and is a base Right the effect of this Charter being to secure against forfaulture or recognition of the Superiour all which are voluntar Rights but if they be granted in obedience to a Charge upon Apprising or Adjudication they are necessar If the Charter contains a Clause de novo damus then it has the Effect of an Original Right and secures against all Casualities due to the Superiour in which the first thing expressed is for what Cause it was granted and if it was granted for Love and Favour Our Law calls that a lucrative cause or for a Price and good Deeds this we call an Onerous Cause The second thing considerable in a Charter is the dispositive Clause which contains the Lands that are disponed and regulariter with us the Charter will give right to no Lands but what are contained in this Clause though they be enumerated in other places of the Charter The third Clause is that wherein is exprest the way how the Lands are to be holden of the Superiour and this is called the Tenendas from the first word of the Clause The fourth Clause is that which expresses what the Vassal is to pay to the Superiour and this duty is called the Reddendo because the Clause whereby it is payable begins Reddendo inde annuatim The fifth Clause is the Clause of warrandice which is either Personal or Real Personal warrandice is when the Author or disponer is bound personally and is either simple warrandice which is only from subsequent and future deeds of the Granter and this warrandice is implyed in pure donationes or secundo warrandice from Fact and Deed which is that the Granter hath not done or shall not doe any deed prejudicial to the right warranded Or Tertio Warrandicè is absolute and that is to warrand against all mortals And in absolute warrandice this is a rule that an Adaequate Onerouse cause presums still absolute warrandice But absolute warrandice in Assignations imports only that the debt is truly due and not that the Debitor is solvent All Rights Granted by the King are presumed to be Donations and import no warrandice Real warrandice is when Infeftment of one Tenement is given in security of one another The Effect of warrandice is that if the thing warranded be taken away there is competent to the partie to whom the warrandice is granted an action of eviction for relief Because Tradition is requisite to the compleating of all Rights therefore the Charter contains a Command by the Superiour to his Bailly to give actual state and Seasin to the Vassal or to his Atturney by Tradition of earth and stone and this is called the precept of Seasin and upon it the Vassal or some other person having a Procuratory from him gets from the Bailly earth and stone delivered in presence of a Notar and two witnesses which Notar writes out an Instrument upon all this which Instrument is called the Seasin And if the Superiour gives Seasin himself it is called a Seasin propriis manibus so that a Formal Seasin is the Instrument of a Notar bearing the delivery of earth and stone or some other Symbols by the Superiour or his Bailie to the Vassal or his Atturney the Tenor whereof is known and fixt and now by a late Statute the witnesses must subscrive the Instrument and thus the Vassal stands Infest in the Land by Charter and Seasin This Seasin being but the assertion of the Notar proves not except the warrand of it that is to say the precept or disposition whereon it proceeded be produced But a Seasin given by a Husband to his Wife or by a Superiour to his Vassal propriis manibus that is to say by the Granters own hands without a Precept is sufficient when the Competition is with the Granters own Heirs or with no more solenin Rights and is not exorbitant and after fourty years there is no necessity to produce either precept of seasin or Procuratorie of Resignation by a special statute This Seasin must be registrated within 60. dayes either in the general Register at Edinburgh or in the particular Registers of the Shire Stewartry or Regality where the land lyes els the right will not be Valid against a singular Successor that is to say if any other person buy the Land he will not be obliged to take notice of that Seasin but the Right will still be good against the Granter and his Heirs If Lands lye Discontigue every Tenement must have a special Seasin except they be unite in one Tenement and then one Seasin serves for all if there be a special place exprest where Seasin should be taken but if there be no place exprest then a Seasin upon any part will be sufficient for the while Contiguous Tenements these being naturally unite but will not be sufficient for Lands lying discontigue And one Seasin will serve for all Tenements of one kind but where they are of several kinds as Lands Milnes c. they will require several Seasins The symbols of Possession being different for Lands pass by the Tradition of earth and stone and milnes by the clap and happour Sometimes Lands are erected into a Barronie the nature of which is explained before Tit. Inferiour Iudges and whensoever this is granted Union is imployed as the lesser degree Erection in a Barrony can only be by the King and is not Communicable by any Subaltern rights albeit the whole Barrony be disponed tho the Union may be thereby Communicate This union can only be granted by the King which he may grant either Originally or by Confirmation and being so granted it may be Transmitted by the Receiver to a Sub-Vassal but if a part of the lands united be disponed the whole union is not dissolved but the Part disponed onely and this Union and all other priviledges and provisions can onely be granted in the Charter but not in the Seasin Tit. IV. Of the Several Kinds of Holding THe first division of Feus from the several kinds of holding is that some lands hold ward some Feu some Blench and some Burgage For understanding ward-holdings it is fit to know that at first all Feus were Rights granted by the Longo-Bards and the other Northern Nations when they conquest Italy to their own Souldiers for service to be done in the Warrs and therefore Ward-holding which is the properest holding is called servitium militare and all Lands are therefore presumed to hold ward except another holding be exprest and servitium debitum consuetum is interpret to be ward-holding The advantages arising to the Superiour by the speciality of this holding are that the Superiour has thereby the full meals and duties of the ward-Lands during the years that his Male-Vassal is Minor for the Feu being given originally to the Vassal for Military service it returns to the Superiour during Minority because the Law presumes that the Minor is not able to serve his Superiour in the Warrs but in Female-Vassals
thereafter make any voluntar gratuitous Right to the prejudice of that Tailzie But yet the lands tailzied may be comprised or adjudged for sums truely due and not dolose contracted to disappoint the tailzie Heirs of Provision are these who succeed by vertue of a particular provision in the infeftment such as are Heirs of a second Marriage and as to these Heirs of Marriages we may observe two things first That if a Father by his Contract of Marriage be obliged to employ a sum to himself and Wife in Conjunct-â—ie and the heirs of the Marriage he cannot in prejudice thereof do any fraudulent gratuitous deed tho he may provide a Ioynter for a second Wife or provisions for his Children of a second Marriage Secundo Though a Father may assign or dispone sums to Children when extant whereby they will be preferred to posterior Creditors becoming Fiars by the said Rights yet if the Father dispone to children to be procreat this will be considered only as a destination and so will not hinder the Father to make posterior Rights or even posterior Creditors to affect by Diligenâ—es what is so disponed Tertio Process will be sustained at the instance even of the appearand Heir of the Marriage against the Father to fulfill the special obligations therein or to purge any deeds already done by him in prejudice thereof Albeit where Heirs are not designed in any right the Heirs of Line exclude all other Heirs yet if a man take lands to himself and his Heirs Male tailzie or provision and thereafter acquire reversions or tacks of the same lands to himself and his Heirs these rights will accress to that special Heir to whom the land was provided for it is not presumable that a man would give the lands to one and the rights of them to another Heir When women succeed all these of one Degree succeed equally and because the estate is divided amongst them they are called heirs portioners the eldest not secluding the rest and having no advantage over him but where the Rights are indivisible such as Titles Iurisdictions Superiorities and all the casualities of these superiorities such as Ward Marriage Nonentrie Feu duties c. these fall to the eldest heir Female without division together with the Principle Messuage it being a Tower or Fortalice for other houses are divided equally All these Heirs are lyable in solidum if they once enter Heir except heirs portioners who are onely lyable pro rata and heirs substitute in a sum who are onely lyable to Creditors in the value of the sum to which they are substitute But they have in SCOTLAND a Priviledge which they call the benefit of Discussion whereby the Heirs of Line must be first pursued to fulfill the Defuncts deâ—ds or pay his debts And next to these the Heir of conquest the Heirs Male the Heir of tailzie and Heirs of provision but for fulfilling a deed relating to particular lands the Heir who succeeds in these particular lands must be first pursued without discussing and that which is meant by discussing is that the Creditor must proceed by horning caption and apprising against the Heir who is to be discussed before he can reach the other Heirs An Heir is said with us to be Heir active who is served Heir and may pursue whereas he whom the Law makes lyable to be Heir is said to be Heir passive As when the appearand Heir is infeft upon a precept of clare constat by the Superiour or otherwise medles with his Fathers Estate When the Predecessor dyes he who should be Heir and therefore is called appearand Heir has year and day allowed him to deliberate whether he will be Heir which is called annus deliberandi and which is indulged by the Law because if a man enter once Heir he is lyable to all the debts though far exceeding the estate and within that year he cannot be pursued nor obliged to enter but after the year is expyred the Creditor may charge him to enter Heir and if he resolve not to enter he must renounce any Right he has by a writ under his hand This year is compted from the defuncts death except in a posthum child who has a year allowed him after his Birth and not only during this year but after it expires the appearand heir without instructing any Title may pursue for exhibition of all Rights made to his Predecessors and of all rights made by his Predecssors to any in his own Family but not to Sirangers to the end he may deliberate whither he will enter Heir and the Liferenter is bound to aliment the appearand Heir not being able to entertain himself though he renounce vid. supra Part 2. Title 9. § Liferents If the appearand heir resolves to enter heir to his Predecessor he must raise Briefs from the Chancellarie which Brief is a command from the King to the Iudge ordinary where the lands ly to cause cite 15 sworn men to try whether the raiser of the Brief be nearest heir and this is executed or proclaimed at the mercat Cross where the lands lye and if at the day appointed these 15. sworn men find him to be the next person who should succeed they serve him heir by a paper which is called a service and which being returned be them to the Chancellarie there is a write given to the heir whereby he is declared heir and which is called the retour because it is their answer and return to the Chancellarie of the points contained in the brief and thereafter the person who is served heir is infeft by a precepts out of the Chancellarie and if the service was to any particular lands it is called a special service but if there was no land designed it is only called a general service and this general service is sufficient to establish a right to heritable Bands Dispositions Reversions Iurisdictions and all other rights whereupon the Defunct was not infeft nor needed to be infeft and a special service includes a general service but not E contra The general brief hath only two points or heads viz. if the Defunct dyed at the Kings peace and if the raiser of the brief be the next Heir but the special brief has seven viz. when the Defunct dyed Secundo If he dyed last vest and seased at the Kings peace Tertio That the raiser is next heir Quaerto Of whom the Lands are holden in capite Quinto By what manner of holding Sexto What is their old and new extent Septimo Whether the raiser be of lawful age and in whose hands the Lands are at present Sometimes likewise the Vassal without serving himself heir gets a precept of seasin from the Superiour wherein because the Superiour declares that it is known to him that such a man is heir to his Father it is therefore called a Precept of Clare constat which therefore makes the Obtainer lyable passive to all his Predecessors
own nature yet the reformed Churches do generally allow it nor were the Iews prohibited to take Annualrent from Strangers Before the year 1641 all Bands and sums bearing Annualrent were Heritable as to all effects so that the Executor who is Haeres in mobilibus had no interest in nor share of such Bands but they belonged intirelie to the Heir but that Parliament finding that the rest of the Children beside the Heir had no provision by Our Law except an equall share in the moveables they therefore ordained that all Bands for summs of money should be moveable and so belong to the Executors except either the Executors were secluded or the debitor were expresly obliged to infest the Creditor which is likewise renewed since the Kings Resturation For in these cases it was clear that by the distination of the defunct which is the great Test in this case these sums were to be Heritable and yet all sums bearing Annualrent are still Heritable in so far as concerns the Fisk or the Relict so that if a band bear Annualrent to this day the Fisk cannot claime any right to it as falling under the Rebells single Escheate whereby when he becomes Rebel all his Moveables fall to the King nor has the Relict any right to a third of it as she has to a third of all moveables the Law having presumed that Relicts will be still sufficiently secured by their contracts but whether the sum be Heritable or moveable all the bygone Annualrents and generally all bygones are moveable as to all intents and purposes and so fall to Executors and to the Fisk and to the Relict because bygone rests are lookt on as money lying by the debitor they being already payable as all obligations bearing a tract of future Time belong to the Heir So far does the Law defer to the will of the Proprietar in regulating whither a sum should be Heritable or Moveable the Law thinking that every man is best Iudge how his Estate shal be bestowed that if a man destinate a sum to be imployed upon Land or Annualrent this destination will make it Heritable and to belong to his Heir or though the sum was originally secured by a moveable band yet it may become heritable by the creditors taking a superveening heritable security for it or by comprising for his security but yet the Creditors design is more to be considered than the supervenient right as for instance a sum may be moveable ex sua natura and yet may be secured by an heritable surty as in the case of bygone annualrents due upon infeftment of annualrent which are unquestionably moveable of their own nature and yet they are heritably secured and even Executors may recover them by a real Action of poynding of the ground And if a Wedset bear a provision that notwithstanding of Requisition the Wedset shall still subsist the requisition will make the sum moveable though it continue secured by the Infeftment as also sumes ab initio Heritable may be secured by an Accessory moveable security without altering their Nature as for instance if one take a Gift of Escheat for securing himself in Heritable sums this does not alter the Nature of the former Heritable Right Though a sum be Heritable yet if the Creditor to whom it is due require his money either by a charge or requisition it becomes moveable for the Law concludes in that case that the Creditor designs rather to have his money than lying in the Debitors hands upon the former security and if it were lying in money beside him it would be moveable and a requisition to one of the Cautioners will make it moveable as to the Principal and all the other Cautioners But a charge on a band wherein Executors are secluded will not make the sum moveable for the design of the Creditor is presumed to continue in favours of the Heir till the sum be payed or the Band innovated but it has been otherways decided of late And for the same Reason a requisition used by a Wife who has a heritable sum that falls not under the Ius Mariti will not make it moveable since it is presumed she designed only to get payment but not to give it to her Husband But if the Creditor who required his Money take annualrent after that Requisition it is presum'd that he again altered his Inclination and resolved to have it Heritable to continue due by vertue of the first Security Though a Band be heritable as bearing annualrent yet before the terme of payment it is moveable as to all persons From all which it is clear that some sums are moveable as to the Executor but not as to the Fisk or Relict and some may be moveable as to the Debitor and his Executors and yet may be Heritable as to the Creditor and those representing him as for instance an obligation to imploy a sum due by a moveable band upon Land or annualrent for the Heirs of a Marriage that sum as to the Creditor would be Heretable yet quo ad the Debitor it would remain moveable Title III. Of the Constitution of Heritable Rights by Charters and Seasins HAving treated in the former Chapter of the difference betwixt Heritable and Moveable Rights it is now fit to begin with Heritable Rights as the more Noble Our Heritable Rights are Regulate by the Feudal Law by which Feudum which we call a few was defined to be a free and Gratuitous Right to Lands made to one for service to be performed by him he who grants this Few is in Our Law called the Superiour and he to whom it was granted is called the Vassal the Superiours Right to the Fie is called Dominum directum and the Vassals Right is called Dominum utile and if that Vassal dispone the Land to be holden of himself then that other Person who receives that Few is called the sub-Vassal whereas the Vassal who granted the Few becomes the immediate Superiour to this sub-Vassal and the Vassals Superiour becomes the Sub-vassals mediate Superior and is so called because there is another Superiour interjected betwixt him and the sub-Vassal The Superiour dispons ordinarly this Few to be holden of him by a Charter and Seasâ—n The Charter is in effect the disposition of the Few made by the Superiour to the Vassal and when it is first granted it is called an Original Charter or Right and when it is renewed it is called a Right be progress and proceeds either upon Resignation when the Lands are Resigned in the Superiours hands for new Infeftment either in favours of the Vassal himself or of some third partie or by confirmation when the Superiours confirms the Right formerly granted and if it is to be holden from the Disponer of the Superiour that is called a me and is a publict Right and is still drawn back to the date of the Right Confirmed But if the Confirmation be onely of Rights to be holden of the Vassal it is called de me
this casualitie lasts only till 14. years compleat because they may then marry husbands who may be able to serve the Superiour and this properly is called the Casuality of ward for Marriage is due in other holdings as shall be cleared in the next Title Feu holdings is that whereby the Vassal is obliged to pay to the Superiour a sum of money yearly in name of Feu-dutie nomine feudi firmae This holding has some Resemblance to the Emphyteosis in the Roman Law but is not the same with it for Emphyteosis was a perpetual Location containing a pension as the hyre which was granted for Improving and Cultivating Barren ground but our Feu-holding comes from the Feudal Law whereof there was no Vestige in the Civil Law and passes by Infeftment to Heirs Blench-Holding is that whereby the Vassal is to pay an Elusory duty meerly for acknowledgement as a penny or a pair of Gloves nomine albae firmae and ordinarly it bears si petatur tantum These Blench duties are not due whether they be of a yearly growth or not except they be required yearly by the Superiour as for instance if the Blench dutie be yearly Attendance at such a place or a Rose yearly the Superiour can seek nothing for his blench dutie except he required the same within the year Burgage-holding is that duty which Burghs Royal are obliged to pay the King by their Charters erecting them in a Burgh Royal and in this the Burgh is the Vassal and not the particular Burgesses and the Bailiffs of the Burgh are the Kings Bailiffs nor can Seasin in Burgage Lands be given by any other than the Bailly and Town Clerk if the Town have any and they must be Registrated in the Town Clerks Books Before the Reformation there was another kind of holding in Scotland which was of mortified Lands granted to the Church and the only Reddendo was prayers and supplications in behalf of the Mortifiers Title V. Of the Casualities due to the Superiour THe Feu being thus Stated by the Superiour in the person of his Vassal it will be fit in the next place to consider what right the Superior retains and what Right the Vassal acquires by this constitution of the Fie The Superiour retains still dominium directum in the Feu and the Vassal has only dominum utile and therefore the Superiour is still Infeft aswell as the Vassal but the King needs not be Infeft for he is Infeft jure Coronae that is to say his being King is equivalent to an Infeftment The Superiour has different advantages and Rights according to the different maner of holdings and there are some Rights and Casualities common to all holdings Ward-holdings gives the Superiour a Right to the meals and duties of his Vassal Lands during all the years that his Vassal is Minor and this is properly called the casualitie of ward but the Superiour or his donatar are obliged to entertain the Heir if he have no other Feu or Blench Lands and to uphold the house parks c. in as good condition as they found them and must find caution for that effect If the Vassal sells or dispones the half of his ward-lands to any except his appearand Heir who is alioque successionae without the consent of his Superiour the whole ward-ward-Lands fall to the Superiour for ever and this we call Recognition which is introduced to punish the ingratitude of the Vassal who should not have disponed the Superiours Lands without his own consent and to shun this the Vassal in ward-Lands gets the Superiours confirmation before he takes infeftment for if he takes infeftment before he be confirmed the lands recognosce as said is except the seasin be null in it self since the Vassal showes sufficiently his ingratitude by the very taking of the Infeftment And though the Vassal at first did not sell the half without the Superiours consent yet if he thereafter sells as much as will extend to more than the half of the Feu the first huyer will likewise loose his Right if it was not Confirmed before he took infeftment Not onely a Confirmation or Novodamus if it express Recognition but the Superiours accepting service or pursuing for the casualities are a passing from the Recognition because they infer the Superiours acknowledgement of the Vassals Right Recognition takes place in taxt-ward as well as simpleward but in no other manner of holding except the same be expresly provided in the Vassals Charter for ward-holding is presumed to be the only proper Feudal Right If the Vassal denyeth the Superiour he losses his Feu and this is called disclamation but any probable ground of ignorance will take off this Forfeiture If the Vassal who holds Ward-Lands dyes having an Heir unmarried whether minor or major the Superiour gets the value of his Tocher though he offer him not a Woman to be his Wife but if the Superiour offer him his Equal for a Wise and he refuses to accept tho he never Marry any other person the superiour gets the double of his tocher and one of these casualities is called the single Avail of the Marriage and the other the double Avail of the Marriage but the modification of this is referred to the Lords of Session who consider still what was the Vassals free rent all debts deduced and the ordinarie modification is about two years rent of the Vassals free Estate even though the Heir was an Heretrix and though there were moe Heirs Portioners there will only one avail be due for them all Though this Casualitie of Marriage be still due in all ward-holdings yet they may be due by express paction in other holdings and there are many in Scotland who hold their Lands Feu cum maritagio and in both cases the Marriage is debitum fundi Though as to the casuality of ward every Superiour has Right to the ward Lands holding of himself where the Vassal holds ward-Lands of moe Superiours Yet the casualitie of Marriage falls only to the eldest Superiour because there cannot be more Tochers than one and he is the eldest Superiour from whom the Vassal had the first Feu but the King is still presumed to be the eldest Superiour because all Feus originally flowed from him It is thought that the Reason why this Casualitie is due was because it was not just that the Vassal should bring in a stranger to be Mistress of the Feu without the Superiours consent for els he might choice a Wife out of a Family that were an enemy to the Superiour but I rather think that both ward and Marriage proceeded from an express paction betwixt King Malcome Kenmore and his Subjects when he first Feued out the whole Lands of Scotland amongst them as is to be seen in the first of his Statutes The special dutie arising to the Superiour in a Feu holding is that the Superiour gets a yearly Feu dutie payed to him and if no part of this Feu
duty be payed for two years even though the whole was offered or though the Vassal was minor then the Vassal looses his Feu ob non solutum Canonem for the Feu duty is called Canon and if this provision be exprest in his charter he will not be allowed to purge this irritancy by offering the bygones at the Barr but though this provision be not exprest in the charter yet the feu will be annulled for not payment of the Feu-dutie by an express act of parliament but the Vassal in that case will be allowed to purge at the bar and the reason of this difference is because the express paction is thought a stronger Tye than the meer statute A clause irritant in Our Law signifies any provision which makes a penalty to be incurred and the Obligation to be null for the future as here where the Superiour gives out his Feu upon express condition that if the Feu-dutie be not payed the Feu shall be null and reduceable and a clause resolutive is a provision whereby the Contract to which it is assixt is for not performance declared to have been null from the beginning The Casualities that are due by all manner of holdings and which arise from the very nature of the feu without any express paction are None-entry Relief and Liferent Escheate None-entry is a casuality whereby the Superiour has right to the Meals and Duties of the Lands when there is not a Vassal actually entered to him and the reason why this is due to him is because he having given out his Feu to his Vassal or service when there is no actual Vassal entered the Law allowes him to have recourse to his own Feu that he may therewith provide himself with a Vassal who may serve him but though the full Rents of the Lands be due to the Superiour from the very time that he cites his Vassal to hear and see it found and declared that the Land is in None-entrie yet before that citation the Superiour gets onely the retoured duties and the reason of the difference is because after citation there is a greater contempt than before and so is to be more severely punished For understanding which retour dutie it is fit to know that there was of old a general valuation of all the Lands of Scotland but thereafter there was a new valuation the first whereof is called the old and the second the new Extent and both are called the Retour duty because they are exprest in the Retour or Return that is made to the Chancellary when an Heir is served but both are very far below the Value to which Lands are now improved though in Our Law the new extent be constructed to be the Value But in an infeftment of annualrent the whole annualrent is due as well before declarator as after because the annualrent is the retoure dutie it being retoured valere seipsum and that is called an infeftment of annualrent when the Vassal is not infeft in particular lands but is infeft in an yearly annuity of money to be payed out of the lands as for instance if a man should be infeft in the sum of five hundred merks yearly to be payable out of any particular Lands being worth 5000. merks yearly how soon the Vassal who had right to the 500. merks dyed the Superiour would have right to the whole 500 merks yearly until the Heir of the Vassal be entered vide infra Tit. Servituds § annualrents There is no Nonentry due in Burgage Lands because the Burgh it self is Vassal and never dyes and so therefore neither does the Burgh nor any private Burgess pay nonentrie the duty payable by a Burgh being onely by Watching and Warding When the Vassal enters he pays an acknowledgment to the Superiour which is called relief because it s payed for reliving his land out of the Superiors hands It is debitum fundi and affects not only the ground really but the Vassal Personally who takes out the precept for infefting himself though he never takes infeftment thereupon The value of this Casuality varies according to the nature of the holding for in Blench and Feu holdings it is only the double of the Feu or Blench duties but in Ward-holdings it is the full duty of the land if the Superiour be in possession the time of the Vassals entrie but if the Superiour was not in possession though the Vassall was minor or if the Vassall be major before his Predecessor dye then the Superiour gets only the retour dutie and it is so far from being presumed to be remmitted by the Superiours entering his Vassal that it is still exacted though it be gifted with the other Casualities For understanding Life-rent Escheates it is fit to know that when any man does not pay a debt or perform a deed conform to his Obligation his Obligation is Registrated if it carry a consent to the Registration in the body of it or if it do not there must be a sentence recovered and upon that Registrated writ or decreet for a Registrated writ is a decreet in the Construction of Law there will be Letters of horning raised and the Partie will be charged and if he pay not within the dayes allowed by the charge he will be denounced Rebel and put to the Horn and from the very day of the denounciation all his moveables falls to the King by a casualitie which is called single Escheate but now single Escheates fall likewise to Lords of Regalities if the persons denounced live within a Regality because the King has gifted all single escheates when he erected those Regalities If the Vassal continue year and day Rebel without Relaxing himself which Relaxation is expede by Letters under the Kings signet expresly ordaining him to be relaxed from the Rebellion then he is esteemed as Civilly dead and consequently not being able to serve the Superiour the Law gives the Superiour the meals and duties of his Feu during all the dayes of the Vassals life and this casuality is called Liferent Escheat so that every Superiour aswell as the King has right to the meals and duties of the lands holden of himself if his Vassal was once infeft and even though he was not infeft if he was appearand Heir and might have been infeft for his lying out should not prejudge his Superiour but if a man have right by disposition whereupon no infeftment followed the King only will have right to his Life-rent Escheate as he has for the same reason to the Manses and Gleebs of Ministers when they are Rebells since they are not infeft in these but all heritable and Life-rent Rights requiring no infeftment of their own nature such as a terce and Liferent-tacks fall not to the King and the Life-rent tacks fall to the Master of the ground and the Life-rent by Terce pertains to the Superiour during the Life-renters Lifetime This Life-rent Escheate comprehends only Rights to which the Vassal himself had right
set a sub-tack which will be as valid as the principal Tack if cled with possession Rentals are also a kind of Tacks but more favourable and easie because the Rentaller and his Predecessors have been Ancient Possessors and kindly Tennents and he payes a Grassume or acknowledgement at his entrie and yet they last no longer than for a year if there be no time exprest and if they be granted to a man and his Heirs they last only to the first Heir for else they behoved for ever to belong to the Heirs and so would want an Ish but no Tack is accounted a Rental except it be in write and the write bear the same Rentals cannot be assigned except that power be granted in the Rental and if the Rentaler assign he looses his Rental though a Tacksman Forfeits not his Right by assigning it the assignation being only null When the years of the tack expyre or though there be no Tack yet the Master cannot Summarly remove his Tennent or Possessor except from Liferented Lands and Houses or Towers and Fortalices and vitious Possessors whom he can remove by a summonds on six days but in all other cases he must warn him 40 dayes before the term of Whitsonday tho the term at which he were to remove by paction were Martinmass or Candlemass which warning must be executed that is to say intimated personally to the Tennent and upon the ground of the lands and at the Parish Kirk immediately after Sermon and if he then refuses he must be persued to remove upon six dayes and after this citation the Master will get against him violent profits that is to say the double of the avail of the Tenement within Burgh and the highest advantages that the Heritor could have got if the Tennent possessed lands in the Countrey nor will the Tennent be allowed to defend against this removing till he find caution to pay the violent profits The Master has likewise a Tacit Hypotheque in the fruits of the ground which he sets to his Tennent in so far as concerns a years dutie that is to say they are impignorat by the Law for that years dutie and he will be preferred either to a Creditor who has done diligence or to a stranger who has bought them though in a publick mercat And a Lands-Lord within Burgh has a tacit hypotheque in all the goods brought in to his House by his Tennent which he may retain aâ— and while he be payed of his years rent Title VII Of Transmission of Rights by Confirmation and of the difference betwixt Base and Publick Infeftments THE Fie being thus Established in the Vassals person the same may be Transmitted either to universal or singular Successors the first is properly called Succession which shall be handled in the third-Book Transmission of Rights to singular Successors is voluntar by disposition and assignation or necessar by apprysing and adjudication and Consiscation when they are forefaulted for crimes c. If the Vassal sells the Land the Superiour is not obliged to receive the Sub-Vassal except he pleases though the charter bear to him and his assignies and if he receive him there is in Law a years rent due to the Superiour as an acknowledgement for changing his Vassal Lands are disponed either to be holden of the disponers Superiour and that is called a publick Infeftment because it is presumed it will be publickly known being holden of the Superiour and it is likewise called an Infeftment a me because the disponer gives it to be holden a me de Superiore meo and this Infeftment is null untill it be confirmed by the Superiour which is done by a Charter of Confirmation wherein the Superiour narrates the Vassals Charter and subjoyns thereto his own Confirmation or Ratification of it and the last right being first confirmed is still preferred Sometimes also the Vassal Dispones Lands to be holden of himself and this is called a base infeftment and has been allowed by Our Law contrare to the principles of the Feudal Law in Favours of Creditors who getting right for payment of their debts were unwilling to be at the expences to get a Confirmation from the Superiour and this is called an infeftment de me because the Disponer gives them tenendas de me successoribus meis These base infeftments being cloathed with possession are as perfite and valid as a publick infeftment for possession is to an infeftment to be holden of the Disponer the same thing that confirmation is to an infeftment to be holden of the Superiour and therefore as in a Competition betwixt two infeftments of the same Land to be holden of the Superiour the first confirmation would be preferred it being a general rule in Law that amongst Rights of equal perfection prior in tempore est potior in jure so if a base infeftment be cloathed with possession before the publick infeftment be confirmed the base infeftment will be preferred though it was granted after the publick infeftment For the better understanding of the nature of base infeftments it is fit to know that possession is in Law natural or Civil that is Natural possession by which a man is Naturally and Corporally in possession as by labouring of the ground but because sometimes men could not attain to the Natural possession for cloathing their Right therefore the Law was forced to allow another possession by the mind as that was by the body and this is called Civil possession because it is allowed and introduced by the Civil Law of which there are many kinds in Scotland As Primo The obtaining Decreets for Meals and Duties and even citation upon an heritable Right Secundo Payment of annualrent by the debitor to the Creditor who has infeftment of annual-rent Tertio If a man be infeft in lands and for warrandice of these lands be infeft in other lands possession of the principal lands is reputed in the construction of Law possession of the warrandice lands Quarto If a Woman be infeft by her Husband in a life-rent the Husbands possession is accounted the Wifes possession Quinto If a Man dispone lands reserving his own liferent the Liferenters possession is accounted the Fiars possession and a base infeftment is said to be cloathed with possession if he who is infeft hath attained either to Natural or Civil possession for the Law cannot punish a Man for not apprehending possession who could not apprehend it and for the same reason if the time of Entrie was not come he who is infeft by a base infeftment will be preferred in that case as if he were in possession and the reason of all this is because Our Law considering that base infeftments were clandestinely made betwixt confident and conjunct persons to the ruine of lawful Creditors who could not know the same there being then no Register of Seasins it therefore declared all base infeftments to be simulat which were not cloathed with possession and therefore before the terme
Water alongst their ground for watering of our own Thus Via includes Iter and Actus as the lesser servitudes so he that has a Via has also power to drive carts and waines and to walk himself through the Ground burdened with the Servitude The City servitudes called servitutes Urbâ—nae are chiefly five The first is Oneris ferendi which is a priviledge whereby one who has a house in the City can force the Proprietar who has a house below his to bear the burden of his house and he may force the Owner of the servient tenement to repair it and make it fit for supporting the dominant tenement contrare to the common nature of servitudes Secundo Tigni immittendi which is the priviledge of forceing our neighbour to receive into his house the jests of ours Tertio Stillicidii vel fluminis which is whereby our neighbor is obliged to receive the drops which falls from our house under which is likewise comprehended the priviledge of carrying away our Water by sinks and channels Quarto Non officiendi Luminibus whereby he can do nothing that can prejudge our Lights or prospect Quinto Altius non tollendi whereby our Neighbour cannot raise his house higher to prejudge the lights of the dominant Tenement By Our Law servitudes may be constitute by write without any seasin because they are incorporeal rights but though a servitude meerly established by write be sufficient against the granter yet they are not valid against singular Successors except that right be cloathed with possession which compleats the servitude and makes it a real right and they may be likewise established by prescription without any write from him who has the servient Tenement though he who is to acquire the servitude by prescription must have some right in his person either of a special concession or else must prescrive it as part and pertinent of his land The ordinary Servitudes superadded by us to these of the Civil Law are the servitudes of casting Fail and Divot common pasturage and Multures Common pasturage is a right of pasturing the Goods and Cattel of the dominant tenement upon the ground of the servient which is constituted frequently by a Charter containing the clause of common pasturage and sometimes by a personal Obligement cloathed with possession but albeit it be indefinite yet it can reach no further than to the proportion of Goods of the Dominant tenement which they keep and fodder in Winter which is done by sowming and Rowming that is to say the determining the proportion of goods belonging to each Dominant tenement according to the several Rowms and rent thereof Common Pasturage in our Law does ordinarly comprehend all the lesser servitudes such as the casting of Faill and Divots presumptively onely for the one may be possest without the other nor will common Pasturage inferr a servitude of casting of fail and divots if he who possessed the Common Pasturage was interrupted as to the casting of fail and divot Mills are inter Regalia and require therefore a special Seasin the Symbols whereof are clap and happer but if the mill be in a Barrony transit cum universitate Mills are ordinarly dispond with multers and Sequels the Multurs are a quantitie of corn payable to the Heritor of the mill for grinding The knaveship Lok and Bannock are a small quantitie payable to the servants for their paines These quantities that are payed by those that are thirled are called Insucken multurs and those quantities that are payed by such as come voluntarly are called outsucken multurs Thirlages are constitute by write or by prescription The wayes of constituting thirlage by write are these First When a Master thirles his own Tennents to his own Mill in which case ordinarly he deminishes the rent of his land in contemplation of what they are to pay to the Mill for grinding their Corns which he does by an act of his own Court Secundo When an Heritor sells his lands to be holden of himself and thirles his Vassal to his Mill in which case he sells so much the cheaper and so the multures are just Tertio When the Heritor of a Mill dispons his Mill with the multure of his own Lands in which case the multures are also just because he gets so much the more for his mill and so this servitude is not so odious as it is believed to be Quarto If a man dispones the mill of a Barrony cum multuris or cum astrictis multuris in either of these cases he thereby astricts his whole Barrony though not formerly astricted but if he dispone the Mill of the Barrony cum multuris solitis consuetis he iâ— thereby understood to havâ— thirled onely what was formerlâ— thirled If the thirlage bears omnigrana crescentia all the Corn growing upon the Land wilâ— be thirled with deduction onely of seed and Horse corn and thâ— ferme except it be carryed to another Mill for it is presumed ferms must be sold. Quinto When invecta illata are thirled all Corns which thole Fire and Water withiâ— the astriction must pay multurâ— though they come not to thâ— Mill but being made in Malt are thereafter carryed abroaâ— out of the thirle The way of constituting thirlage by prescription is immemoral or 40. years possession by vertue of some title such as a Decreet though in absence and even when the Master is not called and any Act of a Barron court though made onely by a Bailie without a special warrand from the Heritor and though the coming to a Mill past all memorie does not astrict the Comers for the future it being a general rule in all servitudes that ea quae sunt merae facultatis non prescribuntur yet in mills of the Kings property immemorial possession constitutes a thirlage and if Men likewise pay dry multures that is to say such a quantity whether they come to grind or not for 40. years they will be thereby astricted for it is not presumable they would have payed dry multure for so long a time except they had been thirled If the quantity to be payed be not determined in Write it is regulated by the use of payment for 40. years Those who are thirled are also obliged to maintain the mill in its dammes water-gangs and to bring home its Mill-stones If such as are thirled bring not their Corns they are persued by an action called abstracted multures There are two Rules to be observed in all servitudes Primo Res sua nemina servit no man can have a servitude on what is his own and therefore if the Land on which we have a servitude become ours the servitude is extinguished Secundo When we have a servitude on any other land this servitude affects every foot of that land unaquaeque gleba servit but this is to be taken civiliter non judaice so that it must be reasonably used And thus if we Fen out some Acres with priviledge to the Feuer to cast
Faill and Divot upon our Moor for maintaining his houses though in strict Law every part of the Moor is affected with the servitude yet the Lords will allow any man to Tile and Sow his own Moor leaving such a proportion as may maintain these houses Mixt Servitudes are partly real and partly personal and by the Civil Law are divided in usu fruct use and habitation Usus-fructus is called liferent in Our Law which is a right to use and dispose upon any thing during life the substance thereof being preserved Use and habitation were restricted to the naked use of the Liferenter whereby his power of disposing and making profit of the thing liferented was restrained and are not in use with us Liferents are either constitute by paction or by Law liferents by paction are either by reservation as when a Fiar denuds himself of the Fie in favours of another reserving his own liferent or by a new constitution as when the Fiar dispons his lands to another during all the dayes of his life the first needs no infeftment but the second does else it is not valid against singular Successors but the liferenter being infeft transmits his right to any by assignation without infeftment for being a servitude and personal right it neither needs nor can admit of a subaltern infeftment A Liferenter also by reservation may enter the heirs of Vassals though he cannot receive singular Successors if he was himself infeft but another liferenter cannot and even a liferenter by reservation cannot enter those Vassals if he was not once infeft because he cannot transmit a right which he has not When moe persons are joyntly infeft they are called conjunct Fiars but though a wife be a conjunct Fiar yet her Fie lasts but during her life and during her life she may enter Vassals and has right also to all the casualities as other Fiars Liferents by Law are the Terce and the courtisie The Terce is a liferent of the third of all the tenements wherein the husband dyed infeft provided be law to a wife who is not excluded by express paction or is not provided to as much as will be eqvivalent to the Terce which Terce is constituted by an inquest who upon a brief out the Cbancellary directed to the Sberriff or other judge ordinary doe serve her to a Terce upon which service the judge to whom the brief was directed without retouring it divids the land betwixt the heir and Relict and expresses the marches in an instrument and this is called to kenne her to her Terce the marches being kenned by the instrument and though the service gives her right to the meals and duties yet she cannot remove tennents till she be kenned as said is the kenning being equivalent here to the seasin in lifrents This Brive contains two points first that the bearer was Lawful Wife to the defunct and secundo that he dyed infeft in such tenements but if the Relict was holden and reput lawful Wife in her Husbands life no exception in the contrary will stop the service There is no Terce in Burgage Lands Feu duties or other casualities nor in reversions tacks nor Patronages The Courtisie is a liferent granted by Law to him who married an Heritrix of all her Heritage and of that only It needs neither seasin nor other solemnity to its constitution but is ipso jure continued to him if there were Children procreated of the Marriage who were heard to cry though the Marriage disolve within year and day All these Liferenters are obliged to find caution to preserve the thing liferented and to leave it in as good condition as they found it which is called cautio usu-fructuaria and they are also bound to Aliment the appearand Heir if he have not Aliundi to Aliement himself If Liferenters survive Martinmess or if they die upon Martinmess day in the afternoon their Executors will have right to the whole years rent whether it be Land rent or the rent of a mill albeit the Conventional termes were after Martinmess But if Liferenters labour the Lands themselves their Executors will have right to the whole rent thereof albeit they die before Martinmess Title X. Of TEYNDS TEynds being a burden affecting Lands fall in to be considered in this place Teynds are designed to be that special and liquid proportion or quota of our Goods and Rents lawfully acquired that is due to GOD for maintaining His Service It seems Our Law has followed the opinion of those Divines who think that some proportion of our Goods is due by Divine right for we say that Teynds are the Spirituality of the Churches revenue But that the proportion is not Iuris Divini for we alter the proportion by special laws and customs though for distinctions sake we call this proportion the Tenth By the Canon Law they are divided into personal teynds which arise out of the personal gaine and profites that a Man has by his Trade Predial teynds which aryse from the Natural Product of the Land that men possess And mixt Teynds which arise from the profites that men by their Personal industrie make out of their Lands They are likewise divided into Parsonage teynds which are due to the Parson and Viccarage teynds which are due to the Viccars And regularly all teynds are due to the Incumbent who serves the Cure so that if the Incumbent be a Parson he has a right to the Parsonage teynds and if he be a Viccar he has right to the Viccarage teynds The teynds of Corn are called Parsonage teynds or decimae garbales and the fifth boll of the free rent is still teynd with us And all Land must pay teynd except they be such as have been Feued out of old by Church men before the Lateran Council by which they were prohibited to alienat the teynds and who had right both to stock and teynd and where the teynds were never known to have been separated from the stock Some Monks likewise got particular exemptions from paying teynds for these Lands which they themselves did bring in and cultivate and with us the priviledges granted to Temple lands which belonged of old to the Knights of St. Iohn a Religious Order and to the Monks of the Cisterian Order are continued to those who have right to their Lands with that Exemption Manses and Gleibs are likewise free from payment of teynds Viccarage teynds are called the small teynds with us because they are payable out of inconsiderable things such as Lambs Wool Cheese Eggs c. and they are said to be local because they are payed according to the custome of the place so that in the same Parishes some Heritors will be lyable for Viccarage teynds of different kinds for though no man can prescrive a liberty from payment of Parsonage â—eynds since the Lateran Council yet as 40. years possession is a sufficient right to a Minister for Viccarage teynds and as it does determine the Quota as
the sum be unpayed after the expyring of the Legal the whole land comprised belongs to the Compriser without consideration of what he has intrometted with to prevent which the Debitor or a Second or any posteriour Compriser who has comprised the right of Reversion does before the Legal expire require the Compriser to compear at any day or place to receive his Money in so far as he is not payed by his Intromission and having consigned the same accordingly at that day he raises an Action of Compt and Reckoning before the Lords of Session and if it be found that he is payed by Intromission and the Money consigned The Lords decern the comprising to be payed and extinct nor needs the Debitor get new seasin for the former Right revives since the Fie was still in his Person upon condition that he would pay the sum within the Legal In this Compt and Reckoning the compryser will get allowance of the sherriff Fie which is the twenty penny of the sum that was comprysed for and of the entrie payable to the superiour though the appryser truely payed neither but he will not get payment of a Chamberlane Fie for taking up the rent except he really payed it All apprisings led since the first of Ianuary 1652. within year and day of the first effectual comprising by infeftment or charge against the Superiour come in pari pasu as if they were all contained in one apprising But the posterior apprisings within year and day must pay their proportion of the Expenses of the Infeftment and composition given to the Superiour by the first appriser Because appearand Heirs did frequently acquire Rights to expired apprisings against their Predecessours by which they bruicked their â—state without paying his Debt to the ruine of lawful Creditors Therefore Our Law did very justly ordain all such Apprisings to be redeemed for the sums truely payed out by the appearand Heir which proceeds albeit the appearand Heir acquire these Rights in his Predecessours lifetime But if the expired apprising was acquired gratis by the appearand Heir the same is onely redeemable by the Creditors for the sums contained in the apprising Because the Parliament thought it exhorbitant to take the greatest Estates for the smalest sums and to make a Messenger Iudge in affairs of so great importance Therefore in anno 1672. this way of comprising was altered and in place thereof the Creditor now gets land adjudged to him by the Lords of the Session proportionally to thâ— sumâ— due to him for obtaining inâ—eftment with a fifth part more because the Creditor is obliged to take land for his money which Adjudication coming in place of Comprisings is perfected by Charter and Seasin as Comprisings and the Superiour is obliged to receive the Adjudger but it is redeemable onely within five years by Majors If the Debitor compear not to concur for compleating the Adjudgers right by giving him a progress transumpts of the evidents and ratifying the Decreet of Adjudication then the whole lands may be adjudged as they were formerly apprised it being unreasonable â—o sâ—rce a Man to take proportional land for his money and yet to be unsecured even for that proportion and they are redeemable within ten years these Adjudiâ—ations being now come in the place of Apprisings and have the same priviledges and restrictions which comprisings had by the Act of Parliament made concerning Debitor and Creditor in Anno 1661. But if the Creditor attain possession upon his comprising or Adjudication he can use no further execution against the Debitor except the Lands be evicted There are other two kinds of Adjudications allowed by Our Law the first is when the appearand Heir of the Debitor is charged to enter Heir and renounces to be Heir the Creditor having obtained a Decreet cognitionis causa foâ— constituting the Debt wherein the appearand Heir is onely pursued for Formality But the Decreet can have no effect Personally against him The Hereditas jâ—cens will be adjudged to the Creditor for payment of the Debt due by the Defunct which if it be liquid and instantly instructed the Pursuer in the same Process protesting for Adjudication the same will be allowed to him summarly without necessity of any other Decreet cognitionis causa These Adjudications are redeemable within seven years at the instance of Con-Creditors one after another who have likewise obtained Decreets of Adjudication And a Minor renouncing to be Heir may be reponed and allowed to redeem upon payment And if the Superiour be charged to infeft the Adjudger he will get a years rent for composition as in Comprising Adjudications carry right to all which would have fallen to the Heir as all Heritable Rights and the whole bygone rents and duties since the defuncts death may be adjudged because these belonged to the Heir There is another kind of Adjudication competent by Our Law that is for performing any obligement which consists in facto and relates to particular dispositions or obligements to infeft and after diligence used by Decreet and Registrated horning against the disponer and his Heir for making the same effectual the Lords will adjudge the Lands disponed to the pursuer as a remedium extraordinarum there being no other remedy competent This Adjudication extends no farther than to the thing disponed and hath no reversion nor does it require charges to enter Heir or renounciation but the Authours right must be instructed Confiscation will be handled in the Title of Cryms and Criminal Processes The INSTITUTIONS of the LAWS of SCOTLAND Part Third Title I. Of Obligations and Contracts in general HAving thus cleared Real Rights We will now proceed to treate of Obligations and Personal Rights An Obligation is deâ—ined to be that Legal â—ye whereby we are bound to Pay or Perform any thing The chief division of Obligations by the Civil Law and Ours is that some are Natural because they arise from the principles of right Reason or Laws of Nature Some Civil because they arise from positive Laws or Municipal Customs Another considerable division of Obligations is that some arise from Contracts some from deeds resembling Contracts some from malefices and some from deeds which resemble maleâ—ices Ex contractu aut quasi contractu ex maleâ—icio aut quasi maleâ—icio for we become equally tyed and obliged to Men either by contracting expresly with them or by doing some deed which induces an obligation without an expresse paction or by committing malefices against them A Contract is an agreement entered into by several persons inducing an obligation by its own Nature and the obligations arysing from Contracts are divided and distinguished according as they are perfected either by the sole consent of the Contracters or by the intervention or tradition of things or lastly by Word or Write hence is that remarkable division of Contracts in the Civil Law Qui re verbis literis aut concensu perficiuntur The Contracts which
witnesses Interruptions made against the principal party interrupt as to Cautionâ—rs and interruption as to a part interrupts the prescription of the whole so that if a man arrest the meals and duties of any part of a Barrony he interrupts prescription as to the whole Barrony Title VII Of Succession in Heritable Rights HAving formerly shewed how Rights whether Heritable or Moveable Real or Personal are constitute and how they are transmitted to singular Successours It remains now to consider how these Rights are transmitted by succession beginning first with Succession in Heritage An Heir is he that succeeds universally to all that belonged to the Defunct and is therefore in the construction of Law one and the same person with the Defunct Though the Executor be in effect the Heir in moveable Rights yet we call those only properly Heirs who succeed in Heritage and with us there are several kinds of Heirs distinguished by their several denominations The first and chief kind of Heirs are the Heirs of lyne who are so called because they succeed Lineally according to the right of Blood and they succeed thus First Descendants according to the proximity of their Degree in which the eldest Son is preferred to all his Brothers and all the Brothers to the Sisters and if there be onely Sisters they succeed all equally The next degree is Grand Children and their great Grand Children c. who succeed all in the same way If there be no Descendants then Collaterals succeed in which the first degree is Brothers and Sisters German for the whole blood excludes the half blood and Brothers the Sisters and Brothers by the Fathers side exclude Brothers by the Mothers side there being no Succession with us by the Mothers side Failing Descendants and Brothers and Sisters the Succession ascends and all the Ascendants succeed upward according to their degrees of Proximity as the Descendants did downward and thus the Father succeeds to his own Son and failing him the Grand Father Great-Grand Father c. and failing of Ascendants in the right â—ine the Collateral Ascendants succeed in the same way and thus the Fathers Brother or if there be no Brothers the Fathers Sister secludes the Grand Fathers Brothers or Sisters c. It is to be observed that in Heritage there is a Right of Representation whereby the Descendants exclude still the Collaterals though nearer by many Degrees to the Stock or comunis stipes And thus the great Grand-Child of the eldest Son secludes the second Brother because he comes in place of and so represents the elder Brother his great Grand-Father The Heir of Line has Right to the Heirship moveables and excludes all other Heirs therein Heirship moveables are the best of each kind of moveables which is given to the Heir because he is excluded from all other Moveables if there be pairs or dozens he gets the best pair or dozen but in others he gets onely one single thing None have right to Heirship moveables but the Heirs of Prelates under which are comprehended all Beneficeâ— Persons the Heirs of Barrons under which are comprehended all who are infeft in Lands or annual rents though not erected in a Barrny And the Heirs of Burgâ—sses by which are meaned actual Trading but not honorarie Burgesses If the Defunct had any Lands or Heritable Rights to which he could not succeed as Heir of Line then he who succeeds in these is called the Heir of Conquest and the Rule is that Heritage descends and conquest ascends so that if the midle of three brothers dyes his immediate elder brother would be his Heir of conquest and if a Son of a second Marriage dyes leaving three brothers of a former Marriage the youngest would succeed in his conquest lands and this I conceive was introduced for enriching the elder brothers whom Our Law still favours whereas heritage must descend according to the Law of Nature These Heirs of conquest have right to all lands annualrents heritable bands and others whereupon infeftment did or might follow but they have no right to tacks pensions moveable Heir-ship and all other rights having tractum futuri temporis and requiring no infeftment and so not competent to Executors all which belong to the Heir of line The Heir Male is the nearest Male who can succeed and all Heirs of Line are also called general Heirs because they succeed by a general service and represent the Defunct universally The Heir of tailzie is he to whom an Estate is tailzed so called because the legal Succession is cut off in his favours from the French word tailer to cut and the matter of tailzies may be Summond up in these few Conclusions Primo In tailzies the person first named needs not be served Heir as for instance If I take my land to my self which failing to Seius Seius needs not be served because there is no cognition requisite to clear that he is to succeed but if I take may lands to my self and my Heirs or to me and the Heirs of such a Marriage which failing to Caius then either Caius in the one case or the Heirs of such a Marriage in the other must be served because it is requisite to inquire Whether there were Heirs or who is Heir of that Marriage Secundo In all tailzies he on whom the last termination falls is Fiar as for instance If I take my lands to Seius and failing him to Caius and his Heirs Caius is Fiar and Seius is onely Liferenter Tertio Though the last termination fall on the Wifes Heirs the Husband remains Fiar because of the prerogative of the Sex as for instance If I take my land to my self and my Wife which failing to her heirs my heirs would be preferred except the estate belonged to my Wife as Fiar For then her heirs would be preferred Quarto Though in Conjunct-Fie Rights if I take my lands to my self and my Wife in Conjunct-fie which Failing to our Heirs my Heirs would be preferred as to heritable Rights but in substitutions to moveables the Right would divide betwixt her Heirs and mine Quinto The Heir of Tailzie has but a hope of succession and so the Fiar may dispone nor can the substitutes or remoter members of the Tailzie hinder him by Action Inhibition or otherwayes except there be a clause irritant and resolutive declaring that if the first Member dispone his Disposition shall be null in which case though generally the remoter member must be served Heir to the immediate prior who was infeft yet in that case the remoter member may be served Heir to the first Disponer Sexto If one oblige himself to make such a man his Heir of Tailzie that Obligation tyes him onely once to tailzie his estate but not that he shall not break that Tailzie except the Obligation be for an equivalent Onerous cause Or if a person oblige himself to do nothing contrare to his Tailzie he cannot
debts but gives him only active right to the Particular lands contained in the Precept nor will it give him a right even as to these lands except against those who derive right from the Superiour who gave it Bailiffs also of Burghs Royal do infeft their Burgesses as heirs in Burgage lands giving them seasin as heirs by delivering them for a Symbole the hesp and staple of the doors and the seasin in that case is in place of a service as to these lands but is not in other cases a sufficient active title The heir who is Retoured holds either his lands of the King and then he gets precepts out of the Chancellary to the Iudge ordinary to infeft him which if he refuse the Lords upon a Supplication will direct Precepts to any other person who is thereby made a Sherriff in that part but if the lands hold of another Superiour then either that Superiour is himself entered or not if he be entered he will be charged by four consequutive Precepts to enter the Heir and if at last he disobey his immediate Superiour will be charged and so till the heir arrive at the King who never refuses to enter any and if the Superiour be not entered he must be charged upon 40. days to enter that being himself entered he may enter his Vassal and if he refuse or delay he losses all the Nonentries of his Vassal but no other Casualities because quoad these he was not Culpable Though the Person who should be Heir do not enter to his Predecessors Heritage yet he may be made lyable to his predecessors debt by two passive titles relating to heritable rights viz. Gestionem pro haerede and as Successor titulo lucrativo post contractum debitum and there is a third passive title relating to Moveables which is called vitious intromission Behaving as heir or Gestio pro haerede is when the person who might have been Heir immixes himself and intromets with either the moveable heirship or any heritable estate belonging to the Defunct in which case he is lyable to the Creditors not only according to the value of what he intrometted with but as far and in the same manner as if he had been entered heir and yet the Lords will not fasten this passive title upon a man because of its extraordinary hazard where the intromission is very small or where he has a colourable title to which he might ascrive his intromission as a factorie from the Compryser or the Donator to the Escheat or recognition Gestio pro haerede being magis animi quam facti which factories will defend though there was no Declarator but if the appearand heir had no factorie it is not sufficient to alleadge the Defunct dyed Rebell and so could have no heir except his Escheate was declared before intenting the pursuers action nor will this passive title nor vitious intromission be sustained except they be pursued in the intrometters own lifetime they being kinds of delicts But he will not be lyable if the Defuncts Right was reduced though after his intromission And since this passive title was introduced by the Lords of Session in Favours of the Creditors to deter appearand Heirs from fraudulent intromission therefore an appearand heirs paying his Predecessors debt will not infer this passive title since that is for the advantage of Creditors nor will the getting of money for ratifying a Comprising that is expired infer this passive title since the Creditors would have got no Advantage by that Right but if the appearand heir had consented before the Comprising was expired it would be a passive title because as heir he might have redeemed the Comprising Successor titulor lucrativo is where the appearand heir to preclude the necessity of entring heir and so being lyable to the Creditors gets a Disposition from him to whom he would have been Heir without any Onerous cause the receiving whereof though it be a small part of the Estate makes him lyable to the payment of all the Creditors debt if the Right made as well as the infeftment was posterior to the Creditors lawfull debt But if there be an Onerous Cause then either it is not near equivalent to the value of the Lands disponed and in that case it will not defend against this passive title Or if it be near to the value it will defend against it but not against Restitution of that Value And since this passive title overtakes such as might have been Heirs therefore a Disposition granted to a Grand Child will make him Successor titulo lucrativo though the Father be alive since by the course of Succession he might in time have been Heir though he was not immediate Heir but since this can onely reach appearand heirs therefore a Disposition made by one Brother to another though the Maker had no Children will not make him Successor titulo lucrativo since the Brother might have had heirs himself and so his Brother was not his appearand heir The Passive title holds onely in heritage and therefore the getting a right to moveable heirship and tacks will not infer the same Gestio pro haerede and Successor titulo lucrativo being passive titles whereby in odium of the irregularity of the intromission they are made lyable as heirs therefore these passive titles can extend no further than if they intromet with or take a disposition to these things to which they might have succeeded and so not inferred against an heir of tailzie intromitting with or getting a deposition of what would have fallen to the heir of Line nor can they be extended further than if they had been served heirs and thus an heir portioner will be no further lyable in these than pro rata if she had entered for the coppie should go no further than the original To conclude the Succession in heritage it is â—it to know that by an old statute and our constant practique a man cannot dispon his heritage upon death bed in prejudice of his heirs that is to say neither lands nor heritable bands nor any band though Moveable in so far as his heritage may be thereupon apprised or adjudged so jealous was Our Law of the importunity of Churchmen and Friends and of the weakness of mankind under such distempers and therefore if a man has made any right in prejudice of his heir after contracting sickness though he was sound enough in his Iudgement for the time and continued sound for a very long time yet this right will be reduced as done in lecto or upon death bed either at the instance of the appearand heirs or at the instance of the apprearand heirs Creditors and it is sufficient to prove sickness though it be not proved mortal and that he was sick without proving that he dyed of that sickness or was sick the very time of the disposition If thereafter the maker of such a right come to Kirk or mercat unsupported the Law presumes that the
not execute the Testament in their own Lifetime that is to say have not obtained Decreets for the goods belonging to the Defunct there will be place for a new Executor for executing these and they are called Executors quoad non executa or if the Executor ommit to give up any thing in the Inventar or do not give up the saids moveables at the full rates there will be another Executor Dative made by the Commissar who is called an Executor Dative ad ommissa vel male appretiata The Executor onely has power of Administration and the Creditors and Legators can onely pursue him except where there is a special Legacy left of such a particular thing or a sum owing to such a particular person For then the special Legator has the dominium transmitted to him and so he may himself pursue for his special Legacy but the Executor must be still called in the pursute to the end it may be known whether the Debts exhaust the special Legacies For no Legacy can be payed till the Debts be payed and therefore if all the Legacies cannot be payed the Legators suffers a proportional defalcation for payment thereof but if there be as much free goods as will pay the special Legacy it will be preferred without defalcation An Executor cannot dispone till he obtain a sentence but even the sentence states him not in the absolute right of the moveables otherwayes than that he may discharge and assign to the respective persons having interest For if he were denounced Rebel the Executory goods even after sentence would not fall under his Escheate nor would his Executors or his Creditors have right thereto in prejudice of the nearest of kin of the Defunct to whom he was Executor If there be moe Executors whom we call Co-Executors one cannot pursue without the rest for all of them represent the Defunct only as one person but if any of the rest will not concurr they may be excluded from their Office by a process before the Commissars nor can an Executor for the same reason discharge a debt wholly since the rest have an equal share in each debt but if the other Executors have got as much as their share will extend to the discharge even from one of the Executors will be sufficient nor are for the same reason Co-Executors lyable for the whole debt and so cannot be singlely pursued unless they have intromitted with as much as may pay the debt pursued for An Executor is lyable to do diligence for recovering the debts due to the Defunct and the diligence required upon his part is a sentence and Registrated horning against the defuncts debitors but if there be an universal or special legatar whereby an Executor confirmed has no advantage then the Executor is not lyable in diligence but only to assign the Creditors that they themselves may pursue The Executor likewise cannot pay any debt without sentence least otherwayes he might prefer one Creditor to another but yet the Executor may pay those debts that are acknowledged in Testament without Process providing the same be payed before the Creditors intent a persute or these which we call priviledged debts because they are preferred to all others viz. servants fies medicaments on death-bed house-meal and funeral-expenses After the Executors have executed the whole Testament they may get a Decreet of Exoneration before the Commissars against the Creditors and all having interest wherein they may prove that all they got is exhausted by lawful sentences but it is not necessar to have such a decreet when they are pursued before the Lords for it is sufficient when they are pursued there to alledge that they are exhausted by way of Exception If any Person intromit with the Defuncts moveables without being confirmed they are lyable to the Defuncts whole debts whether they were related to himor no and though their intromission was very small and this was introduced to prevent the fraudulent and clandestine abstracting of the Defuncts moveables without inventary in prejudice of Creditors and therefore this passive title is only introduced in favours of Creditors but of none others such as Legatars Bairns c. But if the intromitter confirme before any Action be intented this purges the Vitious intromission and the intromitter is only lyable for the value of the thing intromitted with or if there be an Executor confirmed no Person can be pursued as Vitious Intromitter for the Intromitter then is only lyable to the Executor But the Relict or the Defuncts Children confirming within year and day after the Defuncts death does thereby purge the vitiosity though they confirm not till after citation nor will necessar Intromission infer vitiositie and that is called necessar intromission when either the Husband or the Wife continue their possession of one anothers Goods after one anothers decease for preservation and that because there is no other person to look after them and this is for the advantage of the Creditors since it hinders the Goods from perishing If there be moe vitious Intromitters they are each lyable in solidum if they be pursued in several Actions and pro virili if they be pursued together but none of them get Relief for wrong in our Law has no warrant The Heir is obliged to relieve the Executor of all heritable debts and the Executor is bound to relieve the Heir of all moveable debts as far as the Inventar will reach Title IX Of last Heirs and Bastards WHilst there is any alive who can prove even the remotest contingencie of blood to the Defunct they succeed to him but if there be none the King succeeds as last Heir for quod nullius est est Domini Regis and so the King succeeds to the Defunct as last Heir both in Heritage and Moveables and is preferred to all Superiours and others whatsoever for which end he makes a Donatar who must obtain a Declarator before the Lords of Session against all who are supposed to have any Relation whereupon a Decreet being obtianed before the Lords declaring that the King has right as last Heir the Defunct having dyed without any Relation This Decreet is equivalent to a service but if lands be taken by a man to himself and his Heirs Male simply the King will succeed as last Heir if there be no Heirs Male though there be Heirs Female since the land was not provided to them and therefore men ordinarly in their tailzies adject the Clause whilks failzing to their Heirs whatsomeever Because the King succeeds here as Heir therefore he is lyable to pay the Defuncts debts but he is only lyable as farr as the Estate will extend and therefore the Creditors may adjudge the Real Estate and serve themselves Executors Creditors in the Moveables A Bastard by Our Law has neither Heirs nor Executors but yet he may dispone upon either his Heritage or Moveables inter vivos though he cannot make a Testament except