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-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
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-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-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-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
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
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
1000 lib. or 20 Chalders of victual in yearlie rent Nine are a Quorum Crimes of old were judged by the Iustice General Iustice Clerk and two Iustice Deputes but now five Lords of Session are joyned to the Iustice General and Iustice Clerk and they are called the Commissioners of justiciary Because they sit by a special commission only Four of which number make a Quorum in time of Session three in time of Vacance and two at Circuit Courts The Exchequer is the Kings Chamberlain Court wherein he judges what concerns his own revenues It consists of the Theasurer in whose place are sometimes named Commissioners of the Theasury the Theasurer Depute and as many of the Lords of Exchequer as his Majestie pleases The High Admiral has a commission from the King to judge in all Maritime affairs not only in Civil but also in Criminal cases where the crime is committed at Sea or within flood-mark nor can the Lords of Session Advocat causes from him tho they can reduce his Decreets as he does the Decreets of all inferior Admirals or Admiral Deputes for many Heritors are constitute Admirals within themselves by a right from the high Admiral since his Gift or from the King before it Tit. IV. Of Inferior Iurisdictions and Courts THe Sherriff is the Kings chief and Ancient Officer for preserving the Peace and putting the Laws in execution he has both a Civil and Criminal Iurisdiction and his Commission is under the Great Seal he is obliged to raise the huy and cry after all Rebels and to apprehend them when required To assist such as are violently disposâ—est To apprehend such as say Mass or trouble the Peace and take caution for their appearance He nor no Inferior Iudge can hold Courts in time of Vacance in Civil cases without a dispensation from the Lords of Session But in Criminal cases he needs no dispensation because crimes should be instantly punished He is Iudge in all crimes Except the four Pleas of the Crown to wit Murder Firâ— rasing Robery and ravishing of Women but murder he can judge if the Murderer was taken with red-hand that is to say immediately committing the murder In which case he must proceed against him within three Suns And in Theft he may judge if the Thief was taken with the fang The Shireff is also judge competent to punish Bloodwits for which he may syne in 50 pounds Scots but no higher and for contumacy he can fine no higher than 10. pounds A Lord of Regality is he who has the land whereof he is Proprietar or Superior erected with a Iurisdiction equal to the justices in Criminal cases and to the Shirreff in civil causes he has also right to all the moveables of Delinquents and rebels who dwell within his own Iurisdiction whether these moveables be within the regality or without the same And because he has so great power therefore no Regality can legally be granted except in Parliament The Lord of Regality has also by his erection power to repledge from the Sherriff and even from the Iustices in all cases except treason and the pleas of the Crown that is to say to appear and crave that any dwelling within his Iurisdiction may be sent back to be iudged by him and he is obliged to find caution that he shall do justice upon the Malefactor whom he repledges within year and day and the caution is called Cul reach The Stewart is the Kings Sherriff within the Kings own proper Lands and these were erected where the lands had been erected before in Earledoms or Lordships For else the King appointed only a Baillie in them and these Iurisdictions are called Bailliaries the Baillies of the Kings proper lands having the same power with the Sherriff And all these viz. the Sherriff the Stewart and the Lord of Regalitie proceed in their courts after the same way and each of them has a Head Burgh where they hold their courts and where all letters must be executed and Registrate The Prince of Scotland has also an Appange or Patrimony which is erected in a Iurisdiction called the Principality The revenues comes in to the Exchequer when there is no Prince but when there is one he has his own Chamberlain Iustices of Peace are these who are appointed by the King or Privy Council to advert to the keeping of the peace and they are judges to petty ryots servants fies and many such like relateing to good neighbour-hood exprest in the instructions given them by the Parliament and are named by the Council allbeit be the foresaid Statute the nomination is to be by His Majestie and His Royal Successors which the King has now remitted to the Privy Council The Iustices of peace do name Constables within their own bounds from six months to six months Their Office is to wait upon the Iustices and receive injunctions from them delate such Ryots and Crimes to the Iustices as fall under their Cognisance Apprehend all suspect Persons Vagabounds and night Walkers as is at length contained in their injunctions given them be the foresaid Act. Every Heritor may hold courts for causing his Tennents pay his rent And if he be infeft cum curijs he may decide betwixt Tennent and Tennent in small debts and may judge such as commit blood on his own ground tho his land be not erected in a barronie But if his land be erected in a barronie which the King can only do he may like the Sherriff unlaw for blood-wits in 50 lib. and for absence in 10. And if he have power of Pit and Gallows he may hang and drown in the same manner as the Sherriff can Tit. V. Of Ecclesiastick Persons SInce the Reformation the King is come by Our Law in place of the Pope and all rights to Kirk-lands must be confirmed by him else they are null His Majestie only can call convocations of the Clergie for so we call our National assemblies and His Commissioners sits in them and has a negative We have two Archbishops and twelve Bishops and they are thus elected the King sends to the Chapter a Conge de Eslire which is a French word signifying a power to elect and with it a letter recommending a person therein named And the Chapter returns their electing Whereupon the Kings grants a Patent to the persons and a mandate to the Archbishop or Bishops to Consecrate him Both which pass the great Seal The Archbishops and Bishops have the sole power of calling Synods within their own Diocies and in these they name the Brethren of the conferance Who are like the Lords of Articles in the Parliament and by their advice the Bishops depose suspend and manage Bishops have their Chapters without whose consent or the major part the Bishop cannot alienate which Major part must sign the deeds done be the Bishops And it is sufficient if those of the Chaper sign at any time even after
duty be payed for two years even though the whole was offered or though the Vassal was minor then the Vassal looses his Feu ob non solutum Canonem for the Feu duty is called Canon and if this provision be exprest in his charter he will not be allowed to purge this irritancy by offering the bygones at the Barr but though this provision be not exprest in the charter yet the feu will be annulled for not payment of the Feu-dutie by an express act of parliament but the Vassal in that case will be allowed to purge at the bar and the reason of this difference is because the express paction is thought a stronger Tye than the meer statute A clause irritant in Our Law signifies any provision which makes a penalty to be incurred and the Obligation to be null for the future as here where the Superiour gives out his Feu upon express condition that if the Feu-dutie be not payed the Feu shall be null and reduceable and a clause resolutive is a provision whereby the Contract to which it is assixt is for not performance declared to have been null from the beginning The Casualities that are due by all manner of holdings and which arise from the very nature of the feu without any express paction are None-entry Relief and Liferent Escheate None-entry is a casuality whereby the Superiour has right to the Meals and Duties of the Lands when there is not a Vassal actually entered to him and the reason why this is due to him is because he having given out his Feu to his Vassal or service when there is no actual Vassal entered the Law allowes him to have recourse to his own Feu that he may therewith provide himself with a Vassal who may serve him but though the full Rents of the Lands be due to the Superiour from the very time that he cites his Vassal to hear and see it found and declared that the Land is in None-entrie yet before that citation the Superiour gets onely the retoured duties and the reason of the difference is because after citation there is a greater contempt than before and so is to be more severely punished For understanding which retour dutie it is fit to know that there was of old a general valuation of all the Lands of Scotland but thereafter there was a new valuation the first whereof is called the old and the second the new Extent and both are called the Retour duty because they are exprest in the Retour or Return that is made to the Chancellary when an Heir is served but both are very far below the Value to which Lands are now improved though in Our Law the new extent be constructed to be the Value But in an infeftment of annualrent the whole annualrent is due as well before declarator as after because the annualrent is the retoure dutie it being retoured valere seipsum and that is called an infeftment of annualrent when the Vassal is not infeft in particular lands but is infeft in an yearly annuity of money to be payed out of the lands as for instance if a man should be infeft in the sum of five hundred merks yearly to be payable out of any particular Lands being worth 5000. merks yearly how soon the Vassal who had right to the 500. merks dyed the Superiour would have right to the whole 500 merks yearly until the Heir of the Vassal be entered vide infra Tit. Servituds § annualrents There is no Nonentry due in Burgage Lands because the Burgh it self is Vassal and never dyes and so therefore neither does the Burgh nor any private Burgess pay nonentrie the duty payable by a Burgh being onely by Watching and Warding When the Vassal enters he pays an acknowledgment to the Superiour which is called relief because it s payed for reliving his land out of the Superiors hands It is debitum fundi and affects not only the ground really but the Vassal Personally who takes out the precept for infefting himself though he never takes infeftment thereupon The value of this Casuality varies according to the nature of the holding for in Blench and Feu holdings it is only the double of the Feu or Blench duties but in Ward-holdings it is the full duty of the land if the Superiour be in possession the time of the Vassals entrie but if the Superiour was not in possession though the Vassall was minor or if the Vassall be major before his Predecessor dye then the Superiour gets only the retour dutie and it is so far from being presumed to be remmitted by the Superiours entering his Vassal that it is still exacted though it be gifted with the other Casualities For understanding Life-rent Escheates it is fit to know that when any man does not pay a debt or perform a deed conform to his Obligation his Obligation is Registrated if it carry a consent to the Registration in the body of it or if it do not there must be a sentence recovered and upon that Registrated writ or decreet for a Registrated writ is a decreet in the Construction of Law there will be Letters of horning raised and the Partie will be charged and if he pay not within the dayes allowed by the charge he will be denounced Rebel and put to the Horn and from the very day of the denounciation all his moveables falls to the King by a casualitie which is called single Escheate but now single Escheates fall likewise to Lords of Regalities if the persons denounced live within a Regality because the King has gifted all single escheates when he erected those Regalities If the Vassal continue year and day Rebel without Relaxing himself which Relaxation is expede by Letters under the Kings signet expresly ordaining him to be relaxed from the Rebellion then he is esteemed as Civilly dead and consequently not being able to serve the Superiour the Law gives the Superiour the meals and duties of his Feu during all the dayes of the Vassals life and this casuality is called Liferent Escheat so that every Superiour aswell as the King has right to the meals and duties of the lands holden of himself if his Vassal was once infeft and even though he was not infeft if he was appearand Heir and might have been infeft for his lying out should not prejudge his Superiour but if a man have right by disposition whereupon no infeftment followed the King only will have right to his Life-rent Escheate as he has for the same reason to the Manses and Gleebs of Ministers when they are Rebells since they are not infeft in these but all heritable and Life-rent Rights requiring no infeftment of their own nature such as a terce and Liferent-tacks fall not to the King and the Life-rent tacks fall to the Master of the ground and the Life-rent by Terce pertains to the Superiour during the Life-renters Lifetime This Life-rent Escheate comprehends only Rights to which the Vassal himself had right
for his Lifetime for else it will fall under single Escheate single Escheates comprehending every thing that is not a Life-rent Escheate and therefore if the Superiour having right to the Vassals Liferent Escheate become Rebel himself the Vassals Liferent Escheate will fall under the Superiours single Escheate for the Superiour had not right to those meals and duties during all the dayes of his own Lifetime and so it could not fall under his Liferent and the like does for the same reason hold in all such as have assignations to Liferents or to Liferent Escheats or to Tacks for any definit number of years few or many The Superiour has also right to the Sub-Vassals Liferent Escheate which falls after the Vassals denounciation for by the denounciation of the immediate Vassal the Superiour comes in his place and so has right to the sub-Vassals Liferent The Liferent Escheate falls by the Rebellion that is to say by the denounciation and the year and day is given only to the Rebell to relax himself so that if he relax not within that time his Liferent will fall from the denounciation In competition betwixt the Superiour of the Rebell and the Rebells Creditors these Rules are observed in our decisions Primo No Legal Diligence nor Voluntar right for payment of any debt contracted after Rebellion will prejudge the Superiour for else after a Vassal were at the horn he might fraudulently contract debt to prejudge the Superiour Secundo If the debt was prior to the denounciation no voluntar infeftment will prejudge the Superiour except the Rebel was obliged prior to the Rebellion to grant that infeftment and that the infeftment it self was expede within year and day of the denounciation Tertio Though Legal Diligence be more favourable then voluntar rights because there is less collusion yet no legal dilligence will be preferred to the Superiour except it was led for a debt prior to the denounciation and was compleated by infeftment or charge within year and day thereof albeit the said Legal diligence was deduced after the denounciation Though this be the course in competitions quo ad liferent Escheates yet actual payment made or diligences done to or by Creditors for payment of debts prior to the Rebellion or the commission of crimes will be preferred to the donator if these Rights or Diligences be compleated before declarator which we owe rather to the benignity of our Kings than to the Nature of these Rights since there is jus questitum fisco by the denounciation Liferent Escheates is proper to all kinds of holding except Burgage and mortification for the Vassal being a Societie or Incorporation dyes not and so can have no liferent Escheate and albeit the administrators were denounced for debts due by the Incorporation yet that is still presumed to be their Negligence which ought not to prejudge the Societie For compleating this Casualitie a general Declarator must be raised at the Superiour or Donators instance to hear and see it found and declared that the Vassal was orderly denounced Rebel and has continued at the Horn year and day And in a competition betwixt Donators the last gift if first declared will be preferred If the gift be taken to the behoove of the rebell it is null and is presumed to be to his behoove if he or his Family be suffered to stay in possession The last Priviledge of the Superiour is that he may force his Vassal to exhite his Evidents to the end he may know what is the nature of the holding and in what he is lyable to his Superiour which proceeds ordinarly by an Action of Improbation Title VI. Of the Right which the Vassal acquires by getting the Feu THE Vassal by getting the Feu settled in his Person by Charter and Seasin as said is has right to all Houses Castles Towers but not Fortalices Woods and other things that are above ground of the Lands expresly disponed and to Coals Lime-stone and other things within ground and to whatever has been possessed as part and pertinent of the Land past memorie of Man But there are some things which passe not under the general dispositive words and require a special Disposition which belong to the King in an eminent way and are called therefore Regalia and are not presumed to have been disponed by his Majestie or any other Superiour except they were specially mentioned such as are all Iurisdictions Forrests Salmond-fishings Treasures hid within the ground and Gold Silver and Fine-lead for other Mines such as Iron Copper c. belong to the Vassal If Lands be erected in a Barrony by the King then though the lands lye discontiguously one seasin will serve for them all because Barrony implyes an union This erecting them in a Barrony will likewise carry a right to Iurisdictions and Courts Fortalices Forrests hunting of Deer and Ports with their small Customes granted by the King for upholding these Ports Milnes Salmond-fishings c. because Barronia est nomen universitatis and possession of any part of a Barrony is repute possession of the whole But Mynes of Gold and Silver Treasures and goods confiscate are not carried with the Barrony The Heritor has also power to set Tacks remove and in-put Tennents as a consequence of his property A Tack is a Location or contract whereby the use of any thing is set to the Tacksman for a certain hyre and in Our Law it requires necessarly that the terms of the Entry and the Ish must be exprest that is to say when it should begine and end and it must bear a particular dutie else it is null and if it be a valid Tack that is to say if Write be adhibit verbal Tacks being onely valid for one year to the thing set the Contracters names Tack-duty Ish and Entry clearly therein exprest and cloathed with possession it will defend the poor Tacksman against any Buyer * and even against the King and his Donators when they succeed by forfeiture which was introduced in favours of poor Tennents for encouraging them to improve the land but it will not defend against a Superiour of ward lands for the ward c. though by Act of Parliament the Superiour be obliged to continue them in their possession till the next term of Whitsonday Albeit Tacks have not all the solemnities foresaid yet they are valid against the Granter and his Heirs Tennents cannot assign their Tacks except they be Liferent Tacks or that the Tack bear a power to assign but they may be comprysed or adjudged and if the Master suffer the Tacksman to continue after the Tack is expyred he will be obliged to pay no more than he payed formerly during the Tack and this is called in Our Law the benefite of a tacite Relocation that is to say both the Setter and the Tacks-man are presumed to design to continue the Tack upon the former terms till the Tennent be warned If the Tack be granted to sub-tennents then the Tacks-man may
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
at which he who got the base infeftment could enter to the possession there could be no Simulation nor fraude in no partie and in this the Law considers much the interest of lawful Creditors by sustaining that kind of possession in their favours which would not be sustained in favours of near Relations or where there is no Onerous cause and thus a base Infeftment given be the Father to his own Son will not be cloathed with possession by the reservation of the Fathers liferent though the reservation of the Fathers Liferent would cloath a base infeftment granted by him to a lawful Creditor and the Husbands possession is accounted the Wifes possession in so farr as concerns her principal Ioynture but not in so far as concerns her additional Ioynture in a competition betwixt her and her Husbands lawful Creditors Sometimes likewise for the more security a base infeftment which is given to be holden of the Disponer will be confirmed by the Superiour but that Confirmation does not make it a publick infeftment for no infeftment can be called a publick infeftment but that which is to be holden of the Superiour but the use of that Confirmation is that after the Superiour has confirmed voluntarly the sub-Vassals Right he thereby acknowledges his Right and consequently can seek no Casuality which aryses upon want of the Superiours consent such as Forfeiture or Recognition But because the Disponer is still Vassal therefore his Superiour will still have right to the Rents of the Lands by his life-rent Escheate and to Wards and None-entries by his death but if the Superiour enter the sub-Vassal onely upon a Charge this being no voluntar act of his that does not cut him off from those casualities Sometimes likewise the Seller resigns the Lands in favours of the Superiour if the lands be sold to the Superiour himself which is called Resignatio ad Remanentiam because the Lands are resigned to remain with the Superiour and in that case the property is said to be Consolidate with the Superiority that is to say the Superiour returns to have all the right both of Property and Superiority nor needs he be infeft of new because as we formerly observed the Superiour stands still infeft aswell as the Vassal but the Instrument of Resignation must be Registrated in this case as Seasins are in other cases to put men in mala side to buy The other Resignation is called Resignatio in favorem which is when the Seller having sold his Feu to a third party resigns the Feu in the Superiours hands for new Infeftment to be given by the Superiour to that third partie The warrand of both these Resignations is a Procuratorie granted by the Seller to a blank Person and this warrand is ordinarly inserted in the disposition impowering him to resign the Feu in the Superiours hands and this is called a Procuratory of Resignation and the Symbols of the Resignation are that it is to be made by Staff and Baston and accordingly the Procurator compears before the Superiour and upon his Knee holding a Staff or Pen at the one end which the Superiour or any having power from him holds by the other he there resigns the Feu either ad remanentiam or in favorem as said is whereupon an instrument is taken by the Person in whose favours the Resignation is made which is called the Instrument of Resignation and thereafter the Person in whose Favours the Resignation is made if he be not the Superiour is infeft and his Seasin must be Registrated within 60. dayes as said is The Resignation does not perfectly denude the Seller untill Infeftment be taken upon it and therefore the first Infeftment upon a second Resignation will be preferred to him who has but the second infeftment upon the first resignation but yet the Lands will be in Non-entrie in the Superiours hand after the resignation is made untill the person in whose favours it was made be infeft for otherwayes the superiour would want a Vassal since he could not call him Vassal who did resign his to be Vassal And he had accepted of a resignation from him nor is the Person in whose favours the resignation is made his Vassal since he is not yet infeft but yet the buyer has a personal action against the Superiour to force him to denude himself in his favours since he has accepted the resignation and he will likewise have an action of damnage and interest against the Superiour if he accept a second Resignation whereby a prior infeftment may be taken to his prejudice and the Superiour gets all his Casualities as Ward Marriage Liferent Escheat c. not by him in whose favours resignation is made but by him who resigns since he remains still Vassal till the other be infeft quoad the superiors casualities Title VIII Of Redeemable Rights ANother Considerable division of Heritable rights with us is that some are redeemable and some irredeemable Redeemable Rights are these which return to the Disponer upon payment of the sum for which these Rights are granted and are so called because they may be redeemed by the Disponer and they are either Wadsets infeftments of annualrents or infeftments for relief A Wadset is a right whereby lands are impignorated or pledged for security of a special sum which passes by infeftment like other real Rights in the terms of alienation or disposition and the Disponer does secure himself by getting a reversion from the Buyer wherein he grants and declares the Lands redeemable from him upon payment of the sum then delivered and of the annualrent thereof which is pactum de retrovendendo and expresses the place and time when it is to be delivered and in whose hands it is to be consigned in case the receiver of the Wadset who is called the Wadsetter refuse to accept his Money These Reversions being against the nature of property and depending upon the meer agreement of Parties are to be most strictly observed and are strictissimi juris so that they are not extended to Heirs or Assigneys except they be exprest and must be fulfilled in the very terms and it is not enough that they be fulfilled in equipollent terms But after an order of redemption is used that is after the Granter of the Wadset has duely premonished the Wadsetter and consigned the sums due by the Wadsetter it may be assigned and though the reversion bears that premonition be made at the Parish Church it will be sustained if it be made personally to the Wadsetter for that is a surer certioration Reversions albeit of their own nature they are personall binding onely the Granter and his Heirs yet they are real rights by our Statutes and affect singular Successours They and all Bands to make reversions or â—ikes to reversions must be registrated within 60. dayes in the same Register with Seasins for else a singular Successour is not obliged to regard them so that if any buy the Land irredeemably and compleat
his right he will be preferred but they are still valid against the Disponer without registration When the Granter of the Wadset is to use an Order of redemption he must premonish the Wadsetter to compear and take instruments thereupon called an instrument of premonition to receive payment of the sumes due to him and at the time and place appointed by the reversion offer being made of the Money if the Wadsetter refuses voluntarly to renounce and to accept his money it is consigned in the hands of the person designed in the reversion or if no person be designed it may be consigned in any responsal Mans hand but there must be a paper taken under the Consignatars hand acknowledging that it was consigned in his hand for though an instrument under a Notars hand proves that all this order of redemption was used yet it will not prove the receipt of a sum against the Consignatar If the Wadsetter receive his Money and renounce voluntarly this is called a voluntar redemption But because though renounciations be sufficient to extinguish they are not sufficient to transmit a right therefore if the Wadset was given to be holden of the Disponer the Wadsetter must resign ad remantiam in the Disponers hands as his Superiour and thereafter the Disponer needs not to be infeft of new as no Superiour needs but if the Wadset be given to be holden of the Superiour then the Disponer uses to take a Letter of regress whereby the Superiour obliges him to receive him back to be his Vassal when he shall redeem his own lands for otherwayes after the Wadsetter is seased the Superiour is not obliged to receive him back If the Wadsetter refuses to renounce after the Order is used the Lords will force him to renounce and declare the Lands redeemed by a Process called a Declarator of Redemption after which Decreet is obtained the Lands are redeemed and belong to the Redeemer and the Wadsetter will upon a simple charge of horning force the Consignatar to deliver him up the money The user of the Order of Redemption may pass from it at any time before Declarator and therefore the sumes for which the Wadset was granted are still heritable before Declarator but after that they are moveable and fall to Executors except the Declarator be obtained after the Wadsetters death in which case they remain heritable And though the Wadsetter require his Money he may pass from his requisition either directly by a clear Declaration that he passes from it or indirectly by intrometting with the duties of the Wadset lands or by taking annual-rent for termes subsequent to the requisition Wadsets are either Proper or Improper Proper Wadsets are these wherein the Wadsetter takes his hazard of the rents of the land for the satisfaction of his annualrent and payes himself all publick burdens Improper Wadsets are these wherein the Granter of the Wadset payes the publick burdens and the receiver is at no hazard but has his annualrent secure And if a Wadset be taken so that the Wadsetter is to have more than his annual-rent and yet the Granter is to pay the publick burdens this is accounted Usury by Our Law the punishment whereof is confiscation of moveables loosing of the principal sum and anulling the usury contract or paction and by a late Statute If the Debitor offers security for the Money and craves possession the Wadsetter must either quit his possession or restrict himself to his annualrent And if a Man impignorat his Lands or Bands with expresse condition that if the Money be not payed at a precise day they shall not be thereafter redeemable The Law reprobates this unjust advantage called pactum legis commissoriae in pignoribus and will allow the Money to be offered at the Barr or they will allow a short time before Extracting of the Decreet for payment of it Taking of annualrent having been discharged by the Cannon Law men did buy annualrents out of other mens lands which was the origin of our present infeftments of annualrent and continues still frequent by which if men resolve not to rest on the personal security of the borrower they take him also obliged to infeft them in a yearly annualrent payable out of his Lands correspondent to the sum lent but if they exceed the ordinarly annualrent allowed by Law it will infer usury and so they have a double security one personal against the borrower for payment and another real against the ground it being debitum fundi for which they may poynd any part of the ground as also they have good action against the Intrometters with the duties of the lands out of which there annualrents are payable though they cannot poynd or exact from the tennents any more then they owe to their master These annualrents require a special seasin like Wadsets and other real rights the symbols whereof if the annualrent be payable in money is a penney of money but if it be payable in Victual it is a parcel of Victual This is singular in infeftment of annualrent that apprysing thereupon will be preferred to all prior apprysing quoad the bygones of the annualrent if the infeftment of annualrent was prior to those apprysings to which the apprysing will be drawn back and preferred to any interveening right which priviledge is continued in the late Act of Parliament concerning Debitor and Creditor These infeftments of annualrent being properly granted for security of sums are extinguished not only by resignations but by renounciations and even by intromission with as much as might pay the principal sum which intromission is probable by witness whether the Rent be victual or money and therefore singular Successors buying infeftments of annualrent are not secure by any register but must rest on the warrandice of the Seller Infeftments of relief are these which are granted by a debitor to his creditor for security of sums owing to him upon which the creditor cannot enter to possession till he be distressed and when the sum is payed the right becomes absolutely null as being but a temporarie right and so the debitor who granted the right needs not be of new infeft but his former right revives Title IX Of SERVITUDES THE Nature and Constitution of Propertie and real Rights being explained in the foregoing Titles We shall now treat briefly of Servitudes which are Burdens affecting Property and Rights Servitudes are either Real Personal or Mixt. Personal Servitude is in desuetude amongst Christians and therefore is not proper to be considered here Real servitude is whereby one Mans Property or Ground is affected with some burden for the use and behoove of another Man which are devided in Rural servitudes and Citie servitudes Rural Servitudes are Iter which is a power of going through our neighbours land Actus which is a power of driving Carts or Waines Via being the priviledge of having high wayes in our neighbours ground and Aquae-ductus which is a power and priviledge to draw
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
Sederunt If the Creditor intimat by way of Instrument to the person having the right of Reversion that the Wadsetter or Annualrenter stands inhibit at his instance and does produce in presence of the Parties and Notar the Inhibition duly Registrated The Lords will not sustaine Renounciations oâ— Grants of Redemption although upon true payment unless there be a Declarator of Redemption obtained to which the Inhibiter must be cited The way of executing Inhibitions is that the same must be by a Messenger against the person Inhibit personally or at his dwelling place and at the merâ—at cross of the head Burgh of the shire Stwartry or Regalitys where the person inhibit dwells and after crying of three several oyeses and publick reading of the Letters the whole Leiges are discharged to purchase any Lands or Heritages from the person inhibit and the Messenger leaves or assixes a coppy of the letters at the mercat cross all which most be written in a paper and subscrived by the Messenger and by two witnesses which write is called the execution of Inhibition and there after the letters and executions thereof must be Registrated within 40 dayes after the execution thereof either in the general Register at Edinburgh or in the particular Register of the Iurisdiction where the person inhibit dwells or the major part of the Lands lye and if any of these Acts be omitted the Inhibition is null these being de solenitatibus instrumenti Title XII Of Comprisings and Adjudications THE Fie being thus settled in the Vassal it may be either taken from him and evicted for his debt or his crimes the first is by apprysing and adjudication and the last by confiscation and forefaulture Apprising proceeds by letters charging the Debitor to compear before a Messenger who is by the Letters made Iudge and Sherriff in that part in place of the Sherriff of the shire whose office properly it is and to hear the Lands specified in the letters apprised by an inquest of 15. sworn Men and declared to belong to the Creditor for payment of his debt but because Our Law thought it not just that a mans Land should be taken from him whilst his moveables could pay his debt therefore in the first place the Messenger who executes the Letters must declare that he searched for moveables and because he could not find as many as would pay the debt therefore he denounced the lands to be apprised on the ground of the Lands and at the mercat cross of the Shire Stewarâ—ry or Regality where the Lands lye and left coppies both on the ground and at the Cross. At the day appointed by the Letters the Messenger who is made Sherriff in that part Fences a Court and the Debitor being called his lands is offered to him for the money and if the money be not ready the Inquest finds that the Debiors lands should belong to the Creditor for his payment and this is called a Decreet of Comprising and the most part of the inquest affixes their seals thereto upon which the Compryser gets a Charter past in Exchequer and is infeft by precepts out of the Chancellary if the Lands hold of the King and though of old land apprysed was proportioned to the money yet thereafter whatever land was â—ought to be apprysed was accordingly apprysed though farr exceeding the sum in value because seven years was given which was thereafter prorogate to ten for Redeeming the Land by payment of the true sum and this is called a legal reversion because the Law gives it to the Debitor and if it be not redeemed within that time the land belongs to himself for ever but that legal runs not against minors because they want Iudgement to know their hazard so that they may redeem at any time before they be 25. years compleat but if the Comprysing expyre during their minority the Compryser will thereafter have right to the whole mails and duties albeit exceeding his annualrent But that part of the Act is altered by a posterior statute and the appryser is restricted to his annualrent during the minority of the Debitor If a minor succeed to a minor whose lands are apprysed he has right to redeem as if the Comprysing had been led against himself But if a Major succeed to a Minor after the Legall is expired he hath onely year and day to redeem and if the seven years be unexpired in the Minors time the Major may redeem within these years that are not run And if the Rent of the Lands be not correspondent to the annualrent of the Money whoever has Right to the Reversion whether Major or Minor must satisfie the whole sums and annualrents resting before he can redeem But the Compriser during the Legal is restricted to the annualrent of the sums due to him and the superplus of his Intromission will be imputed in payment of his principal sum and if he be payed by Intromission within the Legal of his whole principal sum bygone annualrents and expenses with the composition payed to the superior the comprising expires ipso facto Though the supiriour be not regularly obliged to receive a singular successour yet least by collusion betwixt the debitor and his superiour the true creditor should be unpayed Therefore by a special Act of Parliament the superiour is forced to receive a Compryser upon payment of a full years Duty of the Land and he gets no more from all though many Comprisers charge him to receive them but if the superiour pleases he may retain the Land to himself he paying the Debt The first Comprising without seasin carryes right to all Tacks Reversions and other Rights which require no Infeftment and all posterior Comprisings need not seasin because they carry onely the Right of Reversion but yet ordinarly second Apprisers do infeft themselves because the first may be null or become payed or the first Compriser may lye out from seeking Meals and Duties or the second Compriser would remove Tennents which none can pursue without being Infeft but the Superiour comprising needs no Infeftment After denounciation of the Lands to be apprised the Debitor can do no voluntar deed by Disponing or Resigning because else he might frustrate the diligence except he was before denounciation specially obligedto dispone or resigne In a competition amongst Apprisers the first Infeftment or charge against the Superiour is alwayes preferred and if the first Compriser did diligence to be infeft but was stopt by collusion as if the Superiour to gratifie the second Compriser should unjustly suspend the first albeit the second Appriser be first infeft yet the first appriser having done diligence by charging the Superiour will be preferred to the second appriser first infeft The Compriser during the years of the legal is not obliged to enter to the possession but if he once enter he must be comptable for the Meals and duties though he leave off to possess but if the meanest part of
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