macers with Assessors in cases of difficulty The tenor of the Brieve is by way of Precept from the King to the Judge To enquire per probos fideles homines patriae That such a Person died at the Faith and Peace of our Soveraign Lord And that the user of the Brieve is the nearest and lawful heir So this Brieve hath only these two heads And thus not only Heirs of Line may be served generally but also Heirs of Conquest being to Succeed to Reversions heretable Bonds or the like Rights not having an Infeftment or requiring a special Service Hope Succession Earle of Dumbar's Heirs And no doubt Heirs Male may be served generally that they may succeed to the like Rights which may be conceived in their Favour and whereunto they can have no other Access And for the same reason Heirs of a Marriage may also be served and Heirs of Provision in Bands General Services use to be included in special Services as Members thereof and a Retour to an Annual-rent bearing to be granted to Heirs whatsoever and that the persons retoured Heirs in the said Annual-rent was found to instruct him general heir though it did not bear per expressum that he was heir generally but only in that Annualrent Feb. 9. 1676. Ricartoun Drumniond contra Stirling of Airdoch The general Service of Heirs being retour'd doeth so establish Rights not having Infeftment as Dispositions Heretable Bonds Reversions Apprisings and Adjudications in the Person of the heir served as that no posterior heirs can have Right thereto unless they be served heirs to the Person last served heir though the Right stood in the name of the firstAcquirer and not of the last heir as an heretable Bond or Reversion remaining in the name of aFather to whom his eldest Son was served heir generally who dying without Issue the second Brother must be served heir to his Brother and not to his Father therein as was thought by all the Lords after dispute in praesentia albeit the matter was agreed without decision Spots Heirs Captain Peter Rollo contra Stewart of 〈◊〉 The reason is because the general Service is a compleatestablishing of the Right in the Person of the heir and therefore as in special Services the heir is served to him who died last vest and seised as ofFee whereby that Right is established so in the general Service the heir must be served to him in whose Person the Right stood last And though in special Services the heir cannot be served to him who is last served special heir unless he had been also Infeft the reason thereof is because the special Service as an incompleat Right evanisheth and the next apparant heir must be served again to the same Defunct but it is not so in general Services 26. The Entry of Heirs to Lands or Annualrents the Fee whereof is by Infeftment is either by consent of the Superior voluntarly or by Law The former is by the Superiors Precept which from the initial words thereof Quia mihi clare constat c. is called a Precept of Clare constat by which the Superior acknowledgeth that the Defunct died last vest and seised in such Lands or Annualrents and that the same are holden of him by such a Tenor and that the obtainer of the Precept is nearest and lawful Heir to him in the said Lands c. and that he is of lawful Age for entering thereto And therefore commands his Bailiff to Infeft him therein Infeftment being past accordingly giveth that Party the real Right of Lands or Annualrents if done by the light Superior It doeth also constitute the receiver thereof Heir passivè and makes him lyable to his Predecessors Debts but it will not constitute or instruct him Heir activè or give him an active Title to pursue as Heir Yea it will not be a sufficient title as to the real Right of the Ground against any other Party than those who acknowledge the Giver thereof to be Superior and the Receiver to be Heir For if upon any other colourable Title they question any of these the Infeftment and precept of Clare Constat will not be sufficient alone unless it have obtained the benefit of a Possessory Judgment or Prescription 27. Like unto this is the entry of Heirs within Burgh Royal by Hespand Staple according to the Custom of Burgh which is instructed by the Instrument of Seasing only without other adminicles November 13. 1623. Mershall contra Mershal July penult 1629. Wilson contra Stewart In which case though a Seasing by Hesp and Staple was sustained to instruct an Heir activè yet it was only because this pursuer had been proven Heir passivè the eby at the instance of that Defender 28. The securest Entry of Heirs specially in Lands or Annalrents is by Law The procedor whereof is in this manner Any Person may summarely 〈◊〉 a Brieve out of the Chancerie in the same manner as the general 〈◊〉 which is directed by way of Precept from the King or Lord of the Regality having Chapel and Chancelarie whereby the Judge to whom it is directed is ordained by an Inquest upon oath to enquire Who died last Vest and Seized as of Fee in such Lands or Annualrents And if at the Faith and Peace of our Soveraign Lord and Who is his nearest and lawful Heir therein Of whom it is holden in Chief By what Service and What the Value of it is now and in time of Peace And if the said Heir be of lawful Age In
served without delay otherways they could never be served there being ever possibility of the Issue of Men. Yet if they should not be entered before the superveniency even though but in the Womb the same would take place but if the Ascendent be actually entered the Law affordeth no remedy Reversion or Restitution Neither can this difficultie be a Reason against the Succcession ofAscendents because the question is only betwixt them and their own Children and nothing operats in favour of their Brothers and Sisters or their Descendents As to the other Case in the instance proposed it seems the Succeession ought to have depended till the event of the lawful Issue of Marion Weir First because that had a determined time by the Course of Nature viz. the fifteth or fiftieth two year of her Age at which time the Issue of Women is repute extinct which is not so in the case of Men. Secondly in Tailzies upon Contracts and for onerous causes respect is to be had to the meaning and interest of the Parties contracters and in dubio pars mitior est sequenda And that sense is to be imbraced by which the provisions can have some effect and not that by which they can have none Whereby it may seem that it was Blackwood's meaning that the Succession of his own Natural Daughter should be substitute in the second member to the Heirs betwixt the Major and her and that while these were possibe his Heirs should have no place Otherways the second membet had been elusory For if by sailling the Heirs of the Major with the said Marion at the time of the said Major's Decease Marions Heirs by another lawful Husband should take place her other Heirs could never take place For she could not have another lawful Husband at the time of the Majors her first Husband's Death Yet the Reasons on the contrary are no lesse pregnant and that in this Case as in the Case of Heirs ascendent the Heirs nearest at the time of the Feer's Death should have Rights immediatly to Succeed because the Fee necessarly must belong to some Person and it cannot hang in the Air on a future possibility Which is a principle whereof mention and use hath been made frequently before Secondly if that were the meaning then at the time of the Major's Death the Lands were truely nullius and so as caduciary behoved to sall to the KING as ultimus Haeres But if it had been so exprest That no place should be to the Heirs of the Major's other Heirs till there were no possibility of Heirs of Marion Weir the defficulty seems the same that the Fee should be pendent and nullius It may be answered That even in that other Case the Major's other Heirs would succeed notwithstanding that provision which doth but resolve in aPersonalObligation to those Heirs to forebear Yet they were Heirs and if contrary the provision they should enter it would give interest to the Heirs of Marion Weir to compel the Major's Heirs having entered to denude themselves in their favour But there was no such thing in this Case And as to the Reasons upon the contrary though it may seem Black-wood's interest that the Heirs of his Natural Daughter should be in the second Place yet non fuit habilis modus to make the Fee pendent and nullius But to that which is the main Reason Otherways the second member behoved to be elusory it is answerd That it is not elusory because the most ordinary and hoped Case was That there should have been Heirs betwixt the Major and Marion who if they had died without Issue the Lands would have fallen to Marions Heirs by another lawful Husband and not to the Major's other Heirs So that the case which fell out that there was no Children procreat betwixt the Major and Marion was not feared and so not provided for as it oft-times fares in such cases Therefore we conceive it more probable that in all cases that Person who at the time of the Defunct's Death is in being born or unborn may be Heir and immediately enter so soon as by the birth it appears who may be Served There hath a later Case occurred and been determined on that occasion The late Earl of Leven tailzied his Estate and Dignitie to the Heirs Male of his Body Which failling to the eldest Heir Female without Division Which failling to the second Son of the Earl of Rothess Which failling to the second Son of the Lord Melvil who had Married the Earl of Levens Sister Which failling to the second Son of the Earl of Weemes who had married his Mother Leven left three Daughters after him who died all un-entered Rothess having no second Son David Melvil second Son to the Lord Melvil took a Brieve out of the Chancery to serve himself Heir of Tailzie to the Earl of Leven The Earl of Rothess took a Gift of the Non-entry in the name of Sr. William Bruce who raised an Advocation of the Brieve with a Declarator That while there was no hope of a second Son of the Earl of Rothess's Body David Melvil nor no Son of a subsequent Branch could be entered Or declaring That the Lands were in Non-entrie Both members of the said Declarator the Lords did sustain and stopped the Service albeit many inconveniences were represented thence arising As that there could be no active Title for pursuing the Rights of the Familie or for receiving Vassals nor any Accesse to the Estate passivè by Creditors But the Lords did reserve to the special Declarator how far the Non-entry would reach whether to the retoured Duties only or to the full Rents But many of the Lordswerc of opinion that David Melvil should enter as Heir of Tilzie Yet so that if the Chancelor had a second Son he or his Issue would succeed as Heir of Tailzie to David Melvil and neither his own Heirs of Line nor the Earl of Weemes's second Son Because at the time of David Melvils Death the Chancelor's second Son would be a nearer Heir of Tailzie to David than his own Son as being of a prior Branch of the Tailzie Feb. 22. 1677. Sr. William Bruce contra David Melvil But the Lords found that the Non-entrie by the special Declarator could not reach to the full Rents but only to the Retoured Duety Seing the apparent Heir was neither in culpa nor mora Which doth only infer the full Duties And therefore found the Donatar had right to the retoured Duties and that the remainder continued in haereditate jacente to be managed by the Lord Malvil as Curator datus bonis of the Estate of Leven by the King having power to manage the Affairs of that Estate as a Tutor or as if an Heir had been entred July 24. 1677. inter eosdem 51. It cometh oft-times to pass that through the unclear conception of Clauses of Provision it becomes dubious who is thereby constitut Feer and who Liferenter as is ordinary when Sums of
Husband was found Feer and therefore the Creditor apprising excluded the Wife and her heirs January 29. 1639. graham contra Park and Jarden And a Bond providing a Sum to a Man and his Wife in Conjunctfee and the Bairns procreat betwixt them which failing to two Bairns of a former Marriage nominatim containing a Precept for infefting the Spouse and the two Bairns named whereupon all the four were infeft yet the Father was found Feer and all the Bairns of the Family Male and Female equally were found heirs of Provision and the two Bairns named were found Heirs substitute failing the Bairns of the Marriage January 14. 1663. Thomas Beg contra Sir Thomas Nicolson And a Bond bearing a Sum borrowed from and payable to Man and Wife and longest liver of them two in Conjunctfee and to the heirs betwixt them and their Assignys Which failing to the Heirs and Assignys of the last liver found to constitute the Husband Feer and the Wife Liferenter albeit she was last liver and that her heirs of Line were found heirs of Provision to the Husband January 2. 1668. John Justice contra Mary Barclay his Mother A Tocher provided to the Husband and Wife the longest liver in Conjunctfee and Liferent and to their Bairns in Fee was found to make the Husband Feer and that the Father might alter the Substitution December 12. 1665. Mr. John Pearson contra Martine And generally in all Infeftments in Conjunctsee betwixt Man and Wife the Husband is always interpret to be Feer and the Wife Liferenter albeit the last Termination be the Wifes heirs who are heirs of Provision to the Husband unless the Right flow from the Wife originally as if she should resign her Lands in favour of her Husband and her self in Conjunctfee and the heirs of the Marriage which failing her heirs or if the Right did flow from the Wifes Father by a gratuitous Deed. But by the Contract of Marriage a Father oblieged himself to infeft the Husband Contracter and his Daughter in Conjunctfee and Liferent and the heirs betwixt them which failing the Daughters heirs and Assignys whatsoever And by the same Contract the Husband was obliged to provide all Lands that she should acquire or succed to to himself and Wife the longest liver of them two in Conjunctfee and to the heirs betwixt them which failing the one half to the Husband's heirs and the other to the Wifes heirs and their Assignys By both these Clauses the Husband was found to be Feer and the Wife Liferenter albeit the Tenement disponed by the Father was not nomine dotis yet there was no other Tocher July 2. 1671. Adam Gairns contra Isabel Sandilands Yet a Clause in a Minute of a Contract of Marriage obliging the Husband to infeft his Wife in Conjunctfee and Liferent in such a Barony named and obliging him and his Heirs and Assignys that all and whatsoever Lands or Sums of Money should be purchased by him during the Marriage that Security should be made in Liferent thereof as of theforesaid Barony to his future Spouse in case of no Issue of Children the one half of the said Conquest to be disponed upon as the Wife shall think fit the Conquest was found to be equally to the Husband and Wife and that she was Liferenter of the whole and Feer of the half in respect the Minute did not bear whose heirs should succeed and that the Conquest was all to be expected by the Wifes Means therefore she being Conjunctfeer that the one half of the Conquest should be disponed as she pleased she was found Feer of that half as not being a Faculty but a Power of Disposal importing Property June 27. 1676. Earl of Dumferling contra Earl of Callendar 52. There do many questions arise as to the Succession of Heirs of Provision by Clauses of Conquest in Contracts of Marriage The main question is what is accounted Conquest Whether that which is acquired and thereafter disponed be accounted Conquest either as to the Wife or to the Heirs or Bairns of the Marriage As to which it hath been shown before that such Provisions infer not only a Succession to the Heirs or Bairns of the Marriage as Heirs of Provision but thereby the Wife or Heir and Bairn of the Marriage have an interest as Creditors that the Husband or Father cannot ad arbitrium do Deeds prejudicial to that which is once acquired but the Husband is not thereby bound up from disponing to Strangers for causes onerous or to other Wives or Children for competent Provisions But he may not otherways intervert the design of those Provisions by taking the Rights to Wives or Children of another Marriage unlesse he have not means aliunde to provide them And therefore the Husband being oblieged to take all Sums acquired during the Marriage to to himself and his Wife inConjunct-fee having taken a Sum acquired during the Marriage in the name of his second Son his Relict was found to have Right to the Annualrent thereof July 16. 1625. Knox contra Brown The like where the Bonds were taken originally in the name of the Bairns leaving out the Wife March 14. Graham contra Representatives of her Husband But Clauses of Conquest of all Lands acquired during the Marriage do not extend to Lands acquired and disponed during the Marriage Yea Conquest of Lands was extended where there was Disposition without Infeftment with a burthen of a part of the Price upon the Disponer January 24 1629. Lady Rentoun contra Laird of Rentoun Spotswood Husband Countess of Dumfermling contra Earl of Dumfermling And where the Clause of Conquest bare Lands or Annualrents the same were extended to Bonds bearing Annualrent though without clause of Infeftment Feb. 20 1629. Douglas contra White And these Clauses are interpret strictly according to the tenor thereof for sometimes they only bear Lands Conquest sometimes Lands or Annualrents sometimes Lands Annualrents or Sums of Mony and sometimes also Goods or Geer in which case the Executors will be obliged to imploy moveable Goods and Sums for the Wife in Liferent and for the Bairns and Heirs of the Marriage in Fee These Clauses of Conquest do never extend to any thing whereunto the Husband succ eds as Heir or Executor unless Succession be exprest A clause of Conquest oblieging the Husband to take all Lands Annualrents and Sums conquest during the Marriage to himself and the Heirs and Bairns of the Marriage one or moe found to constitute all the Bairns of the Marriage Male and Female Heirs Portioners and that it was not alternative that the Husband might either take the Conquest to himself and the Heirs of the Marriage or to himself and Bairns of the Marriage at his option And therefore having taken a considerable Sum in favour of himself and the Heir of the Marriage who was his only Son yet after his Death his four Daughters of that Marriage obtained Decreet against their Brother to denude himself of their Shares