Bruce contra James Bruce This annualrent was not for security of a Stock The like was found of a Liferent Annualrent June 18. 1663. Margaret Fleming contra James Gillis 14. Annualrents as to bygones are moveable and so arrestable and belong to Executors December 15. 1630. Ogilvie contra Ogilvie Yet it will be more competent and suitable to pursue it personally against intrometters with the Rents or Postessors then by a real Action of poinding the ground Annualrents are supprest by Wodset of the Land or other more noble Right in the person of the Annualrenter unless that Right were evicted 15. An Infeftment of Annualrent redeemable was found extinct by a Renunciation registrat in the Register of Reversions and that against a singular Successor though there was no resignation of the Annualrent January 7. 1680. John Mcclellan contra Mushet An annualrent was also found extinct by the annualrenters intrometting with the Rents of the Lands out of which the Annualrent was payable equivalent to the principal Sum for security whereof the annualrent was constitute which intromission was sound probable by witnesses though it was silver-rent Feb. 4. 1671. Wishart contra Elizabeth Arthur And therefore singnlar Successors succeeding in annualrents either by voluntary Disposition or by Apprising or Adjudication cannot be secure by inspection of Registers as they may be for Lands but they run the hazard of satisfaction of the principal Sum for which the Annualrent is granted wherewith it falls in consequence For no provident man will buy an annualrent given for security of a principal Sum but either upon necessity for satisfying a prior debt or upon great advantage in both which cases he should take his hazard Scire debet cum quo contrahit as all Purchasers of personal Rights must do Pensions resemble Annualrents or the seuda ex camera or ex cavena mentioned by the Feudists for thereby a yearly Rent is constitute to be payed out of the Constituents Lands generally or particularly Yet these Pensions not having Infeftment have but the nature of Assignations and so are not valid against singular Successors 16. Except only Ecclesiastick Pensions constitute by Prelates which are valid against their Successors in Office but not unless they be cloathed with Possession or Decreets conform in the Constituents life Par. 1592. cap. 137. And so a Pension granted by a Bishop with power to assign was found valid to the Assigney after the first Pensioners death against the succeeding Bishop and to be no dilapidation July 21. 1625. Minister of Kirklistoun contra Patrick Whitelaw yea though the Pension bore a power to assign etiam in articulo mortis December 17. 1628. Chalmers contra Craigievar But in this case the Pensioner granting Assignation reserving his own Life-rent or to take effect after his death whereby both might at once have interest therein the Assignation was found null by exception though having Decreet conform and thirty years possession The like Hope Assignation Abernethie contra Lady Drumlanerk But now by the Act of Par. 1606. cap. 3. Archbishops and Bishops are disabled to grant Pensions to affect their Benefices further then themselves have right to the Benefice but do not prejudge their Successors in Office Yet Pensions granted by beneficed persons are not only due during their life but out of their annat after their death February 28. 1628. Bairns of the Bishop of Galloway contra Andrew Couper 17. Pensions granted by secular persons though they contain Assignations to the duties of the Lands specially and have Decreet conform were found ineffectual against singular Successors in the Land July 9. 1629. Urquhart contra the Earl of Caithness December 11. 1662. Andrew Clappertoun contra Laird of Ednem neither against the Lady Tercer of the Constituent March 27. 1634. Countess of Dumfermling contra Earl of Dumsermling A Decreet conform being obtained against the granter of a Pension his Tenants and Chamberlains is effectual against subsequent Chamberlains without new Decreet or Transference yet must be transferred against the Constituents Heir and his Chamberlain though it would be valid being an Ecclesiastick Pension against his Successor December 7. 1630. Earl of Carrict contra Duke of Lennox Spots hic Alexander Weyms contra Chamberlain of the Duke of Lennox A Pension bearing for love and special service done and to be done was found effectual though the Pensioner removed and did not that service his removal being necessary by transportation March 25. 1629. Doctor Strang contra Lord Couper The like of a Pension granted to an Advocat for services done and to be done which was found valid during his life though he left Pleading December 3. 1662. Mr. John Alexander contra Mr. Roderick Mcleod The like of a Pension for service done and to be done though the service was not done when not required nor was it excluded by the Pensioners pursuing Processes at his own instance against the Constituent upon a probable ground though the Constituent was assoiled June 26. 1678. Mr. William Weir Advocat contra the Earl of Callendar 18. Pensions granted by the King are declared not arrestable in the Thesaurers hands by Act of Sederunt June 11. 1613. The reason thereof must be because such are ordinarly alimentary and alwayes for the Kings special service which would be impeded by hindering payment of the Pension TITLE XVI LIFERENTS Where of Conjunctfees Terces and Liferents by the Courtesie of Scotland 1. Servitudes personal by the Roman Law 2. Servitudes personal by our Custom 3. Clauses of Conquest of Liferent or fee of Lands acquired during marriages how far extended 4. All Liferents must be salva rei substantia 5. Liferenters are burdened with aliment of Heirs 6. Liferents without Infeftment are not effectual against singular successors 7. The effect of Assignations to Liferents 8. Liferents are not prejudged by Tacks or other deeds of the Fiar being posterior 9. What Terms do belong to Liferenters 10. Conjunctsees 11. Liferenters by Conjunctsee have all the Casualities of Superiority 12. Terce 13. Services of Terces 14. Kenning to Terces 15. The effect of Terces 16. The extent of Terces 17. Exceptions against Terces 18. Burdens of Terces 19. Liferents by the courtesie of Scotland 20. Publick burdens FROM the Feudal Rights of Property we proceed to Servitudes burdening the 〈◊〉 these are either personal or real Personal Servitudes are whereby the property of one is subservient to the person of another Real Servitude is whereby a Tenement is subservient to another Tenement and to persons But as and while they have Right to the Tenement Dominant as Thirleage Pasturage Ways Passages c. and the like Servitudes personal for term of Life are therefore called Liferents Servitudes for an indefinite time are such which either may or uses to be Constitute for a longer or shorter time such are Pensions Ecclesiastick Rentals and Tacks which though they be in their nature but personal Rights Yet by Statute or Custom they have the effect of real Rights of which
are not wakened every five years for such prescrive in ten years by the Act 9. Par. 1669. The exceptions of removing at the instance of the Master of the ground are very frequent and various for it is ordinarly proponed and sustained that the Defenders are Tennents by payment of Mail and Duty to a third party who is not warned nor called neither are they put to dispute their Masters Right to be valide which holdeth whether his Right be an Infeftment Liferent-right or Tack and though the Tennent hath been put to condescend what the Right is and that in specie it is a valide Right though he needs not dispute the particular defects of it nor the competition of it with any other Right That hath been done that the pursuer might know how to quarrel their Masters Right but I have never observed that Litiscontestation has been made or a Term assigned to Tennents to instruct their Masters Right therefore this defence is but dilatory and should not be sustained unless instantly verified by Tacks or Discharges from the alledged Master which would be repelled if the Tennents have interverted the pursuer or his authors Possession or if the pursuer were singular Successor not presumed to know any interest but of the Possessors if the Tennent produce his Masters Seasine with his Tack or Discharge it would instruct this Dilator which is sufficient upon the not calling the Tennents Master for his not being warned is proper for himself to alledge and the partie will in the same Process get warrand to cite that Master who must defend himself upon his own Rights and therefore this defence was sustained to Tennents though they condescended upon no other Right to their Master but tacite Relocation December 2. 1628. Mr. Walter Whitefoord contra Laird Johnstoun It hath also been sometimes sustained that the defenders were Tennents by payment of mail and duty to an Appryzer though not Infeft Hope hic Crawfoord contra Brown This exception is also elided by this reply that the defenders had acknowledged the pursuer by payment of Mail and Duty Nicol hic Lady Evandale contra her Tennents It is also elided by alledging that the defenders Masters Right was reduced at the pursuers instance December 12. 1622. Spading contra Fleming The like where his right was reduced at the instance of the pursuers author Spots hic Maxwel contra Tennents of Glassock Earl of Nithisdale contra his Tennents The exceptions against removing upon the defenders own right are either in respect of his right to the Land in question or to the other Lands brooked by him pro indiviso with it For the first there are as many such defences as there are rights competent for defending possession and they are either founded upon the benefite of a possessory judgement which how conpetent may be seen at large Title Infeftment 13. § 82. which needs not to be repeated Or if that be not competent the defender must found himself upon the point of right which ordinarly infers a competition of rights But in either case the defence will not be sustained upon any right if the possession was not attained there upon bat upon the pursuers right which Possession must be restored and the defender left to his action upon the others right as accords as if after redemption of a temporary right whereby the defender entered in Possession he should defend upon another right which will not be sustained in this possessory judgdement against him or his Successor from whom he had the Possession November 22. 1677. Sir Archibald Stuart of Castlemilk contra Duke of Hamiltoun The exception pro indiviso is very pregnant and taketh not only place in solemn removings but in the Action to find Caution for Mails and Duties or to remove though the Excipient had taken Tacks from the Pursuer December 6. 1623. 〈…〉 contra Carmichael Yet it was not found relevant to stop removing from the pursuers part of a Coal-heugh in Lands undevided because the Coals are divisible by measure as they are raised out of the Coal-pot Spots removing Hugh Somervel contra Dickson Neither was it found sufficient to maintain a Relict in possession of a House which could not be divided whereof she had a third part and possest the other two thirâ—s pro indiviso but the Fiar having the two thirds was to be preferred to the Poâ—â—ession paying her the third of the Mail upon condition that if he seâ— the Tenement she should be preferred giving as much Mail as another January 26. 1665. Legan contra Galbraith The last exception against removing is obedience by voluntary removing conform to the warning and leaving the Land void and red at the Term without necessity of a renunciation in write March 2. 1637. Keith contra Simpson The like the defender finding Caution to desist from the Possession Nicol. de migrando Wallace contra Mitchel But the alledgeance of obedience was not found relevant upon an exception bearing that the Land was left void and red at the Term seing that it bore not that the Possession was offered to the Charger in respect that at the time of his removing another party entered in his Vice January penult 1624. Greenlaw contra Adamson But the obedience must be full according to the warning by the defenders removing himself his Family Sub-tennents and Cottars Goods and Gear So that the pursuer may enter in Possession and therefore Decreet would be obtained against the principal Tacks-man and the Letters still put to execution against him till all these be removed and if the pursuer please he may pursue them to remove without other warning then what was made to the principal Tacks-man So it was sustained against a Son upon a warning against his Father even after his Fathers death January 26. 1630. Hoom contra Hoom. As to the last point concerning the effects of Decreets of Removing it is not only the attaining Possession of the Land it self but sometimes also the Corns growing thereupon as being a part thereof being a Possession violent Hope Spuilzie John Elliot contra Lord Balcleugh Yea of the Hay of that Cropt though separate and Stacked by the person removed Hope Spuilzie Sir James Balmuire contra Williamson But the main effect is the obtaining the violent profites of the Land until the possessors obedience and that both against these who are warned and against these who succeed in the vice of warned or removed Tennents 44. Violent profites are so called because they are such profites as are due by and for violent Possessioa whatsoever way it be by warning and removing ejection intrusion or succeeding in the Vice and they are opposite to ordinary profites which were due by tacit Relocation or were formerly accustomed to be payed Violent profites are pursued for by a several Action after the Decreet of removing is obtained Wherein the Decreet of removing is both a sufficient Title and probation of the violent Possession against the parties
Succession 9. The Judicial Law in the case of the Daughters of Zelophehad Num. 6. 27. Determineth the order of Succession in Lands or Immoveables to stand as a perpetual Statute to the Children of Israel Thus the first degree of Succession is of all the Sons whereby the Daughters and their Descendents are excluded but the Sons do not Succeed equally For the first born had a double Portion of all that the Father had Deut. 21. 17. By which the eldest Son had twice as much as the other Sons So that the Heritage being divided in one Portion more then there were Sons of these the eldest had two and each of the rest one As if there be two Sons it divides in three whereof the elder hath two third parts and the younger one third part If there be three the Heritage divides in four parts whereof the eldest hath two fourth parts which is the half and each of the rest hath one fourth part 10. This Right of primogeniture was so secured that the Father could not preser any other Son thereto Deut. 24. v. 16. Failling Sons the inheritance passes to the Daughters equally For though the Text expresseth it to passe to the Daughter in the singular number Yet it is cleared by the context that all the Daughters are therein included for the Daughters of Zelophehad though more in number are found to have the said Right and to get an Inheritance among their Fathers Brethren by which it appeareth that the Right of Representation had place there for all the Daughters of Zelophehad were but to have that share which their Father would have had if he had been alive among his Brethren for they claiming the Right of their Father whom they show not to have been in the company of Corah thereby forefaulting his right So then right of Representation must take place amongst all descendents So that the Children of the Sons though these Sons survive not their Father would exclude the surviving Daughters or would come in with the surviving Sons not equally and in capita but in stirpes whereby they would succeed to the shares of their pre-deceased Fathers by Right of Representation 11. The third degree of Jewish Succession is failing Descendents the inheritance passeth to the Defuncts Brethren and these failing to his Fathers Brethren and these failing to the nearest Kinsman of his Familie that is the nearest Agnats on his Fathers side where all the male Agnats of the same degree are understood It doth not appear whether in this Collateral 〈◊〉 there be place for Representation and though there be no mention of the Succession of Women or their Issue but only of Daughters Some have thought from the paritie of Reason in everie degree failing the Males the Females are to Succeed and to exclude further degrees of Males as if there be no Brothers but Sisters these should exclude the Fathers Brother It may be also thought strange that in all this course of Succession there is no mention of the Succession of Parents 12. In answer to these doubts as to the first I conceive that in Collateral Succession there is also place for Representation so that the Brothers Sons as representing the Defunct Brother their Father would exclude the Fathers Brethren And so of the rest because it is said if there be no Brethren the Inheritance shall passe unto the Fathers Brethren which 〈◊〉 unto the nearest Kins-man and if there be no Right of Representation the Cousin-german or Father Brothers Son would exclude the Nephew or Brothers Son for Uncle and Nephew are never understood by the name of Cousins or Kinsmen but have that special nominate relation of Uncle and Nephew or Father and Brother Son and therefore the Brothers Son as representing the Brother must succeed and exclude the Fathers Brother 2. Cateris paribus Succession will certainly descend to the Brothers Son and not ascend to the Fathers Brother 13. As to the second doubt Ihold that only Daughters and their Issue do succeed and no other Females or their Issue the reason is First from the Text where failling Sons Daughters are exprest but failling Brothers Sisters are not substitute but Uncles 2. The Division and Succession and the Land of Canaan was Typical and was not to passe from Tribe to Tribe and therefore Daughters succeeding are appointed to Marry in their own Tribe because ordinarily they were to be Married when their Fathers succession did probably appear but this could not have been if Fathers Sisters and these of further degree had succeeded 14. As to the third concerning Succession of Parents it is sure Mothers and all Cognats by the Mother side being ordinarily of other Tribes and Families were for the reason now adduced excluded from the Succession The Text is clear that only Kins-men in the Family that is on the Fathers side succeed But the reason why there is no mention of Fathers c. May be because the Land of Canaan being Typical is fixed to Tribes and Families it uses not to passe by Testament or provision or to be acquired further then by Wodset to return at the Jubile Therefore among the Jewes Lands passed by the ordinar course of Legittime Succession and so came from the Fathers to the Children which presupposes the Father to have been pre-deceased and could not succeed By this Tract of the Jewish Succession it is clear that GOD by his Positive Law altered the effect of Equitie and of his Moral Law in succession For it hath been now shown from that place if Children then Heirs That all Children must needs be Heirs not by the Judicial Law but by Equity And yet by the Judicial Law not all Children are Heirs but Sons exclude Daughters and Females are excluded by Males of a far distant degree which necessarily infers that for expedience the course of Succession may be altered The like must also be in other effects of Equity which are in our power 15. The order of Succession in the Civil Law did exceedingly varie being in many points different in the Ancient Law of the twelve Tables in Honorarie Law introduced by the Edicts and Customs of the Pretors who had Authority to Supply and Correct the Ancient Law and in the Imperial Constitutions especially in the Novel Constitutions of Justinian they did all agree in this that the chief mean of Succession is the Will or Testament of the Defunct which they held so Sacred That all Pactions or Provisio s which might any way hinder the Free Liberty of Testing or any Act whereby Defuncts might be Restrained or Constrained in the free Disposal of their Estates were not only null but exclusive of such Persons from having any interest in the Defuncts Inheritance Yet were the Romans so sensible of the Natural Obligation of Parents to provide their Children that their midle Laws necessitat Fathers either to institute ther Children or expresly to exhaeridat or disherish them expressing their delinquencie of Ingratitude the kinds
Ascendent or these of their side but only to Agnats conjoined by the Father Grandfather c. Which holdeth even though the heritage descended from the Mother or these of her side for in the service of Heirs the nearest lawfull Heirs are only inquired and retoured either by the Lineall Succession aforesaid or by express Tailzie or provision in the Infeftment without respect from whence the Inheritance flowed for which we have no Satute nor Custom But in England it is otherwayes for Paterna paternis and Materna Maternis takes place but with us the contrare was found in the case of John Gilbert as Craig observeth Lib. 2. Dieg 17. And he there relateth that many afterward changed their opinion therein and though there be equity in it yet no Law nor Practique since hath favoured the Maternal Line but the Father was found Heir to his Son even in the Lands where the Son was Infeft as Heir to his Mother and did exclude his Brother Uterin by that Mother February 5. 1663. Lenox contra Lintoun 4. In all this Line of Succession there is place for Representation of Descendents in place of their Defunct Parents So that Females of a further degree by the Right ofrepresentation exclude Males of a nearer degree as the eldest Sons Daughter will be preferred in theGrandfathers Inheritance to his other Sons in private Rights though that be contraverse by the more comon Feudall Customs as is largely and learnedly dispute by Tiraquellus 35. In this Lineall Succession the Father Grandfather or other Ascendents of the Paternall Line succeed in heritable Right next unto Brothers and Sisters and before all other Collateralls or Agnats We have shown before why there is no mention of Ascendents in the Jewish Succession because such a case could hardly occurr among them Craig Lib. 2. Deig 13. affirmeth that it was doubtfull in his time whether Ascendants could succeed in heritable Rights and that he heard the opinion of some learned men in the contrary and that he had not found the Lords decide in it and that it is contrare to the Feudal Law and also to his own opinion yet he brings both evident reason and example in the contrary the reason is that no Inquest can justly Retoure that the Father Brother is nearer then the Father He bringeth also the Example of the Earl of Angus served Heir in the Earldom of Angus to his ownSon whom he had infeft therein And the Lord Colvill in likemanner having infeft his Son in all his estate though sum affirmed that this was by provision in the infeftment yet that the Service was is sure but that provision is uncertain and though some also were doubtful whether the Earl of Angus was served and infeft as Heir to that same Son which well inferreth that the Father was not infeft as Heir to his Son but not that he was not served Heir to him therein for he might have been served and not infeft Whereby the service as incompleat became void and the next Earl behoved to serve of new to the Son who died last vest and seased as of Fee The Custom and common opinion since is for the Ascendants and so the Earl of Roxburgh was served as Heir Male to his Son The Lord Ker and many others which ought to be the more favoured as more conform to equity and the Law of nature which in Dubio ought to take place where there is no Law nor custom to the contrary as with us there is none Neither did I ever hear of one who attempted to exclude a father by the Fathers Collaterails And though there had been no Decision upon it neither have there been upon many other uncontroverted Customs especially in Succession but the acquiescence of all Parties having interest in matters of so great moment is a strong Evidence of the Nationall consent by Custom But it hath aho been so decided by the Lords Hope Succession Mr. Robert Burnet contra Mauld Yea a Son being infeft as Heir to hisMother dying without Issue his Brother uterin by the Mother was not found Heir to him but his Father February 5. 1663. Lenox contra Lintoun As to the alledged opposition of the Feudall Law as hath been oft times said it is Local And therefore as in England all Ascendents are excluded so in Germany they succeed in the next place after descendents and are preferred to Brothers and sisters according to theNaturall course ofSuccession The reason why Brothers and Sisters of the Defunct are preferred to the Fathers with us may be because such Fees do commonly proceed from the Father And therefore by the continuance of that sameFatherly affection are derived to the Brothers and Sisters and because they are in more need of Provision then the Father TITLE XXVII Heirs 1. Appearand Heirs may pursue exhibition ad deliberandum 2. They may defend their predecessors Rights and Possessions being called or compearing for their interest and their executors have right to the Rents of these years they were appear and Heirs 3. The Aliment of Heirs from the Donatars and Life-rentars 4. Heirs not entred have the benefit of Clauses which by Nature import they should not be actual Heir 5. Heirs have interest in all Rights granted to their Predecessors though not mentioning Heirs who are not exclusive of Heirs by their Tenor and Nature 6. Heirs have the benefit of all Rights heritable by Destination or having a future Tract of time after the Defuncts Death 7. Heirs have Right to Moveable heirship or obleigment for Sums wherein Executors are excluded 8. Heirs of Lyne are heirs generally their interest 9. Hirship Moveables 10. Heirs of Conquest their interest 11. Heirs Portioners their Interest 12. Heirs Male Tailzie and Provision their interest 13. All Heirs are lyable pasivè for the Defuncts debt but not in the same way 14. Heirs Portioners how far lyable 15. The effects of different Provisions or Obligations by Defuncts in Favours of Divers heirs Portioners 16. Heirs not being Portioners no substitute in Bands are lyable in solidum 17. The order by which heris are lyable passivè and may be discust 18. Heirs of Tailzie ripresent not the Defunct in obligations contrary to the Terms of the Tailzie 19. Heirs of Marriage may quarrel their Predecessors Deeds being meerlygratouitus in their prejudice but not such as are onerous or rational Deeds 20. Heirs having the benefit of discussing may propone the Exception that all parties having interest are not called without instructiug the Right whereto they may succeed 21. The exception of the order of discusing is not sustained without condescending on the heritage whereunto the anterior heir may sueceed and what is discusing 22. The order and effect of a Genral Charge to enter heir 23. The order and effect of a special charge to enter heir 24. Renounciation to be heir its order and effect 25. The entrie of heirs general and effects thereof 26. The entrie of heirs upon precept of Clare Constat
trafficking Burgesses and take themselves to a Country Life their heirs will have heirship moveable And therefore semel civis semper civis is not presumed Neither semel paerlatus semper praelatus for if a beneficed Person were deprived or demitted before the Death his heir would have no heirship moveable 10. The second Defense against Intromission with heirship moveable and which is also competent against Vitious Intromission is That the Defunct died Rebel and his Escheat was gifxted and declared before intenting of the Creditor's Pursuit June 10. 1663. Gordon of Lismoir contra Keith June 10. 1674. Lady Spenserfield contra Hamilton of Kilbrachmount December 22. 1674. Heirs of Seatoun of Blair contra Sr Alexander Seatoun And It is not necessary to alledge That the apparent heir had any Right or Tollerance from the Donatar For the Exception is equiparat to Executors confirmed against Vitious Intromission whereby Vitious Intromission is excluded albeit the Intromission was before another was confirmed Executor if the Confirmation was before intenting of the Creditor's Cause But it is no relevant Defense That the Defunct died Rebel and so had no moveables but that they were confiscat Neither was it sufficient that the Escheat was gifted not being also declared before the Creditor's Pursuit As was found in the said two first Cases 11. The third Defense is That the apparant Heir intrometted by a Gift to himself or to his behoofe or by a Right or Tollerance from a Donatar These being prior to the Creditor's Pursuit although posterior to his Intromission albeit not declared are relevant because the Donatar thereby is in possession and needs no Declarator Feb. 26. 1663. Cuthbirt of Drakies contra Monro of 〈◊〉 June 10. 1663. Gordon of Lismoir contra Keith July 4. 1674. Mr. William Innes contra George Wilson June 10. 1674. Lady Spenserfield contra Hamilton of Kilbrachmont Feb. 10. 1676. Grant contra Grant 12. The fourth Exception is When Moveables belonging to a Defunct remain in his House whereunto his apparant Heir hath Right by Infeftment wherein the Defunct had his Liferent or Tollerance if the Heir enter in possession of the House if at his entry he represent to any competent Judge that there are Moveables in or about the House belonging to the Defunct which he desires to be inventaried or that such as cannot be preserved may be sold that the price may be made forthcoming to all parties having interest if Inventary or Sale be made by warrant of that Judge the continuing of these Moveables in the House or the Sale of those which cannot be preserved will not infer Behaving as Heir Yet the making use of the things in the Inventary or the Sale of that which is not warranted yea the ommission out of the Inventary of Moveables of any considerable value was found to infer Behaviour January 25. 1632. Helen Scarlet contra John Paterson 13. The other ordinary member of Behaving as Heir is by Intromission with the Rents of Lands or Tiends whereunto the Defunct had Right by Infeftment or entering in possession of these Lands and Tiends unto which the apparent Heir would succeed which is the most direct Behaviour as Heir and is only competent against such persons as might be Heirs in that whereinto they immix themselves And so an Heir of line poslessing or intrometting with the Rents of Lands provided to Heirs male or to Heirs of Tailzie or Provision or the Intromission of these with the profits of Lands or Tiends befalling to Heirs of line will only infer Restitution or Reparation but will not infer a general passive Title making the partie lyable to all the Defunct's Debts 14. There are many Defenses which use to be proponed against this species of Behaviour As first it was an ordinary custom to shun this passive Title that the apparant Heir granted a Bond of purpose to adjudge the Defunct's Right upon the apparant Heirs Renounciation and then take Right to the Adjudication till the Lords by an Act of Sederunt Feb. 28. 1662. did declare that if apparant Heirs should in time coming take Right to any Appryzing or Adjudication of their Predecessors Rights for their own Debt and did 〈◊〉 thereby whether before or after expyring of the Legal they should be lyable as behaving as Heirs which hath always since been followed And therefore no Defense for such Rights will be sustained albeit it were a true Debt of the apparant Heirs and not a simulat Bond granted of designe to adjudge or apprise Neither is it a relevant Defense That the Lands or Teinds were appryzed or adjudged from the Defunct albeit Infeftment had followed thereupon if the heir apparant intromet without Right or Warrant from the Appryser or Adjudger within the Legal Feb. 21. 1663. Henrie Hamilton contra William Hamilton But it is a relevant Exception That the apparant heir's Intromission or possession was by Right from an Appryser or Adjudger though the Legal was not expired unless the Sum were fully satisfied by Intromission or otherways January 10. 1662. Barclay contra Laird of Cragievar The like though the apparant heir continued to possesse for some time after the Apprysing was satisfied by Intromission Feb. 26. 1663. Cuthbert of Drakies contra Monro of Foulis Yea Intromission with the Rents of the Defunct's Land by his apparant heir waselided by a Tollerance from a Donatar of Recognition albeit not declared till after his Intromission the apparant heir paying the single value of his Intromission July 17. 1666. Thomas Ogilvie contra Lord Gray But a Tollerance from Apprysers after their Intromission was not found relevant July 11. 1671. Sr. George Maxvell contra Maxvel Yet the apparant heir's Intromission was elided because the Defunct's Rights were improven though after the Intromission March 22. 1628. Roderick Farquhar contra Campbel of Kingingcluch And an apparant heir's Intromission was elided by a colourable Title though not valid whereby the heir of a Marriage being entered and infeft as heir to her Mother yet her Infeftment being reduced and her Father being found Feer in a dubious provision of Conjunct-fee the heir so served was not found liable as behaving as heir to her Father but only quoad valorem of her Intromission July 12. 1671. Adam Gairns contra 〈◊〉 Sandielands But it was not elided because the apparant heir past by his Father and was infeft as heir to his Good-sire though his Father was infeft that colourable Title was not sustained the apparant heir being in mala fide having the Evidents in his hands November 23. 1671. Rorieson contra 〈◊〉 Yet Behaving as heir was not inferred by the heir apparant's intrometting with the Rents of Lands which his predecessor had disponed in trust to a third party for the behoofe of the apparant heir and whereupon the Intrusted was infeft January 14. 1662. Nicol contra Home of Plandergest But Intromission by the apparant heir was elided by a Disposition by a Defunct to the apparant Heir's Son his Oye though without
though she was not praeposita Negotiis but because she was Persona Illustris and her Husband out of the Countrey Hope Husband and Wife Mr. David Russel contra Earl of Argyle but a Wifes Bond for necessar Habiliments for her Body found to obliege her self and not her Husbands Executors and as to these she may contract Had. July 6. 1610. Eustacius Wise contra Lady Hallyrudhouse this must be understood where the Wife has an Aliment constitute by her Husband or other Right exempt from his Jus Mariti And it was so lately found in the case of Adam Garrns Merchant contra Elizabeth Arthur December 19. 1667. February 23. 1672. John Neilson contra Arthur But a Wifes account of Furniture to her Person not being great found valide against her Husband being subscribed by the Wife though she was minor being Persona Illustris February 20. 1667. Andrew Littlejohn contra Duke and Dutchess of Munmouth This Priviledge of Wives was extended to Obligations or Dispositions made by the Wife though before compleating of the Marriage being after Contract and Proclamation whereupon Marriage followed January 29. 1633. 〈◊〉 contra Brown The like specially where the Proclamation was not only at the Husbands Paroch Church but the Wifes July 8. 1623 Stewart contra Aitkin The like of a Disposition in favours of the Wifes Children after their Contract and one Proclamation July 5. 1611. Fletcher in Dundee contra Brown Yet Wives Obligations relating to their Delinquence are not void but only such as relate to their Contracting So a Wife was found oblieged to fulfil an Act of a Kirk Session under a Penalty that she should forbear an other mans company which was found not to affect her Husbands Goods but her own Hope Husband and Wife John Bell contra Executors of James Hogg and the Kirk Session of St. Cuthberts Here also are excepted Obliegements relating to Dispositions of Lands Annualrents or Liferents of which hereafter 13. As to the Husband and Wifes Interest in their Goods by our Custome without any voluntar Contract there arises betwixt them a communion of all Moveables except the Habiliments and Ornaments of the Wifes Body which though they be superfluous and the Husband insolvent are not Arrestable for his Debts the Husband hath the full and sole administration of all moveable Goods belonging or accressing to the Wife during the Marriage and the Rents and Profits of Heretable Rights as being moveable And therefore an Heretable Bond found to belong to the Husband Jure mariti because he was married before the Term of Whitsonday at which time it was payable June 15. 1627. Nicolson contra Lyell and a sum was found to belong to the Executors of the first Husband though the Term of Payment was after his Decease and not to the Wife or her second Husband Also a Legacy left to a Wife was found to belong to her Husband Hope Legacies Elizabeth Brown contra 〈◊〉 Likewise a Husband found to have right to a Bond blank in the Creditors name which the Wife during the Marriage put in the hands of a third Party who filled up his own name therein though the Husband and Wife were voluntarly separate February 11. 1634. Drummond contra Captain Rollo except Aliments duely and competently provided for the Wife which are not Arrestable for the Husbands Debt November 29. 1622. Thomas Edmonstoun contra Christian Kirkaldie and Alexander Barclay The like of an Aliment modified by Decreet Arbitral betwixt the Husband and a third Party though the cause thereof was founded upon the Husbands Right March 27. 1627. Westnisbit contra Morison yea the Husband himself found to have no access to a Sum provided to a Wife by her Father for her Aliment July 4. 1637. Tennant contra 〈◊〉 This communion of Goods by our Custome extendeth not to the Wifes Rights Heretable as Lands Annualrents Heretable Bonds nor to Liferents for as to these the Wife may obliege her self personally in Clauses relative to such Rights as Clauses to Infeft Clauses of Warrandioe and Clauses of Requisition of Sums for which her Lands were Wodset by her if the Wife be first and principally bound with consent of her Huaband but where the Wife and Husband were bound for Infeftment in Lands belonging to the Wife and both bound in the Requisition yet thereby the Wife was not found oblieged either for granting the Infeftment or in the Requisition because it appeared that the Money was not borrowed for the Wifes use December 19. 1626. Mathie contra Sibbald other ways such Obliegements are effectual against the Wife The like Hope Annualrent Agnes 〈◊〉 contra James 〈◊〉 where a Wife was found lyable to pay an Annualrent disponed by her and her Husband out of her 〈◊〉 Fee-Lands even during the time they were in Ward The like of an Annualrent disponed by a Wife and her Husband for which both were personally oblieged in respect she lifted the Rents of the Lands out of which it was to be uplifted Spots Husband and Wife Walter 〈◊〉 contra Margaret Chisholm The like of a Clause of Requisition in a Contract of Wodset granted by the Wife upon her Lands stante matrimonia Hope Husband and Wife Agnes Gordon contra Elizabeth Gordon And this is the difference betwixt these and other Personal Obliegements of the Wife stante matrimonio which even though the Husband consent are 〈◊〉 and obliege her not yea a Renunciation of a Tenement by a Wife without consent of her Husband being absent though he ratified it at his return was found null Spots Husband and Wife Helen Melvil contra So that the Husbands Right Jure Mariti to the Rents and Annualrents of the Wifes Rights which are not Alimentary cannot be evacuate without the Husbands consent though the Wife may dispose of the Right it self to take effect after the dissolution of the Marriage In Heretable Rights of Wives Bonds bearing Annualrent though without a clause of Infeftment are comprehended for these remain Heretable 〈◊〉 〈◊〉 relictum by the Act of Parliament 1661. cap. 32. And therefore a provision by a Father to his Daughter bearing Annualrent five per cent found not to fall under the Husbands 〈◊〉 Mariti June 28. 1665. James 〈◊〉 against 〈◊〉 Edgar July 4. 1676. John 〈◊〉 contra Bruce The Marriage without any Contract is a legal Assignation to the Rents and Profits of the Wifes Lands and other Heretable Rights during the Marriage so that without his consent the Wife cannot alter the condition thereof in prejudice of his Right during the Marriage Jus Mariti is so effectual as to the moveable Goods of the Wife that though a Life-renter in her second Contract of Marriage reserved a part of her Life-rent Lands to be solely at her own disposel and that the Husband in the same Contract of Marriage renounced his Jus Mariti thereanent yet that Renunciation was found to be his Jur. Mariti and so the profits of her Life-rent were affected by his Creditors it not being constitute
Husbands Revocation upon Death-bed subscribed by Nottars because of his Infirmity Hope Husband and Wife Earl of Angus contra Countess of Angus And a Husband was allowed to recall a Bond granted to his Wife bearing that he thought it convenient that they should live a part and therefore oblieged him to pay a Sum yearly for her Aliment albeit it bore also that he should never quarrel or recal the same as importing a Renunciation of that Priviledge February 6. 1666. Livingstoun contra Beg. Yea a Donation by a Husband to his Wife was found Revocked by a Posterior Right to his Children though it was not a pure Donation but in lieu of another Right and quoad excessum only seing it was notabilis excessus November 20. 1662. Children of Wolmet against Lady Wolmet And un Infeftment bearing Lands and a Miln was found Revockable as to the Miln it not being exprest in the Wifes Contract February 5. 1667. Countess of Home contra Hog This was extended to a Wifes accepting of an Infe ftment in satisfaction of her Contract February 12. 1663. Relict of George Morison contra his Heir It is also Revockable indirectly by the Husbands posterior Disposition of the Lands formerly Disponed to his Wife in Life-rent July 16. 1622. John Murray of Lochmaiben contra Scot of Hayning A Donation by Infeftment granted by a Man to his Wife beside her Contract found Revocked by an Annualrent out of these Lands granted to his Daughter pro tanto without mention of Revocation December 15. 1674. Mr. Robert Kinloch contra Raith It was also found effectually Revocked by the Husbands submitting of the Right of the Land wherein he had formerly gifted a Life-rent to his Wife and a Decreet Arbitral adjudging the same to another Nic. de Donat. inter virum uxorem Viscount of Annandail contra Scot. But Donations by a man to his Wife who had no former Provision nor Contract of Marriage found not Revockable being in satisfaction of the Terce due by the Marriage March 25. 1635. Laird of Louristoun contra Lady Dunipace The like November 22. 1664. Margaret Mcgill contra Ruthven of Gairn But where the Husband granted Infeftment of all that he then had there being no Contract of Marriage And thereafter a second Infeftment both Stante Matrimonio The first was sustained being in place of a Contract of Marriage but the second was found Revockable 23. of November 1664. Halyburtoun contra Porteous And a provision to a Wife having no Contract of Marriage was found Revockable in so far as it exceeded a Provision suitable to the Parties 27. of July 1677. Short and Burnet contra Murrays Yet the want of a Contract did not sustain a Donation by a Wife to her Husband to whom she assigned an Heretable Bond the Husband being naturally oblieged to provide for his Wife and not the Wife for her Husband December 15. 1676. Inglis of East-shield against Lowry of Blackwood And an Assignation to an Heritable Bond by a Wife to a third Party but to the Husbands behoove found Revockable by the Wife after the Husbands death even against the Husbands singular Successor for causes onerous the trust being proven by Write June 17. 1677. Margaret Pearson contra Mclane Yea a Donation by a Wife by Assignation of her former Joynture to her Husbands behoove found Revockable though there was no Contract unless the Husband had given a remuneratory provision January 22. 1673. Janet Watson contra Bruce And a Wifes consent to a Contract of Wodset of her Life-rent Lands with a back-tack to the Husband only found valid as to the Creditor but Revockable as to the Husband in relation to the back-tack declaring the same to belong to her for her Life-rent use that she might injoy the superplus more than the Annualrent June 28. 1673. Arnot contra Buta Donation by a Husband to his Wifes Children of a former Marriage was not found Revockable though done at his Wifes desire January 15. 1669. Hamiltoun contra Banes Nor by a Wife subscribing her Husbands Testament by which her Life-rent Lands were provided to her Daughter July 12. 1671. Marjory Murray contra Isobel Murray Such Donations are also annulled by the Wifes Adultery and Divorce As all Donations are Revockable for ingratitude Hope donatio inter virum uxorem Margaret Dowglas contra Aitoun A Bond conceived to a Man and Wife and her Heirs found a Donation by the Man whose Means it was presumed to be and Revockable by him after her death and a Tack taken by him to himself and his Wife in Life-rent was found Revockable by a posterior Tack thereof to himself and his brothers Son December 21. 1638 Laird of Craigmiller contra Relict of Gawin 〈◊〉 yet thereafter it was found in the same case January 30. 1639. that in respect the 〈◊〉 was set by a third person and that it did not appear to be by the Mans 〈◊〉 that the Back-tack to the Wife was not Revockable But a Donation betwixt Man and Wife altering their Contract of Marriage being done before the marriage it self was not found Revockable January 23. 1680. John Home contra John and George Homes yea where the Donation did bear date before the Marriage the Husbands Heir proving the Write antidated and that it was truely after the Marriage the Donation was therefore found Revockable July 24. 1667. Earl of Dumfermling contra Earl of Callender 15. To come to the Interest of the Husband and Wife after the Dissolution of the Marriage we must distinguish the Dissolution thereof which falls by death with in year and day from the solemnizing thereof and that which is Dissolved thereafter for by our Custome this is singular which is found no where else in the Neighbouring Nations that if the Marriage Dissolve within year and day after the Solemnizing thereof all things done in Contemplation of the Marriage become void and return to the Condition wherein they were before the same and so the Tocher returns back to the Wife or these from whom it came and she hath no Benefite or any Interest either in the Moveables or Heretables either by Law or Contract provided to her nor hath he any Interest in hers unless there were a living Child born which was heard cry or weep in which case Marriage hath the same effect as to all intents and purposes as if it indured beyond the year and this is extended to both the Marriage of Maids and Widows July 23. 1634. Maxwel contra Harestones And extended also to an Infeftment by a Husband to a Wife though it had no relation to the Marriage but was only presumed to be hoc intuitu November 16. 1633. Grant contra Grant and not only extended to the Wife and Husband and their Heirs but to any other person concerned Restitution being made hincinde of all done 〈◊〉 Matrimonii June 8. 1610. Laird of Caddel contra Elizabeth Ross yea a Disposition by a Father to a Son of his Estate in Contemplation of
that the Sum in question was wared upon the Minor for Meat and Cloathes though his Father gave him a sufficient Allowance seing he was then abroad from his Father Hope Minority Hendry Creich contra Hendry Walker It is also eleided by Deeds of Homologation after Majority July 14. 1636. Gaindner contra Chalmers The like though the Annualrent was payed upon a Charge July 30. 1630. Johnstoun contra Hope But where Majority was alledged against a Minors Restitution neither party was preferred in Probation but Witnesses allowed hinc inde February 20. 1668. Farquhar of Tonley contra Gordoun But Lesion needs not be proven by the Minor granting Bonds of borrowed Money for the misapplication is presumed unless the contrary be proven This priviledge is not only competent to the Minor himself but to his Heir who if he were Minor may reduce the Deed done in his Prodecessours Minority during the time of the Heirs Minority and also during so much of the quadriennium utile competent to the Defunct Minor as rested the time of his Death But he cannot claim both the rest of his Predecessours quadriennium and his own quadriennium after his Majority but only the rest of his Predecessours quadriennium March 14. 1628. 〈◊〉 contra Barron of Brughtoun whence it is consequent that if the Heir Succeeding be Major and quarrel his Predecessours Deed as in Minority he hath quadriennium utile to intent Reduction except in so far of that quadriennium as was past before his Predecessours Death but he hath not the time of his Predecessours Minority which was peculiar and only personal to himself but only the quadriennium utile competent after Majority which the Law hath allowed as a competent time to search out and raise Reduction of Deeds done in Minority yet if a Deed were fraudulently keeped up and concealed during the quadriennium utile it might be reduceable ex capite fraudis Minority and Lesion was also found relevant at the Instance of a Minors Creditors seing the Minor intra annos utiles had intented Reduction Nicolson de temporibus in integrum restitutionis Sir John Hamiltoun contra Mr. John Sharp and others But the Priviledge of Restitution is not competent to Minors upon Revocation unless they intent Reduction declarator intra annos utiles which was found to hold in the Kings Revocations as to Lands not annexed Spots Revocation Pringle contra Ker. This other Priviledge of a Minor is quod non tenetur placitare super haereditate paterna which though it be not peremptorium causae delaying only pursuit till Majority yet there is no necessity to verifie it instantly but a term will be granted to prove the same February 24. 1676. Heleson Kello contra Alexander Kinneir The priviledge is introduced in favours of Minors that they be not put out of their Fathers Heretage whereof he died in peaceable Possession for though their Priviledge of Restitution might recover such Rights by Reduction yet the Minor would lose the Fruits and Profits medio tempore and untill their Rights were produced and made clear in Reduction which might be of great importance to them for if a Minor of a Year old were dispossest of his Fathers Inheritance he would lose at least twenty years Fruits of it and therefore the Law hath introduced this priviledge in favours of Minors besides the priviledge of Restitution wherein Minors are not in contradistinctione to Pupils But the priviledge is chiefly competent to Pupils And though it bear only de haereditate Paterna yet thereby Minors succeeding immediatly to their Grand Father or other Predecessour who died in Possession It is not like the priviledge would be denyed to them though I have not found it controverted or determined seing the Law under the name of Father doth ordinarily comprehend Grand-father Great-grand-father and all Predecessours in direct Line who come all under the Designation of Forefathers as all Successours in the right Line come under the name of Children But the Law indulgeth this favour only as to the Heretage of Fathers and therefore neither the style nor custome hath extended it to Collateral Succession as to Brothers or Uncles wherein Minors if they be excluded can only be restored by Minority and Lesion so soon as their Predecessours or Authors Rights can be found Neither was ever this priviledge extended further than to Minors in possession of the Heretage of their Fore-fathers who died in peaceable and lawful possession and to whom the Minor immediatly succeeded for there is no priviledge to Possession Vi clam aut praecario though Law or Custome hath not determined how long Possession of the Defunct is required to exclude Clandestine or Momentany Possession but the continued Possession of the Defunct with his Author may be accounted sufficient or the Defuncts Possession by a Liferenter whose right is granted by him or reserved in his right but not to the Possession of singular Successours by redeemable Rights as Wodsetters or Apprizers Neither hath there been any exception made of the pursuits at the instance of Minors against Minors as being both priviledged there being no parity in recovering and retaining Possession but where a Minor was put from Possession by a Decreet of Removing obtained by a Minor from Lands wherein her Father and her self were Infeft and in Possession she was not excluded to reduce that Decreet of Removing upon the Minority of the other Minor whose Father died not in Possession June 18. 1680. Sara Leyel contra Dons This Priviledge will not only exclude Possessory Judgements such as Removings or Mails and Duties but also Declarators or Reductions as to which it hath been variously decided whether it should stop certification contra non producta especially in the case of Improbation and though it cannot exclude Improbation where the Writes are produced or where they are in the hands of the Minors and his Tutors and Curatours if that shall appear by their Write or Oath Yet where the Minor produced his Fathers Infeftment and proved his Fathers Possession he was found obliged to produce no farther January 31. 1665. Heleson Kello contra Pringle and the Laird of Wedderburn so that it cannot defend simply against Production But if it could not defend against Production of any further but the Fathers Infeftment and that certification in Improbations would be granted in all other Rights if these certifications should take effect the priviledge might be wholly Evacuat and if they should take no effect till Majority certifications in Improbations should not be granted being hardly Reducible even though in absence And though it was not sustained against Production in a Reduction November 27. 1678. Guthry contra Laird of Guthry yet in that case the Minors Right was only an Appryzing at his Fathers instance upon which his Father was never Infeft This being a Feudal Priviledge whereof there is no mention or foundation in the Civil Law it is only competent to Minors whose Fathers were in Possession by vertue
in gratification or preference of one Creditor to another who hath done more timeous Diligence by Inhibition Horning Arrestment Compryzing or other lawful mean duly to affect the Dyvers Lands or Goods or Price thereof the meaning is that when these Diligences are not compleat but Inchoat and the Creditor is in cursu diligentiae the Debitor or his Trustee cannot prevent the course of that Diligence by preferring another Creditor doing less Diligence For if the meaning were of Appryzing perfected by Infeftment or Arrestment by Decreet to make forthcoming there needed not this remeid for these Diligences being compleat would exclude any other posterior Disposition or Diligence Yea Inhibition if the Executions were compleat and Registrat would of it self be effectual to Reduce ex capite inhibitionis But if these Diligences be only Inchoat as if the Inhibitor had begun his Execution but had not compleated it at all the Mercat Crosses requisite any Disposition Infeftment or other real Right made to another Creditor medio tempore less vigilent is anullable thereby December 15. 1665. and February 27. 1667. Mr. John Eleis contra Keith and Wishart Or if Lands be Denunced to be Appryzed or Summonds of Adjudication be execute Rights thereafter made to other Creditors doing less Diligence in cursu diligentiae with the first are thereby reducible although done before the Decreet of Apprysing or Infeftment But Inhibition Apprysing or Adjudication Inchoat have no effect as to Moveable Rights not being as the Statute requires Diligences duely to affect that subject Neither doth the laying on of Arrestment affect Heretable Rights and so cannot hinder the Debitor to Dispone these to lawful Creditors doing less Diligence But Horning is a Diligence relating both to the Moveable Estate by single Escheat and the Heretable Estate by Liferent Escheat and therefore after the Charge of Horning it is effectual February 12. 1675. Veach contra the Executors of Ker and Pallat. July 18. 1677. Murray of Kilor contra Drummond of Machany January 25. 1681. Bathgate contra Bogil It hath not been yet cleared by practice if insisting in Processes for constituting Debts be comprehended under other lawful means duely to affect the Debitors Lands or Goods But this Statute will not 〈◊〉 Dispositions or other Rights made in favours of these persons who have used the most effectual Diligence duely to affect the Subject because this prevents Expences prejudicial both to the Debitor and Con-creditors and is not contrary this Statute Neither will Dispositions or other Rights for equivalent Causes Onerous made to Creditors be anulled if not done in cursu diligentiae but if the Con-creditor insist not in his Inchoat Dillgence till it be compleat he hath not the benefit of the Statute vigilantibus non dormientibus jura subveniunt and therefore a Disposition was not Reduced at the Instance of a Creditor who had Appryzed before the Disposition but for several years had neither obtained Infeftment nor charged the Superior February 8. 1681. John Neilson contra Ross of Pittendreich But how long this negligence must be to exclude it must necessarily be in arbitrio judicis But this Clause of the Statute will not anull Dispositions made to buyers for a just price payed where the price was not an anterior Debt due to the buyer for there there is not preference of one Creditor to another but a lawful Bargain in Commerce where the buyer neither doth nor can know Inchoat Diligences but only such as are compleat and Registrat except in the case where the Subject becomes Litigious which is not to be extended to every diligence in prejudice of Puchasers of Lands whereby Rights would become very uncertain especially when Irredeemable Rights are purchased but against the purchasing of Bonds Annualrents or Wodsets it may be more extended as in the former case February 8. 1681. Neilson contra Ross of Pittendreich This Defence was also sustained that the Disposition was for a price payed and for no anterior Debt And in the former case Bathgate contra Bogil the Disposition after Horning though it was in the terms of sale was only anulled because it was granted for anterior Debts due to the buyer Fraud is no vitium reale affecting the Subject but only the committer of the Fraud and these who are partakers of the Fraud as is clear by this Statute bearing an exception of lawful Purchasers not partakers of the Fraud But where the Right purchased hath evidence of Fraud in it self the Purchaser though for a just price payed is thereby partaker of the Fraud and so may be excluded as if the Right acquired bore for love and favour or if it be betwixt conjunct persons the Purchaser must instruct the Cause Onerous as when the Right purchased was from one Brother to another December 28. 1679. Gordoun of 〈◊〉 contra Ferguson of Keroch January 24. 1680. Andrew Crawford contra James Ker. Eightly Though the manner of Probation by this Statute be by the Oath of the Purchaser or Write Yet the Narrative of such Rights being betwixt conjunct Persons albeit it bear Causes Onerous must be otherways astructed wherein Witnesses and other Exidences will be received which is not only sustained As to Dispositions by Parents to Children but by Brothers and Sisters to Brothers or to Good-Brothers and Good-Sisters yet not to two persons Marrying two Sisters or two Brothers where there is but affinitas affinitatis It hath also been extended to Uncle and Nephew where other Circumstances concurred January 18. 1678. Kinloch of Gourdy contra Mr. George Blair December 18. 1673. Creditors of Tarsapy contra Laird of Kinsans The like effect is in Rights acquired in name of Children in the Family who have no visible Estate for these are held fraudulent and may be affected for the Fathers Debt as hath been frequently decided This Case only remains whither a notour Bankrupt may prefer one Creditor to another though neither have done Diligence The Tenor of the Statute favours the Negative annulling Alienations by Bankrupts not being for an equivalent and necessar Cause and therefore it is not safe to purchase from such even by buying 16. Spuilzie is the taking away of Moveables without consent of the Owner or Order of Law oblieging to Restitution of the things taken away with all possible profits or Reparation thereof according to the estimation of the Injured made by his juramentum in litem Thus things Stollen or Robbed though they might be Criminally pursued as Thest or Robbery Yet may they be civily pursued as a Spuilzie Spuilzie inurit labem realem whereby the Goods may be recovered from Purchasers bona fide November 21. 1677. James Key contra Leonard Carnagy and others The profit of things Spuilzied are called violent profits because they are not such ordinary profits as the Persons Spuilzied used to make of the Goods but such as he might have made thereof Where the things Spuilzied have profits as Horse Oxen or other Cattel and Instruments or other
Our Decisions have been exceeding various in this matter for clearing whereof several cases must be distinguished First In the case of the Contracters themselves and in that either the mutual obliegements are conceived conditionally that the one part being performed or upon the performance thereof the other part shall be performed or where the obliegements are not conceived conditionally yet they are properly mutual Causes each of other The obliegement to deliver the Ware and to pay the price in permutation the things exchanged and mutual obliegements for delivery thereof are the mutual causes each of other in Location the use of that which is set for hire and the hire are the mutual Causes and so are the Obligations hinc inde otherways the Obliegements are not the proper Causes each of other but either wholly different matters which are frequently accumulate in the same Contracts or the one but the occasion and motive and not the proper cause of the other The case of Assignays must be considered in all these For the first The Civil Law is for the Negative that in reciprocal Contracts neither party can have effectual Action except he perform the whole Contract on his part As to the first member of the first case there is no question but when the mutual obliegements are conceived conditionally he that demands the one part must perform the other As to the other member when the Obliegments are mutual causes each of other expresly when the Contract bears for the which causes or when by the nature of the thing appeareth so to be It is most consonant to reason to the Civil Law an our Practice that neither party should obtain implement of the obliegement to him till he fulfil the obliegements by him it was so found July 27. 〈◊〉 Laird of Keirs contra Mr. James Marjoribanks Leidingtoun November 〈◊〉 1565. James Crichtoun contra Marion Crichtoun July 1581. Lord 〈◊〉 contra Provost of Lincluden where the reason is rendered because it is 〈◊〉 data non sequuta till he who craves implement fulfil his own part 〈◊〉 though it be ordinarly understood when the cause of the Obligationaltogether faileth yet upon the same ground so long as the cause is suspended or delayed on the one part the effect is also to be delayed on the other But in Contracts wherein the Obliegements are not the proper Causes each of other the one part hath effect before the other be fulfilled and the same is only reserved or declared not to be prejudged by way of Action or Charge Sinclar February 19. 1548. Laird of Ker contra Panter December 1563. Earl of Glencairn contra Commendator of Kilwinning As to the second case whether an Assignay Charging or Pursuing upon a mutual Contract be in any better case then the Cedent or can crave implement till the Cedents part be performed the difficulty is here that if Assiggnays be cloged with the obliegements of the Cedent it will marr Commerce and render such Contracts ineffectual as to summar execution and so Obliegements therein for Liquid sums of Money might not be Poinded or Apprized for nor any Execution valid thereupon but this will not follow for though these Executions be summarly used they will stand valide only the effect will be suspended till the other part be performed But the Assignay having no title whereby to compel his Cedent to perform his part therefore the other Contracter must either be decerned to assign his part of the Contract to the Assignay to the other part that thereupon he may insist for performance and that before the Extract of his Decreet or rather execution may be sisted except as to Adjudication for his security till he procure implement of his Cedents part or otherways that he find Caution that the other Contracter using diligence against his Cedent for performance that the Assignay shall make up what shall be wanting to him as was done in the case betwixt William Cunningham contra John Ross wherein an Assignay Charging upon a Contract for the price of Lands by which Contract his Cedent was oblieged to cause the Tennants pay certain bygone Ferms therefore the Assignay was ordained to find Caution for satisfying of these Ferms against the Cedent February 15. 1627. William Cunninghame contra John Ross. Hope Contracts Laird of Rentoun contra Robert Dowglas And though a Donatar was found to have Right to the price of Lands due by a Contract though the Rebel had not performed his part of the Contract Hope Cessio bonorum Balfour contra Futhy there was nothing alledged of the insolvency of the Cedent But a Donatar pursuing for the price of Fews the Fewers were assoilzied from the Declarator till the Donatar obtained the Fews to be perfected here it was known the Donatar was in trust for the Rebel who was in power to perform January 28. 1673. Lord Lyon contra Arthur Forbes But there can be no reason that the one part of the mutual Cause should be effectual without the other for if the Cedents Back-bond apart would affect the Assignay much more when it is in the same Contract yea though the matter proceed not by way of Contract but by Bonds apart if thereby it appear that these Bonds are mutual Causes one of another the effect should be the same and though there be no more to prove that they are mutual Causes but that they are of the same date and before the same Witnesses the Lords will readily examine the Witnesses insert ex officio whether they be mutual Causes each of other and therefore where a Bond apart did bear that the Creditor should ratifie a Disposition of the same date at his Majority under a great penalty A Bond granted apart to that party of that same date being Assigned the Assignay was found to have no power to lift the principal sum till the Cedent ratified at his Majority or were past his anni utiles without Reduction November 14. 1628. Cunninghame contra Cunninghame The like was found as to Writes of the same date with a Contract anent the same matter though not mentioned in the Contract Hope Contract Duncrub contra Chapman But if in Contracts or mutual Bonds the mutual obliegements have different terms of performance a pursuit upon the one part will not be stoped by not performance of the other part while the term agreed for the performance is not come November 28. 1676. Sir David Carmichael of Basmedy contra Dempster of Pitliver 17. To come now to particulars according to the order proposed Loan comprehendeth both the Contracts in the Law called mutuum and commodatum by the former a thing Fungible is freely given for the like to be restored in the same kind and quantity though not the same individual A Fungible is that which is estimate according to the quantity and is not easily decernable nor noticed in the individual or particular body but only in the like quantity of the same kind the chief of
July 4. 1667. Cuming of Alter contra Lumsdean This Hypothecation was found to give the Master of the Ground Right not only to detain but to bring back the Tennants Goods to the Ground de recenti December 11. 1672. William Crichtoun contra the Earl of 〈◊〉 but not ex intervallo February 9. 1679. Park contra Cockburn of Riselaw But this Hypothecation was not extended to an Appryzer without diligence or Possession July 29. 1675. Lord Panmoor contra Collistoun The like Hypothecation is competent to Teind-Masters for their Teinds even though the Heretor get a Rent for the whole or Profite of the Land Stock and Teind joyntly he is thereby lyable as Intromettor which was extended to Ministers for their Benefices or Stipends whereby they may have access to any Intrometter with the Teinds out of which the Stipend is modified not only for the Intrometters proportion of his Lands but in solidum for his whole Teind according to the value of his Intromission July 6. 1625. Mortoun contra Scot which held though the Intromettor had a Wodset of Stock and Teind whereby he had but his Annualrent March 21. 1633. Mr. Gilbert Key contra Mr. James Gray and Carmichael and this was found not only in Beneficed Ministers but in Stipendiaries who may either take them to the Tennents or their Masters Intrometting Spots Kirkmen Mr. Andrew Ker contra Gilchrist There is with us no Hypothecation in Lands for the Price or Money borrowed expresly to buy it Nicol. quae in fraudem Paterson contra Scarlet And the preference of Relicts for Implement of their Contracts of Marriage out of their Husbands Moveables in their hands to other Creditors is not a Hypothecation but a priviledge personal 63. Permutation or Excambion and Sale are so congenerous Contracts especially in our Customes that the same work will explain both by holding out in what they do agree and in what they differ Permutation or Exchange is a Contract whereby one thing is agreed to be given for another which if it be Money as it is current for Goods or Ware under which all things which can be bought are comprehended then its sale or emption and vendition These Contracts agree in this that both are perfected according to Law and our Custome by sole consent Naked pactions being now efficatious and though neither of the things exchanged be delivered the agreement is valid but if there be any latent vitiosity if it impede the use of the thing bought the Romans gave action em redhibitoriam to restore and annual the bargain or quanti minoris for making up the buyers Interest but if the seller was ignorant of the vitiosity or insufficiency he is not lyable to make it good unless he affirm it to be free of that or in general of any other faults but if he knew he is lyable if it were not showen to the buyer or of it self evident or known in which case the seller is only oblieged if he expresly paction our Custome alloweth making up of latent insufficiency of which before But these Contracts differ First in the materials which in sale must be Money as such and as a liquid price else if it be respected as a body or indefinite quantity as uncoyned or uncurrent Money or if it be bought by the weight or intrinsick value or if Money of one Countrey be exchanged with Money of another Countrey having no common Standard here is no sale but exchange Neither is exchange of Money loan because it is not as a liquid quantity as when so much English Money is given for the Floren Crown or Gilder and the remitting thereof The price must be also certain or which may be assertained as such a person gave or as shall be had from others by the seller for the like Goods or as such a person shall appoint which if exorbitant may be redacted ad arbitrium boni viri which seems to consist though the arbitriment be made the buyers Secondly Excambion and Sale differ mainly in this that in sale delivery of the Goods or things bought with the Obligation of Warrandice in case of eviction which is implyed in sale though not exprest is the implement of it on the sellers part even though the buyer know and make it appear that it were not the sellers yet he could demand no more but delivery and warrandice but contrarways the price must be made the Sellers and he may refuse it if he can shew anothers Right But in Excambion delivery must be made on either part and the thing delivered must become thereby the receivers else if it appear to be anothers it may be refused before delivery and if it be evicted after the Contract becomes void and the other party hath regress to what he gave in Excambion which followeth even singular Successors though it be not so expres and though the singular Successor was by Appryzing c. prior to the eviction November 21. 1623. Earl of Montrose contra Sir John Ker. And that without necessity to instruct that he who craves regress had right when he changed any further then by the Narrative of the Excambion which was of an old date in a Charter from the King bearing These Lands to have been Disponed in Excambion for the Defenders Lands and that the Excamber and his Heirs should have regress without mention of Assignays albeit the Pursuer was Assignay July 14. 1629. Laird of Wardess contra Laird of Balcomy where it was also found that no person needed to be cited to obtain regress but the present proprietar of the Lands Excambed and the Successor of the Contracter and no intervenient Authors July 2. 1629. inter eosdem 64. Sale may consist in all things which are not prohibite such as buying of Pleas by Members of the Colledge of Justice by the Act of Parliament which is understood of all persons having imployment about the Session as Advocats Clerks Writers c. Agents and their Servants wherein by Pleas are not understood things wherein there may be contraversie but wherein there is Process actually depending and called and not decerned July 6. 1625. Mowat contra Mcclane July 30. 1635. Sir Robert Richardson centra Cranstoun Riddel But the Prohibition doth not annul the Right or hinder Process but is a Ground whereupon deprivation may follow by the Act as in the former case June 5. 1611. Adam Cunninghame Advocat contra Maxwel of Drumcoltrane Sale being perfected and the thing delivered the property thereof becomes the buyers if it was the sellers and there is no dependence of it till the price be payed or secured as was in the Civil Law neither Hypothecation of it for the price Hope de empto John Parker contra Stevin Law Nic. quae in fraudem creditorum Paterson contra Scarlet In fale there may be Earnest interposed or Reversion granted or the Commissory Paction or Clause irritant adjected that if the price be not payed the sale shall be void or the same
is indirectly more then the ordinary Annualrent and so falls under the Act 1597. and on the other that improper Wodsetts are there exprest and proper Wodsetts seem ex proposito omitted and in proper Wodsetts all hazard lyes upon the Wodsetter Of setting the Land of dead poor and waste we shall leave this to every mans private judgement till publick judgement cast the ballance but all proper Wodsetts before 1661. are restricted to the Annualrent by the Act of Parliament 1661. cap. 62. If upon offer of security the Wodsetter will not quite possession he is countable from the offer as hath been often decided since that Act. There uses also in Wodsetts and Reversions to be included a condition to set the Wodsett Lands for such time to begin after redemption which if it be far within the true worth is Usurary and is declared so Parl. 1449. cap. 19. That Lands provided to be set for Tacks not near the true worth the same shall not be keeped yet such a Tack was sustained seing the Wodsetter had not his full Annualrent by reason of a Liferent reserved in the Wodsett and the Wodsetter was the Constituents Brother and so like to be for his Portion natural whereof the Tack was a part June 21. 1662. Laird of Polwart contra Home but in other cases such a Tack was found null by the said Act but not by the Act betwixt Debitor and Creditor February 15. 1666. my Lord Ley contra Porteous 75. This much for Usury of Annualrent by Contract or Pactions it is also due of the Law and by the obligation of recompense and reparation and in the Civil Law in all Contracts bonae fidei it is due ex mora by the delay of the Debitor which is understood after he be required for the same or that the Term is past nam dies interpellat pro homine and in other Contracts by litiscontestation but our custom hath little use of that distinction neither followeth it that rule but where Annualrent is not agreed first ordinarly it is not due till Horning be used against the Debitor and that by a special Statute 1621. cap. 20. Yea though the Horning was not registrat and so null as to Escheat it was found valid as to the Annualrent July 16. 1673. Isabel Ker contra Parochioners of Moramside but it was found not competent by way of special Charge in the Suspension of the principal Debt but ordinarly by ordinary action July 2. 1629. Purveyance contra Laird of Craigie where Dury his opinion is That if the Charger had raised Horning upon the Act of Parliament it would have been sustained summarly and is now ordinarly sustained summarly by a special Charge when the sum is charged for or suspended but it being once due it not only continueth during the life of the person denounced but still thereafter till payment July 4. 1642. Huntley contra Heirs of Mr. John Manson 2. Annualrent provided by a Bond for one year though it express not for all years thereafter yet continueth due till payment Decemb. 2. 1628. Blair contra Ramsay The like where one Term was only in the Bond Spots usury Keith contra Bruce and where Annualrent was promised for a time by a Letter it was found still due till payment January 13. 1669. George Home contra Seaton of Menzies 3. It is due by use of payment only without express paction March 4. 1628. Forrester contra Clerk 4. Annualrent is ordained to be due to Cautioners by their Principals for sums payed by them as Cautioners by the Clause of relief as being damange and interest though the Bond bear no Annualrent by Statute of Session Decemb. 21. 1620. Hope usury Torry contra Dowhill Dec. 4. 1629. 〈◊〉 contra Johnstoun where the Clause of relief bare only to relieve the Cautioners of his Caution and not of all damage The like though there was no further distress against the Cautioner but registration January 24. 1627. I. Wauchton contra L. of Innerweek and this was extended to co-principals having Clause of mutual relief of cost skaith c. Novemb. 15. 1627. Black of Largo contra William Dick. 5. Annualrent is due without paction by Tutors and Curators to their Pupils of which formerly in the Obligations betwixt them 6. Annualrent was found due without paction by an Heir-male for the Portion of the Heir-female though not required for many years and that still from the term of payment July 5. 1610. Calhound contra L. of Luss. The like by a husband who was oblieged to his wife for the Annualrent of the Tocher payable by the Father though the Tocher was never payed Hope Husband and Wife Baird contra Gordoun Spots Usury Mr. John Skeen contra Mr. John Hart. 7. Annualrent was found due for the price of Lands possest by the buyer without paction Hope Usury Mr. James Stirling contra Mr. David Ogilvy February 17. 1624. Dury of that ilk contra Lord Ramsay the like though the delay of payment was not the Debitors sault November 14. 1628. Cuming contra Cuming Spots Usury Home contra Laird Rentoun Annualrent was not found due without paction for a sum lent to an old man on condition that if he died without Heirs the Creditor should become the Debitors Heir and yet he having Heirs Annualrent was not found due Decemb. 11. 1662. George Logie contra Logie But the Lords do sometimes allow Annualrent or an equivalent expense among Merchants and they did so in a Provision by a Father to his natural Daughter payable at her Marriage which was found so favourable not to hasten her to marry that Annualrent was allowed her seing the condition was in her power June 25. 1664. Margaret Inglis contra Thomas Inglis The Romans allowed Annual till it equalled the Principal but no further but our custom hath no such restriction Yet we restrict the English double Bonds to the single Sums and Annualrent thereof but no further then till it be equivalent to the Principal seing by the tenor of such Bonds it appears the meaning of the Parties that no more should be demanded in any case January 2. 1679. Sir Alexander Frazer and Leyes Burnet contra Sir James Hamiltoun Annual upon Annual is condemned of all when it is comprehended in the first paction but it is ordinar by posterior Contracts to accumulate Annualrents and make it a Principal and so both that which was first Principal and that which was once Annual bears Annual so also Annual by vertue of the Act of Parliament if Decreet follow thereupon and Horning will bear Annual seing there is no limitation but this will not be extended to Annuals in time coming after the Horning and last Annualrent payed by a Cautioner by the said Statute of Session will bear Annual because to him it is a Principals Annualrent was also found due without paction for money expended by the Custom of Bourdeaux Decemb. 8. 1677. Antonieta Peron contra Morison To return to Location all things may
the partners be of great importance the Society may consist in these terms that these persons shall have no share of the loss and shall have such a share of the profite according to the Sentence of Sulpitius but if such inequality appear not the Sentence of Mucius rejecting such inequality is just and there is no contrariety between the opinions of both § 2 instit de societate 81. It remains to consider what are the effects of Society while it is and how it ceaseth As to the first the disposal and management of all the affairs of Societies is in the whole partners and each of them though having an unequal share hath an equal vote unless it be otherways agreed and the common rule is potior est conditio prohibentis so that every one hath a Negative Vote in Acts that are not necessary for the design of the Society unless by the custom or paction or deed of the parties it be otherways ordered as where it s the custom of the place that in such Societies there should be a plurality or when it is agreed that the minor part should give place to and is comprehended in the Acts of the major part or when the Society hath been accustomed to act in such a way not only the greater part but even one or more of the partners may continue that way which is still held to be the mind of the whole unless the contrary be exprest and therefore it was found where one of more partners in a Ship had fraughted her to a dangerous Voyage without the others consent yet was not found lyable for her value being lost by accident where no just objection could be made against the Skippers skill July 22. 1673. John Sim contra William Abernethy So letting out of Lands or setting out of Houses employing of Moneys in a Society may be continued by one or more of the partners and their actings with extraneous persons in name of the Society do constitute the whole Society Debitor or Creditor or doth acquire to them or dispone from them It is also consistent with the nature of this Contract to give a Negative Vote to one or more of the Society whose interest in the Stock or whose skill and industry is esteemed the greatest but the simple nature of Society it self is the most tender ingadgement and so if it be not otherways provided it is always dissolveable at the option and the choise of any of the Society and it implys that the management is in the whole partners equally and that every one hath a Negative Vote and therefore when it is Contracted to a time that it may not be parted from in that case the interest and end of the Society is changed and if the minor part will not cede to the Major part or to Arbitriment it must be decided by the Judge ordinar which of the parts is most conduceable to the Society but this being so great a retardment upon the management of the affairs of the Society it looseth the fraternity among the partners and is sure to lose the pleasure and readily the profite of all Therefore the Romans did upon good grounds annul and disown all pactions whereby Society did continue beyond the life and pleasure of any of the partners except in few cases 82. Society is finished First When the matter whereupon it is Contracted is extinct Secondly By the death or incapacity to act in the Society of any of the partners for it being one individual Contract of the whole and not as many Contracts as partners it is like a sheaf of Arrows bound together with one tye out of which if one be pulled the rest will fall out and the personal humor of the partners is so chosen that it is not supposed to be communicate to their Heirs or Assigneys unless by custom or paction the contrair be provided which no doubt is consistent with though not consequent from the naure of Society Thirdly It is most consonant to the nature of Society to be dissolved at the option and pleasure of any of the partners it being very contrair thereto and much impeding of the ends of it that any should be continued a partner against his own will and therefore ordinarly not only the express renunciation of the Society but any Contracting or Acting separatly in the matter of the Society dissolveth it yet propter bonam fidem whatsoever is done with or by the Society before the dissolution thereof be known is valide but this dissolution at pleasure may be altered by custom or consent of parties And to sum up all in Society proportionable equality is essential and inseparable and all the other specialities are congruous and convenient and therefore understood if by custom or consent it be not otherways ordered 83. The same question is incident here that before hath been touched concerning Mandats when one or more of the parties act in the matter of the Society whether thereby the whole Society be oblieged by the obligations of these Whether obligations made to these constitute the Society Creditor Or whether real Rights acquired by these are ipso facto common to the Society Or if there be but an obligation upon the actors to communicate the property always remaining in the actors till they effectually communicate the resolution of this being the same with that in Mandats we refer it thither and say only this in general that when these parties only act in name of the Society and by its warrand express or what they have been accustomed to do in so far they are not only partners but Mandatars and it hath the same effect as if the Society had acted it self but when they act not so there doth only arise an obliegement upon the partners actors to communicate in the mean time the property remaineth in them And if transmitted to others before this communication the Society will be thereby excluded but the actors will remain oblieged for Reparation of the Damnage and Interest of the Society and this will hold though things be bought or acquired by the common Money of the Society But all the natural interest birth fruit and profite of the Society is of it self and instantly common to the Society 84. Partners are lyable each to other for such diligence as men do ordinarly use or the Partners themselves use in their own affairs for this Contract being undergone for the mutual good of either party the diligence keepeth the middle way betwixt exact diligence and supine negligence but none of them are lyable for what is lost by force or accident without their fault Society hath as many divisions as hath the various and multiform matter in which it may be contracted but that which is most noticed in Law is that some Societies are common and general whereby parties communicate all their goods rights and interests communicable others are particular of one or more of them upon the first there are many questions arising as how
possession as a base Infeftment by Fathers to their Children was not sustained by the Fathers possession whose Liferent was reserved therein June 26. 1634. Dury contra Bruce But a posterior base Infeftment to the Wife was preferred in this case as being cled with the Husbands possession though common author to both the Son and Wife The like of a base Infeftment granted by a Goodsire to his Oy reserving the Goodsires Liferent July 3. 1624. Earl of Annandale contra Johnstoun And an Infeftment by a Father to his Son was not found cled with possession by the Fathers possession though he had a Factory from the Son but it was not alledged that the Father had granted Discharges expresly relating to the Factory July 10. 1669. Gardner contra Colvil Yet in the competition of two base Infeftments the former being granted to a stranger for relief of Caution and the latter granted to a Son and appearand Heir for relief of his Caution exceeding the value of the Lands the Sons base Infeftment though posterior having first attained possession and being without all suspition of Simulation was preferred And it was not found that Infeftments for relief were in the same case with Warrandice Lands where the possession of the principal Lands is fictione juris a possession of the Warrandice Lands These Infeftments being less subject to fraud or uncertainty then Infeftments for relief which relate to personal debts and oftimes generally to all debts or Cautionries contracted or to be contracted which debts may be retired and keeped up and made use of by the Infeftment for relief June 26. 1677. Mr. John Inglis contra Tennents of Eastbarns Infeftments base to Wives not being upon their Contracts of Marriage or in place thereof are not holden as cled with Possession by the Husbands Possession 28. Infeftments by Confirmation do not only require a Charter from the Disponer bearing the Lands to be holden of the Superiour and Seasine thereupon but require also the Superiours Confirmation till which it is no real Right but null but whensoever the Confirmation is added the Right becomes valid from the date of the Infeftment Confirmed as to the right of property and as to the Superiours Casualities and therefore an Infeftment ase not confirmed was found null by exception though cled with some years possession December 4. 1623. Patton contra Stuart and found null though the Confirmation was past the Privy Seal Hope Confirmation Hunter contra Dalgleish And also found null in an Annualrent holden from the Disponer not Confirmed Hope Confirmation Lord Balmerino contra Coatfield But if there were any mid impediment betwixt the Charter Confirmed and the Confirmation it excludeth the Confirmation and whole right as an Appryzing and Infeftment But Confirmation of a right not bearing to be holden of the Superiour but of the Vastal makes it not a publick Infeftment nor takes it away the Superiours ordinary Casualities as Ward but only Recognition and Forefaulture Hope Confirmation Lady Cathcart contra Vassals of Cathcart November 17. 1627. Laird of Clackmannan contra Balnamoon Hence it is that because Confirmation constitutes Rights holden of the Superiour that the first Confirmation makes the first Right though it confirm a posterior Infeftment from the Vassal as is clearly determined in the case of double Confirmations holden of the King Par. 1578. cap. 66. which is not introduced but declared by that Act and holdeth alike in other Confirmations It doth of times fall to be doubtful whether a Confirmation makes an Infeftment publick or not when Seasine is taken upon a precept of Seasine in a Disposition Which Disposition contains obliegments for Infeftment de se ase by Confirmation But the precept of Seasine relates not specially to either obliegement and Seasine is taken thereupon and is afterward confirmed The question comes whether this be only a Confirmation of a base Infeftment to exclude Forefaulture or Recognition or if it doth make the Infeftment publick it is generally constructed as a publick Infeftment as was found July 5. 1680. Bishop of Aberdeen contra Viscount of Kenmure 29. Infeftments upon Appryzing or Adjudication when formally perfected do require Charters to be granted by the Superiours of the Appryzed Lands or other real Rights the Tenor whereof is already set down in this Title and Precepts and Seasines thereupon which have little peculiar differing from other Infeftments as to their Tenors and Effects but that their reddendo is ordinarly general when the Appryzer or Adjudger cannot prove or instruct the Tenor of his authors Right and therefore do bear such duties and services as were contained in the Authors Rights which the Superiour may be charged to renew and make special so soon as the Authors Rights are produced and if they be not so renewed they are understood as Ward-holdings But for Renovation thereof the Appryzer or Adjudger will get Letters of Horning summarly upon the allowance of the Appryzing or Adjudication which will not be excluded although the Superiour have already granted Infeftments in general terms as aforesaid but he must renew the same according to the special Tenor of the Authors Right produced and that without any new composition yea the Appryzers Heirs upon supplication will obtain Letters of Horning summarly for renewing the same and so will his singular Successors but they must pay a years Rent for their Entry whether their Title be Appryzing or Adjudication against the former Appryzer or Adjudger in wich case he may make use of Letters of Horning upon the allowance of his own Appryzing and though his Title be a voluntary Disposition he will get Letters of Horning as succeeding in the place of the former Appryzer or Adjudger to renew and make special the former Infeftment to his Author upon payment of a years duty But Appryzing and Adjudications being legal Dispositions and conveyances of the Authors Infeftment we shall say no further of them in this place but leave them to the Title twenty four where they are considered amongst Dispositions We shall only add here that before the year 1624. Appryzings were left at the great Seal by warrant from the Lords whence Precepts were issued thereupon against the Superiours to Infeft which if they obeyed not Charters were granted by the King to supply their Vice but since they are retained by the Appryzer and he may have Letters of Horning summarly Charging the Superiours to grant Charters and Precepts of Seasine as is aforesaid 30. This also is singular in Appryzings and Adjudications that a real Right of Fee is constitute thereby by a Charge of Horning against the Superiour without Charter or Seasine For such Appryzings or Adjudications are declared effectual by the Act of Parliament 1661. cap. 62. ordering the payment of debts betwixt Creditor and Debitor For after that Charge no Infeftment upon voluntary Disposition or upon any other Appryzing or Adjudication can be granted by the Superiour prefering any other Vassal to the Appryzer or Adjudger whom he
the saids Gleibs were set in Feu or long Tack before or not unlesse a sufficient Manse be builded by these who have right to the Few or long Tack Par. 1563. cap. 72. Which was explained Par. 1672. cap. 48. That the Manse either pertaining to the Parson or Viccar most ewest to the Kirk shall belong to the Minister and four Aikers of Land lying most Ewest to the said Manse to be designed by the Bishop or Superintendent at the Visitation by advice of any two of the most honest and godly of the Parochioners For want of this Solemnity a designation was found null because it bore not two honestmen by name required to joyn with the Presbytery or their Commissionersthough it bore that all the Elders of the Paroch were present and consented but named none Spots Kirk-men Minister of Lamingtoun contra Tweedie though Parsons or Viccars Manses may be designed to be the Manse of a Minister yet no other house can be designed though it were in an Abbay but the Parochioners must build one 11. of February 1631. Minister of Innerkeithing contra John Kerr If there be no Manse nor Gleib of old extending to four Aikers of Land then the designation is to be made of Parsons Viccars Abbots or Priors Land and failing thereof of Bishops Lands Friers Lands or any other Kirk-lands within the Paroch aye and while the four Aikers be compleat with freedom of foggage pasturage fewel feal and divet Par. 1593. cap. 161. By which there is a clear order of designation First of Viccars and Parsons Manses most ewest and failing thereof of Parsons or Viccars lands Failing these Bishops Lands Frier Lands or any other Kirk-lands as Chaplanries Prebendaries Which order was so found to be observed 13. of July 1636. Thomas Halyburton Minister contra John Paterson And therefore a designation of a Manse or Gleib out of Abbots Lands was annulled because there were Parsons Lands in the paroch though they were builded with houses and feued for which the Feuers were obliged to acquire a Gleib 24. July 1629. Mr. James Nairn contra Mr. James Boswell The like though the Lands were fewed all before the Act of Parliament 25. of January 1665. Parson of Dysart contra Watson Yet Bishops Lands were ordained to be designed before Abbots Lands though they be named after in respect of their greater interest in the Cure Nicol. de sacro sancta Ecclesia 2. of July 1622. Nicolson contra Porteous Where there is not arable Land near the Kirk the Geib is to be designed of pasture lands sufficient for 16 soums most ewest to the Kirk Par. 1621. cap. 19. The designation of Manses and Gleibs where they are not designed or not a full quantity or are become unprofitable by Inundation or other extraordinary accident are ordained to be out of the Kirk-lands most ewest to the Kirk according to the order in the Act. 1593. Burrowstoun Kirks being always excepted yet a Gleib was found competent to a Minister of a Burgh having a Land-ward part of his Parochin Spots Kirk-men Mr. Robert Ruch The Designation of Gleibs was committed to Presbyteries Par. 1644. cap. 31. which is declared to be by three Ministers and three Elders Par. 1649. cap. 31. Revived Par. 1663. cap. 20. whereby Designations are referred to the Bishop or such Ministers as he shall appoint with two or three of the most knowing in the Paroch In which Acts the power of Designation is extended not only to Kirk-lands but where these are not to other Lands arable or Grass ewest to the Kirk provided that the Heretor thereof may offer other sufficient Lands and Grass within half a myle of the Kirk and Manse And by the said Act 1649. there is added to the Gleib pasturage for a Horse and two Cows which is found to be regulat as the Gleib before which is also revived Par. 1663. cap. 20. with this alteration that if there be not Kirk-lands near the Manse or are not Arable Lands the Heretors shall be lyable to pay yearly to the Minister twenty Pounds Scots for his Horse and Kines Grass and this Act is declared to be as if it had been made in March 1649. as to designations after 1649. that Parliam being rescinded without reservation contained in the Act rescissory as is in the Act Rescissory of the other Parliaments saving all privat rights done thereby but there is no warrand in any of these Acts to design temporal Lands where there are any Church lands and therefore a Designation was reduced because temporal Lands were designed and Kirk-lands past by albeit the Minister had been possessor decennalis triennalis which gave him a presumptive Title because his Designation which was the true Title was produced February 6. 1678. Lord Forret contra Mr. John Maters A Gleib designed was found to carry a proportional part of the common pasturage following to the Lands designed February 2. 1630. Hamiltoun contra Tweedie Designation of a Gleib was sustained though it bore not the same to have been four Aikers measured in respect it bore that the possessors servants hindered the measuring and therefore it was designed according to the common estimat July 5. 1626. Kers contra Minister of Alloway And also sustained though there were Lands nearer the Kirk and Manse which were Bishops Lands seing they were inclosed as a part of the Kings Park February 13. 1629. Lady Dumfermling contra Minister of Dumfermling Bat a Designation was annulled because there was an old Gleib possest long by the incumbent being four Aikers Nicol. de sacro sanct Eccles. Minister of Aberdour contra Brown and Ramsay A Designation was sustained though there was only a Nottars Instrument without the subscription of three Ministers Designers December 17. 1664. Mr. Thomas Paterson contra Watson Here the Ministers Designers their Testificat under their hand was ordained to be produced before extract A Gleib being designed was sustained though it was an united Kirk the other Kirk having a Gleib January 22 1631 Ministers of Innerkeithing contra John Keir A Designation was also sustained though it proceeded upon warning out of the Pulpit or at the Kirk-door after Divine Service in respect of the custom so to do though some of the most considerable Heretors were out of the Countrey January 28 1668 Ministers of Hassanden contra the Duke of Bukcleugh It was also sustained though done but by two of the three Ministers named by the Bishop without a quorum unless weighty reasons upon the matter were shown to the contrary February 7 1668 Minister of Cockburnspeth contra his Parochioners Manses Gleibs being designed as said is the Feuars Possessors and Tacksmen have relief of the remnant Parochioners having Kirk-lands pro rata Par 1594 cap 199 which was extended to a 〈◊〉 Manse being Designed and the other Kirk-lands a part where of were mortified to and holden of a Colledge did bear burden February 12 1635 John Cock contra Parochioners of Auchtergivan But where old Gleibs
another or personal when the Superiour obliegeth himself to warrand the Infeftment as to the warrandice by Disposition and Resignation it is unquestionably personal and cometh not within the Infeftment but though it be granted by the Superiour in the Infeftment yet it is but a personal obligation no ways co-hering nor carried with the real Right and therefore the singular Successor of the Superiour or Author is not oblieged in the Warrandice neither doth the Disposition or Infeftment from the Vassal carry to his singular Successor the right of the Warrandice unless it be assigned specially or generally in the Assignation of the Rights and Evidents Warrandice is a common obliegement both in Infeftments and other Rights and it is sometimes exprest and then it is regulat according to the Tenor of it whether it be absolute Warrandice or from fact and deed or from future or voluntary fact and deed But oftimes when Warrandice is not exprest it is implyed as Rights are to be warranted which are granted for an Equivalent Cause onerous But in that Case where the Disposition was only of all right the Disponer had the Clause inferred not absolute Warrandice but only from the Disponers future voluntary Deed Hope Warrandice Lord Sinclar contra Creighton Absolute Warrandice is also implyed where the Disposition or Infeftment bears Vendidit because that imports an equivalent Price Spotss Warrandice John Stewart contra Fivie But not so if it were exprest under the terms of Alienation which is common to both gratuitous and onerous Dispositions Warrandice from the future fact and deed of the Disponer and his Heirs is implyed in pure Donations Hope Warrandice Veatch contra Dauling Mr. Partrick Schaw contra Sir James Durham and was extended to a Legacy rei alienae scienter legatae June 16. 1664. Murray contra the Executors of Rutherfoord But ought not to be extended to future necessar deeds preceeding the gratuitous Disposition which the Disponer is or may be compelled to fulfil neither upon any anterior deed because he who disponeth freely is presumed but to dispone such right as he hath but posterior deeds are fraudulent It is Craig's opinion in the forecited place that though Warrandice from fact and deed be exprest that it doth not extend to prior deeds And that in any Case if the Cause of the Disposition be for service done for gratitude or merit that Warrandice is implyed much more if for future Service or for a feu Duty or Rent Yet if beside these there be not an Anterior Cause in Money or Value such Dispositions cannot be accounted onerous for former merit or gratitude infer no civil Obligation and so no burden which could receive Legal compulsion And as to annual Prestation in Services Feu-duties or Tack-duties if they bear no Money received or equivalent Value they are presumed to be gratuitous in favours of the receiver who may reject or renounce them when he pleaseth if they be not by mutual Contract And when they are evicted the Vassal is free of these Duties and hath no loss and therefore they ought to import no more Warrandice but from future voluntary fact and deed But whatever Warrandice be exprest must be accordingly observed But Craig's opinion being that naked Pactions were not effectual with us and that a Charter was but a naked Paction so Warrandice in an Innominat Contract such as a Fee could be but a naked Paction importing no further then what would arise from the nature of the Right But our constant Custome allowing all Pactions and Promises to be effectual doth both make Charters without Seasine effectual against the granter and likewise Warrandice and all other Clauses-therein yea the paction that nothing should be demanded in case of Eviction is for the same Cause effectual that the Money payed for the Right evicted cannot be recovered Yet Craig doth there report a Decision of the Lords betwixt Samuel Cockburn and Sandielands of Calder that a Charter without Seasine and not delivered in the Granters Life but recovered out of the Charter-chest of Torphichen was found effectual to make the Granters Heir perfite the same with Seasine but it did not remain in the hands of the Granter and thereby it appears that the Lords did not then look upon Charters as naked Pactions The Effect of Warrandice is the upmaking of what is warranted in so far as it is evicted and the ordinar procedure in it is when any Sute is moved whereon Eviction may follow Intimation is made to the Warrand of the Plea that he may defend And if Eviction follow and distress thereby Declarator of distress and action of Warrandice for relief is competent Also it is effectual for decerning the Warrand to free the thing warranted of that which will undoubtedly infer a distress though it hath not actually done it In this case Execution was superceeded for a time that therein the ground of the distress might be purged July 1. 1624. Laird of Frendraught contra Balvenie The like upon a Production of a Seasine of the Lands warranted granted by the warrands Author before the Right and Inhibition though there was no distress Nicol. de evictione Fisher contra Fleeming The like July 17. 1666. Alexander Burnet contra Johnstoun February 17. 1672. Smith of Braco contra Ross of Balnagoun Warrandice had also effect upon production of a Decreet of removing against the Buyer and Seller Nicol. de evictione Johnstoun contra Johnstoun Yea Warrandice will take effect where there is an unquestionable ground of distress though the Fiar transacted voluntarly to prevent the distress Intimation of a Plea is sufficient without an Instrument it being proven by the Warrands Oath that the copy of the Citation was delivered to him as an Intimation Nicol. de evictione Lyme contra Dunlop But though no Intimation be made yet the Warrandice taketh effect unless the Warrand had a relevant defence and could instruct the same Nicol. de evictione Boyd contra Stark But in that case the Warrandice hath no effect ibidem Cairncorss contra Murray Glendinning contra Gordon Warrandice hath no further effect then what the Party warranted trulie payed for the Right whereby he was or might be distrest though less then the value of the Right warranted July 1. 1634. Robert Glendinning contra Barnbarroch The like upon repayment of the sum given out and the Annulrent thereof Hope Warrandice Laird of Craicklaw contra Lord Herris January 26. 1669. Boil of Kelburn contra Mr. John Wilkie February 28. 1672. Earl of Argyl contra Laird of Aitoun This will not hold in Warrandice of Lands as to which Lands of equal value or the whole worth of what is evicted as it is the time of the Eviction is inferred because the Buyer had the Lands with the hazard of becoming better or worse or the rising or falling of Rates and therefore is not oblieged to take the Price he gave Neither is Warrandice a full security being but a personal Obliegment and many times the Price
the first Branch and therefore though there were no Clause irritant they might reduce alienations meerly gratuitous or fraudulent especially when done not by the Heirs of Line or Heirs Male of him who constitute the Tailzie for these are always in every Tailzie in the first place and while the Fee continues in them it is rather a simple Fee then Tailzied as it becomes again when all the Branches of the Tailzie fail The perpetuities of Estates where they have been long accustomed have 〈◊〉 〈◊〉 their Inconvenience therefore divices have been found out to 〈◊〉 them ineffectual Only the Majoratus of Spain hath been most 〈◊〉 〈◊〉 and 〈◊〉 that the King Nobilitating a Person of Merit and 〈◊〉 either by the Kings Gift or his own Right that Estate can neither be alienate or burdened but remains alimentary for preservation of the Dignity of that Family But these perpetuities in England are now easily evacuat First by Warrands to sell purchased in Parliament which pass without much difficulty and if they become frequent with us it is like we will find the same remeid they are also evacuat by a simulat Action of fine and recovery whereby the purchaser pretends that he is unwarrantably dispossest of such Lands by the present Fiar who coludes and is silent having received a Price or other consideration so that these Sentences though Collusive must be irrevocable In Tailzies the Heirs Male or Heirs of Line of every Branch being the Issue of the Stipes of that Branch do succeed and therefore there is a good Caution by the Law of England that after the possibility of Issue is extinct the present Fiar can do no more as to the Fee but what a Liferenter could do The next Branch being ordinarly altogether strangers to that Fiar little care will be taken to preserve the Fee In the Tailzie of Stormount the whole Estate was not comprehended and it was distinctly provided that in case any of the Heirs of Tailzie for the time should contraveen that the Right should be divolved on that person who would succeed if the contraveener were dead But in such Tailzies formerly it was not so clearly ordered being only provided that the contraveener should lose his Right and the next Heir of Tailzie should have place whereby it remained dubious whether the next Branch of the Tailzie were meaned so that the contraveener losed his own Interest and all descending of him Or whether he losed the Interest of all descending of that Branch Or whether he losed only his own personal Interest wherein the design of the Constituter of the Tailzie might be dubious enough 59. To sum up this important Subject of Tailzies let us consider the effects thereof according to the several ordinary Tenors of the same and how far the Fiar or his Heirs of tailzie is bound up thereby we must then distinguish betwixt Tailzies having Clauses not to alter burden or alienat And these that are simple without any express restrictive Clause Secondly Betwixt Tailzies made freely and these that are made for onerous Causes Thirdly Betwixt these that have Clauses resolutive or irritant and these that have only such Clauses by way of Obligation Provision or Condition As to the first Case It is a general Rule that quisque est rei suae moderator arbiter every man may dispose of his own at his pleasure either to take effect in his life or after his death and so may provide his Lands to what Heirs he pleaseth and may change the Succession as oft as he will which will be compleated by Resigning from himself and his Heirs in the Fee in favours of himself and such other Heirs as he pleaseth to name in the Procuratory whereupon Resignation being accepted by a Superiour and new Infeftment granted accordingly the Succession is effectually altered yea any obliegement to take his Lands so holden will obliege the former heirs to enter and to denude themselves for Implement of that obliegement in favours of the heirs therein exprest and if the Superiour refuse to accept the Resignation altering the Succession a Bond of borrowed Money though granted only upon design to alter the Succession will be the ground of Adjudication of the Land and being assigned to the Fiar himself and to such heirs as he pleaseth the Superiour will be forced to receive him accordingly so that the first constituter of a Tailzie or any heir succeeding to him may change it at their pleasure unless the Tailzie be for an onerous Cause as when Tailzies are mutual then the first constitutors of the mutual Tailzies cannot alter the same although their Debts may affect the same yet no fraudulent or gratuitous deed can alter or evacuat such Tailzies and therefore a mutual Contract betwixt two brethren oblieging them that what Lands they should succeed to or acquire should be taken to the Heirs of their body whilks failzing to the Brother and the heirs of his Body c. though thereafter either Brother took their Lands otherways to their heirs whatsomever whereby Sisters having succeeded to one of these brothers they were decerned to denude themselves in favours of the other Brother January 14. 1631. Mr. John Sharp contra Helen Sharp But if the Cause onerous be of less import then to grant and continue a Tailzie it will import no more then once perfecting the Infeftment by such a Tailzie whereby the hope of Succession ariseth to these parties in whose favours the fiar is oblieged to take the Tailzy but he was not found oblieged to continue the same but that he might alter it thereafter without refounding the Money he got for granting it being but of that value as was equal only to the hope of Succession which behoved to be understood of alteration sine dolo July 15. 1636. Mr. David Drummond contra Drummond Heirs of Provision by Contracts of Marriage are in part ouerous being granted for a Tocher and the interest of the Wife concerned therefore they cannot be alterred by the Husband at his pleasure but do exclude all fraudulent or meerly gratuitous alterations as hath been shown Section fourty three But if there bean express Obliegement not to alter the Tailzie albeit that will not give Title to the Heirs of Blood of the present Fiar to quarrel his deed or alteration yet it will give interest to any other Branch of the Tailzie whether to the person nominat or his heirs to quarrel and reduce such alterations though it will not exclude alterations by Appryzing or Adjudication for debts truly borrowed by the Fiar and therefore a Tailzie of a sum of Money lent in thir terms to be payed to the Creditor and the heirs of his Body whilks failing to the Father and the heirs of hsi Body whilks failing to a person named and his heirs and assigneys whatsomever with a provision that the Creditor and his heirs should do no deed hurtful to the Tailzie nor the Debitor should not pay without consent of the heir
against the Leiges at the Mercat-cross of the Head-burgh of the Shire where the person Inhibite dwells Par. 1581. cap. 118. and therefore an Inhibition was found null because the Executions bore not a Copie given to the partie Inhibite albeit it bore a Copie affixed upon the Cross though the Executions were mended by the Messenger upon the Margent bearing a Coppie given not being so Registrate albeit it was offered to be proven by the Witnesses infert that a Copie was trulie given July 28. 1671. Sir John Keith contra Sir George Johnstoun and the Inhibition with the Executions must within fourty days after the Execution thereof be Registrat in the Register of Hornings where the Inhibite resides or where the most part of his Lands lyes Act aforesaid but if the Inhibite person dwell within Stewartry or Bailiery of Royalty or Regality the Inhibition must be execute at the Mercat Cross thereof and Registrate in the Clerks Books there Otherways in any of these Cases if the saids Acts be omitted the Inhibition is null Par. 1597. cap. 264. By the Act 265. Pa. 1597. Registration of Inhibitions Hornings and Relaxations are ordained to be either Judiciallie or before a Nottar and four Witnesses beside the ordinarie Clerk and in case Registration be refused the same may be made in the Books of the next Sheriff or Bailie or Books of Council But by the 13. Act Pa. 1600. the foresaid Act is rescinded and the registration in the Sheriff or Bailies Books or by the Clerk-register or his Deputs in the Books of Council are declared sufficient An Inhibition was found null by Exception because the Letters bore only Warrand to Charge the person at the Mercat-Cross as out of the Countrie and the Execution was against the party Inhibite personally Jan. 24. 1627. Erskin contra Erskin and reduced upon the same ground because the Execution against the person Inhibite was at his Dwelling-house and the Warrand was to have been at the Mercat-cross albeit it bore to Inhibite at the Mercat-Cross of Edinburgh and Pear and Shoar of Leith and all other places needful March 19. 1628. James Lamb contra Blackburn in which cases it was found null unless truly execute both against the Lieges and against the party and that the Execution at the Cross served not both Hope Inhibition Sym contra Coldingknows Hope Inhibition Lamb contra Blackburn and also found null because not Execute at the Head-burgh of the Regality where the person Inhibite dwelt but of the Shyre and that not only as to Lands within the Regality but other Lands within the Shyre Jan. 30. 1629. Stirling contra Panter and found null because not Registrat in the Shyre or Regality where the Lands lay though Registrat in the Shyre where the Inhibite dwelt Ja. 20. 1632. Halyburtoun contra Monteith but sustained though Execute at the Cross where the Inhibite dwelt Execute a year thereafter at the Cross where the Lands lay and Registrate in both although in the last there was no Execution against the party Inhibite but only against the Leiges Spots Inhibition Heirs of the Laird of Fairnie contra Laird of Aitoun Seing the effect of Inhibition is only for satisfying the ground whereupon it proceeded therefore Inhibition raised upon a Bond not to sell a Reversion without consent of the Wodsetter was found not to reduce a posterior Assignation to the Reversion simply but only so far as the Wodsetter was interessed or prejudged Hope Inhibition Turnbul contra Scot. Inhibition doth not only extend to the Lands that the Inhibited persons had then in the Jurisdiction where it is published but to these acquired after it being a personal prohibition December 15. 1665. Mr. John Elleis contra Keith February 27. 1667. inter eosdem Inhibition extends not to Lands be falling to the person Inhibit in other Jurisdictions July 18. 1662. William Swintoun contra Inhibition is effectual to reduce Rights posterior to the date thereof by the executions of publication albeit before the Registration of the Inhibition the Rights in question were granted July 22. 1675. Sir George Gordoun contra Seatoun An Inhibition was found null because the Execution bore not publick Reading and three Oyesses at the Mercat Cross which was not admitted to be supplied by probation of the witnesses July 11. 1676. Stevinson contra James Innes But where the Executions bore that the Messenger made lawful Publication and Reading of the Letters the Lords upon inspection of the Registers finding that this last Style was frequent whereas in the former case the Executions bore only generally that the Messenger lawfully Inhibite without Oyes or Reading the Letters and that there was no such Stile of Executions therefore the Lords admitted the witnesses insert in the Executions of this last Inhibition to prove that the three Oyesses were truly made immediatly before reading of the Letters June 21. 1681. Innes contra Trotter And Executions of Inhibition at the Mercat Cross are declared null if there were not a Coppy left affixed upon the Cross December 19. 1678. Iohn Inglis contra Haddoway In this case an Inhibition was not found null because the Executions bore to be at the dwelling-house without designing the same the Defender designing the dwelling-house and byding by the same as the true Dwelling-house December 22. 1676. inter eosdem The like where the Designation in the body of the Inhibition was Merchant Burgess of Edinburgh which was presumed his Residence unless the contrary were proven July 7. 1676. Quintine Findlay contra Little of Libertoun TITLE XIV Superiority where of its Casualities Non-entry Relief Compositions for Entries Ward Marriage and Liferent Escheat 1. The Superiours Dominium directum 2. How Property is established in the King 3. Superiours may exerce all acts of Property except against their Vassals 4. How the Properly coming in the person of the Superiour is established 5. Superiours cannot interpose betwixt them and their Vassals 6. How far Superiours need to instruct their Title 7. Superiours have personal action against intromettors with the Rent of the Land for their reddendo 8. They have also real action for the same by Painding of the Ground 9. Jurisdiction of Superiours 10. Superiority carrieth to Heirs and singular Successor all bygone Casualities not separat by Gifts or Decreets 11. Superiours of Kirk-lands need not instruct a consent to the surrender 12. Superiours must receive Appryzers or Adjudgers or pay the Debt salvo juresuo 13. He must receive the Kings Donatar upon presentation Gratis 14. He must receive his subvassal whom his immediat Vassal refused to enter 15. How far Superiours may extend gifts of their own Ward against their Vassals 16. Superiours need not accept Resignation or Confirmation and if they do it is salvo jure suo 17. Superiority falling to more persons the eldest heir or greatest interest only receives the Vassals 18. Non-entry falls when Inseftment is not renewed by every Vassals heir or singular successor or upon Resignation 19. Non-entry
exclude Non-entry while they were allowed by the Acts of Parliament as there is also shown neither is it excluded by Tacts set by the Vassal which though they stand as real Rights against Purchasers by Statute yet have no effect against Superiors in prejudice of their proper Casualities Neither is it elided by Charters or Precepts granted by the Superior though containing warrandice till Infeftment thereupon March 20. 1630. John Hay contra Laird of Achnames Neither was it excluded by Apprysing and Charge thereupon without offer of a years Rent of the Land or Annualrent of the Money Feb. 3. 1681. Hendry Keir contra Hendryson Neither is it excluded because the Vassal was not in mora being hindred by a Question of Bastardry against him Spots Non-entry 〈…〉 contra Naiper of Wrightshouses Nor doth the Vassals Minority stop Non-entry of Lands not being Ward nor restore the Minor as Lesed For as hath been now shown It is not the negligence of the Vassal but the nature of the right that infers Non-entry yet there is no doubt if it be by the Superiors fault it will be a personal Exclusion against him Non-entry is most favourable when extended as to the retoured duties But as to the full Rents it is capable of many other exceptions and doth not alwayes run from the Citation in the General Declarator as if a Superior raise his Declarator and also Reduction of the Vassals Seasine though he reduce the Seasine he will not have the full Rents till the Decreet of Reduction and Declarator Novemb. 26 1672. Earl of Argyle contra Laird of Macleud yea if the Superior do not insist but only use Citation which may be at the Vassals dwelling house and never come to knowledge or the Vassal being a Pupil without any Tutor it is not like the Lords would sustain the whole Duties from the Citation but from the time the Vassal becomes contumacious And Queensberry having interposed Kelhead betwixt him and his Vassals who thereupon pursued Declarator of Non-entry though the Infeftment was found null yet the Disposition was found to carry a Gift to the Casualities of the Superiority and the Vassals were only found lyable for the Rent after the Interloquitor sustaining the disposition as a gift of Non-entry and where a Tailzie was found to exclude a second Branch so long as there was hope of a former Branch the Lands were found in Non-entry as to the retoured Mail but not as to the full Rent seing the Heir did not forbear to enter through wilfulness but of necessity Julie 24. 1677. Lord Melvil and David Melvil his Son contra Sir William Bruce And where a Singular Successor to the Superior pursued Non-entry it was not sustained till he produced his progress from the acknowledged Superior the full duties were not found due from the Citation Julie 18. 1680. Earl of Queensberry contra Irwin of Cove And Craig relates that where the Defunct died in Battle for his Superior Non-entry should have no place We shall not here speak of common exceptions which extinguish all Rights as prescription homologation or the priviledge of these who are absent reipublicae causa As to the Question whether Non-entry Subsequent to Ward whereby the Superior or his Donatar is in possession requireth any Declarator Craig and Skeen upon the word Non-entry are for the negative and since Had. and Durie observe March 23. 1622. Lesly contra Pitcaple that the Lords found that where the Superior pursued both for the Ward and subsequent Non-entry that he or his Donatars not being in possession by the Ward behoved to declare the Non-entry which would only carry the retoured Mails till Declarator The next Casuality of the Superiority is the releef due by the Vassal to his Superior for his entering him in the Fie as the lawfull successor of the Vassal And though relees be only considerable in Ward-holdings and uses to be subjoyned to Ward yet all Fies which require Renovation are lyable to releef and therefore Releef is here immediatly subjoyned to Non-entry 26. Releef is generally treated upon by the Fewdists The Original whereof Cujace ascribeth to the constitution of the Emperor Leo extant in the Novels bearing it to be the custom of several places that the superior should have that years Rent in which he receives a new Vassal in his Clientel which therefore by most of the Feudal Customs is extended to the singular Successors of the Vassal who in some places pay for their Entry the fifth of the price of the Fie and a fifth of that fifth whereby if the price were 100. Crowns the composition for the Entry would be 24. Crowns 27. But by the Customs of England and France the Heir of the Vassal if he be Minor payes no releef but he and his Fie are in the hands of the Superior as in Ward or Custody whereby the Superior hath the whole profites more then is fit for the Education and Intertainment of the Minor Valsal which ceaseth with his Majority and there is no releef due But if the Vassals Heir at his Death be Major his Fie is lyable to his Superior for releef which distinction is mentioned in the English Magna Charta the quantity of the releef by Heirs in England is in Ward-holdings or Military Fies 100. Pounds Sterling for an Earldome 100. Merks for a Baronry and 100. Shillings for any other Military Fie which is oblieged to maintain one Souldier And if the Fie be less and lyable only for a share of the entertainment of a Souldier it is lyable Proportionally Relief by the custom of France is for a Barrony 100. Franks and for any other Military Fie 15. But if it answer not to the entertainment of one Souldier it payes for every Aiker 12. Deniers but if it be not a Military Fie but that which the English calls Sockage the Reddendo whereof is not Military service but some other payment or performance which is doubled the first year after the death of the Vassal the one half thereof is the releef which is a real burden for which the Superior may Poynd or distrenzie all goods upon the ground But as to singular Successors the most ancient Feudal Customs making them only to descend to the Issue of the first Vassal whose Collaterals had no right but were like our kindly Tenents by the propinquity of blood yet by the favour of the Superior they were oftimes admitted in the lie and were only lyable for relief If the Superior did receive a stranger upon the resignation of his Vassal he was to pay a relief which in some places was the fiftieth part of the Price And by the Custom of France it is the thirteenth part From the Original of Relief the reason of its name may be conjectured and these who appropriat it to Ward-holdings interpret it to be called relief from redeeming or Relieving the Fie out of the hands of the Superior But relief being a general Feudal name and many Nations not allowing the
out A Terce of Wodset Lands wherein the Husband died Infeft was not found elieded because the Husband Required or Charged for the Money not being denuded before his death Feb. 16. 1642. Veich contra Veich of Dawick But the wifes third continues as to the third of the Annualrent of the Money in lieu of the Lands Redeemed by the heir after his predecessors death Terce is not excluded by Ward Non entry or Liferent-escheat of the Husband as hath been more fully shown before Title Superiority 18. Terce is burdened proportianally by all debita fundi affecting the whole Tenement as Annualrent Thirlage Pasturage but with no other debts of the Defunct being personal though they be Heretable and have provision of Infeftment 19. Liferent by the Courtesie or Curiliaty of Scotland is the Liferent competent to the Husband of the Wifes Lands and Hereditaments It is introduced by our Common Law which is our most ancient Custom wheroef no beginning is known in the same way as the Terce of the surviving Wife whereby without any paction or provision 〈◊〉 enjoys the third of her deceassed Husbands Heretable Rights wherein he 〈◊〉 Invested as of Fee during her life so the Husband Liferents the whole Lands and Hereditaments of the wife wherein she died Infeft in Fee and that without any Service or Kenning as in Terces but Summarly by vertue of his having been Husband to the Defunct neither is there any difference whether the Defunct wife had a prior Husband or not or whether her hereditament be Ward Blensh Feu or Burgage The original of this Liferent by the Courtesie as Craig observeth lib. 2. dieges 22. is from the Rescript of the Emperour Constantine whereby the Father had the Usufruct of the heretage of his Children befalling to them as heirs to their Mother and therefore the Courtesie takes no place but where there were Children of the Marriage one or more which attained that maturity as to be heard cry or weep for then the Law regardeth not how long the Children live or whether they do Survive their Mother but hoc ipso that they are born at maturity they are heirs appearand of the Fee and the Liferent is established in their Father In this the Courtesie of Husbands differs from the Terce of Wives for the Wife hath her Terce if either the Marriage continue undissolved year and day or though it continue not so long if a Child was born of the marriage heard cry and weep though the Child had been begotten before the Marriage yea though it had been born before the Marriage being Legitimat by the subsequent Marriage how short soever it endured the wife should have her Terce But the Courtesie takes no place unless a ripe Child beborn though the Marriage should continue for many years so that the being of Children procreat and born to maturity is the chief motive introductory of this Law Skeen in his Title de verborum significatione upon the word Curialitas limiteth the Courtesie to the Lands or Hereditament into which wives succeed as heirs to their Predecessors whether before or during the Marriage which Craig in the foresaid place doth likewise follow and doth exclude the Husband from the Liferent of the wifes Land to which the wife had right by any Contract as titulo emptionis which will not exclude the husband where the wises Predecessor Infefts her per praeceptionem haereditatis If a Father should Infeft his Daughter reserving his own Liferent with power ro Dispose she is not thereby heir active nor is that Estate accompted Heretage but Conquest yet she is heir passive and there is more reason that the husband should enjoy his Liferent of that Estate then if his Wife had been therein heir of Provision or Tailzie whereby failing her and her Issue another Branch not nearest of blood to her might readily succeed so that if her Children were dead before her self her heirs of Tailzie would have much more reason to question her husbands Liferent by the Courtesie then his own Children as heirs of line would have to contravert his Liferent of the Estate wherein she was Infeft by her Father or any of her Predecessors to which she was appearand heir but there have been few Debates or Decisions or limitations thereof which would clear this and other points thereanent The Law hath well fixed the maturity of the Children by their crying or weeping and hath not left it to the conjecture of witnesses whether the Child was ripe or not both as to the Courtesie Terce and Dissolution of the Marriage within the year in all which cases the Law alloweth Women Witnesses as being necessary in the case of the death of the Children at the time of their Birth Liferenters were found free of the Reparation of Ministers Manses by the Act of Parliament 1662. cap. Ordaining Heretors to build or repair Manses to the value of 1000. Pounds whereof no share of relief was found due by the Liferenters they not being exprest November 14. 1679. Minister of contra Laird and Lady Beanstoun Yet if the whole Estate were Liferented by Conjunctfee the Conjunctfiar might be liable as Fiar in that case when the Heretor had no profite of the Land and if the whole were affected with a separat Liferent the effect would be the same seing what the Heretor would be lyable to would diminish his Aliment which behoved to be made up by the Liferenter Liferent by the Courtesie hath the same extensions and limitations sa terces it affects all the wifes Lands not Acquired by a singular Title it is not excluded by the Ward but it is excluded during the Non-entry or by Liferent-Escheat and also by the Ward of the Superiour or the Forefaulture or Recognition either of the Superiour or Wife it is burdened with all real burdens by Infeftment or Tack and with the Aliment of the Wifes Heir if he have not aliunde It is also excluded by the Dissolution of the Marriage within year and day by Divorce or by the Husbands desertion of the Wife though Divorce followed not Or by his Adultery or other atrocious Crimes 20. Amongst personal Servitudes may be numbered publick Burdens imposed by the King and Parliament for publick use such as Taxations which by the Acts imposing them are declared real affecting the Ground and that thereupon the Ground may be poinded and so consequently do affect singular Successors The extraordinary burdens of Mentainance and Sess imposed by the Parliament during the troubles had not that Clause therein of Poinding the Ground and so were not found debita fundi but debita fructuum nor do they affect singular Successors July 13. 1664. Grahame of Hiltoun contra the Heretors of Clackmannan TITLE XVII Servitudes Real 1. Requisites to Constitute real Servitudes by consent 2. How Prescription Constituteth Servitude 3. How far Servitudes are effectual against the Superiour 4. Extinction of Servitudes 5. Kinds of Servitudes 6. Servitudes of Support 7 Stillicides 8. Sinks
Miln Thirdly When the Heretor of Milns or Lands Feues and dispones the Miln with the Multure of his own Lands per expressum all these ways are not contraverse constitutions of thirlage whether they be in an Infeftment Contract bond or other personal right for these being cled with Possession are sufficient to constitute a Servitude though the right of the Miln being a separate Fee 〈◊〉 Infeftment Fourthly When the Heretor of the Miln 〈◊〉 or Dispones the same with the Multures used and wont though he do not express out of what Lands it is sufficient to constitute a Thirlage upon the Lands which were wont to pay in Towns Multure being then his own Lands or to convey the right of the Multures of other Lands being formerly astricted But where a Barrony was principally disponed with the Miln thereof and the Multures of the Miln used and wont it was not found to extend to the Multures of another Barrony holden of another Superiour though in use to come to that Miln December 11. 1666. Earl of Cassils contra Tennents of Dalmortoun and John Whiteford Fifthly Thirlage of a whole Barrony is inferred by Infeftment in the Miln of the Barrony with the Multures of the said Miln being granted by the Heretor both of the Miln and Barrony whereby these parts of the Barrony that were not in use of astricted Multures before were thereby astricted and that according to the use of the rest of the Barrony Jan. 31. 1611. Wilson contra Warrock here the constitution bore not used and wont but Multures of the Miln generally The like where the Infeftment bore only the Miln of the Barrony with astricted Multures not repeating Multures of the Barrony July 9. 1611. Alexander Moncrief contra Borthwick and Pittinweem Sixthly Thirlage is constitute without Infeftment or any Write subscrived by the Heretor of the Lands astricted but only by an Act or Rolment of Barron Court bearing the Heretors consent and fourty years possession conform Hope Milns and Multures Earl of Murray contra Earlesmiln The like by Decreet against the Possessors their Master not being called or consenting but his Bailie inacting them to pay Multure with long possession Ibid. Mr. Andrew Miln contra Patrick Falconer Seventhly A dry Multure was found constitute and instructed by use of payment fourty years without any other adminicle because it could not be constructed as a free or voluntary deed as other Multures may be Hope Milns and Multures James Dog contra Maxwel and the Tennents of Prestoun July 23. 1675. Sir George Kinaird contra Mr. John Drummond Eighthly Thirlage is inferred of Lands within Barronies of the Kings Property to the Milns holden and repute to be the Milns of that Barrony only as being in use past memory of man to do deeds of Thirlage as paying of Multures laying in of Damns February 5. 1635. Dog contra Mushet January 8. 1662. James Stuart contra Feuars of Aberlednoch January 4. 1662. John Nicolson contra Feuars of Tillicoutrie Nor was it found relevant that the Feuars had right cum molendinis in the tenendas which was but past of course in Exchequer in the common Clause as was found in the foresaid case January 8. 1662. James Stuart contra Feuars of Aberlednoch The reason hereof is because the Kings Rights are Constitute Jure Coronae without Infeftment or other Write which is not requisite or accustomed to be keeped and therefore the presumption from long possession is sufficient Craig l. 2. Dieges 8. Relateth it as the opinion of some that immemorial Possession is sufficient to instruct the Thirlage of Kirklands in the same way as of the Kings Lands to which he assenteth not but the reason seemeth much to be the same especially after the Reformation when the Evidents of the Kirk were lost or destroyed So that long possession hath been sufficient to instruct the right of Propperty of Kirklands and may much more instruct this Servitude unless Milns and Multures had been granted to the Feuars anterior to the Feu of the Miln But unquestionably Thirlage is easilier sustained in Kirk-lands then others as it was sustained being by an infeftment of a Miln cum Multuris generally and the Bishops Precepts to his Tennents to pay their Multures to that Miln with long Possession though without consent of the Chapter Decemb. 7. 1665. David Veatch contra John Duncan 17. As to the negative first Thirlage is not inferred by use of coming to the Miln and paying Multures there at though immemorial even though the Multures payed were as great as the thirle Multures March 13. 1635. Gilchrist contra Menzies The reason hereof is because such payment is but voluntatis non necessitatis and therefore can no more infer a Servitude then they who past memory came such a way to a Town were astricted only to come that way But Infeftment in a Miln with the astricted Multures of such Lands per expressum and fourty years possession of paying the insucken Multures was found to constitute the Thirlage though the Feuars were infeft cum molendinis before the Feu of the Miln and sometimes went to other Milns which not being frequent and for some whole years was found but clandestine and such as occurs in all Thirlages and no legal interruption June 29. 1665. Heretors of the Miln of Kythick contra Feuars Secondly Thirlage is not inferred because the Lands are a part of the Superiors Barony having a Miln of the Barony where the Vassals Infeftment contains cum Molendinis Multuris or a Feu-duty pro omni alio onere or such a Feu-duty allanerly Novemb. 26. 1631. Oliphant contra Earl of Marshal But where the Barons Disposition contained not these Clauses his giving a subaltern Infeftment of a part of his Barony which part was thirled to the Miln before it was not found liberat but continued thirled to the Miln of the Barony though the Miln and Multures of the Barony were disponed thereafter to another July 17. 1629. Newlistoun contra Inglis For if the Vassal had acquired that part of the Barony with the Multures it would have been exprest particularly or generally seing thereby the seller behoved to diminish the rental of his Miln Thirdly Thirlage of a Barony or any part thereof was not inferred by a Disposition or Infeftment of a Miln granted by the Baron though it be the only Miln of the Barony seing he expressed not it to be so nor expressed any Lands nor the Multures thereof but only dispo ed the Miln with the pertinents July 12. 1621. William Douglas contra Earl of Murray In this case there were several acts of Court thirling the Tennants and long possession which was not insisted on but only the act of Court which was not found sufficient seing it was only by a Bailie without warrand or consent of the Heretor albeit cled with fourty years possession But a Decreet against the Tennants for astricted Multures and immemorial possession was found to constitute Thirlage to
interpret they would render Infeftments of small effect That we may proceed orderly in this matter we shall consider First The constitution of Tacks Secondly The extent and effect of them Thirdly The kindes of them Fourthly The restricstions and defects of them Fifthly The avoiding and removing of them As to the First Tacks are also called Assedations as a setting or setling of the Tenement in the Land the English call them Leasses Some Tacks are also called Rentals as being the constitution of a fixed Rent and they are of longer endurance then ordinary Tacks being of one or more Liserents and have somewhat special in them of which hereafter 3. As to the Constitution of a Tack consider First Who may Constitute it Secondly Of what Thirdly How For the First to the Constitution of an effectual Tack the setter must not only have all the Capacities requisite to Contract but he must have right to the thing set and power to administrate which being Tacks may either be granted by Commission if it be special as to the Tacks or at least as to matters of great importance and a general Clause for others or otherways by Tutors Curators or other Administrators of the affairs of others concerning whom Craig lib. 2. Dieg. 10. moveth and removeth this doubt whether Tutors c. may set Tacks for longer time then during their Office which he resolveth negatively even though it were without the Minors Detriment continuing the ancient Tack-duty seing he is so far hurt as not to have the free disposal of his own The subject whereof Tacks are ordinarly set are Lands but it may be any other thing having fruite or profite as a Fishing an Office or a Casuality As to the manner of Constituting Tacks they must be considered in themselves First As personal Rights Secondly As by the Statute becoming real as they are personal Rights the consent of the setter and Tack-man agreeing in the rent is sufficient 4. But as Tacks are become real Rights there is a necessity of write except in a Tack of one year which may be verbal but if the agreement be for more years the setter may resile and though the Tacks-man be in possession if he resile it will have no effect as to subsequent years July 16. 1636. Alexander Keith Contra his Tennents the like though the Tennent possessed and builded Houses conform to the agreement yet the penalty of paying a years rent by the failzier to the observer was found to stand July 15. 1637. Mr. Andrew Skein contra But if once there be a Tack the setters promise not to remove the Tennent during his life was found effectual and not to be resiled from Nicol. de migrando Lumbsden contra Black 5. The write requisite to constitute a Tack requireth not many Solemnities but if the thing set the Parties the Rent and the Time be cleared the Tack will be valid It was ordinarly granted by the setter to the Tacks-man for such a Duty without any mutual obliegement upon his part like unto a Charter but because the Tennent not being bound might at the end of any year before Whitsonday renounce such a Tack and be free as being in his favour therefore they are now ordinarly by Contract whereby the Tacks-man as well as the Setter is oblieged to stand thereto 6. Craig saith in the fore-cited place Pactum de assedatione facienda ipsa assedatio parificantur praecipue si possessio sequatur which is unquestionable as to the setter and his heirs and was also found against a singular Successor by a personal obliegement in a Contract of Marriage providing Lands to a wise and warranding the same free of all Teinds except such a quantity which was in use to be payed whereby a posteriour Assignation to the Tack of these Teinds was excluded March 20. 1629. Laird of Finmouth contra Weyms The like of a Tack and Decreet Arbitral decerning a Tack to be granted This was in a Spuilzie Hope Spuilzie John Crawford contra 7. As a Tack becometh a real Right it must necessarily be cled with possession but requireth no Seasine or Instrument or other solemnity July 11. 1627. Wallace contra Harvie January 22. 1611. Laird of Pitsligo contra Philorth The like though the Tacks-man was in possession yet not by vertue of the Tack but by vertue of a Wodset though the Tack was renewed the time of the time of the Wodset Hope removing Walter Ord contra Tennents of Fydie and therefore a posterior Tack being first cled with possession was preferred to a prior Tack June 23. 1627. Mr. John Mcmillan contra Gordoun of Troquhan 8. Yet a Tack after redemption of Wodsett Lands is valide against singular Successors as a part of the Reversion though it attain no possession before the setter be denuded But it is contrary in a Back-tack appointed to follow a Redemption of an Annualrent for it and 〈◊〉 Lands are diverse and the possession thereof diverse Nicolson removing Gawin Hamiltoun contra Alexander and others but the prorogation of a Tack is the renovation of it and hath the same effect as a new Tack of that date for the years in the prorogation 9. As to the extension and effect of Tacks they are little less then of Infeftments for thereby the Tacks-man is maintained against all parties having interest till the Tack be out-run and be warned even though set by a Liferenter it will maintain the Tennent against the Fiar either from removing till warning or from paying more then the Liferenters Tack duty though it be small July 6. 1610. Mr. Robert Bruce contra Captain Bruce Yea though the Tack-duty was elusory set by an Appriser to a person being no labourer of the ground February 3. 1631. Blaues contra Winrham The reason why Tacks by Liferenters are effectual for the year in which the Liferenter died because by Act of Parliament Tennents can only be warned to remove fourty dayes preceeding Whitsonday So that if the Liferenters live till thirty nine dayes before Whitsonday their Tennents cannot be removed but brooks per tacitam relocationem till the new time of warning 10. A Tack hath also the benefit of a possessory judgement upon seven years peaceable possession as an Infeftment without necessity to dispute the setters right July 13. 1636. Bishop of Edinburgh contra Gilbert Brown which was found where the Tack did bear to be granted by the setter as heretable Proprietar Otherwayes a Tack by a Liferenter Tennent or Donator might claim the benefit December 1. 1676. Mr. Patrick Home contra Sir Laurence Scot. And therefore if it were alledged that the setter or liferenter had any other temporary title it would be admitted without Reduction if the Liferenter or beneficed person granter thereof were dead 11. A Tack set by an Heretor for a Tack-duty to be payed to his Creditors was found a real Right effectual to the Tennents but whether it would be found a real right in favours of
to an Executor Creditor of the Cedents even as to his own Debt July 27. 1669. Exeutors of Mr. Thomas Ridpeth contra Home As to the extent and effect of assignations the same extends to all personal Rights whether Moveable or Heretable as to Bonds Liferents Tacks Reversions Mails and Duties Annualrents and to Dispositions of Lands and others till Infeftment follow but is no valid conveyance of any Right compleated by Infeftment except Liferents which can have no subaltern Infeftment as to the ground right it self though it may extend to the profits thereof as to Mails and Duties and annualrents and to these no longer then the right by Infeftment stands in the Cedents person whence there ariseth to him and to his assigney a personal obliegement upon the possessors which faileth as to all Terms after Denunciation Decem. 17. 1622. Kinbrachmount contra Sir William Anstruther and an assignation to such a sum yearly out of Teinds was found excluded by an appryzing of or assignation to the Tack of these Teinds Feb. 6. 1666. Watson 〈◊〉 Pleming Assignations are effectual not only of such rights as are granted to heirs and assigneys but generally to all Rights though not mentioning assigneys which by their nature are transmissible and therefore an annualrent by a Father to his Daughter wherein his Brother and Sisters were substitute failing the heirs of her Body without mentioning her assigneys and wherein the annualrent was redeemable by payment of a principal sum which she had no power to require unless she were Married the annualrent was found to belong to her assigney after her death being principally constitute and not accessory to the principal sum June 24. 1679. Sir William Stuart contra Sir Thomas Stuart and albeit Superiours be not oblieged to receiye singular Successors without appryzing or adjudication yet before Infeftment assigneys to the Disposition granted by the Superiour may compell him to receive the assigney which was so found though the Superiour alledged that the Superiour was not in good Terms with him Decem. 23. 1673. Ogilbie contra Kinloch of Bandach But Reversions and Tacks in most cases unassignable unless they be granted to assigneys for albeit the Assignation being a procuratory may give them interest to act procuratorio nomine for the Cedent yet they cannot act proprio nomine as Procurators in rem suam therefore the oath of the Cedent will always be competent against them and they cannot obtain Declarator of Redemption in their own name or Decreet for denuding of the Wodsetter in their favours Neither can Assigneys to Tacks enter in possession by vertue thereof Yea Liferent-rights by Infeftment or Tack were so peculiar to the Liferenter that no assignation can state them in the assigneys person but only the profits thence arising So that in the assigneys person they are not Liferents and therefore the Liferents of Wives which belonged to their Husbands jure mariti as a legal Assignation fall not under the Husbands Liferent-escheat as they would fall under the Liferent of the Wife unmarried but under the single Escheat Vide title 〈◊〉 upon Escheat Upon which ground Hope upon Assignations observes that Assignations to Liferent-tacks make them fall under the Assigneys single Escheat in the case of Sir Robert ker contra John Ker. 17. Thirdly an Assignation to a sum carries with it the Inhibition raised thereupon Hope Assignation Walter Hay contra Mark Ker. The like where only all actions following thereupon were exprest generally June 28. 1610. Blair contra Gray And an Assignation to a Bond found to carry a Bond of corroboration of the foresaid Bond though not mentioned therein albeit the Assignation bore not that ordinary Clause with all that has followed or may follow thereupon which is but an Explicatory Clause of Style of that which innest dejure February 3. 1676. Bultie contra Earl of Airly 18. Fourthly The effect of Assignations is that the oath of the Cedent cannot prove against the Assigney unless the matter hath been litigious before the Assignation or Intimation as in the case after arrestment has been laid on and therefore a debitor having pursued the Cedent to annul the Band upon a reason to be verified by the Cedents oath before the Assigney had Intimat the Cedents oath was sustained February 15. 1662. Pitfoddels contra Glenkindie And an Assigney pursuing in the Cedents name and not in his own albeir he produccd his Assignation in the Process yet there being no other Intimation thereof the Cedents oath was admitted against him Feb. 12. 1678. Firazer contra Frazer of Strichen July 26. 1628. John Rule contra Laird of Aitoun Or if the Assignation be gratuitous without a Cause onerous the Cedents oath will be competent in all cases against the Assigney June 16. 1665. William Wright contra George Sheil June 13. 1668. Jack contra Mowat But the oath of the Cedent will prove against the Assigney in England as to Assignations made by residenters there June 28. 1666. Mcmorland contra William Melvil 19. Fifthly Assignations being intimat during the Cedents Life having summar execution and the Assigney got protestation against a Suspension raised against the Cedent after the Cedents death without walkning or transferrence and thereupon all execution would proceed summarly by Horning Poynding Appryzing even after his death Hope assignation Lady Craigmiller contra Stevinson Otherways it will yeeld but an ordinary action Jan. 23. 1624. inter eosdem The same was found and that there needed no confirmation July 27. 1664. Mr. John Murehead contra Yea though it was an Assignation by a Father to his Son of all his Goods and Debts yet action was sustained thereupon without Confirmation June 25. 1663. James Halyburtoun contra Earl of Roxburgh But where there was no delivery the Assignation of all the Goods was not found to give action without Confirmation June 23. 1665. Procurator-fiscal of Edinburgh contra Thomas Fairholm Or where there was reservation to the Disponer to dispone otherways during his life July 4. 1665 Commissar of Saint Andrews contra Hay of Bowsie But since the Restitution of Bishops and reviving of the Quots actions are sustained upon Assignations not intimat in the Cedents life if they be special the pursuer always confirming before the Decreet be Extracted 20 Except in the Matter of Probation all Exceptions competent against the Cedent before the Assignation or Intimation are relevant against the assigney as payment compensation c. which was found even as to assigneysto Tacks that the Tacks-mans Back-bond was sufficient against his singular Successor by assignation Decem. 18. 1668. Mr. Robert Swintoun contra John Brown This is clear when exceptions relates to the matter in Question 21. Assignations to incompleat real Rights as Appryzings Dispositions of Lands before Infeftment are affected with the assigneys Back-bond if the competition come in before infeftment Inhibition be used or legal diligence that makes the matter Litigious and therefore the Back-bond of an asigney to an
Parliament 1617. But even Wodsets cannot be transmitted without resignation 9. But where it is said that the resignation must be by the Vassal or his Procurator this question ariseth if the Assignation be made by him who is not truely Vassal but with consent of the true Vassal quid juris Craig lib. 3. dieg 1. shows that in his time this question was not clearly determined nor is he positive in it but this far if the resigner had no Title no consent could be sufficient yet if he had a colourable Title the consent of the true Vassal might validate it If the true Vassal be consenter to the Procuratory of resignation either expresly bearing that the disponer with consent c. constitute his Procurators Or if he be consenter to the disposition by being exprest in the entry thereof which is holden as extensive to the whole disposition and so as repeated in the same will be as valide as if the consenter himself had granted the disposition or Procuratory for the Act of the disponer though more express and amplified is no more but his consent and so the other consenting doth the same materially which he would do if he were disponer formally but if his consent be adhibite after the resignation is made it is meerly personal and cannot have influence on the resignation which was before it or if he but permit or give license to the disponer or which is alike if he consent that the disponer dispone in so far as may concern the disponers right these will not be sufficient warrand for the resignation but if he give warrand or consent to the resignation it is sufficient neither is there neces sity to distinguish whether the disponer have a colourable Title or not se ing it is the consent of the true Vassal and the resignation as flowing from and warranted by that consent which transmitteth the right and therefore an Infeftment of an annualrent granted by a person not Infeft was found valide because a consenter thereto was Infeft and so it did exclude a valide right flowing from that consenter to a singular successor thereafter viz. a Tack Decem. 15. 1630. Jean Stirling contra Tennents 10. Resignation how necessar soever to transmit an Infeftment yet because the Procuratory and Instrument of resignation may be lost therefore the Vassal possessing fourty years by vertue of an Infeftment mentioning such a resignation the same will be valide without the production of the procuratory or Instrument of resignation which therefore is presumed thence presumptione juris Par. 1594. cap. 214. 11. As to the effect of resignation there is no doubt but when the same is truely made and Infeftment follows conform the resigner is fully divested and the acquirer is fully invested and if there be conditions or provisiions whether bearing express clauses irritant that the acquirers Infeftment shall be null and the disponers Infeftment shall revive or he have regress how far these are effectual till by resignation or judicial process the same be recovered is more fully cleared before Title Infeftments It is no less evident that before resignation be made the disposition or procuratory operats nothing as to the real right which notwithstanding remains fully in the disponer though he be personally oblieged to perfect it albeit there be no such express obliegement in the disposition yet by the nature thereof the disponer is oblieged to Infeft himself if he be not Infeft and to Infeft the acquirer Hope alienations William Gladstanes contra Laird of Mckerstoun Yea the disposition of property being accomplished carrysall real right of the Land or Bonds for granting real right in favour of the disponer or his authors neither assigned nor mentioned in the disposition July 1. 1623. Craigy Wallace contra John Chalmers Yea a liferent carryeth the reversion in the disponers person as to the Liferenters Liferent use that ther eupon he might redeem a Wodset So likeways a disposition of Lands immediatly before a Term not expressing an Entry nor Assignation to the rent was found to exclude the disponer therefrom though Infeftment followed not till after the Term Spots Mails and Duties Andrew Caldwal contra Robert Stark And generally it carrys Mails and Duties as including virtually an Assignation thereto July 15. 1629. Inter eosdem And though the Disposition or Procuratory cannot constitute a real right yet it doth sufficiently exclude the Disponer or his Heirs from troubling the Acquirers Possession thereupon 12. The Main question then is what is the effect of a resignation when done and accepted by the Superiour and no Infeftment following thereon where in that case the right standeth whether in the Disponer Acquirer or Superiour and whether the resigner be fully thereby denuded or if he may not grant a second resignation whereupon the first Infeftment being recovered will be effectual This is very learnedly debated by Craig in the forementioned place where he sheweth that the common opinion was that the second resignation with the first seasine will be preferred though the Lords had decided otherways in the case of a Citizen of Perth who making a second resignation in favours of his Son though after the first resignation by the space of twenty years yet Craig approveth the old opinion concerning the resigner never to befully divested till the acquirer were invested this is clear that by the resignation the Fee falls in Non-entry ' and is in the superiours hands and while the resigner resigning in his own favours bereceived or the resignation past from Or otherways the acquirer be infeft the superiour hath the Non-entry duties of the Lands resigned if the Infeftment be not delayed through his own fault It is also clear that by the superiours acceptance of the resignation in 〈◊〉 there is upon him a personal obligation to Infeft that person in whose favours the resignation was made and therefore though the resigner dieuninfeft his heir by a single service hath right to that asother personal rights and thereupon may compel the superiour to infeft him yea as Craig observeth in the fore-cited place the Lords upon supplication without Citation will grant Letters summarly upon sight of the Instrument of resignation and warrand therefore to charge the Superiour to Infeft the party in whose favour it was made who may not receive another resignation or nfeft an other party or else his obliegement may make him lyable to the obtainer of the first Resignation pro 〈◊〉 inter esse if he be not in mora in doing diligence to get his new Infeftment expede recenter but the real right will be carryed by the first Infeftment though upona posterior Resignation and so posterior Decisions go along with Craigs opinion not only in the case of the first publick Infeftment upona second Resignation but which is much more after a Resignation made a base Infeftment flowing thereafter from the Resigner and being but a short time before the publick Infeftment upon the Resignation yet was preferred
the Lands that the value and worth thereof might the more clearly appear where after discussing of the Appryzers Claim the hability of the persons of Inquest and Witnesses so much Land was appryzed and adjudged as was worth the sum the years Rent to the Superiour and expenses of Infeftments and if the Lands were burdened with any former annualrents whereby a proportion of Land could not be appryzed free of burden there was appryzed an annualrent forth of the Lands effeirand to the sums and expenses foresaid and redeemable in the same manner which was sustained by the meaning and intent of the Statute though by the words of it appryzing of Lands was only mentioned it was ever extended to all Heretable Rights thus it continued till the Lords of Session upon exceptions against the Sheriff upon his interest relation or enimity or upon the lying of Lands in diverse Jurisdictions for preventing of expenses by many appryzings where the Lands in one Jurisdiction sufficed not did grant Letters of appryzing under the signet direct not to the ordinar Sheriffs but to sherifts in that part which being frequent did come to run in course to Messengers as sheriffs in that part c. And thereby the appryzer in respect the Letters had a blank for inserting the Messengers name did choise the Messenger who did denunce all Lands and other Heretable Rights which the appryzer pretended to belong to his debitor And in respect the Letters bore dispensation of the place did apprize at Edinhurgh all that the appryzer clamed in satisfaction of the debt without knowledge or consideration of the value of the Lands or others appryzed or proportion to the sums appryzed for and thereupon was Infeft in the whole and payed to the superiour a composition for a years Rent of the whole which was a considerable accession to the Debitors debt and behoved to be payed by him and by the saids appryzings the appryzer might and oftentimes did enter in possession of the whole Lands without being countable for the rents thereof of what quantity soever By this abuse the intent of that excellent statute for appryzings was enervat and the same turned in a meer Formality until the Par. 1621. cap. 6. which began to correct that exorbitant abuse and declared appryzers countable for their intromissions in so far as exceeded their Annualrents to be imputed in their principal sums pro tanto and that they being thereby satisfied of their sums principal and annual composition to the superiour and expenses of appryzing and infeftments that thereby the appryzing should expyre ipso facto and it is also declared that if the Lands appryzed be not worth of free rent effeirand to the annualrent of the said sums that before redemption he shall be satisfied of the superplus By which Act it is declared that Minors may redeem Lands appryzed from them at any time within their age of twenty five years compleat yet so that after the first seven year the appryzer shall have the benefit of the whole Mails and Duties till he be redeemed which hath always been extended to Lands appryzed from persons being Major if a Minor succeed during the Legal and if a person being Major succeed to him who was Minor he hath the benefit of Reversion of seven year in so far as was not run in the Minors life and if less remain then a year at the Minors death the Major hath a full year to redeem after the Minors death and by the Act 1669. of the abrogat Parliament 1641. appryzers were declared countable for the rents of appryzed Lands intrometted with by them during all the time of the Legal whether competent to Minors or others And because of another great abuse by the debording of Appryzings from the first institution that the first appryzer appryzing the whole Estate the other Creditors had no more but the Legal Reversion which did ordinarly expyre the subsequent Creditors not being able to raise money to redeem the anterior appryzer whereby the first appryzer carried the whole Estate and excluded all the rest and being ashamed to take so great a Legal advantage and sometimes not daring to make use of it did ordinarly compone with the debitor his appearand heir or some confident to their behove whereby the debitors heir recovered his whole Estate by satisfying one Creditor and excluding all the rest therefore the Par. 1661. by their Act 62. anent debitor and creditor declared that all appryzings deduced since the first of January 1652. or to be deduced in time coming within a year after the first appryzing which became effectual by infeftment or Charge should come in pari passu as if one appryzing had been led for all the sums and thereby the legal was extended to ten year and it is declared that whensoever the appearand heir or any to his behove shall acquire right to any expyred appryzing that the same shall be redeemed from them within the space of ten year after their acquiry by posterior appryzers upon payment of what they truly payed in so far as shall not be satisfied by their intromission But neither did this statute cure the abuse of appryzings and therefore the Act of Par. of the 6. of septem 1672. upon consideration of debording of appryzings from the first design and of the great inconveniencies arising thereby for the bringing in of all appryzers within year and day did give way to break the credit and ruine the interest of the most considerable Heretors in the Kingdom that creditors being thereby invited under the hazard of being excluded to appryze within a year and thereby one wilful malicious or necessitous Creditor apprizing all the rest followed and intirely brook their credit unless they would pay all their debt in one day therefore the Parliament did in place of Appryzings ordain adjudications to proceed before the Lords of Session for adjudging the Lands and other Heretable Rights of debitors effeirand to the sums appryzed for and a fifth part more in place of the penaltiies and sheriff-fee and allowed Witnesses for either party for clearing of the Rental and rate of the Lands in the several places where they ly and appointed the adjudger to have present Possession of the Lands adjudged not being accountable for his intromission during the Legal redeemable only within five year whereby the Creditor had easie accress for his satisfaction without all hazard or account which had been the ground of many tedious Processes of Count and Reckoning for the Intromission of former Appryzers and wherein the Adjudgers is to have the Consent of his debitor both as to Right and Possession and delivery of the Evidents and it is declared that if the debitor do not instruct and deliver a good Right and consent as said is that the creditor might adjudge all the debitors Estate in the same manner and to the same effect as is appointed by the Act of Par. 1661. between debitor and creditor We shall not here speak of
Adjudications and Appryzings as they are legal Executions and of the Order and Solemnities requisite to them as such but only as they are Conveyances of real Rights wherein we shall consider first upon what ground Appryzings proceed Secondly against what Rights they are competent Thirdly what is the effect of the Process or Decreet of Appryzing without further Diligence Fourthly what is the effect thereof when further Diligence is used Fifthly what is the effect thereof when Infeftment is obtained And lastly in what manner it ceaseth and becometh extinct 14. As to the first Appryzing is an Appretiation and Judicial Vendition of the thing appryzed from the Debitor to the Creditor and as in all Venditions there must be merx and pretium or the price in numerat Money for if the mutual consist in any thing else it is not Sale but Exchange therefore the ground of Appryzing must be numerate and current Money and if originally it be not so it must be liquidat before Appryzing can proceed neither can it proceed but upon a Decreet establishing the Debt by Registration or otherways in the person of the Appryzer active and of the Debitor Passive yet an Assigney intimating before the Cedents death may Appryze summarly without Action establishing the Debt in his person as hath been shown Title Assignations Neither could Appryzing proceed upon Heretable Bonds unless the same had been made moveable by Requisition or Charge and therefore was found null proceeding upon an Heretable Sum bearing a Clause of Annualrent though payable without requisition upon a single Charge of six days seing that Charge was not given July 20. 1622. John Cranstoun contra Laird of East-nisbit Hope Obligations Alexander Mowat contra the Creditors of John Richardson John Cranstoun contra Laird of Lugtoun But Posterior Decisions have run in the contrair that if the sum were payable without Requisition Appryzing might proceed thereupon without a Charge as well as Poynding or Arrestment July 4. 1627. Edgar and Johnstoun contra Findlason July 10. 1629. Clackmannan contra Barroun In which case the principal sum was payable at a precise Term and no mention of any Term or time thereafter and yet was Appryzed for after that Term January 25. 1642. John Seatoun contra James Loch But if Infeftment have followed or Requisition be requisite the sum must be made moveable before Appryzing But other Sums though by Destination Heretable yet having Summar Execution by the parties consent Appryzing is sustained thereupon 15. As to the second point against what Rights Appryzings extend First though Letters of Appryzings contain power to poynd Moveables which must be searched for yet that which is properly called Appryzing extends to no Moveables but only to Heretable Rights as Lands Annualrents Liferents Tacks Reversions Heretable Bonds July 25. 1623. Earl of Errel contra Buckie and therefore it extends not to the Mails and Duties of the Appryzed Lands before the Appryzing Feb. 14. 1623. Saltcoats contra Home The like though the question was against the Debitor himself and that the style of the Appyzing bore all Right that the Debitor had to the Lands to be Appryzed March 13. 1627. Mackre of Balmagie contra Livingstoun And where an Annualrent is Appryzed it extends not to the bygone Annualrents which are Moveable but these being Moveable are Arrestable neither doth it extend to the Duties after Denunciation and before Appryzing Feb. 16. 1633. Harper contra Cockburn and Johnstoun Appryzing is extended to all Heretable Rights though they were not provided to Assigneys but to the Debitor and his Heirs only or failing such Heirs to return and therefore publick utility and the favour of the Creditor makes it more effectual then any voluntar Disposition or Assignation could be so an Appryzing was found to carry a Right though not granted to Assigneys Hope Appryzing John Brown contra Fssilmont of Buckie And a Husband granting Right to his Wife but with provision that she should renounce it if he required it in his own life allennerly a Creditor of his Appryzing that Land and requiring the Wife to renunce was found to have right thereto spots Appryzing Lady Huttonhal contra Cranstoun of Moristoun An Appryzing of the ground Right and Property of Lands and all other Rights c. carryeth not only the Property but all other real Right or Obliegements for granting thereof and though no Infeftment follow the Appryzing so conceived will carry any Right which requireth not Infeftment as if it had been specially Denunced and Appryzed June 19. 1635. James Rule contra Alexander Home 16. To come now to the third Point concerning the Efficacy of the Process and Decreet of Appryzing without further Diligence and first it hath the effect of an Assignation without necessity of Intimation and carries all Rights which require not Infeftments to transmit them as Liferents Reversions Tacks And so an Appryzing was found to carry the Legal of an anterior Appryzing though the Denunciation whereupon it proceeded was anterior to the Denunciation whereupon the first Appryzing proceeded and thereby at the time of the Denunciation of the second Appryzing neither was the first Appryzing in being neither the Denunciation thereof and so could not be Denunced or Appryzed yet the Denunciation of the Ground-right and all Right competent or that might be competent to the Debitor was found to carry the Reversion of the said first Appryzing Novem. 18. 1624. Doctor Kincaid contra James Halyburtoun 17. Though second Appryzings carry the legal Reversions of anterior Appryzings without Infeftment Yet Infeftment is frequently taken thereupon that the posterior Appryzer may have Interest thereby to reduce or quarrel the Anterior Appryzings and to pursue for Mails and Duties or Removing if the Anterior appryzer should forbear 18. The second effect of Appryzing is that the Debitor is thereby so far divested that after his death Infeftment may be taken by the Appryzer without transfering or Infefting the Debitors Heir Novemb. 20. 1624. Lag contra his Tennents So likewise the heir of the Appryzer dying before allowance or Infeftment upon Supplication obtained allowance from the Lords and Letters to Charge the Superiour to receive him Spots hic Alexander Frazer Supplicant The like was granted by the Appryzers Assigney March 22. 1626. Collace contra Lord Elphingstoun Yea an appryzer did obtain allowance and varrand to Charge the heir of the Superiour contained in the first allowance being dead Decem. 5. 1628. Laird of Corsbie contra Kilsyth From this ground it is that an Appryzing excludes prior assignations granted by the Debitor to the Mails and Duties of the Lands appryzed as to Terms after the appryzing Hope assignations George Meldrum contra Laird of Anstruther 19. And when an appryzing was led before an Husbands death it excluded his Wife from a Terce Hope appryzings James Chrightoun contra Relict of John Cranstoun Where he doth also observe it to exclude a subsequent Ward in respect the Superiour gave a Charter upon the appryzing in his Vassals life
Creditor to the debitor by delay of the term June 20. 1678. Scot of Burn-foot contra Falconer and Edmistoun 31. Albeit the Lords do not ordinarly modifie Penalties after appryzing yet if they be exorbitant they do modifie the same and all Termly Failzies as they did in the said case of Orrock of Balram and Francis Irvin 32. Appryzing was sustained upon a sum payable without Requisition albeit there was no Charge preceeding the appryzing July 21. 1666. Mr. John Thomson contra Mcgutrig The like though the Bond bore annualrent before 1641. seing there was no Infeftment thereupon or Requisition therein Jan. 14. 1679. Farquhar of Finian contra Robert Stuart 33. And an appryzing was sustained though the Lands appryzed were not filled up in the Letters of appryzing or special Charge nor in the Executions because the Messenger who execute was Judge in the Appryzing which relating the Denunciation of the Lands particularly and Charging the appearand heir to Enter thereto in special was found a more solemn Execution then any Execution a-part Jan. 16. 1680. John Brown contra Nicol. 34. An appryzing was sustained without producing the Letters of appryzing being in anno 1636. But the Instructions of the debt was found necessary to be produced being within Prescription February 11. 1681. James Kenuay contra Thomas Crawford Yea an appryzing was sustained upon a Bond payable upon Requisition though the appryzing made no mention of the Requisition the Instrument of Requisition being produced 35. And though the Dispensation to appryze was neither at Edinburgh nor the head Burgh of the Shire but a place upon the open Fields and upon a count of a great rain the Messenger did not appryze that day but adjurned the Court of appryzing til the next day July 12. 1671. the heirs Mr. Thomas Lundie contra the Earl of Southesk 36. And an appryzing of the ground-right of Lands and all other right belonging to his debititor the Superiour being Charged thereupon was preferred to a posteriour appryzer who appryzed particularly an annualrent out of the Lands which was the only Right of the common debitor November 21. 1673. Mr. John Fairholm contra Rentoun and the Countess of Levin 37. Appryzings are elided by satisfaction or payment without necessity of Renunciation Resignation or Reduction as in the case of other Infeftment July 25. 1626. Lord Lovat contra Frazer The reason is because appryzing being but a legal diligence for security of the sum which ceassing it falleth without other solemnities and the dobitors own Infeftment stands valid without Renovation which with the Infeftment upon the Appryzing stood but as a paralel Right for security so that all returned adpristinum statum and amongst the rest the Casualities of the Superiority if they were taken off by the appryzing and therefore an heir not entering but being Chargeed if he satisfie and redeem the appryzing he will be in non-entry till he be received of new 38. Appryzings are excluded and qualified with the Back-bonds and obliegements of the appryzer as in personal Rights which are valid against singular Successors as a back-bond that an apprysing should not be prejudicial to anothers parties Right was found relevant against the appryzers singular Successor the Kings Donatar of the appryzers forefaulture July 31. 1666. the Earl of Southesk contra Marquess of Huntly The last and most ordinary Exstintcion of appryzing is by Intromission with the Mails and Duties of the appryzed Land over and above the annualrent for these are imputed in the principal Sum by the Statute Par. 1621. cap. 6. which is also extended to Minors having the priviledge after the ordinary legal of seven year But it was not provided for in the said Statute that the appryzer should be countable for his Intromission thereafter which is therefore provided for Par. 1641. cap. 67. which though it was neglected and not revived Par. 1661. yet the Lords sustained the same as now in Custom twenty years and more Feb. 18. 1663. John Ross contra Mckenzie But the Tenor of the said first Statute being that the quantities of the Mails and Duties shall extend to as much as will satisfie the whole principal sum and annualrents thereof composition to the Superiour and annualrent thereof and expenses in deducing the appryzing In that case the appryzing is declared to expyre ipso facto So that if any part thereof remain and the debitor be so negligent as not to use an Order and count and reckoning within the legal but suffer it to expire the appryzing will stand valid and carry the Right of the whole Lands and will not be extinct in so far as satisfied proportionally Hope Confirmation Doctor kincaid contra Halyburtoun which was so found where a part of the sum was satisfied by payment Novem. 28. 1623. Mr. Robert Craig contra Wilson But if the remainer be very small the Lords may be the more strict in modifying pryces and if that be not sufficient a small remainder will not take away the Right de minimis non curat Lex Intromission is not only extended to the Rents and Profits of the appryzed Lands but to the pryce of any part thereof sold by the appryzer within the Legal Jan. 14. 1669. Mckenzie contra Ross. And ansappryzing was also found extinct by the Intromission of him to whom the appryzer granted Back-bond declaring the appryzing to be to his behove and that against a singular Successor who thereafter was Infeft upon the appryzers Resignation July 12. 1670. Kennedy contra Cunninghame and Wallace Yea An appryzing was found excluded as being satisfied by the debitor and retired by him with a blank Assignation thereto lying by him at his death though his Son thereafter filled up his name therein which was instructed by the sons oath and witnesses ex officio Feb. 27. 1666. Creditors of the Lord Gray contra the Lord Gray But an appryzing was not found extinct by Intromission where the appryzer payed to his debitor the superplus of the rent above his annualrent before the leading of any other appryzing yet where any order of Redemption is used before the expyrie of the legal the appryzing was found extinct by intromission after the course of the legal July 7. 1676. John Edgar contra Patrick Milu The like was found in respect of an order used by a second appryzer and was sustained though the first appryzer had acquired right to an order of Redemption by a third appryzer used against the second appryzer which was not found to hinder the second appryzer to declare the first appryzing satisfied by Intromission during the legal or the order but prejudice to the third appryzer or to the first appryzer having Right from the third appryzer to Redeem the Lands from the second appryzer by satisfaction of the sums due to him July 18. 1676. Gordoun of Seatoun contra Watson Yea an appryzing being both against the Principal and Cautioners Estates an order of Redemption used by the principal debitor was found to keep the appryzing
before Yea Citation before the 5. years and Inhibition in the 5. years with a subsequent Security was found sufficient to take off the benifite of this Act July 23. 1666. Earl of Southesk contra Marques of Huntlie This priviledge is not competent by Exception or Reply offering to prove 5. years possession but by a reture upon a Commission served by an Inquest July 13. 1666. Sr. Henrie Hoom contra Sr. Alexander Hoom. In this Statute it is also provided that where there were Tacks or possessions of Lands or Teinds possessed by the forefault Person in respect that the rights thereof might also be abstracted that the King and his Donatar should continue in that same possession for sive years without any accompt for the profits thereof and longer if a Right be instructed of the forefault person And if a Fewer be forefault the Land is not lyable for the Feu dutie preceeding the Forefaulture because the discharges thereof might have been abstracted Possession for feuer then 5. years by the Forefaulted person was found sufficient to continue for 5 years though no Tack was instructed Jannuary 24. 1667. Sr. Henrie Hoom contra Sr. Alexander Hoom. 36. It is also declared in this Statute that the Forefaultur of the appearand Heir carries therewith the right of the Lands to which he might succeed though he were never entred Heir nor Infeft whereof Craig mentions a case Lib. 2. Dieg. 8. That the Daughters of the Laird of Laisindrum were excluded from their Succession to their Goodsir because their Father was forefault though he was never received nor infeft in these Lands 37. Craig in the forecited place moveth but determineth not this question whether the Forefaulture inserreth a Corruption of the Blood of all the Descendents of the Forefault Persons whereby till they be restored they are incapable of any Succession though descending to them by the Maternal Lyne This Corruption of the Blood is frequently in Fngland where persons are specially attainted and convict of Treason And sometimes with us it is called dishabilitation and is a part of the Doom or Sentence that the Successors of the Person convict shall be incapable of Lands Estate Honour or Office Yea then Fame and Memorie is sometimes condemned and their Surname abolished as was done in the Forefalture of the Earl of Gourie But it is not consonant to our Customs that Forefaulture in other cases should infer this Corruption of Blood First because of the Multiplication of cases to which Forefaulture is now extended as to Thest on 〈◊〉 men and false Coyn. 2. If none of the Descendents of 〈◊〉 persons were Capable of Succession to any person that could not be by reason of any speciality in the matter of Succession but of something in their person by reason of the Forefaulture excluding them thence which would not only take place in Heritage but in Moveables Yea the Oye or farther Off-spring of the Forefaulted person could not succeed to their ownimmediat Parents which would inferr that they could be capable of no Goods or Means but the same would be instantly Confiscat 3. Though Forefaultures in Scotland have been very frequent the off-pring of such have ordinarily acquired Lands and Goods and their Children Succeeded them therein without obtaining Restitution of their Blood So that this Corruption of the Blood is rather to be thought a Speciality in some Attrocious Treasons by the tenor of the Doom of Forefaulture then a general consequence thereof 38. But whereas it hath been said that the appearand Heir being Forefaulted the King hath right to the Heritage to which he might succeed It may be Questioned whether that my be extended to the appearand Heir if he be Forefaulted during his Predicessors Life Or if it be only in the case that the Heir apparent is forefaulted after the death of his Predecessor Where de presenti he may be Heir there is no doubt if the person forefaulted should be fugitive and survive his Predecessor But the Heritage accresing to him wherein he might de presenti infeft would fall under forefaulture though he were not actually infeft And it seems no less clear that being forefaulted if he should die before his Predecessor that his brother or Collaterals might succeed to their Father or any other to whom the forefaulted person if he had survived them would have succeeded It is more doubtfull whether his descendents could if any were for these would Exclude the Collateralls And there seems no reason to exclude them from their Grandfathers Heritage not being dishabilitat And seing I have not found it extended further I conceive it more favourable that the Heir appearand dieing before his Predecessor should not hinder his Descendents to succeed to that predecessor But unless the forefaulture did incapacitat the Predecessor to dispose upon his own estate the forefaulture in that case would be improfitable Yet seing we have no complaints of exhaeredatione in Scotland But that Parents may freely dispose of their Estates at their pleasure it would be hard to bind up the Parent more in Relation to the Fisk then tohis own Child unless fraud to prevent the effect of the forefaulture without a rationall cause do appear 39. For the further Security of the King and his Denatar it is provyded Par. 1594. cap. 202. That no Letter of Pension Factory Band or Assignation granted by any forefault person shall be valid unless it be confirmed by the King or authorized by Decreet of an ordinary Judge obtained before citation in the Process of Forefaulture which seems to insinuate that Creditors should be satisfied out of the forefault Estate but it will reach no further then the Moveables fallen by forefaultnre which seems to be affected in the same way as falling by Single-escheat the full Dominion in both being the Kings but with the burden of admitting the diligence of Lawful Creditors before Declarator but I have not observed this practiced in moveables of forefault persons The reason of this Statute appeareth by the Act immediately preceeding whereby a former Act of Parliament in favours of the Vassal of forefault persons is resoinded and appointed to be delet out of the Books of Parliament which rescinded Act though it be not Extant but delet as aforesaid hath affected forefault Estates with the debts of the forefault person and with the subaltern Infeftments granted by forefault persons not confirmed And therefore such Rights being Constitute by a Law then standing could not be derogat by a subsequent Law And therefore it was 〈◊〉 to Caution by the foresaid Act 202. That Simulat or antedated Rights might not affect Estates Forefaulted before the said rescissory Act. 40. Sentence of Forefaulture being pronunced is declared Irreducible upon any nullitie in the process upon which it proceeded till the 〈◊〉 be remitted by the King or the partie tryed and acquite thereof But restitution shall only be granted by way of Grace to the parties forefaulted or their Posteritie Par. 1584.
was lyable to fulfill the Bastards back-band June 20. 1671. Alexander Alexander contra Lord Saltoun 47. Ultimus Haeres may seem to be a Succession from the dead and to come in amongst other Heirs yet though it hath the resemblance of an Heir because it hath effect when there is no other Heir and makes the Heritagelyable to pay the Defuncts debts it is only a caduciarie Confiscation of the Defuncts-Estate with the burden of his Debt but no proper Succession to him therein which appeareth thus The Heir is one person in Law and is therefore personally obleiged for all the Defuncts debts so is not the Fisk against whom or the Donatar there lyeth no Personal Action for payment but for Restitution if he have intrometted and of Real Action contra Haereditatem jacentem which is most proper by Adjudication being the Supplement of ordinary Actions or Executions competent by Law For there being no partie to represent the Defunct debitor there can be no Decreet but cognitionis causa and Adjudication following thereupon in which the Fisk or Donatar is to be called passive as the party having Interest to see that the Debt be due which will affect the Defuncts caduciarie Heritage to the detrement of the Fisk or Donatar So then ultimus Haeres and Bastardrie are of the like Nature which being caduciarie Confiscations fall to the Fisk because no other can have right there may be this difference betwixt them That in the case of the last Heir Creditors for their satisfaction may confirm the Defuncts Moveables and so recover the same for their own Satisfaction in which case they would be lyable as other Executors to the remanent Creditors of the Defunct and to the Fisk or Donatar for the superplus As in the place of nearest of Kin to the Relict also for her part but this being only for obtaining their own Satisfaction and for shunning a more extraordinary way by Adjudication which also they may use at their option they ought not in prejudice of the Fisk to have the third part of the Defuncts part as other Executors but in the cases of Bastardry Confirmation of Executors is not competent because the Bastard being excluded from the power of making Testament can have no Executor Concerning last Heir the greatest doubt is who they are and in what Cases they take place As to the first Craig lib. 2. Dieg. 17. is not positive whether Superiours be last Heirs of the Defunct in the Fies held of them or if the King be the last Heir for all And according to the antient Feudal Customs there is no doubt the Feus return to the several Superiours for thereby none could succeed without Express provision in the contrary but the lawful Issue of the Descendent of the first Vassal whose Person and Race was peculiarly chosen and confided in by the Superiour But now Fies not being gratuitous as at first but for onerous causes besides the reddendo service and ordinarly granted to the Vassal and his Heirs whatsomever Which failzing the King by his Prerogative Royal excludeth all other Superiours who are presumed to retain no right nor expectation of Succession unless by express provision of the Investiture the Fies be provided to Heirs Male or of Tailzie which failzing to return to the Superior In which he is proper Heir of Provision As to the other Doubt in what case the King is last Heir Craig in the forenamed place relateth that some were of opinion That if the Defunct had no Heirs within the 7th degree the King taketh place as last Heir And that others thought it to hold in Collateral Successions but his own opinion is in the contrary That any Heir of what degree soever hath Right which suiteth with the ground now laid that the King hath right as last Heir to the Heritage become caduciarie Because no other partie can be instructed lawful Heir So he reporteth it was found in the case of the Earl of Marr who was served Heir to Lady Elizabeth Dowglas Countess of Marr beyond the tenth degree And that the Lord Seatoun that he might have a Title to the Redemption of the Lands of Longnidrie against Forrester served himself Heir to the granter of the Wodsett beyond the 7th degree whereof several degrees were Collateral And the French King Henrie the 4th Succeeded to Henrie the 3. though not within the 15. degree The gift or right of ultimus haeres hath no effect till Decreet of Declarator be obtained thereupon in the same way as in Bastardry July 20. 1662. Laird of Balnagoun contra Dingwal July 31. 1666. Thomas Crawford contra Town of Edinburgh TITLE XXVI Succession 1. Whether in equity there be a Rule in Succession 2. That Rule is the expresse will or presumed will of the Defunct 3. The first degree of Succession by the presumed will of Defuncts 4. Whether in equity there be right of representation 5. Failing descendents ascendents succeed in equity 6. Failing both brothers and sisters succed 7. Failing these the nearest Agnat succeeds 8. The succession of Cognats 9. The Jewish succession whereby all the sons succeed and exclude the daughters and the eldest son hath a double portion 10. Fathers could not prejudge the primogenitur of their eldest Sons 11. By the Jewish succession failing descendents the inheritance passeth to Brethren and these failing to Fathers Brethren and failing these to the nearest Kinsman 12. Whether in the Jewish Succession there be right of representation 13. Why no Femals but daughters succeed among the Jews 14. Why Parents Succeed not amongst the Jews 15. Succession amongst the Romans was first by Testament 16. If there was no Heirs institute by Testament the antient Roman Law called all the Children of the Family unforisfamiliat male female not excepting adopted Children to Succeed 17. These failing the nearest Agnats but no Parents thereby Succeed 18. The Romans Succession be the pretorian Law 19. Their Succession by Justinians novel constitution 20. In Feudal Succession the first Rule is the expresse will of the partie by the investitur 21. The nixt Rule is the conjectured will according to the nature of the Fee 22. Primo-geniture now established by common custom in Feudal Rights 23. Succession in Scotland is wholly different in moveables and immoveables 24. The several degrees of Succession in moveables 25. Succession in Heritable Rights 26. The difference betwixt the two successions 27. The priviledge of Heirs not to be prejudged by their predicessors deedes on Death-bed 28. What is estimate Death-bed 29. Against what rights Death-bed is extended 30. Death-bed annulls no deeds for causes onerous 31. Dispositions in Testaments are as on Death-bed 32. Annus deliberandi 33. Kinds if Heirs in Scotland 34. No place for Adopted or Cognats in succession with us 35. Parents Succeed to their Children exclude the Parents Collaterals or these representing the Colaterals SUCCESSION to Defuncts is the most Important Title in Law for thereby the Rights of all
trust reposed in him and the like hope of his Issue Patrene sequitur sua proles It was at first so simplie done that the entering of the Vassall in Possession in 〈◊〉 of his Peers was a sufficient Constitution of his Right and the Investiture signified then not so much the Act constituting as the Write evidencing the Fee in the which case from the nature of the right it is consequent first that none should succeed in the Fee but such as were fit for the Militarie Services and so Women and their Issue were utterlie excluded and all the Males Succeeded equally 2. In Proper Fees none could Succeed but the Lawful Issue of the first Vassall whose Person and Issue was specially chosen among which first the Male Issue of the Vassall who dyed last infeft according to their nearness do succeed with the right of Representation and so not per capita but per 〈◊〉 next unto the Descendents among the Collateralls Brothers and their Male Issue and among these the Brothers German and their Issue exclude the Brothers by one blood and after Brothers Father Brothers and their Male Issue And so other Agnats of the last deceased being alwayes of the Male Issue of the first Vassall which being extinct the Fee ceaseth and returneth to the Superior not as the Vassalls but by vertue of that Directum Dominium which still remained in the Superior In this course of Feudall Succession there could be no place to the Vassalls Father or other Ascendents because if the Fee were a new Fee or Conquest by the Son his Father nor his Brethren could not Succeed as not being of the Issue of the first Vassall and if it were an old Fee not purchased by the Son but whereunto he did succeed it doth necessarly presuppose the Death of the Father and other Ascendents to whom the Son could not be Heir nor succeed till they were Dead But when by the course of time Fees declined from the proper nature of Ancient Fees and the Investiture did express the Tenor and speciall nature thereof the Tenor of the Investiture became the first rule of Succession in such Fees and came in place of the Testament or Will of the Defunct for seing the Vassall could not alter the Succession without consent of the Superior he could not effectually Test thereupon 21. In the next place what is not the Express Will of the Vassall and Superior by the Tenor of the Investiture is regulate by their Conjectured Will from the nature of the Fee and Propinquity of Blood So if the Fee be Originally granted to a Woman her Issue 〈◊〉 succeed as well as the Male or if the Reddendo be not Militarie Service but Money Grain or Services competent to a Woman or Manual Services wherein there is no choise of Persons as Tilling c. And so generallie Fees holden Blench or Feu In all these Woman may Succeed because they are not excluded by the Nature of the Service 2. If the Fee be Granted to Heirs whatsomever not only doth the Issue of the first Vassall but all other his Lawfull Heirs or the Lawfull Heirs of the last Deceassing Vassall whether of the Issue of the first Vassall or not do succeed And now Fees being ordinarily acquired by Sale Excambion or the like Onerous Title Feuda ad instar 〈◊〉 sunt reducta Heirs whatsomever are commonly exprest and if they were not they would be understood for that which is Ordinar is Presumed 22. But now Custome hath altered the Course of Feudall Succession and given the Prerogative of Primogeniture to the eldest Male of the nearest Degree to the Defunct Vassall who excludes not only the Females of that Degree but the Males also and their Issue not only among us but in England France and most other Nations and therefore before we descend to our own Customes it will be fit to consider the Justice and Expediency of this common Custome in Feudall Succession The Lawfulness of Primogeniture will be easily evinced from what hath been said already upon Succession wherein the will of the Proprietar is the Rule even in Equity and though he be Naturally oblidged to provide for his own that Personal Obligation reatcheth him but not the Inheritance nor doth it Oblidge him to make these to Succeed but to give them Competent Provisions and therefore the Judicial Law which is the Positive Law of God evidenceth sufficiently the Lawfulness and in some Cases the Expediency of altering the Natural Course of Succession and therefore not only the Male Issue is thereby preferred to the Female All the Females are utterly excluded but only Daughters that the Inheritance may remain within the Tribe and the Preference of Males is because Femoles are less fitted for Management of Lands and therefore are to have a Portion which the Judiciall Law calleth the Dowry of Virgins The Expediency of Primogeniture is partly Publick and partly Private The Publick Expediency is that the Estate of Great Familyes remaining intire and undivided They with their Vassals and followers may be able to defend their Country especially against Sudden invasions for with us in France Polland and many other Places the Great Families are the Bullwarks of their Countrey Having 〈◊〉 to Maintain them selves and their Followers for some time without Standing Armies Constant Pay and Subsidies The Private Expediency is for the Preservation of the Memorie and Dignitie of Families which by frequent Division of the Inheritance would become despicable or forgotten Primogeniture taketh Place in Germanie and France in proper Fees like unto Our Ward-holdings but not in Allodialls and Lands holden Freely or for Cane or Rent Gudelinus de Jure novissimo lib. 2 cap. 13. relateth that in many of the German and French Provinces the Male gets two third parts and the Females one in the other Provinces the Children of the first Marriage succeed in all the Lands the Parents had during that Marriage and so in order the Children of after Marriages And in other Provinces and Cities the Youngest Son Succeedeth in all Excluding the rest and Generally Bastards are not admitted even to the Succession of their Mothers and in England though Primogeniture have the Prerogative by the Common Law yet it hath an Exception of the Custom of Kent where Primogeniture hath no Prerogative And therefore that Custom is called the Gaball kind of Kent which is as much as to give to all the kind The Customs of England and Germany are contrary in this That in Germany Parents come in the next place after Descendents and exclude Brothers and Sisters and all other Collateralls but in England Parents do never Succeed so if the Defunct have no Issue Brothers nor Sisters nor their Issue the Fathers Brother Succeeds and excluds the Father though his Relation be by the Father and much further distant then the Father And it sometimes falls out that the Uncle Succeeding dying without Issue the Father Succeeds his Brother and so Accidentally and
Mediatly to his own Son 23. To return to our Customs in Succession in respect of the Matter it is divided in two Branches the one is of Moveables the other of Immoveables which do as much differ astheCustomes of diverseNations The Successor in Immoveables doth only retain the Name of Heir and therefore Immoveables are called Heritable Rights and that part of the Moveables which belongs to the Heir is called Heirship-moveable The Successor in Moveables from the Office of executing the Defuncts Will express or presumed is called Executor We shall here Summarily at one view set forth the whole matter of Succession with us which we shall more fully and distinctly follow in the ensuing Titles Heirs in Law are called Universal Successors quia succedunt in universum jus quod Defunctus habuit they do wholly represent the Defunct and are as one Person with him and so they do both Succeed to him active in all the Rights belonging to him and passive in all the Obligations and Debts due by him and when they do not orderly enter they become Successors passive lyable to the Defuncts Debt but not Heirs active having power to claim his Right till they be entered according to Law Other Successors are called singular Successors as Assigneys Purchasers but Heirs only are universal Successors And now when Heirs are of divers kinds as some in Moveables some in Lands and other Heritable Rights and of these ac cording to the Investiture some succeed to Lands provided to Heirs of Line some to Lands provided to Heirs Male some to Lands otherways Tailzied in all which some Heirs Succeed alone and in solidum some Succeed in parte pro rata yet all may be said to Succeed in universum jus quod Defunctus habuit by universum jus the whole Right not simply in solidunt but the whole Rights of such a kind either in solidum or at least pro rata parte as he who Succeeds in a half or third part of all the Defuncts Rights active passive Succeedeth in universa singula jura in all and every right thought not in totum solidum the whole or every part of every Right As to Moveables we shall not repeat what hath been said Title Real Rights of the distinction of Heritable and Moveable Rights whether Goods or Moveable Debts but shall only hold forth what becometh of Moveable Rights after the Owners decease And first if the Defunct be Married there was thereby acommunion of Goods betwixt the Defunct and the other Spouse which being disolved by Death the surviver may withdraw their share which share is estimate by the condition of the Familie at that time for if in the Family there were a Husband a Wife and Children not forisfamiliat the Wife her share is the third but if there were no Children unforisfamiliat the Wifes share is the half which is not properly a Succession but a Division 24. The first degree of Succession in Moveables with us is by the will of the Defunct by his Testament or Codicil whereby the Defunct may name Executors and dispose of his Moveables either in part by particular Legacies or in whole by an universal Legacie whereby in effect the universal Legatar is institute Heir in the Moveables and if the Executor nominat be not also universal Legatar he hath but one office and is not Heir for himself but in name and to the behove of the Legatar and hath but fidei-comissum of the Moveables These Legacies whether Particular or Universal doth immediately transmit the Right to the Legatars and their Successors The Solemnities of Testaments or Legacies are very plain with us but we shall leave them to the Title Executrie The will of the Defunct is restrained with us in three cases the First is Bastards cannot at all Test or leave Legacies unless they be Legittimat or have power from the King of making Testament or have lawful Children 2. A Father is bound up in respect of his Children in his Family which are not forisfamiliat and provided for these have necessarily their Portion Natural and Bairns part of Gear wherefrom their Father cannot exclude 〈◊〉 by 〈◊〉 or otherways as by Donations in contemplation of tion to a Moveable Band granted on Death-bed was found null as to the relict and Bairns part Spots Assignations Margaret Pyrie contra Ramsay Yea it was found that the Gift of Money by the Defunct out of his own hand on Death-bed was null as to them ibid Mr. Andrew Moncrieff contra Mr. Archibald Moncrieff The like of an Assignation to a confident Person to the behove of the Defuncts Bairns which was found not to prejudge the Relicts third Durie July 10. 1628. Cant contra Edgar And therefore a Father hath only power to dispose upon such a part of his Goods which are thence called Deads part which if he have a Relict and Bairns in the Family the Bairns part is the third the Relicts part is also a third and so the Defuncts part is only a third but if there be no Relict then the Bairns part is the half and the Deads part is the other half But if there be neither Wife nor Bairns the Defunct may dispose of the whole as Persons never married or Wives upon whom there is no Restriction though they have Husband or Children for they may dispose of their share of the Husbands moveables or if they acquired or succeed to any moveables in Viduity they may iniurley Dispose thereof though they have Children If his Legacies exceed his own part then they abate proportionally unles there be a preference granted by the Testator or a priviledge whereof I know none with us for even a Legacie ob pias causas viz. A mortification to a Kirk was found to have no priviledge but it and other Legacies suffered proportional deduction seing they exceeded Deads part Durie July 6. 1630. Doctor Monro contra Scots Executors The reason of this Restriction is that Natural Obliegment for provision of Children of which before it is extended only to the immediate Children and not to Grand-children neither doth it Restrict the Mother but only the Father 3. The third Restriction of the Defuncts will is in favours of their Heirs of Line for Heirs having the sole interest in Heritable Rights are by our custome justly excluded from coming in with other Children in moveables except that which is called Heirship-moveable which is the best of every kind of moveable wherein the Defuncts will cannot prejudge the Heir The second member os Succession in moveables is from the Intestat So that failing the Defuncts will with the Restrictions aforesaid the nearest of Kin have interest both in the Defuncts moveables and office of Executrie and though they claim not the office yet have they 〈◊〉 Right to the Goods leaving a third of Deads part to the Executors 〈◊〉 administration of the office These nearest of Kin take place all in 〈◊〉 all the nearest degree Male or Female come in
Married Persons whether Male or Female do succeed So that Daughters of that Marriage will exclude Sons of another Marriage or Heirs of the Bodie of the Members of the Tailzie whereby there Collateralls or Ascendants are excluded And in proper Tailzies there are always divers Lines and Persons Male and Female substitute as Members of the Tailzie as when Infeftment beareth Lands to be granted to the Fiar and to the Heirs of his Body or to the Heirs Male of his Body or to his Heirs of such a Marriage which Failling to such an other Person Named and to the Heirs of his Body or to the Heirs Male of his Body c. And so to a Third or Fourth which all Failling to the first Fiar and his Heirs whatsomever or to return to the Superior or to any other Person and to their Heirs whatsomever And where such Persons and Lines are not Substitute it is not properly called a Tailzie but if it be simply to Heirs Male it is so specially Denominate all other Heirs which are not Heirs of Line or Heirs whatsomever retain the Name of Heirs of Provision the Chief whereof are Heirs of a Marriage which Failling the Husbands or Wifes Heirs whatsomever in which there is but one Blood or Line and not divers Persons and different Lines Substitute in these Tailzies the Person Nominat may Succeed and be served Heir of Tailzie though otherwise Incapable of Succession as Bastards as hath been shown in the former Title But the Persons Nominate are never the Immediat and fast Heirs in Lands but always the Fiars Heirs of his Body which Failling the Persons Nominate for if the Heritage should be granted for example to John and after his Decease to William and his Heirs John would be thereby Naked Liferenter and William Fiar who could not be served as Heir to John But if it were Granted to John and the Heirs of his Body which failing to William These failing William would be served Heir of Tailzie to John But this holds not in Bands or Securityes for Sums of Money for Parents do srequently take thier Bands and Infeftments for Security thereof to themselves they being on Life and after their Decease to such Children Nominat yet the Parents are Fiars and the Children are but Heirs Substitute So then all Succession with Us is either of Heirs of Line Male Tailzie or Provision Heirs of Line are also called Heirs General so also are Heirs Male and of Conquest and these may be served Heirs by a generall Service But other Heirs of Tailzie or Provision by Investiture cannot be served Heirs but by a Speciall Service serving them to such Particulars whereunto they Succeed by Infeftment or Provision Heirs of Line are also Called Heirs whatsomever because they are absolute without Limitation and in all cases where Heirs whatsomever is not specially altered by the Infeftment rights follow the Lineall Succession as among Heirs Male the same course taketh Preference except that Female Heirs are excluded as that first Descendents then Brothers c. do Succeed and Amongst Heirs of Marriages the Eldest Son doth exclude the rest and so in the Members of Tailzies We shall not need here to debate the Lawfulness or Expediency of constituting Heirs Male or of Tailzie or of Provision having now cleared that the first Ground and Rule in Equity is the Will of the Propriatar though he be Personally Oblieged to provide Competently for his own especially those of his Family And therefore though severall of our KINGS in their generall Revocations have Revocked Tailzies it can inferr no more but a Scruple in them and a Preserving of their Power against the course of Prescription But doth not infringe such Rights being Lawful in themselves The Expediency of Tailzies is the same with Primo geniture to preserve the memory and Dignitie of Families But as Primo-geniture for that end excludeth Females of nearest Degree Heirs Male excludeth them Simply and Heirs of Tailzie have had their Rise from Dissatisfaction with some of the Fiars Race or preference of them otherwayes then by the Propinquity of Blood Some have also Tailzied their Lands so as by Infeftments to Introduce a Primo-geniture among Familyes as the Law hath done among Males as if the Land were granted to the Fiar and the Heirs Male of his Bodie which Failling to the Eldest Heir Female of the Bodie without division and their Heirs carrying the Arms and Name of the Family The intent of these Heirs of Provision is also to preserve the Unity and memorie of the Family To come now to the Heirs of Line the Law hath ordred them thus first the Eldest lawfull Son and his Descendents in order by Right of Primo-geneture excludeth all other Descendents Male or Female Failling Sons the Daughters and their Descendents do all succeed Equally except in Rights Indivisible which fall to the Eldest Failling Desendents the next Degree is of the next immediat Brother German and his Descendents and among Middle Brethern the immediat Elder Brother succeedeth in Conquest whereunto the Defunct did not nor could not succeed as Heir but in all others the immediate Younger Brother succeedeth and therefore is called the Heir of Line and the other the Heir of Conquest If the Fiar be a Woman her Brother German excludeth Sisters German and of her Brothers the immediate Elder Brother succeedeth inConquest and the immediat Younger in heritage Failing Brothers German Sisters German and their Descendents exclude both Brethren and Sisters by the Fathers side only June ult 1629. Mr. Robert Cuningham contra Multray Failling Brothers or Sisters German Brothers by the Fathers side succeed to the Defunct whether Male or Female the immediat Elder in Conquest and the immediat Younger in Heritage Failing all Brothers and Sisters the Father or other Masculine Ascendent of his Line succeed to the Defunct whether Male or Female and exclude the Brothers or Sisters of that Ascendent as a Grand-grandfather excludes his Brethren Fathers Brethren to the Defunct Failling Ascendents the Fathers Brothers and Fathers Sisters and their Descendents succeed in all points as Brothers and Sisters the double Blood excluding the single Blood and the immediat Elder Brother succeeding in Conquest and the immediat Younger in heritage and all Failling the Grandfather and Failling him his Brothers and Sisters the same way And so upward till there can be any Propinquity of Blood proven which all Failling the King taketh place as Last Heir 34. In this Line of Succession observe First that there is no place for Adopted Children or their Issue but only for the Naturall Issue of the Vassal Which cannot be changed by a Voluntar Act of Adoption without consent of the Superior in the Investiture neither is Adoption in use with us in any case 2. These Naturall Heirs must also be Lawfull whereby Bastards are excluded who are such appeareth by the former Title 3. There is no place for Cognats as to the Mother Grandmother or other Feminine
was found to have no Aliment from his Mothers Life-rent who brought 8000. Merks of Tocher and had but 10. Chalders of Victual in Life-rent July 21. 1626. Laird of Ramorny contra Law The like where the Heir was not Minor but designed himself Preacher and so having a calling Feb. 11. 1636. Sibbald contra Wallace Here the Relict was Infeft in no Land but had an Annualrent of 400. Merks out of Land and the Heir was not Minor Whereas the Lords thought the Act of Parliament was not in favours of Majors who ought to do for themselves but all must be considered complexly in this Decision Some Heirs by their Quality not being bound to follow Callings but the Life-rent was a mean Annualrent no more then an Aliment to the Relict the Pursuer Major and having a calling And certainly where the Life-rent is but an Aliment the appearand Heir must rather want then the Person provided for a cause onerous Though the Act mention only Ward Lands yet it was extended to a Minor having no Ward Lands against a Life-renter of all his Fstate being Houses and Annualrent of Money Feb. 22. 1631. Fiinnie contra Oliphant In this case it was not found sufficient that the Life-renter offered to maintain the Minor her own Child upon her own charges she being married to a second Husband But the Tutor obtained modisication with consideration of the moveable Heirship on the contrary where the Mother was not married her offer of Intertainment was received July 14. 〈◊〉 Alexander Noble and his Tutors contra his Mother Neither was the modifi cation excluded because there were free Lands at the Defuncft Death seing they were appryzed thereafter for the Defuncts debt Hope de haered White contra Caldwall The like the debt being great and the Annualrent thereof equivalent to the rent of the Lands not Liferented Feb. 13. 1662. Antonia Broun contra her Mother But Aliment was not found due by a Father Life-renter to his Son on this Act but only super Jure Naturae July 21. 1636. Laird of Rumorney contra Law Nor by a Grand-father to his Oye who had disponed his Estate to his Son reserving his Life-rent of a part the rest unsold by his Son being Life-rented by his Wife July 7. 1629. Hamilton contra his Goodsir But where the Heirs Mother brought a great Tougher and the Grand-father fell to a plentiful Estate by his Brother the Heir was found to have Aliment of his Goodsir though he disponed the Land to the Heirs Father burdened with his Mothers Life-rent June 27. 1662. Heir of Gairn contra Laird of Gairn This behoved not to be from the Statute but ex debito naturali Aliment was found due by a Liferenter to her daughter the appearand Heir though she renounced to be Heir July 16. 1667. Hamilton contra Symonton But where a Father disponed to his Son a part of his Estate reserving his Life-rent and another to his Son and his Wife in Conjunctfie after his Sons Death his appearand Heir got no part of his Aliment from his Goodsir but only from his Mother Feb. 26. 1675. Sr. John Whitfoord contra Laird of Lamington Aliment was found due to the Heir by an Asigney to a Gift of Ward without necessity to prove that he intromitted with the Ward Lands unlesse he had been Legally excluded which was Modified by the Lords And it was not found sufficient to intertain him in the Assignyes Family but nothing was Modified for that time that the Minors Mother Alimented him gratis Feb. 19. 1679. Sibbald of Cair contra Sr. Alexander Ealconer 4. Heirs also not entered have the benifite of such obliegments or provisions conceived in Favours of Heirs which by their Nature or Meaning require to be fulfilled before the Heirs entry As when a Party was obleiged to imploy a Sum upon Land and to procure himself and his Umquhil Spouse Infeft therein in Life-rent and the Heirs Procreat betwixt them in Fee the Bairn of the Marriage who would fall Heir was thereby found to have Right to crave his Father to imploy the Money accordingly though he never was nor actually could be Heir his Father being alive December 16. 1628. Laird of Collington contra Granton In this case the Lords inclined so to decide but decided not But that day Durie observes a like case decided July 7. 1632. Young contra Young The like was decided Feb. 13. 1677. Alexander Frazer contra John Frazer In which case a Father by his Contract of Marriage being obleiged to imploy a certain Sum upon security to Him and his Wife in Conjunct-fee and to the Heirs of the Marriage and likewise to take all Conquest during the Marriage the one half to the Wife in Life-rent and the other to the Heir of the Marriage in Fee after the Wifes Death Process was sustained at the instance of the apparent Heir of the Marriage against his Father who was decerned to imploy the special Sum to himself and after his decease to the Heir apparent of the Marriage albeit therby the Father would remain Fiar and might dispone or burden the Sum so imployed for reasonable Considerations but not by Deeds meerly gratuitous to evacuat the obleigment And if he did Deeds prejudicial he would be obleiged to purge the same or re-imploy 〈◊〉 But it was not so found as to the Conquest before the Marriage which might be altered during his Life for that only could be accounted Conquest that he had more at his Death then at his Marriage And so Heirs of a Marriage in an obleigment in case a Wife deceased without surviving Heirs of the Marriage these were Interpret Bairns of the Marriage who survived their Mother but died before their Father and so could never be served Heir to him January 26. 1630. Turnbul contra Colinshlie The like where a Father was obleiged to Infeft himself and his Spouse in Conjunct-fee and the Heirs procreat betwixt them c. The apparent Heir was found to have interest to pursue the Father for fulfilling thereof and of the obleigment adjoyned not to dispone in their prejudice Hope de haeredibus Hamilton contra Silvertonhil Tacks set to Heirs require no service but being Notour to be the Person who might be served Heir they have right without service June 9. 1675. Hoom contra Johnston of Oldwells 5. As to the benifit of Heirs they have Right not only to Obleigments conceived in favours of the Defunct and his Heirs But though there be no mention of Heirs unlesse by the nature of the obleigment there be a speciallity appropriating the same to the Person of the Defunct only as in Commissions Trusts c. So Heirs were found to have the benifit of a promise made to their Predicessors for disponing of Lands to him acquired for his use though it mentioned not Heirs Feb. 22. 1610. Heir of Jean 〈◊〉 contra Livingston The like of a Reversion not mentioning Heirs which was thought to be omitted by neglect seing it bore not
heir of Conquest and the other retaineth the common name of the heir of Line Conquest is feudum novum whereunto the Defunct did not succeed as heir to any Person or whereunto the Defunct could not succeed as heir for if that were disponed to him by the Defunct whereunto he would have succeeded it were but Preceptio haereditatis and so remained to be repute as heritage to descend to the Younger and not to ascend to the Elder as Craig observeth lib. 2. dieg 15. Such heritages are rare and befall only by Tailzie or Provision amongst midle Brethren Because the eldest by primogeniture excludeth the rest from being heirs of Line but it may befall in case of the heirs of Lyne when the nearest Successor is the Fathers or Grand-fathers Brothers or their Issue there being Elder and Younger Brothers but Conquest is frequent because not only that which is acquired properly by the means and industry of the Defunct But that which is by Gift of the Defuncts Parents or any other or whatsoever the Defunct could not succeed to is Conquest Yet if the heir of Conquest succeed that which was Conquest becomes heritage and descends As if there were four Brothers and the third acquiring Lands Died without Issue the second would be his heir therein who if he Died also Infeft the Lands would fall downward to the Youngest Brother and not upward to the Eldest Brother The custom of England is contrary for thereby the eldest Brother succeedeth to all his Brothers failling the Issue But with us the Immediat elder or younger doth always succeed though of different Marriages none of them being Brothersgerman And therefore in the case proposed by Craig lib. 2. 〈◊〉 15. In fine of a Brother by a second Marriage dying without Issue and having three Brothers of a former Marriage no doubt the youngest would succeed according to the Opinion of Oliphant and King there related Albeit that Craigs opinion be that the eldest would succeed It was so decyded contrary Craigs opinion July 20. 1664. Laird of Clerkington contra Stewart Heirs of Conquest succeed not only to Lands Conquest by their immediat Predicessors but in other heritable Rights passing by Infeftments as Annualrent or such as are heritable by distination and which are accomplished by Infeftment as Despositions of Lands or Annualrents Appryzings or Adjudications c. The like where an Annualrent was first Disponed and a Clause of Requisition and Reversion subjoyned July 7. 1675. Robertson contra Lord Halkertoun and in Reversions Hope de Successionibus heirs of Pitcairne But in this case it is not cleared whether the Lands given in Wodset were heritage or conquest but it seems if the Lands had been heritage as they were Wodset the Reversion would also belong to the heir of Lyne as the Lands whereto it was accessory would Yea heirs of Conquest succeed in heritable Bands bearing Clause of Annualrent As was found amongst the heirs of Doctor Craig But the heirs of Lyne and not the heirs of Conquest succeed in Tacks acquired by the Defunct Hope Succession Earl of Dumbars heirs June 23. 1663. Ferguson contra Ferguson The heirs of Lyne do also succeed in Pensions or any other Right not requiring Infeftment as in these which having a tract of time after the Defuncts Death do thereby exclude Executors and do belong to the heir of Lyne and not of Conquest though they be acquired The heir of Lyne and not the heir of Conquest falleth to be Tutor or nearest Agnat to the Pupil to whom the heir of Lyne might Succeed The heir of Lyne hath right to the heirship Moveable and not the heir of Conquest 11. Heirs-portioners are amongst Heirs of Line for when more Women or their Issue succeed failing Males of that degree it is by the course of Law that they succeed and because they succeeed not in solidum but in equal Portions they are called Heirs-portioners and though they succeed equally yet Rights indivisible fall to the eldest alone without any thing in Lieu thereof to the rest As first Dignity of Lord Earl c. 2. The principal Manse being Tower Fortalice c. which doeth not extend to houses in Burghs nor to ordinary Country-houses the former being divisible the latter falls under division as pertinents of the Land whereupon they stand and are not as separata jura or distinct Rights 3. Superiorities are accounted indivisible and befal only to the eldest Daughter and her Issue and thereby all the Casualities of the Superiority either preceeding or following the Defuncts death as Ward Relief Marriage of the Vassals Heirs Nonentry Liferent Escheat c. The reason is because the Vassals condition ought not to be worsted and made subject to many Superiors by such Successions Craig lib. 2. dieg 14. excepteth the Superiority of Feu Lands the Feu Duties whereof are divisible amongst all the Heirs-portioners yet the former reason of the indivisibility of the Superiority in respect of the Vassals Interest reacheth Feu Superiorities as well as others and it is hardly conceivable how Superiorities should belong to the eldest and yet the Feu Duties divide to the rest seing the Superiority as being Dominium directum is the only Title for poynding the Ground or pursuing the Possessors or Intrometters with the fruits thereof It seems for the reason adduced the Superiority and therewith the Feu Duty befalleth to the eldest yet so because the Feu Dutie is constant and liquid and is not like the other Casualities of Superiority which are illiquid and accidental therefore the other Heirs-portioners ought to have Compensation for their parts of the Feu Duty in or off other proper Lands Or if there were moe Superiorities of Feu Lands so that some of the Superiorities might befal one Heir and others to other Heirs no particular Superiority being divided or the Vassal made Vassal to many Superiors I conceive it would be allowed or otherways the eldest Co-heir would be dicerned to infeft the rest in Annualrents out of the Fee correspondent to their share of the Feu Duty A Vassals Heir though the Defunct had taken Infeftment of more Heirs-portioners was not found oblieged to take Infeftment of some of them severally but either of all jointly or the eldest July 30. 1678. Lady Luss contra Inglis How far Heirs-portioners succeed passive and are lyable for the Defuncts Debt shall forthwith appear 12. Heirs Male and of Tailzie and Provision succeed not by Law but by the tenor of the Infeftment or Provision and therefore have that benefit and no more which is so provided to them or which is accessory thereto whereby any Right or Security of Lands or others befalling to these Heirs which is thereafter acquired by their Predecessors though the same be acquired to him and his Heirs whatsover yet the same will befall with the principal Right to which it is accessory to the Heir Male or of Tailzie or Provision As if a Proprietar Infeft himself or his Heirs
himself and the heirs of the first Marriage and thereafter resigned and Infeft himself and the heirs Male of the second Marriage which failling his nearest heirs whatsomever these heirs Male the second Marriage failled And therefore not the Daughter of the first Marriage only but she and the Daughters of a third Marriage Succeeded by the second Infeftment as his heirs whatsomever substitute to be his heirs of the second Marriage Craig hath the Case but otherways observed lib. 2. dieg 14. Where a person had provided his Lands to the heirs of three several Marriages of each whereof there survived a Daughter The question was which of the Daughters should succeed Whether the first as having the first Provision or the last having the last Provision The parties were three Sisters Aikmans In which the Lords admitted all the three Sisters as heirs Portioners and so confounded the Provisions being all equal and about the same thing which must be the Reason and not that which is there rendered Because the Defunct notwithstanding of these Provisions in Favours of heirs might have Disponed effectual to a Stranger And so likewise to his own Children of another Marriage For that Reason would have excluded the Daughters of the first Marriage and preferred the Daughter of the last Marriage And as hath been shown Tailzies of Provisions upon an anticedent onerous obligation Such as is Marriage hinder the Fiar to dispone or provide the same to his heirs of Lyne representing him simplie and must fulfil his Obliegment Albeit his Disposition to Strangers not so representing him will be effectual And therefore Craig in that same place observeth in the case of Isobel Barron who being heir to her Father of his first Marriage by which it was provided that the heirs of the Marriage should Succeed to all Lands conquest during the Marriage And thereafter having a Son of the second Marriage who was his Fathers heir of Lyne to whom his Father Disponed or provided a Tenement acquired during the first Marriage Yet the said Isobel as heir of that Marriage recovered that Tenement from her Brother as heir of Lyne But the main difficultie remaineth when the obliegment in favours of the heirs portioners are un-equal for when they are equal whether they become extinct by confusion or not it is alike But if they be so extinct when they are un-equal there will not be an equal suffering or abatement but the greatest obliegment will be extinct as well as the least Neither can such obligations be wholly extinct by confusion but only pro rata So that if there be three heirs Portioners for example the obliegment granted to every one of them can only be extinct for a thirdpart because they are but heirs in a third part and as to two third parts each two of them are debitors to the third And if the obligation exceed the value of the heritage such of them as find themselves losers if they enter heirs may abstain and renounce and they or their Assigneys may pursue any of the rest that shal enter for fulfilling of the Defuncts obliegments but if they be considerat when all the obligations joyntly exceed the value of the Estate they will all Renounce and Assigne there obliegments and their Assigneys will be preferred according to their dilignece without consideration of the priority or posteriority of the obliegments but if they happen to enter or when their provisions are not Personal to themselves nominatim but as they are heirs of Provision and therefore necessarily require that they must be heirs before they can obtain their Provisions then the obliegments or Provisions of each Portioner are extinct as to their own proportion but they have like Action against the others heirs portioners for there proportion as other Creditors have the point will be clear by example if three Sisters were provided by the Father to un-equal Portions The first to 15000. Merks the second to 12000. Merks the third to 6000. Merks and the Defuncts whole Estate had only been worth 18000. Merks All of them entering the case would be thus The eldest would succeed to 6000. Merks of the heritage for her part and the second would be lyable to her for 5000. Merks as the third of the her provision to whom she would also be lyable for 4000. Merks as the third of the seconds Provision which being compensed the second would be lyable to the first in an 1000. Merks dc claro In like manner the first would be lyable to the third in 2000. Merks and the third would be lyable to the first in 5000. Merks which being ballanced the third would be debitor de claro to the first in 3000. Merks So the Interest of the first would be 6000. Merks as her own portion and one out of the Second and Three out of the Thirds Portion being in all a 10000. The second falleth 6000. as her share out of which she is lyable in 1000. Merks to the eldest and the youngest is due to her de claro 2000. Merks whereby her interest will be 7000. Merks the youngest Portion will be 6000. Merks out of which she is due to the eldest 3000. Merks and to the second 2000. So there will remain only free to her 1000. Merks This may clear the case as to liquid Sums and as to Dispositions or Provisions of Lands or other obliegments in facto These or the Interest or Value will be the same way effectual amongst the Heirs Portioners as if they had been made to Strangers Except where the same Disposition or Provision is made to divers of them For then either being equally oblieged to others as representing the Defunct the same become void and in-effectual protanto As was found in the case of the Sisters Aikmans But since the Act of Parliament 1621. against fraudulent Dispositions the first Disposition or Provision constituting that Party Creditor may give ground to Reduce a posterior Disposition of the same thing to another of the Heirs Portioners as being without a Cause onerous after contractiong of the first debt but that will not hold in Bands for Sums of Money all which will have their effect as is before said Neither will it hold when the Provision of Lands provideth the Party provided to be Heir for thereby the party cannot Quarrel that Predecessors Deed Otherwayes the first Obliegment or Disposition to any of the Heirs Portioners nominatim may Reduce any posterior Disposition to others of the Heirs Portioners Two Daughters being served both Heirs Portioners to their Father in some Teinds but one of them Succeeding to her Brother who was Infeft as Heir to his Father in Lands excluding the other Sister who was not Sister German to her Brother by both Bloods and both being pursued for their Fathers Debt they were not found lyable equally but proportionally according to the Interest they Succeeded to the one being only immediat Heir to her Father in a Right of Tiends wherein her Brother was not served
and Infeft the other being equally and Immediately Heir to her Father in these Teinds and mediatly Heir to her Father by being Heir to her Brother who was Heir to his Father being Infeft in the Lands by precept of Clare Constat without Service June 10. 1673. Christian White contra Janet White 16. Other heirs not being Heirs-portioners are lyable for the Defuncts Debt in solidum except heirs substitute in Bands who are only lyable quoad valorem in the sums in these Bonds July 3. 1666. Fleeming contra Fleeming 17. Heirs are not conveenable at the Creditors option as in the case of heirs and Executors but they have the benefit of an order of discussing Thus first Debts and Obliegments relating to any particular Lands or Rights and no other do in the first place affect the heirs who may succeed in these Lands or Rights before the heir general So an Obliegment oblieging the Defuncts heir of Line or Tailzie so soon as he should come to his Estate was found to affect the heir of Tailzie who came to that Estate without discussing the heir of Line Hope de Haeredibus Lyon contra Sir Robert Scot. Nicol. de haereditariis actionibus inter eosdem So an Obliegment oblieging a Debitor and his heirs Male succeeding in such an Estate and not all other heirs was found to burden the heir Male before the heir of Line or Executors July 22. 1662. Margaret Anderson contra Andersons So likewise an Obliegment to infeft a Party in an Annualrent out of Lands designed was found to affect the heir of Provision in these Lands without discussing the heir of Line Nicol ibid. Edmonstoun contra Edmonstoun This was also the opinion of the Lords though there was no decision in it February 19. 1611. Laird of Blair contra Fairlie And in these Cases the heir of Tailzie or Provision will have no Relief against the heir of Line or other nearer heirs of Blood who otherwise and also Executors must be discuss'd before heirs of Provision or Tailzie General Obliegments not relating to particular Lands do first affect the heirs of Line who are heirs general 2. The heirs of Conquest July 21. 1630. Fairlie contra Fairlie 3. Heirs Male must be discuss'd before heirs of Tailzie or Provision not being so near of Blood Hope de haered Dunbar contra Hay of Murkill the like must follow as to heirs of Marriages who are also heirs of Blood and must be discuss'd before other heirs of Provision or Tailzie who therefore are only lyable in the last place the rest being discuss'd unless they become oblieged to relieve the heir of Line November 22. 1665. Lawrence Scot contra Boswel of Auchinleck 18. But an heir of Tailzie was not found to represent the Defunct in Obligations contrary to the terms of the Tailzie as to which heirs of Tailzie are as Creditors and Strangers as when the security of a Sum was by way of Tailzie payable to the Creditor and the heirs of his Body which failing to a Person named his heirs and Assigneys whatsoever the Creditor being oblieged to do no Deed hurtful to the Tailzie and the Debitor oblieged not to pay without the consent of the Person named that Person was found to have Interest to obtain Declarator that the sum was unwarrantably payed by the Debitor without his consent or order of Law by consigning it to be imployed in the same terms and therefore the Debitor was ordained to make up the Security again as at first reserving to Creditors how far they could affect this Sum for the first Fiars Debt or whether the terms of the Tailzie would exclude the Fiars Debts or Deeds for his necessary use or only unnecessary and voluntary Deeds Feb. 3 1674 Drummond contra Drummond And in like manner a Father having granted two Bonds of Provision to his two Daughters payable to them and the heirs of their Body which failing to return to the Father and his heirs the one of them having died without heirs of her Body but having assigned her Bond to her Sister the Assignation was found ineffectual as being done on design to disappoint the Tailzie made by the Father of the return of the Provision in case the Daughters had no Heirs of their Bodies and so was done without any onerous Cause or just Consideration January 31. 1679. Jean Drummond contra Drummond of Rickertoun 19. And likewise heirs of Marriage are heirs of Provision and partly Creditors and therefore may quarrel Deeds fraudulent or meerly gratuitous done by the Defunct whom they represent in prejudice of their Provisions as was found in the forementioned Case of Isobel Baron observed by Craig who being heir of a Marriage to whom all Lands conquest during the Marriage were provided the Father having disponed a Tenement acquired during that Marriage to his eldest Son by another Marriage yet that heir of the Marriage did recover the same from that Son albeit the heir of the Marriage did represent her Father and yet not simply but according to the provision by the Contract of Marriage which being an onerous Contract uberrimae fidei the Father Contracter can do no Deed contrary thereto but upon an onerous Cause or just Consideration and therefore if he sell any thing falling within such Provisions the heir of Provision cannot quarrel that Stranger but is oblieged to fulfil to him but might quarrel the same if it were meerly gratuitous much more might heirs of a Marriage quarrel Deeds prejudicial to their Provision in favours of the Children of other Marriages without which the great trust of these Contracts would be eluded whereupon Parties rely and make Matches and give Tochers and therefore take Provisions to the heirs of the Marriage either of definite Sums or of all or a part that the Contracters have or shall acquire during the Marriage by which the whole Estates of Citizens are ordinarily conveyed or otherwise Contracts of Marriage bear particular Lands or Sums to be provided to the heirs or Bairns of the Marriage and also the conquest during the Marriage which clause of Conquest will reach only to what the Father had more at his Death then the time of the Contract and is ordinary both in the Contracts of Citizens and others which therefore should not be elusory but effectual according to the true meaning of the Parties which is not to bind up the Father that he cannot do Deeds for Causes onerous or rational Considerations but that he can do no other Deeds meerly gratuitous and arbitrary in prejudice of such Provisions for though by such Provisions when fulfilled he himself must become Fiar and so may dispone yet he is also Debitor and so cannot effectually dispone against the import and meaning of the Provision And therefore a Father by his Contract of Marriage having provided certain Tenements to himself and his future Spouse in Conjunct-fee and to the Bairns of the Marriage c. and the Wife having restricted her self to the half of the
it was free to the Heir as well to renounce when he pleased as to enter when he pleased July 10. 1631. Blair contra Broun but it is like the posterior Creditor hath been negligent otherwise that prae natura diligentia of pursuing and renouncing within the Year would have been accounted collusive and fraudulent and so would not prejudge the other Creditor doing diligence in the ordinary way General charges to enter Heir do evanish as incompleat diligences if the Party charged die before Litiscontestation or Sentence and though the fourty days be expired before the death of the Party charged yet the Charge useth not to be transferred or made use of against any subsequent Heir apparant but it is not consequent that if the Charger die before Litiscontestation or Sentence that the same should also become void because the Charger doth not necessitate the Party charged to enter or renounce in favours of the Chargers heirs but of himself And it was found that an Assigny might insist upon a Charge at the Cedents instance after the Cedents death though nothing followed thereupon during his life June 18. 1631. Prior of Archattan concra Captain of Clanronnald 23. A special Charge to enter Heir differeth from the general Charge in this That the general Charge is in lieu of the general Service for thereby the Creditor reacheth the Person of the apparant heir of his Debitor and his Estate or Goods established in his person unless he renounce and so the general Charge is the ground of Process and Decreet for Payment But thereby the Creditor cannot reach the Lands and Annualrents which are not as yet established in the Person of the apparant heir he not being specially served thereto or infeft therein And therefore that the Creditor may reach these he must use a special Charge which supplieth the special Service and Eutry This special Charge though it proceedeth upon Supplication without Citation yet it must be upon production of a Decreet at the Creditors instance not only cognitiònis causâ but for performance And it is competent in two Cases First upon the proper Debt of the Party to be charged For if the Debitor be unentered to some of his Predecessors and so their Rights not established in his Person in that Case the Creditor must charge his own Debitor specially to enter heir in the Rights competent to him by that Predecessor with certification if he enter not the Creditor shall have such Process and Execution against that Land and heretage to which he might enter as if he were actually entered therein whereupon Apprising doth proceed In this Case there is no necessity of an antecedent general Charge which only is used to the effect that the Debt may be established in the Person of the Debitors apparant heir passivè by a Decreet upon the general Charge The other Case is when the Debt is not the proper Debt of the Party charged but of some Predecessor to whom he may be heir in which Case the Debt must first be 〈◊〉 against him passive and then followeth the special Charge In this Case the special Charge cannot be till after Year and day because it presupposeth not only the Summons but also the Sentence upon the general Charge both which must be after Year and Day When the Debt is the proper Debt of the Party charged if the special Charge may not be at any time even within Year and Day or if it must be after the annus deliberandi This makes for the Negative That it needs not abide the Year of Deliberation because the intent of the Deliberation is not so much whether the Party charged will be heir as whether he will personally subject himself to the ground of that Charge For albeit he renounce not it will not make him lyable to any of the Defuncts Debts except it be by his fraud and collusion with one Creditor in prejudice of another And therefore seing he cannot deliberate whether he will be subject to his own Debt he ought not to have the benefite ofYear and Day before the special Charge be effectual Yet before the late Act preferring the diligence of the Defuncts Creditors to the heirs proper Creditors there was no reason to allow special Charges for the apparant heirs own Debt but more summar Execution than other Charges so to prefer the apparent heirs proper Creditors to be Heir The Act of Parliament which is the ground of the Charge to enter Heir and is only the rise of the special Charge insinuates an Exception if the heir be major But the custom of the Lords hath introduced the general Charge to constitute the Debt and allows both Charges against minors There is no necessity either of a general or special Charge as to real Actions which may proceed against apparant heirs as poynding of the Ground January 2. 1667. Oliphant contra Hamilton Neither in Declarators or Reductions 24. The remedy against both Charges to be heir is a Renounciation to be heir whereby the Renouncers Person and his proper Estate will not be lyable for his Predecessors Debt but only his Predecessors heretage This Renounciation useth to be offered by way of Exception in the Process upon the general Charge and if the Defender be not absent it is not ordinarily admitted by Suspension except in favour of Minors who though being apparant heirs they take a day to Renounce and fail therein yet they will be restored against the same by Suspension without Reduction January 25. 1628. Kennedy contra Mackdougal Spots Minors Nisbet contra Nisbet But if the Minority were controverse and not instantly verefied it must be by Reduction Spots Minors Mr. Thomas Craig Advocat contra Cockburn Renounciation to be Heir was admitted rebus integris though the Decreet and Charge were six years before July 20. 1626. Harvie contra Baron Yea it was admitted though there was an Adjudication and the Decreet supsended which was declared to stand and the apparant heirs Person and proper Estate were only freed Spots Restitution in integrim John Oliphant contra Mr. William Blackburn A Renounciation to be heir was not admitted with this quality Excepting to the Renouncer certain Lands whereinto he was appointed to be infeft by his Fathers Contract of Marriage and whereupon Inhibition was used before contracting of the Chargers Debt to the effect he might enter heir to those Lands January 23. 1627. Lady Ogilvy contra Lord Ogilvy But in the like Case Hope Inhibition Donald Thorntoun contra Bailzie June 15. 1615. and the like November 30. 1620. Adamson contra Hamiltoun the apparant heir was suffered to renounce to be heir to his Goodsire except as to those Lands which his Goodsire had disponed to his Father in his Contract of Marriage whereupon Inhibition was used which the Lords found a singular Title consistent with a Renounciation of the heretage ex titulo universali The Exception upon Renounciation to be heir is elided If the Defuncts Estate be burthened with the heirs
Money are lent and the Obligement to repay is conceived thus To be payed at such a Term to the Lender and in case of his Decease or failing him by Decease or after his Decease to such a Person Whence these Questions result first Whether the Lender be Feer of the Sum and the Person substitute Heir of Provision Or whether the Person substitute be Heir whether he may succeed at any time or only if the Lender die before the Term of Payment As to the first Question the Person substitute is not Feer but Heir and the Lender is not Liferenter but Feer and therefore may dispose of the Sum at pleasure by Assignation Legacy or otherwise as other Feers may February 22. 1623. Mr. John Leich contra Laird of Balnamoon February 28. 1626. Tulliallan contra Laird of Clackmannan And where the Clause bare to be payed to Clackmannan and his Spouse the longest liver of them two and in case of their Decease to Alexander Bruce their Son in Fee with an Obligement to infeft the Spouse in Liferent and the Son in Fee in an Annualrent effeirand thereto yet the Father was found to have Right to dispose of the Sum. The like was found Feb. 20. 1629. Laird of Drumkilbo contra Lord Stormount where the Father surviving the Term of payment though he freely and without a Cause onerous discharged the Sum provided to be payed to him and failing him to his Son though it bare a Clause of Infeftment to the Father in Liferent and to the Son in Fee but no Infeftment followed The like though the Father and the Son subtitute were both infeft in one Seasine July 23. 1675. Laird of Lamingtoun contra Muire of Annistoun As to the second Question The more ancient Decisions have interpret such Clauses strictly thus That the Sum payable at such a Term to the first Person should be payed at that Term to the Person substitute so that it should be payable at no Term thereafter to the Person substitute but if the first Person survived the Term of payment though he did nothing to alter the Substitution the same should not belong to the Person substitute but to his heirs Hope succession Spots Assignations Laird of Bonytoun contra John Keith Feb. 22. 1623. John Leich contra Laird of Balnamoon Where it was found that such Sums came under the first Persons surviving the Term their Testament and belonged to their Executors But more frequent Decisions have with better reason interpret such Clauses on the contrary that the Person substitute is heir of Provision whensoever the Defunct dies whether before or after the Term. Because constitution ofheirs is simply and not ad diem but mainly because the ordinary intent of such Clauses is to appoint Portions for the Bairns named therein who therefore are substitute heirs of Provision to their Father so that if he do not expressly alter or prejudge the Substitution his intent is that they succeed him whensoever Spots Assignations Currie contra Nimmo Relict of John Thomsom contra William Thomson The like in a Legacy left to a Person and failing her by Decease to another which was not found à fidei commissum to be restored by the first Person to the second at her death And therefore the Assigny of the first Person was preferred Spots Disposition Sarah Reid contra Alexander Downie January 18. 1625. Wat contra Dobbie June 26. 1634. Keith contra Innes Therefore such Sums bearing no Clause of Infeftment yet fall under Testament neither hath the Relict a third thereof Hope Successions In these Substitutions though the Person be substitute as heir yet he is not properly heir and so needs not to be entered by any Service because he is nominate and there is no other heir But inTailzies though some of the Members of the Tailzie be nominate yet because in Lands as is before said the Person nominate is never the first heir therefore there must be a Service to enquire whether the first heir fails or not which is unnecessary where there is one Person only nominate to be heir concerning which there needs beno enquiry Though the Persons substitute be as heirs it followeth not that they must be lyable as heirs of Provision to the first Person 's Debt contracted before the Substitution because they are not properly heirs not requiring any Service They are interpretativè like to heirs because the nature and intent of such Clauses is not to constitute the first Person as a naked Liferenter but that they are understood as if they were thus express'd With power to the first Person to alter aad dispone at his pleasure during his life So thereafter only the heirs substitute take place though in these respects as heirs yet in reality as secundary conditional or substitute Feers But the Substitute is lyable other 〈◊〉 Heirs and Executors being discussed unless the Person substitute abstain Because the Substitution is a gratuitous Deed in prejudice of Creditors post contractum debitum and so annullable and the Substitute medling is lyable to repay quoad valorem only but never by an universal passive Title July 3. 1666. Fleeming contra Fleeming The next difficulty is who is Feer in Provisions or Tailzies of Sums Annualrents or Lands in Conjunctfee wherein these general Rules do ordinarly take place First That the last termination of Heirs whatsoever inferreth that Person of the Conjunctfeers whose Heirs they are to be Feers and the other Liferenters 2. When that is not express'd potior est conditio masculi the Heirs of the Man are understood But these have their own Limitations as first in Moveable Goods and Sums provided to a Man and a Wife and their Heirs without me ntioning which failing to whose Heirs the same should be due were found not to fall to the mans Heirs but to divide equally betwixt the Man and Wifes Heirs February 2. 1632. Bartholomew contra Hassingtoun February 18. 1637. Mungle contra John Steill Yea a Clause in a Reversion redeemable by a Man and his Wife and their Heirs was found to constitute the Wife Feer of the Reversion because she was Feer of the Land Wadset Hope Liferent Kincaid contra Menzies of Pitfoddels But an Assignation to a Reversion provided to a Man and Wife the longest liver of them two and their Heirs was found to make the Man only Feer Hope Husband and Wife Walter Collistoun contra Laird of Pitfoddels A Clause in a Charter providing Lands to a Man and his Wife the longest liver of them two and the Heirs betwixt them Which failing to the Heirs of the Mans Body Which failing to the Wife her Heirs whatsoever though the last termination was upon the Wife yet the Husband was found Feer July 24. 1622. Ramsey contra Laird of Conheath The like in a Clause providing a Sum being a Wifes Tocher to the Man and Wife and the longest liver of them two in Conjunctfee and to the Heirs betwixt them Which failing the Wifes heirs yet the
Husband was found Feer and therefore the Creditor apprising excluded the Wife and her heirs January 29. 1639. graham contra Park and Jarden And a Bond providing a Sum to a Man and his Wife in Conjunctfee and the Bairns procreat betwixt them which failing to two Bairns of a former Marriage nominatim containing a Precept for infefting the Spouse and the two Bairns named whereupon all the four were infeft yet the Father was found Feer and all the Bairns of the Family Male and Female equally were found heirs of Provision and the two Bairns named were found Heirs substitute failing the Bairns of the Marriage January 14. 1663. Thomas Beg contra Sir Thomas Nicolson And a Bond bearing a Sum borrowed from and payable to Man and Wife and longest liver of them two in Conjunctfee and to the heirs betwixt them and their Assignys Which failing to the Heirs and Assignys of the last liver found to constitute the Husband Feer and the Wife Liferenter albeit she was last liver and that her heirs of Line were found heirs of Provision to the Husband January 2. 1668. John Justice contra Mary Barclay his Mother A Tocher provided to the Husband and Wife the longest liver in Conjunctfee and Liferent and to their Bairns in Fee was found to make the Husband Feer and that the Father might alter the Substitution December 12. 1665. Mr. John Pearson contra Martine And generally in all Infeftments in Conjunctsee betwixt Man and Wife the Husband is always interpret to be Feer and the Wife Liferenter albeit the last Termination be the Wifes heirs who are heirs of Provision to the Husband unless the Right flow from the Wife originally as if she should resign her Lands in favour of her Husband and her self in Conjunctfee and the heirs of the Marriage which failing her heirs or if the Right did flow from the Wifes Father by a gratuitous Deed. But by the Contract of Marriage a Father oblieged himself to infeft the Husband Contracter and his Daughter in Conjunctfee and Liferent and the heirs betwixt them which failing the Daughters heirs and Assignys whatsoever And by the same Contract the Husband was obliged to provide all Lands that she should acquire or succed to to himself and Wife the longest liver of them two in Conjunctfee and to the heirs betwixt them which failing the one half to the Husband's heirs and the other to the Wifes heirs and their Assignys By both these Clauses the Husband was found to be Feer and the Wife Liferenter albeit the Tenement disponed by the Father was not nomine dotis yet there was no other Tocher July 2. 1671. Adam Gairns contra Isabel Sandilands Yet a Clause in a Minute of a Contract of Marriage obliging the Husband to infeft his Wife in Conjunctfee and Liferent in such a Barony named and obliging him and his Heirs and Assignys that all and whatsoever Lands or Sums of Money should be purchased by him during the Marriage that Security should be made in Liferent thereof as of theforesaid Barony to his future Spouse in case of no Issue of Children the one half of the said Conquest to be disponed upon as the Wife shall think fit the Conquest was found to be equally to the Husband and Wife and that she was Liferenter of the whole and Feer of the half in respect the Minute did not bear whose heirs should succeed and that the Conquest was all to be expected by the Wifes Means therefore she being Conjunctfeer that the one half of the Conquest should be disponed as she pleased she was found Feer of that half as not being a Faculty but a Power of Disposal importing Property June 27. 1676. Earl of Dumferling contra Earl of Callendar 52. There do many questions arise as to the Succession of Heirs of Provision by Clauses of Conquest in Contracts of Marriage The main question is what is accounted Conquest Whether that which is acquired and thereafter disponed be accounted Conquest either as to the Wife or to the Heirs or Bairns of the Marriage As to which it hath been shown before that such Provisions infer not only a Succession to the Heirs or Bairns of the Marriage as Heirs of Provision but thereby the Wife or Heir and Bairn of the Marriage have an interest as Creditors that the Husband or Father cannot ad arbitrium do Deeds prejudicial to that which is once acquired but the Husband is not thereby bound up from disponing to Strangers for causes onerous or to other Wives or Children for competent Provisions But he may not otherways intervert the design of those Provisions by taking the Rights to Wives or Children of another Marriage unlesse he have not means aliunde to provide them And therefore the Husband being oblieged to take all Sums acquired during the Marriage to to himself and his Wife inConjunct-fee having taken a Sum acquired during the Marriage in the name of his second Son his Relict was found to have Right to the Annualrent thereof July 16. 1625. Knox contra Brown The like where the Bonds were taken originally in the name of the Bairns leaving out the Wife March 14. Graham contra Representatives of her Husband But Clauses of Conquest of all Lands acquired during the Marriage do not extend to Lands acquired and disponed during the Marriage Yea Conquest of Lands was extended where there was Disposition without Infeftment with a burthen of a part of the Price upon the Disponer January 24 1629. Lady Rentoun contra Laird of Rentoun Spotswood Husband Countess of Dumfermling contra Earl of Dumfermling And where the Clause of Conquest bare Lands or Annualrents the same were extended to Bonds bearing Annualrent though without clause of Infeftment Feb. 20 1629. Douglas contra White And these Clauses are interpret strictly according to the tenor thereof for sometimes they only bear Lands Conquest sometimes Lands or Annualrents sometimes Lands Annualrents or Sums of Mony and sometimes also Goods or Geer in which case the Executors will be obliged to imploy moveable Goods and Sums for the Wife in Liferent and for the Bairns and Heirs of the Marriage in Fee These Clauses of Conquest do never extend to any thing whereunto the Husband succ eds as Heir or Executor unless Succession be exprest A clause of Conquest oblieging the Husband to take all Lands Annualrents and Sums conquest during the Marriage to himself and the Heirs and Bairns of the Marriage one or moe found to constitute all the Bairns of the Marriage Male and Female Heirs Portioners and that it was not alternative that the Husband might either take the Conquest to himself and the Heirs of the Marriage or to himself and Bairns of the Marriage at his option And therefore having taken a considerable Sum in favour of himself and the Heir of the Marriage who was his only Son yet after his Death his four Daughters of that Marriage obtained Decreet against their Brother to denude himself of their Shares
delictum should not be competent after the Intrometter's Death It was also thought by the whole Lords after dispute in presentia upon this Title That it takes only place where there appeared the apparant Heir's animus immiscendi adeundi haereditatem and not where he hath any probable or colourable Title Spots Heirship Corser contra Durie Yet in favourable cases a smal Intromission was sustained as making use of the Defnuct's chief Bed and Board though standing in the Defunct's House seing the Heir entred the House before he obtained Inventary of the Moveables made by authority of a Judge though the House belonged to himself proprio jure March 8. 1610. John Bailzie contra Hoom of Bassenden Or by Intromission with a Mazer Cup of the Defunct's and drinking therein entering in the House when he died lying in his Bed and bed Cloaths standing there and wearing his Silk Stockings though all these were undisposed upon and that the Defunct's Mother who had given them to her Son had medled therewith who died in a Chamber belonging to his Mother and his name was upon the Mazer January 15. 1630. Cleghorn contra Fairly 6. There are two Cases of Behaving as Heir viz. Intromission with the moveable Heirship and Intromission with the Lands Teinds Tacks or other Rights which might have belonged to the Intromitter as Heir In both which cases the Intromission will not infer this passive Title unlesse the Intrometter might succeed in the same particulars And therefore the apparant Heir of Line and no other can be lyable by Intromission with Heirship moveable because the same can only belong to the Heir of Line So the Intromission with Rents of Lands Tiends or Tack will not infer gestionem unless by the apparant Heir who would succeed therein according as they are provided to Heirs of Line of Conquest Heirs male or of Tailzie or Provision Neither will any other Intromission be relevant but what is immediat or by express Warrant Command or Ratihabition 7. A Tutor or Curator's Intromission will not infer gestionem upon his Pupil unless he accept the same from the Tutor in his Accompts Nor the Intromission of one having a general Commission as Factor c. It was so found in the Case of a Tutor's Intromission with the Rents of the Pupil's Predecessor's Lands for the restitution whereof he was only found lyable Nevember 3. 1665. David Boyd contra Tailzfair 8. Behaving as Heir by Intromission with the moveable Heirship is most unquestionable when the said moveable is chosen drawn and separat by the Heir from the remanent moveables In which case the apparant Heir will not be admitted to alledge that the Defunct could not have an Heir or Heirship moveable when he formerly drew the same July 13. 1631. Laird of of Gadgirth contra Laird of Auchinleck But it seems very hard where the apparant Heir's choice of such particulars as the best of every Kind for her Heirship doth not evidently appear for that must be accounted the best which is such in the opinion of the apparant Heir And yet in favourable Cases Intromission with any Kind of moveables out of which Heirship may be drawn will be found sufficient and repute as the Heir's choice As the apparant Heir's making use of his Fathers Board lying in his Bed though he disposed not thereof and though the same were standing in a House disponed to him by his Father before contracting of the Debt pursued on seing he continued two years in possesion and got no Warrant from the Lords or made any Inventary thereof July 14. 1626. Gilbert Johnston and Masson his Spouse contra Masson The like by making use of the Defunct's Bassin Silver Spoons Timber Beds and Boards without alienation thereof though the beginning of the Intromission was when the Intrometter was not apparant Heir himself but was Tutor to another Heir who was Idiot seing he continued five years after the Idiot's Death himself being then apparant Heir January 17. 1627. Frazer contra Monimusk Yet the contrary was found where the Intromission began before the Intrometter was apparant Heir there being a nearer apparant Heir though it continued after that nearer apparant Heir's Death when the Intrometter was apparant Heir July 〈◊〉 1629. Mr. Robert Cuuingham contra Moultry Yea Behaving as Heir was sustained by Intromission with certain Goods of the Defunct which might have been Heirship though they were confirmed promiscously by an Executor and bought from him by the apparant Heir But this Executor was his own domestick Servant and confirmed to his own behoof December 16. 1630. Weir contra Ker of Cavers The like where the Heirship Goods were sold to the apparant Heir by a stranger seing they were not delivered to that stranger but possest by the Defunct till his Decease but his possession continued by the apparant Heir Nicol. Plus valet quod agitur Feb. 9. 1621. Melvil contra Melvil But the contrary was found the Goods being disponed by the Defunct to the apparant Heir albeit not delivered before his death otherways than that the Defunct being un-married came to his Son's House and lived with him till his death January 30. 1630. Calderwood contra Porteous Neither was the same inferred by a Disposition of the Defunct to his apparant Heir of certain moveables in satisfaction of his Heirship moveables whereunto he might succeed Feb. 24. 1636. Meidhope contra Hepburn 9. The ordinary Objections and Exceptions against Behaving as Heir by Intromission with the Heirship moveable are First That the Defunct was neither Prelat Baron nor Burgess to whose Heirs only Heirship moveable is competent by the Act of Parliament the extent whereof is shown in the former Title And therefore the Pursuer must condescend and instruct that the Defunct was either Baron Prelat or Burgess which would besufficiently instructed by the Defunct's Infeftments of Lands or Annualrents at any time for thence it would be presumed that he continued undenuded till his death semel baro semper baro presumptivè And this will be elided by this Exception That the Defunct was denuded before his Death For though some have been of opinion that semel baro semper baro is meant that though a Person once infeft were denuded yet his Heir would have Heirship as a Baron For which I find neither Reason nor Decision But it is most reasonable that he who is once proven to be a Baron should be presumed so to continue unless the contrary were proven that he was denuded It was so found January 27. 1636. Straiton contra Chirnside But if the Legal was not expired at the Defunct's Death he is not esteemed denuded and therefore his Heir hath Heirship Feb. 26. 1663. Cuthbert of Drakies contra Monro of Foulis July 8. 1628. Dumbar contra Lesly Neither will it be sufficient that the Defunct was once Burgess but itmust be proven that when he died he was acting as a Burgess So that neither the Heirs of honorary Burgesses nor they who once were
the Debitor the Executor not being called March 9. 1627. Forrester contra Clerk And before the Pursuit against the Debitor at the Legatar's instance was simply repelled not being against the Executor February 4. 1623. Laird of Balnamoon contra Balcomie Yet Process was sustained at the instance of the universal Legatar against the Debitor the Executor being also called Here there was Malversation betwixt the Executor and Debitors But ordinarly Legatars have no immediat Action against the Debitors of the Defunct but only against his Executor Hope Legacy Ballantine contra Mr. John Eliot Legacies may be left not only in Testaments or Codicils but where there is none or where there is in Contract Letters or Tickets apart though the Legacies were not in the Confirmation December 1. 1629. Executors of Sir William Scot contra Arthur Rae 39. Legacies and Donations in contemplation of Death or done on Death bed albeit as inter vivos yet being of Moveables as Bonds Assignations or Gifts of Money or Goods on Death-bed have the like effect and are only effectual as to the Defuncts free Goods at his disposal which is called the Dead's part And if the whole Legacies exceed Dead 's part of the free Geere regularly they are abated proportionally Wherein there is no preference nor Priviledge granted to Legacies left ad pias causas as for building of a Kirk delivered by the Defunct long ere he dyed which suffered proportionable Defalcation with the ordinary Legacies July 8. 1630. Doctor Monro contra Executors of William Scot. But if the Defunct express his Will to leave a Legacy without Defalcation it will not be defalked with the other Legacies 40. Whether a special Legacy without such express Will of the Defunct will be abated proportionally with other Legacies I have not observed oft decyded But I conceive it will not bear proportional Deduction because though not the express yet the tacit and presumed Will of the Defunct seems to be so Else why should he leave that Legacy more specially than the rest Which is more clear in things left in Legacy as when a Horse Sword Cloaths c. are left and the other Legacies are not special there seems no reason upon failing of the other Legacies to burthen the special Legacies abated they cannot be directly not being Quantities but Bodies The same reason is in Sums specially legat for though it may appear that the Defunct's reason may be to leave such a special Debt to such a Legatar not as a 〈◊〉 but because that Debitor is less solvendo yet with that hazard the other advantage is consequent that as he will get no benefit with the other Legatars solie should bear no abatement with them It was so decyded July 21. 1665. Spreul contra Murray 41. Quaeritur Whether as in the Civil Law so with us if the Testator leave a special Legacy of that which he knows is not his own it will be valid quoad valorem It was found that a special Legacy left of an heritable Bond which fell not in Executory was valid to affect the Dead's part of Moveables pro tanto 22 of Januarie 1624. Drummond contra Drummond A Legacy by a Wife ordaining an Executor to discharge a Bond to the Legatar was found valid and to be made up by the Wife's Executors albeit the Half of the Bond belonged to the Husband jure mariti as being legatum rei aliena scienter legatae and the Wife was presumed to know that common Principle in Law and not to be ignorant thereof 18. of June 1664. Murray contra Executors of Rutherfoord It was also so decided of a Bond left in Legacy which Bond had been assigned by the Defunct to another shortly before his Death whereof he was presumed not to be ignorant 14. June 1664. Alexander Falconer contra Mr. John Dowgal The like was found of a Legacy left by a Defunct out of a Sum he had upon such Lands which Sum he could not but know was heretable and could not be legat wherethe Executor who was also Heir was decemed to make good the Legacy 2. of December 1674. Robert Cranstoun contra Brown Yet a Legacy being special bearing such a Bond to be confirmed and communicat to the Legatar was not found due or to be made up in respect that after the Legacy the Defunct made that Bond heretable by a superveening Security which did import the Revocation of the Legacy July 8. 1673. Grizel Edmondstoun contra Margaret Primrose But where the Testator gives a special Legacy of that which he supposeth to be his own he giveth it but as he hath it without any warrandice being meerly gratuitous and the Executor is not obliged to make it good As if he legat a Sum which he supposeth moveable and yet is truely heretable February 21. 1663. Anna Wardlaw contra Frazer of Kilmundie 42. Legacies are sometimes left together in one Writ and sometimes by posterior Writs which do not derogat to the prior Legacies but all come in together If they exceed the Defunct's part they suffer all proportional Abatement except such as are special Legacies For if one Thing or Sum be Specially legat to one Person and by a posterior Writ be legat to another the posterior Legacy takes place and is a Revocation of the former and they do not come in together concursu partes facere as they would do if left in one Writ by the Roman Law and each Legatar would have but a Half But we have no such Custom or Style to legat the same thing intirely to different Persons in the same Writ And if that should happen it is like that the posterior Legacy though in the same Writ would exclude the prior as an alteration of the Testator's mind while his Testament was a framing for it is ordinary in the same Writ to alter prior Clauses by posterior There is also this Exception of the Consistency of Legacies left at diverse times that the Assignations as inter vivos on Death-bed have only the effect of Legacies Yet posterior Assignations though not special but generally out of so much of the Defunct's Means are preferable to prior general Assignations July 21. 1676. Trails contra Gordoun And Bonds of Provision to Children on Death-bed though they have but the effect of Legacies yet they do not come in with prior Legacies to suffer a proportional Abatement but are preferred thereto December 14. 1676. Katharin Mitchel contra Litlejohn And a Defunct having on Death-bed given Assignation to one of his Children to some of his Bonds and thereafter by his Testament nominat that Child and an other his Executors and universal Legatars the universal Legacy was not found to take away the prior Assignation though the same was not delivered nor did contain a Claūse dispensing with Delivery but that Child had both the Assignation and the Half of the remainder of Dead's part January 29. 1677. Aikman contra Successors of David Boyd A Legacy by a Husband to his Wife
are designed there is no relief by other kirk-Kirk-lands except these who had Feus of other parts of the same Gleib seing by the foresaids Statutes the Feuars of old Manses or Gleibs are to suffer Designation or to purchase new Manses and Gleibs so that these old Manses and Gleibs do not infer relief This relief is not debitum fundi affecting singular successors as was found June 1675 Schaw contra Hamiltoun of Munckland But when the Designation is of Temporal Lands the whole Heretors of Temporal Lands are to contribute for a recompense thereof proportionally Par 1649 cap 131 revived Par 1663 Session 3. cap. 20. Gleibs are Teind-free Parl. 1578. cap. 62. The like where they are Arable or Grass Par. 121. cap. 10. And a Gleib was found Teind-free though lately mortified voluntarly without Designation or Process and though not mortified to a Paroch Church but a Chappel seing Divine Worship was accustomed to be therein June 9. 1676. Alexander Burnet contra William Gibb 41. There is another division of Infeftments into these which are granted to one Person and his Heirs and to more Persons and their Heirs which are of diverse sorts sometimes as Conjunct-infeftments and sometimes conceived in favours of Fathers and after their decease to Children or relations therein nominat Conjunct-infeftments are called Conjunct-Fees whereby the Fee is disponed joyntly to more persons and their Heirs which may be to three or more persons who by the Infeftment become all Fiars joyntly and equally whence there ariseth a Communion by which they do possess the Fee pro indiviso until division thereof be made which doth not comprehend an Infeftment to an Incorporation as to a Town or Colledge or to the use of the Poor who do not thereby become joynt Fiars but have only a share of the benefite according to the distribution appointed These Infeftments are not conceived to Heirs seing Incorporations are perpetual and die not neither doth the publick use fail therefore such Infeftments require no renovation Superiours will not easily be induced to accept Resignations from their Vassals in favours of Incorporations and publick uses by which all the Casualities of their Superiority cease or to grant Confirmations thereof having the same effect Nor can they be compelled to grant such Infeftments upon the Vassals Bonds granted of purpose that Adjudication may be used thereupon that thereby the Superiour may be compelled to receive the Incorporation yea though without design an Incorporation should become Creditor to a Vassal in a debt truly borrowed either from the Incorporation or their Cedent The question is whether an Adjudication thereupon might force the Superiour to receive the Incorporation for a years Rent Craigs opinion is in the Negative and I have not heard such a case come to be debated And though Custom hath oblieged Superiours to receive man and Wife in Conjunct-Fee which abate their Casualities during the life of two persons the consequence would not be good to reach to an Incorporation that never dies though the Act of Parliament introducing Appryzings and Adjudications be generally in favours of all Creditors It were more just that Incorporations should pitch upon a person and assign their debt to him expresly to the effect that the Lands might be adjudged to him and his Heirs for the use and behove of the Incorporation or such other uses as were designed which would be effectual against all singular Successors especially if the Trust were exprest in the Seasine but the Superiour would have all his Casualities by the death neglect or delinquence of the Trustee and his Heirs I shall not pre-determine my self or others in the case but leave it to publick determination Conjunct-Fees by the Custom of England are always so understood that the survivers have the whole benefite so long as any of them are alive but we do only extend this survivancy to Conjunct-infeftments to Husband and Wife which bears ordinarly to the longest liver But though that were not exprest it would be understood as implyed and generally it resolves in the Wife but as a Liferent and the Husband is understood to be Fiar unless it be evident that the Right was originally the Wifes and a Liferent only designed for the Husband and therefore if no Heirs be exprest or only generally their Heirs the Husbands Heir is understood in Heretable Rights Nam potior est conditio masculi and the Wife is only Liferenter but with greater power then by a separate Liferent June 24. 1663. Elizabeth Scrymzour contra Murrays And a Wife having charged upon a Bond granted to her Husband and her and the longest liver was found not to have right to uplift the sum or to insist therefore without concurse of the mans Heir or he being called that if the sum were insecure it might be consigned to be re-imployed to the wife in Liferent and to the Heir in Fee December 10. 1671. Katharine Ross contra Laird of Hunthill Yea a Clause in a Bond bearing a sum borrowed from a Husband and wife and payable to the longest liver of them two in Coniunct-fee and to the Heirs betwixt them and their Assigneys whilks failing to the Heirs and Assigneys of the last liver was found to constitute the Husband Fiar and the Wife Liferenter albeit she was last liver whereby her Heirs of Line failing Heirs of the Marriage became Heirs of provision to the Husband and lyable to his debts January 29. 1669. Graham contra Park and Gerdan January 23. 1668. John Justice contra Mary Barcley his Spouse And a Clause in a Contract of Marriage oblieging the Husband to take the Conquest to him and his future Spouse and the Heirs betwixt them whilks failing the Heirs of the Mans Body whilks failing the Wifes Heirs whatsomever was found not to constitute the Wife Fiar but Liferenter and the Husband Fiar whereby failing Heirs of the Marriage and of the Mans Body the Wifes Heirs of Line were Heirs of provision to the Man February 20. 1667. Cranstoun contra Wilkison For by this Clause of Conquest it is evident the means were to come by the Man yet an Obliegement by a Man bearing that whatsoever Lands or sums of Money he should purchase during the life of him and his future Spouse their present debts being first payed that the wife should be secured therein in Conjunct-fee and in case of no Issue or Children the one half thereof to be disponed as the Wife should think fit was found to make the Conquest divide betwixt the Heirs of the Man and the Wife and that her power to dispone the half was not a personal Faculty but did make her Fiar in that half and took off the presumption of the preference of the Husband seing no mention was made of the Heirs of either party June 27. and 28. 1676. Earl of Dumfermling contra Earl of Callender Conjunct-Fees to Husband and Wife and the Heirs of the Marriage do imply a restriction upon the Man not to
by the reason of the Statute that Tennents be not put at unaworse to seek their habitations or at an unseasonable time of the year and therefore it is not necessary in several cases First where the Possessor is not Tennent but a vitious Possessor or where the Possessor hath nothing but an insufficient Infeftment or tollerance For the Statute is only in favours of Tennents who are lyable for Mails and Duties Secondly Warning was not found necessary for removing Possessor from a Tower or Fortalice though set in Tack Hope hic Lady Saltoun contra Mr. William Livingstoun or from a Coal Ibid. Wolmet contra Niddrie Or from the possession of a Liferenters House or Land after the Liferenters death and that upon suplication it was obtained without Process Hope Liserent Prestoun contra Cockpen And this was competent at the instance of a Liferenter against these who continued the possession of a former Liferenter after her death January 12. 1622. Lady Kincaid contra her Tennents The like but to take effect at Whitsonday after the Process against a Liferenters servant possessing without a Tack in write and also without violent profites February 16. 1628. Thomson contra Merstoun But if the possession from the Liferenter be by vertue of a Tack the possessor must be warned as hath been shown amongst the effects of Tacks Removing is also competent by sorce of of Law upon a Process to find caution for the rent or to remove of which before As to what is special in Tacks of teinds hath been considered in that Title The prime kind of removing is that which is solemn upon Warning for clearing whereof we shall first consider the order pre-required Secondly The interest of the pursuer Thirdly The exceptions of the Defender Fourthly The effects of removing 39. The Order of removing of old was thus The Master of the ground did only verbally intimate to the Tennent to remove at the next Whitsonday and the only solemnity requisite was that before the said term he appeared before the door of the Tennent and broke a Lance there as a Symbol of his breaking the tacite relocation betwixt them whereupon the second day after Whitsonday he came braevi manu and expelled the tennent or at least laid out some of his Goods to compleat the solemnity of his removing Craig hic Hence arose many quarrels violences and breaches of the publick Peace when the tennent had any reason or pretence for which not to remove or otherways was unwilling and not compelled by Law or publick Authority but by private force 40. For remeid whereof that excellent Statute concerning warning and removing of tennents was made Par. 1555. cap. 39. prescriving the Order of removing thus That the Master of the Ground give a Precept of warning in write commanding his Officer which may be any person he pleaseth for whose name a blank is set in the Precept to go fourty dayes preceeding Whitsonday and intimate to the tennent that he remove himself his family sub-tennents goods and gear at the said term and leave the tenement void and red that the warner may enter in Possession this may be done either personnally or at his dwelling house Secondly The Precept must authorize the Officer to make the said denounciation fourty days before the term upon the ground of the Land leaving a Copy thereof affixed thereupon and by the same space it must be done at the Kirk-door at the time of dissolving the Congregation from the first Sermon leaving a Copy thereof affixed upon the Kirk-door all which must be done before two witnesse required for that effect and Executions made conform by the Officer which without any other Instrument or Solemnity doth sufficiently prove unless it be improven upon this order the pursuer hath a priviledged action upon six days warning only without continuation Par. 1555. cap. 39. and that because of the necessity of the dispatch that the new tennents who hath taken may be put in Possession and the Land not left waste both to publick and private detriment This Order must be used though the term of the Tack be not at Whitsonday but at Martimess or Candlesmess and it will not suffice to be made fourty days before these terms June 15. 1631. Ramsay contra Weir The reason hereof is because the warning is appointed that the tennents may timeously provide for themselves which cannot be but before Whitsonday the ordinary time Lands use to be set if the parties removed be out of the Countrey it will suffice to warn them upon the ground and at the Kirk-door upon fourty days but the Citation must be upon sixty dayes which is consequent from the Statute which prescrives nothing different from the ordinary course of Law in the case of parties out of the Countrey it was so decided January 11. 1622. Laird of Faldenside contra Bimerside February 20. 1666. Mebrair contra Sir Robert Chrightoun alias Murray This Statute reacheth not warnings from tenements within Burgh which are regulat by the custom of Burgh Thus the Town Officer by command of a Bailie though without write warneth only at the tenement fourty days preceeding Whitsonday and in evidence thereof useth to Chalk the Door Craig hic Nicolson removing Andrew Ker contra Euphan Moor this was extended to a house within Burgh of Barony July 18. 1634. Mr. John Hart contra Nor was warning before Whitsonday found necessary for removing a tennent from a Soap-work November 21. 1671. James Riddel contra Charles Zinzan 41. We come now to the Tit. requisite for removing which must be a real Right of the ground except the question be against a party who is personally oblieged to remove And therefore first there needs no Title against such parties who had the possession from the pursuer for these can never question his Title whose interest depends thereupon but acknowledging him by payment of Mails and duties will not be sufficient without a Right in the pursuer Secondly a personal or incompleat right is a sufficient Title for removing against the granter of it or his Heirs if it contain a Clause to remove or put the pursuer in possession expresly or by consequence Thirdly Infeftment of property or Liferent is a sufficient Title in removing and that upon production of the Seasine only where the Defender shows no better Right Nicol. removing Adam Wat contra Ord But the Seasine must be both before the warning and the term except first in the case of Heirs this being a possessory judgement and a continuance of the predecessors possession so that the Tennent cannot be in doubt or hazard to quite the possession as he may be in other cases where he may be lyable both for the rent and rendering the possession to another party and so it was sustained at the instance of an Heir though his retour and Seasine were after the warning February 9. 1610. Earl of Kingborn contra Arbuthnet Hope hic John Small contra Tennents of
Baltersaw in the case of an Apprizer whose Appryzing was before the Warning it was found valide though the Infeftment was after against the Debitor from whom the Lands were Apprized but to take effect at Whitsonday thereafter and without violent Profites December 18. 1632. Dalrimple contra Douglas And removing was sustained at the instance of an Heir Retoured and Infeft pursued upon a warning used by his Predecessor though his Infeftment was after the Term July 28. 1637. Earl of Hadingtoun contra his Tennents It was also sustained at the instance of a Fiar upon a Warning made by a Liferenter and Fiar joyntly November 27. 1629. Ramsay contra Hoom. But a removing was not sustained upon a warning made by the Fiar before the Liferenters death no not to take effect at the next Whitsonday without a new warning June 30. 1669. Agnew contra Tennents of Dronlaw Though Infeftment be the best Title for removing yet it must be limited First It takes no place being upon Infeftment proceeding upon a Precept of Clare constat Hope hic Stevinson contra Stevinson and that in respect this Precept is but the Assertion of the granter Yet if either the Predecessour of that Heir was in Possession or the Superiour himself it would suffice Secondly It holds not in base Infeftments not cled with Possession unless the Authors Right be instructed or acknowledged if the Defender have any Title Thirdly A Tercers Service and Kenning to her Terce is a sufficient Title in removing Fourthlie The Courtesie of Scotland is a good Title for removing after a Wifes death without any Seasine or Solemnity or the Husbands jus mariti before her death which will be effectual though she die before Sentence or Process to the effect that the Husband may get the benefite of the violent profites for the time preceeding her death though he cannot attain the Possession Fifthly An Executor may insist for a removing upon a warning used by the Defunct to the effect he may obtain the violent profites due before the Defuncts death Sixthly a tack is a sufficient Title for removing if it contain expressely the power to out-put and in-put Tennents or if it be a Liferent-tack or for nineteen years or above as hath been now shown amongst the effects of Tacks but this must proceed either upon the setters Right or a Possessory judgement in the setter or Tacks-man Removing is not sustainable upon an incompleat right as upon an Appryzing though the Superiour be charged and the Letters have been found orderly proceeded against him to infeft the Apprizer and the objection only proponed by Tennents pretending no right March 25. 1628. Bar Lockhart contra his Tennents Yea though the removing was against the Debitor himself February 20. 1629. Mr. John Galloway contra 〈◊〉 Though it hath been now shown that an Appryzer being Infeft obtained removing from an House against his Debitor without warning The like holds in Adjudications and in the case of the Superiours pursuing upon the Vassals Liferent-escheat it not being declared Hope hic Patrick Butter contra Andrew Harvie And so consequently in all other rights of Superiority where Declarator is required and though the Superiour needs show no Title unless the Vassal disclaim him yet his Donatar pursuing upon a Liferent-escheat was not admitted till the Superiours Seasine was produced Hope hic David M'call contra Tennents And it is so in all cases wherein the Superiour or the Vassal are singular successors and so have ground to doubt and cannot be put to disclaim 42. We come now to the Exceptions against removing to speak nothing here of common Exceptions or of thr pursuers want of a sufficient Title which are rather objections then exceptions and are sufficiently cleared by what we have said upon the Titles of Removing It must be adverted that before the Defender can have any exception admitted to his probation he must find Caution for the violent profites if he succumb And that by the said Statute 1555. Cap. 39. justly introduced in respect of the contentiousness of parties to keep possession yet this will not hinder objections against the Titles or the like being instantly verified and not making delay that being the motive of that Act to prevent delays 43. These exceptions though they be many may be thus Martialled they are first against the order and warning Secondly Upon deeds done by the Pursuer Thirdly Upon the interest of the Defenders Master Fourthly Upon the Defenders own interest Fifthly Upon obedience For the first every point of the warning now related is so necessary that the omitting of any one affoordeth a sufficient defence yer a warning was not found null though made at a Kirk-door where there were no divine service accustomed being in the time that divine service used to be performed and the Kirk being known a distinct Kirk Nicolson hic Hoom contra Removing may be excluded by deeds done by the pursuer either by any personal obliegement not to remove or any deed importing the same as a Disposition or Obliegement to Infeft which are sufficient against him but not against his singular Successors or if he renunce or pass from the warning or action either directly or by deeds importing the same as taking Rents before the hand or taking a Herezeld as to the year ensuing March 20. 1629. Auchinleck contra Mathie Or by accepting the old accustomed Mails for Terms after the warning Nicolson de migrando Irving contra French Hope hic Carnousie contra Or by receipt of Taxation for Terms since the Decreet of removing ibid. Or by accepting services contained in the Tack for the Terms after the warning but this is not relevant if the same be at the command of the pursuers Factor or Grieve without special order March 5. 1629. Laird of Lie younger contra Kirkwood Neither by accepting presents though accustomed not being special in the Tack these being interpret gratuitous as before is shown Removing is also elided by prescription upon three years forbearance to pursue And that by the Statute 1579. cap. 82. for thereby the pursuer is presumed to pass from his warning but these three years are not accounted anni continui but anni utiles from the warning without accounting the time betwixt the warning and Term but from the Term to which the warning was made because none can be said to delay to pursue before he be necessitate to pursue which is not till after the Term it was so decided February 6. 1629. Lady Borthwick contra Scot of Goldilands But removing may be sustained before the Term that it may take effect precisely at the Term Otherways many Tennents may be disappointed who take upon the warning of other Tennents their Rooms and renunce their own or are warned therefrom and so removing was sustained before the Term to take effect then November 21. 1671. James Riddel contra Charles Zinsan But the process being once intended it continues till the great prescription of fourty years except such as
the Neices name seing he filled it not up till the granters Sicknesse July 22. 1678. Birnies contra Polmais and Brouns But Death-bed was not found to hinder the recalling of a Disposition made by a Grand-father to his Oye and delivered to a third Party in Leige poustie if it should appear that the delivery was not Simply to the behove of the Oye whereby it became Irrevocable but Conditionally that the Disponer might recal it for eviden ce whereof it was proven by that third Parties Oath That the Defunct on Death-bed called for it and he delivered it and that the Defunct on Death-bed delivered two Blanks for dividing the Right in the first Disposition which he delivered with his said first Disposition to a Nottar And ordered the filling up of the one half to the Heir the other half to a second Son but for further clearing the Partie to whom the first Disposition was first delivered was appointed to be examined what the Defunct exprest when he delivered the first Disposition to him Decem. 9. 1676. Janet Ker contra Ninian Ker. But thereafter the third Partie not being found to be examined The Lords found that there being nothing proven exprest at the delivery The recalling and the re-delivery did import that the delivery was not Simple to the behove of the Oye making it Irrevocable But that it was Conditional to be delivered to the Oye if the Disponer did not recall it and that his recalling of it for a special effect to divide the same betwixt his Heir and the second Son was effectual both against his Oye to whom he first Disponed and as effectual against his Heir as to the one half albeit the Revocation was onDeath-bed Seing thereby the Heir had no prejudice but benefit being formerly Excluded by the Disposition to the Oye delivered in Liege Poustie January 25. 1677. inter eosdem 30. But onlyFree deeds onDeath-bed are thusReduceable for if there were an equivalent Cause Onerous which was truly Imploy'd upon the Defunct or might affect the Heir it is not to the Heirs Prejudice and so not Reduceable thus the Reason of Death-bed was eleided because the Band quareled was offered to be proven for Furnishing truly Delivered to the Defunct July 13. 1632. Pollock contra Fairholme The like of a Discharge granted by a Bastard after he was Infected of the Plague against the Donatar of the Bastardry November 23. 1609. Marr contra Auchinleck In all these Witnesses are Sustained to prove the Cause Onerous in the write And likewise a Band granted on Death-bed being proven for a Cause Onerous in part viz. Droggs and Service to the Defunct on his Death-bed was sustained pro tanto and Reduced for the rest January 7. 1624. Schaw contra Gray But a Liferent granted to a Wife on Death-bed and a Liferent-Tack of Teinds of the Lands Liferented were not reduced Hope Teinds Lady Dunlap contra Laird Dunlap The reason whereof is observed to have been because the Husband before Sickness was bound to Infeft his Wife in Lands or Anualrent equivalent Nicol. de haereditarijs actionibus inter eosdem 31. AsDeeds on Death-bed prejudge not the Heir So deeds in Testaments though done in Leige Poustie have no more Effect then on Death-bed And it is not habilis modus by Testament to dispone any Heritable Right December 14. 1664. Colvin contra Colvin Death-bed is not competent by Exception but by Reduction January 11. 1666. Grizell Seatown contra Dundas But in Declaratorie or Petitory Actions as Recognition it is receivable by Exception July 20. 1669. Barcley contra Barcley Or in a Reduction it is competent by Exception or Reply February 3. 1672. Barbara Hoom contra Bryson A third difference is that Successors in Moveables or Executors are not lyable Passive for the Defuncts Debts in Solidum but Heirs are Though they farr exceed the Value of the Inheritance without the benefit of an Inventar And though Craigs Opinion is that Heirs may Renounce even after their Entry if the Heritage appear overburdened The course of Decision since his time hath cleared the Contrary 32. Because Heirs entring cannot Renounce there is Annus deliberandi allowed to them by Law in which they may abstain from entering and Immixing themselves with the Heritage and then they are not conveenable for the Defuncts debt upon charges to enter Heir or otherwise but if they enter or meddle sooner they are lyable This Annus deliberandi is ordinarily accounted a year from the Defuncts Death which was so accounted though during a great part thereof the Heir remained unborn February 7. 1610. Knows contra Menzies But the Contrary was found thereafter that the year was accounted from the Birth of the Posthumus Heir that the benefit of Deliberation might be profitable to his Tutor in his Name Spots Heirs Livingstown contra Fullertown If the Day of Compearance be after the Charge to enter Heir and after the year it will be Susrained June 27. 1667. Dewar contra Paterson In which case it was found that even Actions Real as Reductions 〈◊〉 c. which require no Charge to enter Heir are not Competent within the year of Deliberation because in these the Heir cannot Defend without the Hazard of behaving as Heir 33. Succession in Heritable Rights in Scotland are either by the will of the Fiar or by Law Provistone Hominis or Legis Heirs by the 〈◊〉 of Law are called Heirs of Line as befalling by the Line of Succession appointed and known in Law all other Heirs do Cross or Cut that Line and therefore are called Heirs of Tailzie from the French word 〈◊〉 to Cut whence Craig conceiveth this Tailzied Succession hath been first denominat amongst the French and Normands and thence being brought into England by the Normand Conquest both in Custom and Name hath been Derived to Us Yet it is liker to have come to us Immediatly from France with which we keeped greater Intercourse then with England of Old And our Tailzies at least to Heirs Male are Ancienter than the English which begun but from the Famous Law called the Second Statute of Westminster in the Reign of Edward the First of that Name of the Normand Line Heirs of Tailzie are also called Heirs of Provision which terms are Equiparat both comprehending all Heirs which are not according to the Line or Course of Law and among others Heirs Male and Heirs of Marriage Yet our Stile doth ordinarily distinguish them so that where there is no alteration from the Lineall Heirs Male and where there are severall Substitutions of certain Persons or Lines failling others by the tenor of the Infeftment they are Specially called Heirs of Tailzie but when there is an Alteration of the Lineal Succession yet not Simply to Heirs Male nor to divers Members of Tailzie they retain the common Name of Heirs of Provision as is most ordinar by Contracts of Marriage providing Lands to the Heirs of the Marriage whereby the Heirs Lawfully Procreat betwixt the